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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460
May 27, 1994
MEMORANDUM
SUBJECT: Implementation Strategy of U.S. Supreme Court Decision in City of
Chicago v. EDF, No. 92-1639 (___ U.S.____, May 2, 1994) for Municipal Waste
Combustion Ash
FROM: Steven A. Herman Assistant Administrator for Enforcement
Elliott P. Laws
Assistant Administrator for Solid Waste and Emergency Response
TO: Regional Administrators (Regions I-X)
Background
On May 2, 1994, the U.S. Supreme Court issued an opinion interpreting Section
3001(i) of the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
§ 6921(i). City of Chicago v. EDF, No. 92-1639 (___ U.S. ___ ,
decided May 2, 1994). The Court held that Section 3001(i) does not exempt ash
generated at resource recovery facilities (i.e., waste-to-energy facilities)
burning household wastes and nonhazardous commercial wastes from the hazardous
waste requirements of Subtitle C of RCRA.
Under the U.S. Supreme Court Rules, the Court's decision will take effect when
the Court formally notifies lower courts. The Court must wait at least 25 days
before issuing such a notification. Consequently, the decision in City
of Chicago v. EDF will take effect as a matter of federal law sometime
shortly after May 27. 1994. In response to the Supreme Court's decision,
we are issuing this memorandum to all Regions concerning the implementation
strategy for bringing waste-to-energy facilities affected by the Supreme Court's
decision into compliance with RCRA Subtitle C as quickly as possible. The Agency
is also publishing, in the Federal Register, a Notice of Extension of
Date for Submission of Part A Permit Applications for waste-to-energy facilities
affected by the Supreme Court decision. The Federal Register notice, to
be released shortly, finds that there has been "substantial confusion" as to
whether owners and operators of facilities managing ash were required to file
applications for RCRA hazardous waste permits. As a result, EPA is exercising
its authority under 40 CFR 270.10(e) (2) to extend the deadline within which
owners and operators of facilities that treat, store, or dispose of ash
determined to be a hazardous waste can file their Part A permit applications.
EPA is also announcing that we interpret Section 3004(g) (4) of RCRA to apply to
ash from waste-to-energy facilities. Under this interpretation, ash is a newly
identified waste for the purposes of the RCRA land disposal restrictions (LDRs).
Therefore, current LDRs do not apply. Rather, under Section 3004 (9) (4) , EPA
will have six (6) months to promulgate LDRs specific to ash determined to be a
hazardous waste.
Overview of Strategy
The U.S. Supreme Court's decision has the effect of regulating a whole new class
of entities that were exempt from Subtitle C under EPA's 1992 interpretation of
RCRA. In evaluating the effect of this decision in authorized states, the
Regions should refer to the discussion in the upcoming Federal Register
notice regarding the applicability of 40 C.F.R. 270.10(e) (2) to facilities at
which hazardous ash is managed.
EPA recognizes that immediate compliance with all of the RCRA Subtitle C
requirements will be difficult because of the economic investment required for
full Subtitle C compliance and the fact that facilities may have reasonably
relied on past Agency interpretations and statements in managing all ash under
Subtitle D. However, the Agency is committed to working with the States and
affected facilities to bring all those who manage hazardous municipal waste
combustion ash into compliance with Subtitle C as quickly as possible. To that
end, on May 24, 1994, the Office of Solid Waste (OSW) issued its draft Sampling
and Analysis of Municipal Refuse Incineration Ash as guidance to waste-to-energy
facilities on sampling and analysis of ash as a hazardous waste. EPA encourages
the use of its draft Sampling and Analysis of Municipal Refuse Incineration Ash
Guidance. 40 CFR § 261.24 sets out the requirements for analyzing samples under
the Toxicity Characteristic. Portions of the guidance address additional aspects
of sample collection and handling. EPA intends to allow facilities to use
alternative collection and handling procedures provided they are equally
effective. OSW will publish a Federal Register notice of availability
requesting comment on the draft in the very near future. To come into compliance
with the requirements of RCRA Subtitle C, waste-to-energy facilities should
implement a program for determining whether the ash exhibits a hazardous
characteristic. For ash that does exhibit a hazardous characteristic,
waste-to-energy facilities may either treat ash on site to eliminate the
characteristic (if the facility has RCRA interim status, a RCRA permit, or meets
the requirements of 40 CFR § 262.34), or make arrangements
for the proper disposal of their ash at approved Subtitle C facilities.
In terms of enforcement response, the Regions should consider a variety of
factors in determining whether the ash that is a hazardous waste is being
managed in an environmentally irresponsible manner so as to pose a potential
threat to human health and the environment. Regions should be prepared to bring
formal enforcement actions upon information that management of the ash may
present an imminent and substantial endangerment pursuant to RCRA §
7003 and should evaluate whether formal enforcement actions pursuant to Section
3008 (h) of RCRA are appropriate in the event the Agency has information that
there is or has been a release of a hazardous waste or hazardous constituents
from a facility managing hazardous ash. Other indicators of environmentally
irresponsible management of hazardous ash that may warrant a formal enforcement
action under Section 3008 (a) of RCRA include, but are not limited to:
- - failure to manage ash that is a hazardous waste in solid waste management
units that comply with 40 CFR Part 258;
- - failure to implement or have in place, within 90 days of the
effective date of the Supreme Court decision, a method to determine (by
knowledge or testing) whether or not the ash produced at the facility exhibits a
hazardous waste characteristic (for purposes of this implementation strategy,
the facility may sample and test combined fly ash and bottom ash if they are
mixed within the municipal combustion unit);
- - failure to have controls on fugitive emissions during storage and
transportation of ash that is a hazardous waste (e.g., minimizing dust emissions
through quenching or wetting the ash and by transporting ash in leak resistant
containers or trucks and by controlling run-on and run-off from ash handling
areas); and
- - reuse in any manner of ash that is a hazardous waste.
In implementing this strategy, the Regions are encouraged to work with their
authorized States to develop approaches for ensuring compliance with Subtitle C
in the regulated community. Following the creation of the new Office of
Enforcement and Compliance Assurance (OECA), the Chemical, Commercial Services,
and Municipal Division will work with OECA's RCRA Enforcement Division, the
Regions, and the States to identify those issues presenting the greatest
compliance challenges and develop strategies to address those concerns. The
Regions are also encouraged to work with their States to update state authorized
programs where applicable. Finally, Regions are encouraged to provide input from
both their offices and their States regarding this strategy and its
implementation. Six months after issuance of this memorandum, we will revisit
this strategy to gauge its effectiveness and incorporate any improvements or
modifications as warranted.
If you have any questions regarding this implementation strategy, please have
your staff contact Jon Silberman (202-260-4326) of OE-RCRA, Andrew Cherry of the
new Office of Compliance's Commercial Services and Municipal Branch
(202-260-3097) , or Andy Teplitzky (202-260-1099) of OSWER-Office of Solid
Waste.
FaxBack # 14009
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