[Federal Register Volume 60, Number 23 (Friday, February 3, 1995)]
[Rules and Regulations]
[Pages 6666-6670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2627]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 270
[FRL-5149-1]
Determination of Point at Which RCRA Subtitle C Jurisdiction
Begins for Municipal Waste Combustion Ash at Waste-to-Energy Facilities
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of statutory interpretation.
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SUMMARY: On May 2, 1994, the Supreme Court issued its decision in City
of Chicago v. Environmental Defense Fund, Inc. 114 S.Ct. 1588 (1994).
In so doing, the Court held that, although municipal waste-to-energy
(WTE) facilities that burn household wastes alone, or in combination
with nonhazardous wastes from industrial and commercial sources, are
exempt from regulation as a hazardous waste treatment, storage, or
disposal facility under Subtitle C of the Resource Conservation and
Recovery Act (RCRA), the ash that they generate is not exempt. The
Court, however, did not specify the point at which the ash generated by
the WTE facility becomes subject to Subtitle C of RCRA. EPA is
responding to numerous requests for resolution of this issue by
announcing today that it interprets Sec. 3001(i) of RCRA to first
subject the ash generated by a WTE facility to RCRA Subtitle C when it
exits the combustion building following the combustion and air
pollution control processes.
EFFECTIVE DATE: February 3, 1995.
ADDRESSES: Docket Clerk, OSW (OS-305), Docket No. 95-XA2N-FFFFF, U.S.
Environmental Protection Agency Headquarters, 401 M Street, SW.,
Washington, DC 20460. The public docket is located in M2616 at EPA
Headquarters and is available for viewing from 9:00 a.m. to 4:00 p.m.,
Monday through Friday, excluding Federal holidays. Appointments may be
made by calling (202) 260-9327. Copies cost $0.15/page. Charges under
$25.00 are waived.
FOR FURTHER INFORMATION CONTACT:
For general information, contact the RCRA/Superfund Hotline, Office of
Solid Waste, U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington, DC, 20460, (800) 424-9346, TDD (800) 553-7672 (hearing
impaired); in the Washington, DC metropolitan area the number is (703)
920-9810, TDD (703) 486-3323.
For more detailed information on specific aspects of this Notice,
contact Andrew L. Teplitzky (703-308-7275) or Allen J. Geswein (703-
308-7261), Office of Solid Waste (5306W), U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460.
SUPPLEMENTARY INFORMATION:
Preamble Outline
I. Authority
II. Background
A. Nature of Ash From Waste-To-Energy Facilities
B. Regulatory History of Waste-to-Energy Ash
C. Initial Agency Reaction to the Supreme Court Decision
III. The Point of Subtitle C Jurisdiction
A. EPA's Interpretation
1. Legal Analysis
2. Illustrative Examples
B. Other Interpretations Considered
1. Facility Property Boundary
2. Inside the Combustion Building
C. Additional Policy Considerations
IV. Conclusion
I. Authority
This action interpreting RCRA Section 3001(i) and the hazardous
waste regulations in 40 CFR Parts 260-271 is being taken under the
authority of sections 2002 and 3001 of the Solid Waste Disposal Act of
1970 as amended by the Resource Conservation and Recovery Act of 1976,
as amended (42 U.S.C. 6912 and 6921).
II. Background
A. Nature of Ash From Waste-to-Energy Facilities
Combustion of municipal solid waste, particularly through WTE
facilities, can be an important component of a local government's waste
management practices. As of 1993, approximately 207 million tons of
municipal solid waste were generated annually in the U.S., 16 percent
of which (33 million tons) was combusted. There are approximately 150
municipal waste combustors in the U.S., 80 percent of which are WTE
facilities. The remaining 20 percent incinerate waste without
recovering energy.
Approximately 25 percent (dry weight) of the waste that is
combusted remains as ash, amounting to around eight million tons of
municipal waste combustor (MWC) ash generated annually. While the ash
may be collected at a number of locations within a WTE facility, it
typically is characterized as either ``bottom ash'' or ``fly ash.''
Bottom ash collects at the bottom of the combustion unit and comprises
approximately 75-80% of the total ash by weight. Fly ash collects in
the air pollution control devices that ``clean'' the gases produced
during the combustion of the waste and comprises [[Page 6667]] around
20-25% of the total by weight. The fly ash from a WTE facility's
different air pollution control devices typically is consolidated and
then combined with the bottom ash via enclosed conveyors at the bottom
of the MWC where it is cooled and conveyed to a storage area. EPA
estimates that nearly 80% of WTE facilities routinely combine their
ash.
The regulation of WTE ash has been the subject of controversy and
debate ever since the inception of the hazardous waste management
program under Subtitle C of RCRA. EPA's notice of June 7, 1994 (59 Fed.
Reg. 29372) provides a discussion of the regulatory history of ash from
WTE facilities. The following section summarizes that discussion.
B. Regulatory History of Waste-to-Energy Ash
In 1980, EPA promulgated a rule exempting household wastes from all
RCRA requirements for hazardous wastes (40 CFR 261.4(b)(1)). EPA
interpreted this exemption to extend to the residuals from the
treatment of household wastes, including ash from the combustion of
household wastes. The exemption, however, did not address ash from the
combustion of household wastes combined with nonhazardous commercial
and industrial wastes.
In 1984, Congress added to RCRA a new Section 3001(i). This
provision addressed WTE facilities burning exempt household hazardous
wastes and nonhazardous commercial and industrial wastes to produce
energy. In July 1985, EPA promulgated a rule that codified this
provision. In the preamble accompanying this rule, EPA announced that
it interpreted the statute to exempt the combustion of waste, but not
the management of ash, from Subtitle C (50 Fed. Reg. 28702, 28725-26
(July 15, 1985)). Since 1985, the Agency's interpretation of
Sec. 3001(i) of RCRA has been a subject of much debate.
In September 1992, EPA Administrator William Reilly signed a
memorandum announcing that the Agency interpreted Section 3001(i) to
exempt from all Subtitle C requirements ash from WTE facilities burning
household wastes and nonhazardous wastes. On May 2, 1994, the Supreme
Court issued an opinion interpreting Section 3001(i) of RCRA, 42 U.S.C.
6921(i). City of Chicago v. EDF, 114 S.Ct. 1588 (1994). The Court held
that this provision does not exempt ash generated at WTE facilities
burning household wastes and nonhazardous commercial wastes from the
hazardous waste requirements of Subtitle C of RCRA.
As a result of this decision, persons generating ash from WTE
facilities must determine whether the ash is hazardous. Studies show
that ash sometimes is a hazardous waste under RCRA because it exhibits
EPA's toxicity characteristic (TC). Generally, this determination is
made by either testing using the Toxicity Characteristic Leaching
Procedure (TCLP) (see 40 CFR Sec. 261.24) or by using knowledge of the
combustion process to determine whether the ash would exhibit the TC.
Typically, ash that ``fails'' the TC leaches lead or cadmium above
levels of concern. Existing studies also show that fly ash contains the
highest concentrations of inorganic chemical constituents. It is more
likely to exhibit the TC than either bottom ash or combinations of
bottom ash and fly ash. Ash that is determined to be a hazardous waste
must be handled in compliance with EPA regulations for hazardous waste
management. Ash that is determined not to be a hazardous waste may be
disposed in a non-hazardous waste facility.
C. Initial Agency Reaction to the Supreme Court Decision
While the Supreme Court decision ended nearly a decade of
controversy over the general regulatory status of ash, it also raised
some new legal and policy issues. To provide some immediate interim
guidance, the Agency issued several documents shortly after the Supreme
Court decision.
First, on May 24, 1994, the Agency released for immediate use a
draft guidance manual for ``Sampling and Analysis of Municipal Refuse
Incinerator Ash.'' The purpose of the manual was to assist owners and
operators of MWCs in designing a plan for testing ash to determine
whether it is hazardous. On June 23, 1994, EPA formally requested
public comment on the draft guidance (59 Fed. Reg. 32427). The comment
period ended on September 21, 1994. The Agency intends to issue a final
guidance manual in the Spring of 1995.
Second, on May 27, 1994, EPA issued a memorandum outlining an
implementation strategy to assist affected parties in achieving
compliance with the Court's decision. The strategy identified the
Agency's priorities for pursuing enforcement actions concerning the
management of MWC ash. The Agency intends to issue a revised
implementation strategy shortly.
Third, on June 7, 1994, the Agency published a notice addressing
two issues of statutory and regulatory interpretation related to the
management of WTE ash that is hazardous (59 Fed. Reg. 29372). First,
the notice extended the deadline within which owners/operators of
facilities that treat, store, or dispose of hazardous ash must file a
hazardous waste permit application. This action gave owners and
operators of facilities that manage hazardous ash six months to apply
for ``interim status'' under the RCRA hazardous waste regulatory
program. Without interim status, the facility would be out of
compliance with RCRA's permit requirements and face potentially
significant civil and criminal penalties.
The second issue discussed in this notice was the Agency's
interpretation that ash from WTE facilities be classified as a ``newly
identified waste'' for the purposes of the RCRA land disposal
restrictions (LDRs), meaning that the current land disposal
restrictions do not apply. When the restrictions apply, hazardous ash
will have to meet specified treatment standards prior to land disposal.
EPA currently takes the position that if a waste exhibits a hazardous
waste characteristic at its point of generation, it must meet LDR
standards even if it ceases to exhibit the characteristic prior to land
disposal.
III. The Point of Subtitle C Jurisdiction
A. EPA's Interpretation
1. Legal Analysis
Neither the Supreme Court's decision on ash nor any of EPA's
previous policy statements on ash address the point at which the ash
generated by a WTE facility becomes subject to Subtitle C of RCRA--in
other words, at which point or points in the facility the owner/
operator must determine whether the ash exhibits the toxicity
characteristic of a hazardous waste (and, in the future, the point at
which LDR restrictions will begin to apply).
Section 3001(i) provides that ``[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 * * *.'' if certain conditions regarding waste
receipt are met. In the City of Chicago case, the Supreme Court issued
a narrowly focused opinion addressing the issue of whether this
language created an exemption for ash generated by resource recovery
facilities. Noting that the provision fails to mention ash and fails to
include ``generation'' in the list of exempted activities, the Court
found that no exemption for ash was intended. 114 S. [[Page 6668]] Ct.
at 1591-92. In fact, the Court found the statute to be so free from
ambiguity on this issue that there was no need to consult legislative
history and no occasion to defer, under the principles of Chevron,
U.S.A. v. NRDC, 467 U.S. 837 (1984), to the interpretation preferred by
the Agency. Id. at 1594.
The Court, however, failed to reach the issue of the precise point
at which regulation of ash must begin, and section 3001(i) does not
expressly address the issue. For the reasons set out below, EPA
believes it is reasonable to interpret Section 3001(i) to first impose
hazardous waste regulation at the point that the ash leaves the
``resource recovery facility,'' defined as the combustion building
(including connected air pollution equipment). Consequently, the point
at which an ash hazardous waste determination should be made (and, in
the future, at which the LDRs will begin to apply) is the point at
which ash exits the combustion building following the combustion and
air pollution control processes.
Section 3001(i) does not define the term ``resource recovery
facility.'' EPA believes that it is reasonable to conclude that
Congress intended to refer to the building that houses the combustion
device. This is the common sense reading of the term, and it strikes a
better balance between the objectives of section 3001(i) and the rest
of Subtitle C than either of the alternative readings described below.
Further, EPA believes that it is reasonable to conclude that Congress
intended to exempt all handling of any hazardous waste within the
building, including the handling of hazardous ash. Subjecting ash
within the building to hazardous waste regulation could, for example,
require operators to collect samples of ash for waste determination
purposes. It also could affect the number of hazardous ash waste
streams that would become subject to LDR treatment standards.
``Collection'' and ``treatment'' are among the activities included in
the definition of ``management'' in section 1004(7) of RCRA. Section
3001(i) expressly exempts treatment, storage, disposal and management
of hazardous waste at resource recovery facilities. See City of
Chicago, 114 S. Ct. at 1592.
This interpretation is not only a reasonable reading of the
statutory language, it also serves Congress' intent to ``encourage
commercially viable resource recovery facilities and to remove
impediments to their operation.'' (Emphasis added.) S. Rep. 98-284,
98th Cong., 2d Sess. at 61. Regulating ash only at the point it exits
the combustion building removes some potentially significant
impediments. If the statute allowed regulation of ash inside the
building, the facility owner/operator might need to sample and analyze
ash at multiple points. This approach could require owners and
operators to deal with major logistical problems associated with
shutting down individual boilers and retrofitting/reconfiguring the
combustor to accommodate installation of multiple handling and storage
systems to separately convey the ash streams to different load out
areas and ash conditioning systems. Some facilities may not currently
have the space to accommodate the additional equipment required and
could be forced to either close or temporarily shut down until
additional space could be procured. Retrofitting a facility in this
manner could be costly. Some state and industry representatives, in
fact, have projected costs in excess of several million dollars per
facility. Hence, this interpretation could conflict with Congressional
intent by serving as an ``impediment'' to resource recovery facilities.
S. Rep. 98-284 at 61. In addition, the cost of sampling and analysis
alone probably would at least double considering collection and
analysis of at least two different ash streams--bottom ash and fly
ash--instead of a single combined ash stream. (Although owners and
operators may legally use knowledge in lieu of testing, due to the
variable nature of ash, virtually all owners and operators conduct TCLP
testing.) These costs would contribute to the total burden imposed on
the WTE facility.
Finally, in selecting an interpretation of section 3001(i), EPA
also must consider Subtitle C's general goal of protecting human health
and the environment from the threats posed by hazardous waste. As
explained in greater detail in section C below, EPA does not believe
that this interpretation would have any significant impact on the level
of environmental protection for ash.
EPA also believes that today's interpretation is consistent with
the Supreme Court's 1994 decision construing RCRA Sec. 3001(i). In City
of Chicago v. EDF, 114 S. Ct. 1588 (1994), the Court held that Congress
intended to exempt ``resource recovery facilities,'' but did not define
the term. See, e.g., 114 S. Ct. at 1591-92. While the Court clearly
stated that the statute did not exempt facility owners from regulation
as hazardous waste generators, id. at 1592, determining that ash is not
subject to regulation until it exits the combustion building does not
exempt the facility owner from regulation as a generator. Rather, it
defines the point at which the owner must begin to perform the
generator's duties. Further, today's interpretation does not create the
type of total exemption for ash that the Supreme Court rejected in City
of Chicago. Operators of MWC facilities still must comply with the
generator's duty to make a hazardous waste determination. Any ash that
exhibits a characteristic when exiting the combustion building must be
managed in compliance with all applicable Subtitle C requirements.
EPA's interpretation merely clarifies the location at which the
determination for waste characterization purposes must occur (and the
point at which future LDRs requirements will begin to apply).
2. Illustrative Examples
Today's interpretation is perhaps best explained through the use of
specific examples. For instance, many WTE facilities automatically
convey, via enclosed conveyor, the fly ash collected at its various
locations (including any air pollution control devices such as the acid
gas scrubbers, baghouse filters, and electrostatic precipitators that
may exist outside the combustion building) to a quench tank within the
combustion building where it is combined with the bottom ash. The
combined ash is then conveyed to a separate, detached storage building
or to trucks for direct transport to an off-site disposal facility. The
point at which RCRA hazardous waste jurisdiction would begin for these
facilities would be the point where the ash exits the combustion
building. Under this interpretation, the owner/operator could combine
fly ash and bottom ash within the combustion building before making any
hazardous waste determination. Any type of device could be used within
the building for ash management activities such as collection, mixing,
and conditioning.
EPA includes in its interpretation of ``resource recovery
facility'' those air pollution control devices that are integral
components of the combustion process. Ash from air pollution control
devices that is reconveyed back to the combustion building in enclosed
ducts has, in EPA's view, not left the ``resource recovery facility''
exempted under Sec. 3001(i). Moreover, the ducts and air pollution
control devices contain the ash so it does not come into contact with
the environment.
A few WTE facilities may exist where the combustion device is not
housed within a building. In these instances, the combustion device
(including air pollution control equipment and proximate areas for
handling ash) may constructively constitute a combustion building,
within the meaning discussed above. Thus, if fly ash and bottom ash
[[Page 6669]] were handled in enclosed systems that operate in the same
manner as they would if a building existed and the fly ash and bottom
ash were mixed in an enclosed unit proximate to the combustion device,
that management activity would be considered to take place within a
combustion building as described above. In this circumstance, the point
at which hazardous waste jurisdiction would begin would be the point
where the combined ash exits the last enclosed ash management unit that
is located proximate to the combustion device.
By contrast, where a WTE facility collects bottom ash within the
combustion building and collects the fly ash outside the combustion
building in, for example, roll-off containers, two distinct exit points
from the combustion building exist: (1) the point where the bottom ash
ultimately leaves the combustion building and (2) the point where the
fly ash leaves the air pollution control devices (located outside the
combustion building). The WTE facility operator would thus sample and
make a hazardous waste determination at each location. Should the
operator determine that either the bottom ash or fly ash as is
hazardous, management of that ash would have to be conducted pursuant
to RCRA Subtitle C.
B. Other Interpretations Considered
Since the Supreme Court decision, the Agency has received numerous
letters from states, local governments, industry, environmental groups,
and others suggesting various approaches to determining the point at
which the ash initially becomes subject to RCRA Subtitle C
jurisdiction. For example, a number of comments received in response to
the Agency's draft sampling and analysis guidance notice of May 24,
1994, addressed this issue. Some members of the public urged EPA to
adopt the interpretation described above. Other members, however,
suggested two additional options for interpreting Sec. 3001(i) to
establish the point at which ash becomes subject to Subtitle C
regulation.
1. Facility Property Boundary
Some members of the public argued that the hazardous waste
exclusion under RCRA Sec. 3001(i) applies to all ash management
operations within the property boundary of the WTE facility. This
interpretation potentially would allow all ash generated at a WTE
facility to be managed on-site, without testing, as a non-hazardous
waste. It could allow a WTE facility to dispose of ash that would have
otherwise failed the TCLP within the facility property boundary in a
landfill that does not meet the requirements of RCRA Subtitle C.
EPA is rejecting the option of designating the point of Subtitle C
jurisdiction at the property boundary. The most natural reading of the
term ``resource recovery facility'' is the combustion device itself.
Nothing in the text of the statute or the legislative history refers to
land holdings or suggests that Congress was familiar with them and the
types of waste management conducted on them. Rather, the discussion
focuses on the combustion process. EPA believes that an exemption for
the entire property would conflict with the general goals of Subtitle C
because it would provide too many opportunities for potential
mismanagement of ash at the WTE facility without the proper
environmental controls. Such a broad reading of RCRA could allow
potential mismanagement of ash that tested hazardous within the land
boundaries of the facility in units (e.g., waste piles, landfills) that
were not appropriately regulated under Subtitle C of RCRA. EPA believes
that this option would not strike the balance that Congress intended
between section 3001(i)'s goal of promoting resource recovery
facilities and the general environmental protection goals of the rest
of RCRA Subtitle C.
2. Inside the Combustion Building
Other members of the public argued that the exemption in section
3001(i) ends at the instant that ash is generated. In particular, they
objected to any temporary exemption for ash that would allow facility
owners to combine fly ash and bottom ash before making hazardous waste
determinations. Since combined ash tends to ``pass'' the TC, postponing
regulation until combination has occurred could allow the ash to escape
Subtitle C management. These commentors argued that such a ``de facto''
exemption for WTE ash would be inconsistent with the spirit of the
Supreme Court's decision in City of Chicago.
EPA has decided not to read the statute to require regulation of
ash within the combustion building. This interpretation would permit
regulation of the management of hazardous ash within the ``resource
recovery facility,'' in apparent contradiction with the text of section
3001(i). Further, requiring sampling, testing, and management of ash
from multiple locations could, as described below, be unnecessarily
expensive and burdensome in relation to the environmental benefits
received. Thus, this interpretation could conflict with Congress' goal
of ``promoting resource recovery facilities.'' S. Rep. 98-284, 98th
Cong. at 61.
Many of the people advocating this interpretation maintained that
this interpretation would require bottom ash and fly ash to be sampled
separately, before a facility owner combines them. Ash, however, may
collect in as many as 20 separate locations within an average WTE
facility. This interpretation, if applied literally to the first
locations where ash becomes identifiable, could lead to a policy
requiring that a waste determination be made at each of these
locations. Such a policy would only increase the impediments to viable
resource recovery facilities.
C. Additional Policy Considerations
EPA believes that today's interpretation of Sec. 3001(i)
designating the point of Subtitle C jurisdiction at the exit of the
combustion building provides an approach that local governments will
find practical and implementable, yet environmentally protective. In
accordance with today's interpretation, ash that is combined (and
conditioned, for example, with lime and/or phosphoric acid) at the end
of the combustion process and within the combustion building, and
exhibits no hazardous waste characteristics (i.e., it passes the TCLP)
when it exits that building, may be sent to a nonhazardous waste
facility for disposal.
In comparison, if the Agency had selected the option requiring
hazardous waste determinations inside the combustion building, the fly
ash and bottom ash that would have been tested separately at locations
inside the combustion building and found to exhibit the toxicity
characteristic would not be handled much differently. The WTE facility
operator could treat (using similar conditioning techniques that are
performed inside the combustion building under today's interpretation)
the fly ash and bottom ash in on-site tanks, containers, or containment
buildings under the provisions of Sec. 262.34. Such treatment does not
require a federal hazardous waste (Subtitle C) permit so long as the
ash is not retained for more than 90 days. Once the ash ceased to
exhibit hazardous waste toxicity characteristics, it too would be
combined and sent for disposal in a nonhazardous waste facility.
Similarly, once the LDR treatment standards for WTE ash hazardous
constituents are promulgated, the ash would be treated (perhaps using
some of the same conditioning techniques used today) to meet those
standards at which point the ash could [[Page 6670]] then be sent for
disposal in a nonhazardous waste facility.
EPA also believes that current regulations promulgated under RCRA
Subtitle D provide protection for the disposal of ash as a nonhazardous
waste. In 1991, the Agency promulgated new criteria for municipal solid
waste landfills, including landfills and monofills that accept MWC ash
(40 CFR Part 258). These criteria impose a comprehensive set of
requirements on municipal solid waste landfills (MSWLFs) including
requirements for location restrictions, facility design and operation,
ground-water monitoring and corrective action, closure and post-closure
care, and financial assurance. The Agency has conducted studies on the
land disposal of MWC ash from WTE facilities and has found no evidence
to suggest that disposal in a Subtitle D landfill will endanger human
health and the environment. Copies of these studies are available in
the docket for this notice.
For example, EPA has conducted a study on the effects of MWC ash
leachate on natural and synthetic lining materials commonly employed in
the construction of municipal solid waste landfill liners. That study
indicates that carefully selected landfill liner materials can, when
exposed to MWC ash leachate, be expected to function as an effective
barrier to leachate migration. In addition, EPA is conducting ongoing,
in situ studies of leachate from monofills receiving ash from a WTE
facility. These studies reveal leachate concentrations of relevant
metals are below their respective TC limits. The States have indicated
that their data also corroborates EPA's findings.
It is important to note that while states may allow varying liner
designs for ash monofills or co-disposal facilities, these designs must
still meet a performance standard intended to protect ground water
resources. In addition, all landfills regulated under RCRA Subtitle D
are required to perform ground-water monitoring as a way of detecting a
release should one occur. In the event of a release to ground water,
the owner/operator of the landfill must perform corrective action to
clean up the ground water.
The Agency also does not believe that the process of combining and
treating ash within the combustion building will pose risks to human
health. The Agency understands that many State environmental programs
allow the ash to be combined and conditioned prior to exiting the
combustion building for testing. These states have not indicated to the
Agency that these current practices are presenting a risk to human
health. In fact, the risk of exposure to fugitive ash emissions could
be heightened if WTE facilities were required to sample or otherwise
manage fly ash separately from bottom ash. This is because fly ash is
generally a fine powdery substance that would become readily airborne
were it not for such normal practices as combining the fly ash with the
bottom ash in a quench tank to impede air emissions. Handling fly ash
before it is combined could increase the risk of release to the
environment.
Further, EPA recently published proposed regulations under the
Clean Air Act for new and existing municipal waste combustors that
address ash. These regulations would prohibit visible emissions of
fugitive fly ash and/or bottom ash from all ash handling activities at
the facility. They also address the ash loading areas and ash transport
vehicles (59 FR 48222, September 20, 1994).
Finally, the Agency understands that some groups are concerned
about the potential environmental risk posed by the reuse of ash in
projects such as road base, building blocks, and sidewalks. These
groups have expressed a desire that the Agency either ban ash reuse or
place stringent controls on reuse. While reuse of ash currently is not
common in the U.S. (the Agency believes that significantly less than
ten percent of the ash generated in the U.S. is reused), the Agency
does not believe that today's interpretation will stimulate increased
interest in ash reuse. It is important to note that, if the WTE
facility were required to test bottom ash and fly ash separately and
found that either ash failed the TC determination, that facility could
treat the ash on-site to either below TC limits or in accordance with
the land disposal restrictions (when they are set). After this
treatment, ash would no longer be classified as a hazardous waste and
could be used without further hazardous waste regulation (e.g., in
construction projects). EPA does not currently anticipate that future
LDR treatment will differ significantly from some of the ash
conditioning techniques currently used at WTE facilities. It also is
important to note that many states have programs addressing the
management of ash from WTE facilities. Currently, over one-half of the
states address the reuse of ash.
Should information come to EPA's attention suggesting that WTE ash
is being 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 issuing management guidelines
and, if appropriate, promulgating additional regulations to address
those situations. In addition, at individual sites, if the disposal of
ash presents an imminent and substantial endangerment to human health
and the environment, EPA may require responsible persons to undertake
appropriate action under Sec. 7003(a) of RCRA.
IV. Conclusion
In conclusion, today's interpretation of RCRA Sec. 3001(i)
designates the point of Subtitle C jurisdiction for WTE ash at the exit
of the combustion building following the combustion and air pollution
control processes. The Agency believes that this reading is a
reasonable interpretation of the statute that serves the stated goals
of Sec. 3001(i).
EPA emphasizes that today's decision on the appropriate location to
make the hazardous waste determination for MWC ash is unique based on
its interpretation of RCRA Sec. 3001(i). EPA's analysis and conclusions
are not relevant to facilities that do not fall within the scope of
RCRA Sec. 3001(i).
EPA considers this action to be an interpretative rule exempt from
the requirement for prior notice and opportunity to comment under
section 553(b)(3)(A) of the Administrative Procedure Act, 5 U.S.C.
553(b)(3)(A). The notice merely informs the public of EPA's view of the
definition of ``facility'' in section 3001(i) as derived from the text
of the statute, legislative history, and EPA's view of Congressional
intent.
Dated: January 27, 1995.
Carol M. Browner,
Administrator.
[FR Doc. 95-2627 Filed 2-2-95; 8:45 am]
BILLING CODE 6560-50-M
