United States
Environmental Protection
Agency
oEPA
Office of
Solid Waste and
Emergency Response
DIRECTIVE NUMBER: 9573.00-01
TITLE: Exemption for Municipal Waste Combustion
Ash from Hazardous Waste Regulation Under
RCRA Section 3001(1).
APPROVAL DATE: September 18. 1992
EFFECTIVE DATE: September 18, 1992
ORIGINATING OFFICE: Office of Solid Waste
FINAL
DRAFT
STATUS:
A - Pending OMB Approval
B - Pending AA-OSWER Approval
REFERENCE (Other Documents):
OSWER OSWER OSWER
VE DIRECTIVE DIRECTIVE Dl
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cvEPA
United States Environmental Protection Agency
Washington, DC 20460
OSWER Directive Initiation Request
1. Directive Number
9573.00-01
2. Originator Information
Name of Contact Person
David Hockey
Mail Code
OS-301
Office
OSW/BUSWD
Telephone Number
202-260-7596
3. Title
Exemption for Municipal Waste Combustion Ash from
Hazardous Waste Regulation Under RCRA Section 3001(1).
4. Summary of Directive (include brief statement of purpose)
States EPA's current interpretation of RCRA section 3001(1) as exempting
municipal waste combustion ash generated at resource recovery facilities
from hazardous waste regulation under RCRA Subtitle C.
5. Keywords
Ash, Municipal Waste Combustion, Exemption, Hazardous Waste
6a. Does This Directive Supersede Previous Directive(s)?
b. Does It Supplement Previous Directive(s)?
No
No
Yes
Yes
What directive (number, title)
What directive (number, title)
•BrafTLeveT
111 A-Si9n
A - Signed by AA/DAA B - Signed by Office Director C - For Review & Comment Q . \n Development
8. Document to be distributed to States by Headquarters?
X
Yes
No
This Request Meets OSWER Directives System Format Standards.
9. Signature of Lead Office Directives Coordinator
Ju^uAx A, ^a>JijuL^) O^iO
1 0. Name and Title ol Approving Official
William Reilly, Administrator, EPA
Date ,
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OSWER Policy Directive
# 9573.00-01
?
5 -*•«- 5 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
SEP I 8 1992
THE ADMINISTRATOR
MEMORANDUM
TO: All Regional Administrators
SUBJECT: Exemption for Municipal Waste Combustion Ash From
Hazardous Waste Regulation Under RCRA Section 3001(i)
PURPOSE
This memorandum sets forth the United States Environmental
Protection Agency's ("EPA" or "Agency1*) decision under section
3001(i) of the Resource Conservation and Recovery Act ("RCRA"),
42 U.S.C. § 692l(i),1 to treat ash generated from the combustion
of nonhazardous municipal solid waste at resource recovery
facilities (hereinafter "MWC ash") as exempt from hazardous waste
regulation under RCRA Subtitle C. EPA believes that MWC ash can
be regulated in a manner that will be protective of human health
and the environment under RCRA Subtitle D. The determination set
forth herein supersedes the Agency's earlier view of section
3001(i) as not exempting MWC ash from hazardous waste regulation.
See 50 Fed. Reg. 28702, 28725-26 (1985).
1 As part of the Hazardous and Solid Waste Amendments of
1984, Congress amended RCRA by adding section 3001(i), which
provides, in pertinent part:
(i) Clarification of household waste exclusion
A resource recovery facility recovering energy
from the mass burning of municipal solid waste shall
not be deemed to be treating, storing, disposing of, or
otherwise managing hazardous waste for purposes of
regulation under [Subtitle C] if ... such facility .
. . receives and burns only . . . household waste . . .
and solid waste from commercial or industrial sources
that does not contain hazardous waste ....
RCRA section 3001(i)(l), 42 U.S.C. S 6921(i)(l). Section 3001(i)
is codified in EPA's regulations as part of the household waste
exclusion. 40 C.F.R. 261.4(b)(l).
Printed on Recycled Paper
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ANALYSIS
Text of the statute
EPA's determination that MWC ash is exempt from hazardous
waste regulation is consistent with the text of section 3001 (i) .
As proclaimed by the title of section 3001 (i) — "Clarification
of household waste exclusion" ->- in enacting that provision,
Congress was building upon the regulatory framework it earlier
had established. In enacting RCRA in 1976, Congress indicated
that solid waste from households, which frequently includes
materials that may contain hazardous constituents, should not be
regulated as hazardous waste under Subtitle C. S. Rep. No. 94-
988, 94th Cong., 2d Sess. 16 (1976). EPA codified Congress'
intent in the so-called "household waste exclusion," promulgated
in 1980, which provides that "any material . . . derived from
households ... is not hazardous waste . . . . " 40 C.F.R.
In the preamble to the Federal Register notice announcing
the household waste exclusion, EPA' clearly stated that the
exclusion extends to ash remaining after household waste is
incinerated: "Since household waste is excluded in all phases of
its management, residues after treatment (e.g., incineration,
thermal treatment) are not subject to regulation as hazardous
waste." 45 Fed. Reg. 33066, 33098 (1980). The Agency justified
its determination that ash derived from the incineration of
household waste is subject to the exclusion on the ground that
Congress intended to "exclude waste streams generated by
consumers at the household level.1* Id. (emphasis added).
In enacting section 3001 (i), Congress arguably extended the
regulatory exclusion for ash derived from the incineration of
household waste to similar residues generated by resource
recovery facilities from the incineration of household waste and
nonhazardous commercial and industrial solid waste. To the
extent that household waste alone is incinerated, section 3001 (i)
coincides with EPA's earlier interpretation of the household
waste exclusion as exempting ash derived from such waste from
hazardous waste regulation. The inclusion in section 3001 (i) of
nonhazardous commercial and industrial waste, along with
household waste, suggests that Congress may have intended that
MWC ash resulting from the combustion of those combined wastes
also should not be subject to regulation as a hazardous waste.
In addition, congressional intent to exempt MWC ash from
hazardous waste regulation is suggested by the portion of section
3001 (i) which provides that a resource recovery facility shall
not be deemed to be "treating, storing, disposing of. or
otherwise managing" hazardous waste. (Emphasis added.) Nothing
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ordinarily is "disposed of" when a resource recovery facility
receives or stores a nonhazardous solid waste, and the burning of
such waste generally is regarded as a type of treatment under
RCRA. See RCRA sections 1004(3) and (34), 42 U.S.C. § 6903(3)
and (34) (definitions of "disposal" and "treatment"). As a
result, since MWC ash ordinarily is the only waste "disposed of"
by such a facility, Congress arguably intended that MWC ash not
be regarded as a hazardous waste.
For the foregoing reasons, EPA believes that the text of
section 3001(i) is consistent with the Agency's determination
that MWC ash is exempt from hazardous waste regulation.
Legislative History
EPA's determination that MWC ash is exempt from hazardous
waste regulation also is consistent with the legislative history
of section 3001(i). First, a Report of the Senate Committee on
Environment and Public Works addressing section 3001(i)
specifically states that "[a]11 waste management activities of
such a [resource recovery] facility, including the generationf
transportation, treatment, storage and disposal of waste shall be
covered by the exclusion."2 S. Rep. No. 98-284, 98th Cong., 1st
Sess. 61 (1983) (emphasis added).3 Since MWC ash ordinarily is
the only waste "generated" by a resource recovery facility,
Congress arguably demonstrated its intent that MWC ash not be
regarded as a hazardous waste.
2 Unlike the legislative history for section 3001(1),
the statute does not expressly state that the "generation" of
waste by a resource recovery facility is included within the
exemption. At most, the absence of that term reflects that
Congress did not expressly address the precise issue of whether
MWC ash should be exempt from hazardous waste regulation, and
does not indicate that Congress intended that MWC ash be
regulated as a hazardous waste. In such a circumstance, the
Agency has discretion to adopt a reasonable interpretation that
best serves-the goals embodied in section 3001(i). EPA has
exercised that discretion in adopting the interpretation set
forth herein, as discussed more fully below.
3 The Senate Report is entitled to special weight
because the Conference Committee adopted, without change, the
Senate version of section 3001(i). H.R. Rep. No. 98-1133, 98th
Cong., 2d Sess. 106 (1984), reprinted in 1984 U.S. Code Cong. &
Admin. News 5677. In passing the Senate version of section
3001(i), Congress also impliedly adopted the Senate's
interpretation of that provision set forth in the Senate Report.
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Second, the Senate Report states that section 3001(i) was
enacted to "encourage commercially viable resource recovery
facilities and . . . remove impediments that may hinder their
development and operation." S. Rep. No. 98-284, 98th Cong., 1st
Sess. 61 (1983). As noted above, one of the significant features
of section 3001(i) is that it applies to resource recovery
facilities that burn both household waste and nonhazardous
commercial and industrial waste. If section 3001(i) were
interpreted as not exempting MWC ash derived from the
incineration of combined household waste and nonhazardous
commercial and industrial waste from regulation as hazardous
waste, the policy goal stated in the Senate Report could be
substantially frustrated. As a practical matter, the cost
benefit to a resource recovery facility in being able to burn
both household and nonhazardous commercial and industrial waste
would be significantly reduced if MWC ash must be disposed of as
a hazardous waste, as discussed more fully below.
Third, the Senate Report refers to the wastes being
incinerated in resource recovery facilities as "waste streams,"
as folloivs:
Resource recovery facilities often take in ...
"household wastes" mixed with other non-hazardous waste
streams from a variety of sources other than
"households." . . . New section 3001[i] clarifies the
original intent to include within the household waste
exclusion activities of a resource recovery facility
which recovers energy from the mass burning of
household waste and non-hazardous waste from other
sources.
Id. (emphasis added). As noted above, the Agency justified its
determination £hat ash derived from the incineration of household
waste is excluded from hazardous waste regulation on the ground
that Congress intended to "exclude waste streams generated by
consumers* at the household level." 45 Fed. Reg. 33066, 33098
(1980) (emphasis added). In also using the term "waste stream11
in the Senate Report, Congress arguably demonstrated its intent
that section 3001(i) be construed as extending the household
"waste stream" exclusion to the entire "waste stream" at a
resource recovery facility, including MWC ash derived from the
burning of combined household and, nonhazardous commercial and
industrial waste.
In sum, the legislative history of section 3001(i) is
consistent with the Agency's determination to exempt MWC ash from
hazardous waste regulation.
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Policy Considerations
As discussed above, EPA believes that the text and
legislative history of section 3001(i) are consistent with the
Agency's view that MWC ash is exempt from hazardous waste
regulation. Since Congress did not in the statute or legislative
history expressly address the precise issue of whether MWC ash
should be exempt from hazardous waste regulation, the Agency has
discretion to adopt a reasonable interpretation that best serves
the goals embodied in section 3001(i). EPA has exercised that
discretion in adopting the interpretation set forth herein. EPA
believes that the two statutory goals embodied in section 3001(i)
— protecting the environment and promoting resource recovery
from nonhazardous solid waste — are best served by exempting MWC
ash from hazardous waste regulation.
EPA has determined that MWC ash can be regulated in a manner
that will be protective of human health and the environment under
Subtitle 0. In particular, EPA recently promulgated new criteria
for municipal solid waste landfills, at 40 C.F.R. Part 258, 56
Fed. Reg. 50978 (1991). Municipal landfills and monofills
receiving MWC ash must comply with those criteria.4 The Part
258 criteria impose requirements on municipal landfills that far
exceed those previously imposed, including more stringent
location restrictions, facility design and operating criteria,
ground-water monitoring requirements, corrective action
requirements, financial assurance requirements, and closure and
post-closure care requirements. The Agency believes the disposal
of MWC ash in municipal landfills subject to the Part 258
criteria will be protective of human health and the
environment.5
4 In the preamble to the Federal Register notice
announcing the final Part 258 criteria, EPA stated that N[t]he
purpose of part 258 is to establish minimum national criteria for
municipal solid waste landfills, including [such landfills] used
for . . . disposal of nonhazardous municipal waste combustion
(MWC) ash (whether the ash is co-disposed or disposed of in an
ash monofill)." See also response to comment document nos. 155,
168, 171, 172, and 199 in the public record for the Part 258
rulemaking (docket number F-91-CMLF-FFFFF).
5 The promulgation of the Part 258 criteria is an
important step in ensuring that MWC ash can and will be regulated
in a manner that will be protective of human health and the
environment under Subtitle D. The promulgation of those criteria
also has served as an impetus for the Agency's reevaluation of
its earlier view of section 3001(i) as not exempting MWC ash from
hazardous waste regulation. 50 Fed. Reg. 28702, 28725-26 (1985).
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If information comes to EPA's attention suggesting that MWC
ash is ibeing managed or disposed of in a manner that is not
protective of human health and the environment under Subtitle D,
the Agency will consider additional actions, including providing
technical assistance, issuing guidance documents, and, if
appropriate, promulgating additional regulations to address those
situations. In addition, at individual sites, if the disposal of
MWC ash may present an imminent and substantial endangerment to
human health or the environment, EPA may require responsible
persons to undertake appropriate action under section 7003(a) of
RCRA, 412 U.S.C. S 6973 (a).
Resource recovery from municipal solid waste is an important
component of EPA's integrated waste management approach, which
involves the complementary use of a variety of practices to
safely and effectively manage municipal solid waste.6 Such
activity advances the statutory objective of RCRA (the Resource
Conservation and Recovery Act) to reduce the volume of waste that
requires disposal. See id. at section 1002(b)(8), 42 U.S.C. S
6901(b) (8). It also advances the -statutory objective of
recovering significant amounts of energy from solid waste. See
id. at sections 1002(d)(2), 42 U.S.C. S 6901(d)(2), and
1003(a)(11), 42 U.S.C. § 6902(a)(ll). For those reasons, EPA
agrees with Congress' view, set forth in the Senate Report
discussed above, that impediments hindering the development and
operation of commercially viable resource recovery facilities
should be eliminated where practicable.
For nonhazardous municipal solid waste that can be disposed
of either in a Subtitle D landfill or combusted in a resource
recovery facility, the comparative economic desirability of those
two alternatives significantly is impacted by the application of
6 That approach establishes a hierarchy that prefers
source reduction (i.e., the design, manufacture, purchase, or use
of materials to reduce the amount or toxicity of solid waste
generated) and recycling (i.e., the process by which materials
are collected and used as raw materials for new products) over
solid waste combustion (including combustion for resource
recovery) and landfilling. Solid waste combustion, however, has
played and will continue to play an important role in the
Agency'?J integrated waste management approach because the entire
solid waste stream cannot be reduced through source reduction and
recycling. EPA encourages communities to choose the mix of solid
waste options that are most appropriate for them, considering
local economic, environmental, and other factors.
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section 3001 (i) to MWC ash.7 If MWC ash is not exempt under
3001(i) from hazardous waste regulation, a strong economic
incentive may exist to dispose of raw municipal solid waste in
Subtitle D landfills, rather than combust that waste in resource
recovery facilities. The costs associated with the disposal of
MWC ash in Subtitle C facilities are dramatically higher than in
Subtitle D landfills. Although costs vary significantly from
region to region, when averaged on a national basis there is over
a ten-fold difference between the cost of disposal of MWC ash in
a Subtitle C facility compared to a Subtitle D landfill: the
cost of transporting and disposing of MWC ash in a Subtitle C
facility is approximately $453.00 per ton; the cost of doing so
in a Subtitle D landfill is approximately $42.00 per ton. For
states that combust substantial portions of their solid waste (in
resource recovery and other combustion facilities), such as
Connecticut (65%), Massachusetts (47%), and Maine (45%), this
cost differential could be enormous.
CONCLUSION
In sum, exempting MWC ash from hazardous waste regulation is
consistent with the text and legislative history of section
3001(i), and best serves the statutory goals embodied in that
provision of protecting the environment and promoting resource
recovery from nonhazardous solid waste. For the foregoing
reasons, EPA has determined that MWC ash is exempt from
regulation as a hazardous waste under RCRA Sjdbtitle c.
WilliamK.
cc: Don R. Clay, Assistant Administrator
Office of Solid Waste and Emergency Response (OS-100)
Herbert H. Tate, Assistant Administrator
Office of Enforcement (LE-133)
Raymond B. Ludwiszewski, Acting General Counsel (LE-130)
7 In addition to cost, Subtitle D landfill capacity
limitations also may be a significant factor in determining
whether municipal solid waste is combusted in resource recovery
facilities.
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