DOCUMENT' 1 OF
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DOC;JHE:MT DATE -•- oi/13/Si
> INTERPRETATION OF THE FOSSIL. "!JEL COMBUST TON WASTE EKC.LUS I DM IN
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SUMMARY
This Directive is a latter from Gary N. Dietrich
'Deputy Assistant Administrator) to Paul Elroler,
Jr. \Chairrnan of the Utility Solid Waste
^g^bivities Group — USWAG) . It interprets
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
8 WASHINGTON. D.C. 20460
JAN 131981
orncc of WATER
AND WASTE MANAGEMENT
Mr. Paul Emler, Jr.
Chairman
Utility Solid Waste Activities
Group
Suite 700
1111 Nineteenth Street, N.W.
Washington, D.C. 20036
.Dear Mr. Emler:
This is a response to your letter of October 10, 1980 to
Administrator Costle, regarding the .recent Solid Waste Disposal
Act Amendments of 1980 and their relation to the electric utility
industry. In your letter and its-accompanying document, you
discussed the specific amendments which address fossil fuel
combustion wastes, and suggested interpretive language which
EPA should adopt in carrying out the mandate of the amendments.
You requested a meeting with our staff to make us more fully
aware of the solid waste management practices of the electric
utility industry, and to discuss the effect of the amendments on
the utility solid waste study which EPA is.currently conducting.
I appreciated the opportunity to meet with you, in your
capacity as chairman of the Utility Solid Waste Activities
Group (USWAG), on November 21 to discuss your concerns. I
am taking this occasion to share with you the most recent EPA
thinking on the exclusion from our hazardous waste management
regulations of waste generated by the combustion of fossil
fuels, and to confirm certain agreements which were reached
during our meeting. The language contained in this letter
should provide you and your constituents with an adequate
interpretation of the fossil fuel combustion waste exclusion
in Section 261.4(b)(4) of our regulations. This letter is
also being circulated to appropriate Agency personnel, such
as our Regional Directors of Enforcement, for their information
and use. We intend to issue in the Federal Register an official *
Regulations Interpretation Memorandum reflecting "the policies
articulated in this letter.
In our May 19, 1980 hazardous waste management regulations,
we published an exclusion from Subtitle C regulation for those
fossil fuel combustion wastes which were the subject of then
pending Congressional amendments. The language of that exclusion
in §261.4(b)(4). of our May 19 regulations is identical to per-
tinent language of. Section 7 of the Solid Waste Disposal Act
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A.-nendments of 1980 (P.L. 96-482) which was enacted on October 21,
1980 and which mandates that exclusion. Specifically, the
exclusion language of our regulations provides that the following
solid wastes are not hazardous wastes:
"Fly ash waste, bottom ash waste, slag waste, and
flue gas emission control waste generated primarily
from the combustion of coal or other fossil fuels."
Residues from the Combustion of Fuel Mixtures
The first point which you raise in your letter and your
"Proposed RIM Language" is the interpretation of the term
"primarily" used in this exclusion language. EPA believes
that Congress intended the term "primarily" to mean that the
fossil fuel is the predominant fuel in the fuel mix, i.e.,
•nore than 50 percent of the fuel mix. (See Congressional
Record, February 20, 1980, p. H1103, remarks of Congressman
Horton and p. H1102, remarks of Congressman Bevill.) Therefore,
EPA is•interpreting the exclusion of §261.4(b)(4) to include
fly ash, bottom ash, boiler slag and flue gas emission control
wastes (hereinafter referred to as "combustion wastes") that
ara generated by the combustion of mixtures of fossil fuels
and alternative fuels, provided that fossil fuels make up at
least 50 percent of the fuel mix.
This interpretation begs the question of whether the
exclusion also extends to combustion v;astes that re'sult from
the burning of mixtures of fossil fuels and hazardous wastes.
We have limited data which indicates that spent solvents
listed in §261.31 of our regulations, certain distillation
residues listed in §261.32, waste oils that may be hazardous
wastes by virtue of characteristics or the mixture rule, and
other hazardous wastes are often burned as supplemental fuels—
sometimes in proportionally small amounts but sometimes in
significant amounts (comprising 10 percent or more of the fuel
mix ratio)—particularly in industrial boilers but sometimes in
utility boilers. EPA is concerned about the human health and
environmental effect of the burning of these hazardous wastes:
both the effect of emissions into the atmosphere and the
effect of combustion residuals that would be contained in the
fly ash, bottom ash, boiler slag and flue gas emission control
wastes.
We intend to address the first of these concerns in our
future development of special requirements applicable to hazardous
wastes that are beneficially used or legitimately recycled.
In §261.6 of our May 19, 1980 regulations, we currently exempt
from regulatory coverage hazardous wastes that are benefically
used or legitimately recycled, except that, where these wastes
are listed as hazardous wastes or sludges, their s.torage or
transportation prior to use or recycle is subject to our
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regulations. We clearly explained in the preamble to Part
261 of our May 19 regulations that we fully intend to even-
tually regulate the use and recycling of hazardous wastes and,
in doing so, would probably, in most cases, develop special
requirements that provide adequate protection of human health
and the environment without unwarranted discouragement of
resource conservation. Consequently, although the burning of
hazardous waste as a fuel (a beneficial use assuming that the
waste has a positive fuel value) is not now subject to our
regulations (except as noted above) it may well be subject to
our regulation in the future.
Our second concern with combustion of fuel mixtures is the
one at focus in this interpretation. It must first be noted
that we do not intend for §261.6 to provide an exemption from
regulation for combustion wastes resulting from the burning of
hazardous wastes in combination with fossil fuels; it only
provides an exemption for the actual burning of hazardous wastes
for recovery of fuel value. Thus, if these combustion wastes
are exempted from our regulation, such exemption must be
found through interpretation of §261.4(b)(4). Secondly, we
note that although the pertinent language in Section 7 of the
Solid Waste Disposal Act Amendments of 1980 and the related
legislative history on this matter speak of allowing the burning
of alternative fuel without precisely defining or delineating
the types of alternative fuel, the only examples of alternative
fuels used in the legislative history are refuse derived fuels.
Therefore, a literal reading of the legislative history might
enable us to interpret the exclusion to include combustion
wastes resulting from the burning of fossil fuels and other
fuels, including hazardous wastes. However, since each of these
legislative comments was made in the context of refuse derived
fuels or other non-hazardous alternate fuels, we do not believe
the Congressional intent compels us to make such an interpretation
if we have reason to believe that such combustion wastes are
hazardous.
Presently, we have little data on whether or to what extent
combustion wastes are "contaminated" by the burning of fossil
fuel/hazardous waste mixtures. The data we do have (e.g., burning
of waste oils) suggests that the hazardous waste could contribute
toxic heavy metal contaminants to such combustion wastes, when
coal is the primary fuel, the amount of resulting contamination
is probably in amounts that are not significantly different than
the metals that would be contributed by the fossil fuel component
of the fuel mixture. This may not be the case with oil and gas, ,
where huge volumes of waste are not available to provide a dilution
effect. We suspect that the other hazardous constituents of the
hazardous wastes that typically would be burned as a fuel are
either thermally destroyed or are emitted in the flue gas (and
therefore are part of our first concern as discussed above). If
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these data and this presumption are true, then combustion wastas
resulting from the- burning of coal/hazardous waste mixtures should
not be significantly different in composition than combustion wastes
generated by the burning of coal alone. Because the Congress has
seen fit to exclude the latter wastes from Subtitle C, pending more
study, we feel compelled to provide the same exclusion to the
former wastes.
Accordingly, we will interpret the exclusion of §261.4(b)(4)
to include fly ash, bottom ash, boiler slag and flue gas emission
control wastes generated in the combustion of coal/hazardous
waste mixtures provided that coal makes up more than 50 percent
of the fuel mixture.
We offer this interpretation with great reluctance and
with the clear understanding it is subject to change, if and
when data indicate that combustion wastes are significantly
contaminated by the burning of hazardous wastes as fuel. Me
also offer this interpretation with the understanding, as dis-
cussed at our meeting of November 21, that the utility industry
will work with us over the next several months to improve our
data on this matter. We believe it is essential that we make
a •"'.ore informed judgement and possible reconsideration of our
interpretation of the exclusion as soon as possible and before
completion of our longer-term study of utility waste which is
proceeding. Accordingly/ we woul.^ like you to provide to us
all available data on the following questions by August 1, 1981:
1. What types of hazardous wastes are commonly burned as
fuels in utility boilers? In what quantity? In what
ratio to fossil fuels? How often? What is their BTu
content?
2. Does the burning of these wastes contribute hazardous
constituents (see Appendix VIII of Part 261 of our
regulations) to any of the combustion wastes? If so,
what constituents, and in what amounts? How does the
composition of combustion wastes change when hazardous
wastes are burned?
Co-disposal and Co-treatment
The second issue raised in your letter was whether the
exclusion extends to wastes produced in conjunction with the
burning of fossil fuels which are co-disposed or co-treated
with fly ash, bottom ash, boiler slag and flue gas emission
control wastes. As examples of such wastes, you specifically
mention boiler cleaning solutions, boiler blowdown, demineralizer
regenerant, pyrites, cooling tower blowdown, or any "wastes of
power plant origin whose co-treatment with fly ash, bottom
ash, slag and flue gas emission control sludges is regulated
under State-or-EPA-sanctioned management or treatment plans."
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The legislative history on this matter clearly indicates
that the Congress intended that these other wastes be exempted
from Subtitle C regulation provided that they are mixed with
and co-disposed or co-treated with the combustion wastes and
further provided that "there is no evidence of any substantial
environmental danger from these mixtures.." (See Congressional
Record, February 20, 1980, p. H 1102, remarks of Congressman
Bevill; also see remarks of Congressman Rahall, Congressional
Record, February 20, 1980, p. H1104.)
We have very little data on the composition, character
and quantity of these other associated wastes (those cited above),
but the data we do have suggest that they are generated in
small quantities relative to combustion wastes, at least when
coal is the fuel, and that they primarily contain the sane
heavy metal contaminants as the combustion wastes, although
they nay have a signficantly different pH than the combustion
wastes. These limited data therefore suggest that, when.these
other wastes are mixed with and co-disposed or co-treated with
the much larger quantities of combustion wastes, their composition
and character are "masked" by the composition and character of
the combustion wastes; that is, they do not significantly
alter the hazardous character, if any, of the combustion wastes.
Given this information base and given the absence of
definitive information indicating that these other wastes do
pose a "substantial danger" to human health or the environment,
we believe it is appropriate, in the light of Congressional
intent, to interpret the §261.4(b)(4) exclusion to include
other wastes that are generated in conjunction with the burning
of fossil fuels and mixed with and co-disposed or co-treated
with fly ash, bottom ash, boiler slag and flue gas emission
control wastes.
*7e offer this interpretation with some reluctance because
it is made in the absence of definitive information about the
hazardous properties of these other wastes or their mixtures
with combustion wastes. We therefore believe it is imperative
that we proceed to collect all available data on this matter
within the next several months and reconsider this interpre-
tation when these data are assessed. Toward that end and
consistent with the discussion at our meeting of November 21,
we are asking that you assist us in collecting these data.
Specifically, we ask that you collect and submit by August 1,
1981, any available data on the following questions:
1. What are the "other" wastes which are commonly mixed
with and co-disposed or co-treated with fly ash,
bottom ash, boiler slag or flue gas emission control
wastes? What are their physical (e.g., sludge or
liquid) and chemical properties? Are they hazardous
wastes"in accordance with Part 261?
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2. What are-the co-disposal or co-treatment methods
employed?
3. How often are these wastes generated? In what
quantities are they generated? Are they commonly
treated in any way before being co-disposed?
4. Does the industry possess any data on the environ-
mental effects of co-disposing of these wastes?
Groundwater monitoring data? What are the results?
The interpretation on other associated wastes provided in
this letter is limited to wastes that are generated in conjunction
with the burning of fossil fuels. Ke do not intend to exempt
hazardous wastes that are generated by activities that are not
directly associated with fossil fuel combustion, steam genera-
tion or water cooling processes. Thus, for example, the
j261.4(b)(4) exclusion does not cover pesticides or herbicide
wastes;, spent solvents, waste oils or other wastes that might
be generated in construction or maintenance activities typically
carried out at utility and industrial plants; or any of the
commercial chemicals listed in §261.33 which are discarded or
intended to be discarded and therefore are hazardous wastes.
Further, the exclusion does not cover any of the hazardous
wastes listed in §§261.31 or 261.32 of our regulations. None
of these listed wastes were mentioned in your letter or our
discussions.
The interpretation on other wastes is also limited to
wastes that traditionally have been and which actually are
mixed with and co-disposed or co-treated with combustion v/astes.
If any of these other wastes (e.g., boiler cleaning solutions,
boiler blowdown, deraineralizer regenerant, pyrites and cooling
tower blowdown) are segregated and disposed of or treated
separately from combustion wastes and they are hazardous wastes,
they are not covered .by the exclusion. In the same vein, the
exclusion does not cover other wastes where there are no
combustion wastes (or relatively small amounts of combustion
wastes) with which they might be mixed and co-disposed or
co-treated—a situation which might prevail where natural gas
or oil is the principal fossil fuel being used. Therefore,
this interpretation of the exclusion applies only where coal
is the primary fuel. We feel this is a legitimate- interpretation
of Congressional intent, wherein the argument of little potential
environmental hazard, primarily due to the dilution factor,
is clearly based upon co-disposal or co-treatment with the
huge volumes of wastes generated during coal combustion.
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EPA Utility Waste Study
The groups-of questions raised above bring us to the final
subject which you address concerning the study of utility solid
waste management which EPA is conducting. We agree that the
study, as currently being conducted, does not focus on the
matters discussed in this letter. We would, however, like
to address these matters and include them in our report to
Congress, to the extent possible. To accomplish this, we plan
to meet in the very near future with cur contractor, Arthur D.
Little, Inc., to discuss what studies may need to be carried
out in addition to their currently planned activities under
the contract. The inputs of your organization could be quite
useful in this effort. It may be impossible, however, to
modify our present study to include a detailed investigation
of all of the issues discussed above.
Notwithstanding, we would like to address the matters
discussed in this letter within a shorter time frame—during
the next six months. Based on our meeting of November 21,
it is my understanding that the utility industry, working
closely with EPA, is willing to develop data on the questions
put forth above. We agreed that, as a first step, USWAG will
prepare a study outline designed to obtain these data. EPA
staff and industry representatives designated by your organiza-
tion will then mutually review the information needs. The
data collection effort will then follow. Finally, data and
analyses will be presented to EPA for review. This will enable
us to reconsider the interpretation provided in this letter
and nake any changes deemed necessary. Therefore, I would
appreciate it if you would designate a technical representative
as USWAG1s contact person for this coordinated data collection
effort.
in the meantime, and pending completion of this effort,
EPA will interpret 40 CFR S261.4(b)(4) to mean that the following
solid wastes are not hazardous wastes:
(a) Fly ash, bottom ash, boiler slag and flue gas
emission control wastes resulting from (1) the
combustion solely of coal, oil, or natural gas,
(2) the combustion of any mixture of these
fossil fuels, or (3) the combustion of any
mixture of coal and other fuels, up to a 50
percent mixture of such other fuels.
(b) Wastes produced in conjunction with the combus-
tion of fossil fuels, which are necessarily
associated with the production of energy, and
which traditionally have been, and which actually
are, mixed with and co-disposed or co-treated
with fly ash, bottom ash, boiler slag, or flue
gas emission control wastes from coal combustion.
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This provision includes, but is net limited to,
the following wastes:
(1) boiler cleaning solutions,
(2) boiler blowdown,
(3) deraineralizer regenerant,
(4) pyrites, and
(5) cooling tower 'slowdown.
*
I a- hopeful that our future research activities together
will prove fruitful and that these issues can be rapidly resolved.
I have designated Xs. Penelope Kansen of my staff as the Z?A
p^int of contact for this effort. You may reach her at (202)
•755-9206.
Sincerely yours,
Gary N. Dietrich
Associate vsputy Assistant Ad^inistratoc
iior* Sol id Waste
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