Utility
Solid
Waste
Activities
Group
,
c/
o
Edison
Electric
Institute
,
701
Pennsylvania
Avenue,
NW
1
Washington,
DC
20004­
2696
1
202­
508­
5645
www.
uswag.
org
May
8,2003
Hand
Deliverv
Mr.
Richard
J.
Kinch
Mr.
Dennis
C.
Ruddy
U.
S.
Environmental
Protection
Agency
Office
of
Solid
Waste
Ariel
Rios
Building
(
Mail
Code
5306W)
1200
Pennsylvania
Avenue,
NW
Washington
,
D.
C.
20460­
2696
Re:
Concept
To
Fossil
Fuel
Combustion
Waste
Proposal
to
Apply
Uniquely
Associated
Dear
Mr.
Kinch
and
Mr.
Ruddy:

I
am
writing
on
behalf
of
the
Utility
Solid
Waste
Activities
Group
("
USWAG")'
to
renew
our
request
that
EPA
formally
withdraw
its
proposal
to
replace
the
long­
standing
Dietrich
Policy2
on
the
scope
of
co­
management
of
fossil
fuel
combustion
("
FFC")
waste
under
the
Bevill
Amendment
exclusion
with
the
"
uniquely
associated
wastes"
concept
that
EPA
proposed
in
its
Bevill
Regulatory
Determination
on
Wastes
from
the
Combustion
of
Fossil
Fuels,
65
Fed.
Reg.
32214,
3221
9­
20
(
May
22,
2000)
("
Regulatory
1
Electric
Institute
("
EEI"),
the
American
Public
Power
Association
("
APPA"),
the
National
Rural
Electric
Cooperative
Association
("
NRECA"),
and
approximately
80
electric
utility
operating
companies
located
throughout
the
country.
EEI
is
the
principal
national
association
of
investor­
owned
electric
power
and
light
companies.
APPA
is
the
national
association
of
publicly­
owned
electric
utilities.
NRECA
is
the
national
association
of
rural
electric
cooperatives.
Together,
USWAG
members
represent
more
than
85
percent
of
the
total
electric
generating
capacity
of
the
United
States
and
service
more
than
95
percent
of
the
nation's
consumers
of
electricity
and
over
93
percent
of
the
nation's
consumers
of
natural
gas.
The
Utility
Solid
Waste
Activities
Group
("
USWAG")
is
an
informal
consortium
of
the
Edison
2
Jr.,
USWAG
Chairman
(
Jan.
13,
1981)
("
Dietrich
Policy").
Letter
from
Gary
N.
Dietrich,
EPA
Associate
Deputy
Administrator
for
Solid
Waste
to
Paul
Emler,
Mr.
Richard
J.
Kinch
Mr.
Dennis
C.
Ruddy
May
8,2003
Page
2
Determination").
As
you
know,
USWAG
submitted
detailed
comments
to
the
Agency
on
September
19,
2000,
which,
among
other
things,
urged
EPA
not
to
proceed
with
the
proposed
revocation
of
the
Dietrich
Policy.
See
USWAG
Comments
on
the
Regulatory
Determination
("
Comments"),
pp.
8­
31
(
Sept.
19,
2000).

USWAG
strongly
believes
that,
in
the
context
of
FFC
waste
management,
the
"
uniquely
associated
wastes"
concept
is
fatally
flawed.
As
discussed
in
detail
in
our
Comments,
the
proposed
replacement
of
the
Dietrich
Policy
with
the
"
uniquely
associated"
approach
would
be
inconsistent
with
congressional
intent
to
include
within
the
scope
of
the
Bevill
Amendment
certain
low
volume
wastes
that
are
co­
managed
with
high
volume
FFC
wastes;

fails
to
justify
abandoning
the
long­
standing
Dietrich
Policy
which
has
proven
to
be
an
environmentally
protective
and
workable
approach
since
enactment
of
the
Bevill
Amendment
in
1980;

contradicts
EPA's
own
conclusions
in
the
Regulatory
Determination
(
and
the
related
March
1999
Report
to
Congress)
that
co­
managed
wastes
covered
by
the
Dietrich
Policy
do
not
warrant
regulation
under
RCRA
Subtitle
C;

forces
a
new
and
significantly
different
regulatory
paradigm
on
FFC
co­
management
that
will
result
in
needless
confusion,
potential
litigation,
and
an
unending
stream
of
requests
to
the
Agency
for
clarification;
and
would
impose
significant
costs
and
increased
risk
to
public
safety
with
little
or
no
environmental
benefit.

Because
our
Comments
fully
address
the
major
flaws
of
the
"
uniquely
associated
wastes"
proposal,
we
are
attaching
the
relevant
portion
of
those
Comments
for
your
convenience.

At
a
USWAG
meeting
in
Memphis
last
October,
you
indicated
that
EPA
is
still
considering
whether
to
implement
the
"
uniquely
associated"
approach
and
invited
USWAG
to
present
any
additional
information
that
might
assist
EPA
in
deciding
whether
to
adopt
the
proposal.
You
acknowledged
that
the
concept
applies
only
to
low
volume
wastes
that
exhibit
a
RCRA
hazardous
characteristic,
but
this
limitation
does
not
alter
the
basis
for
our
objection
to
the
proposal.

During
the
meeting,
some
of
our
members
asked
you
about
the
factors
that
led
the
Agency
to
propose
this
major
interpretive
shift
of
the
Bevill
Amendment`
s
FFC
waste
clause.
Your
response
suggested
several
considerations
unrelated
to
FFC
co­
management
experience:
Mr.
Richard
J.
Kinch
Mr.
Dennis
C.
Ruddy
May
8,2003
Page
3
0
The
"
uniquely
associated
concept"
had
been
previously
applied
to
oil
and
gas
refining
wastes
and
to
mining
wastes
and
establishing
a
uniform
approach
to
all
Bevill
wastes
seemed
to
some
at
EPA
to
be
sound
policy;

0
There
is
a
concern
among
some
EPA
staff
that
the
Dietrich
Policy
could
apply
to
an
unlimited
range
of
wastes
that
by
themselves
would
be
regulated
under
Subtitle
C
of
RCRA,
including
future
wastes
not
generated
today
and
therefore
not
capable
of
identification
and
assessment
today.

Neither
of
these
considerations
justifies
abandonment
of
the
Dietrich
Policy.

First,
as
we
explained
in
our
September
2000
comments,
the
plain
language
of
the
statutory
clauses
identifying
the
categories
of
wastes
covered
by
the
Bevill
Amendment
preclude
a
policy
of
uniform
application
of
the
"
uniquely
associated"
concept.
Compare
RCRA
Q
3001
(
b)(
3)(
A)(
i)
(
FFC
waste
clause)
with
id.
Q
3001
(
b)(
3)(
A)(
ii)
(
mining
waste
clause)
and
id.
Q
3001
(
b)(
2)(
A)
(
oil
and
gas
production
waste
clause).
See
Comments,
p.
14
("
Whereas
for
fossil
fuel
combustion,
Congress
specified
the
four
principal
waste
streams
by
name
as
they
were
actually
managed
at
the
time
(
i.
e.,
co­
managed
with
the
wastes
identified
in
the
Dietrich
Policy),
Congress
simply
referred
generally
to
wastes
from
the
mining
and
mineral
processing
industry
sectors.").
The
legislative
history
of
the
Amendment
­
particularly
Rep.
Bevill's
discussion
of
the
language
used
in
the
FFC
clause
­
explains
the
significance
of
the
textual
differences
among
the
Bevill
clauses.
See
126
Cong.
Rec.
3361
­
62
(
1
980).
USWAG's
September
2000
Comments
analyze
these
legislative
materials
in
detail,
and
rather
than
repeating
that
analysis
here,
we
respectfully
refer
you
to
pages
9­
17
of
those
Comments.
The
conclusion
to
be
drawn
from
this
legislative
analysis
is
that
EPA's
quest
for
uniformity
among
Bevill
wastes
is
simply
contrary
to
the
text,
structure,
and
purposes
of
the
Bevill
Amendment
clauses.

In
addition,
our
Comments
demonstrate
that
EPAs
attempt
to
use
the
"
uniquely
associated
wastes"
concept
for
defining
permissible
co­
management
of
non­
Bevill
wastes
with
FFC
Bevill
wastes
is
wholly
unprecedented.
In
the
previous
application
of
the
"
uniquely
associated
wastes"
concept
to
mining
and
petroleum
wastes,
 PA
was
defining
the
scope
of
wastes
eligible
for
the
Bevill
exclusion
without
regard
to
whether
those
wastes
were
separately
managed
or
co­
managed
with
other
wastes.
See
Comments,
p.
13.
The
Dietrich
Policy
explicitly
limits
the
Bevill
exclusion
to
co­
management
of
certain
qualified
"
low
volume
wastes"
with
FFC
wastes.
Id.
at
pp.
9­
10
(
quoting
Dietrich
Policy,
p.
5).
These
low
volume
wastes
when
separately
managed
are
not
Bevill
wastes.
Dietrich
Policy,
p.
6
("
If
any
of
these
[
low
volume]
wastes
are
segregated
and
disposed
of
or
treated
separately
from
combustion
wastes
and
they
are
hazardous
wastes,
they
are
not
covered
by
the
exclusion.").
Thus,
the
"
uniquely
associated"
proposal
for
FFC
wastes
is
not
in
reality
an
attempt
to
establish
a
uniform
policy
among
Bevill
wastes.
Rather,
it
is
an
improper
attempt
to
transform
the
concept
from
one
previously
used
to
identify
the
outer
boundaries
of
the
universe
of
Bevill­
Mr.
Richard
J.
Kinch
Mr.
Dennis
C.
Ruddy
May
8,2003
Page
4
excluded
wastes
in
the
mining
and
oil
and
gas
waste
categories
to
one
that
defines
permissible
co­
management
practices
for
FFC
wastes
under
the
Bevill
exclusion.

Second,
you
observed
that
some
EPA
staff
are
concerned
that
the
Dietrich
Policy
would
potentially
apply
to
an
unlimited
range
of
wastes,
including
wastes
not
generated
today
or
in
the
past
but
which
may
be
generated
in
the
future
whose
identity
and
characteristics
are
unknown.
This
concern
is
based
on
a
misunderstanding
of
the
Dietrich
Policy.
The
Policy
on
its
face
applies
to
a
finite
number
of
wastes
that
are
generated
in
conjunction
with
electric
power
generation
and
have
been
traditionally
co­
managed
with
FFC
wastes.
Specifically,
two
conditions
must
be
met
for
a
"
low
volume"
waste
to
qualify
for
co­
management
with
FFC
waste:

1.
The
waste
must
stem
from
the
power
generation
process.
Dietrich
Policy,
p.
6
("
We
do
not
intend
to
exempt
hazardous
wastes
that
are
generated
by
activities
that
are
not
directly
associated
with
fossil
fuel
combustion,
steam
generation
or
water
cooling
processes."),
and
2.
The
waste
was
traditionally
co­
managed
with
FF
C
wastes.
bid.
("
The
interpretation
on
[
low
volume]
wastes
is
also
limited
to
wastes
that
traditionally
have
been
and
which
actually
are
mixed
with
or
codisposed
or
co­
treated
with
combustion
wastes"
(
emphasis
added).).

To
leave
no
doubt
as
to
the
scope
of
eligible
wastes,
the
Policy
contains
a
list
specifying
the
types
of
low
volume
wastes
that
qualify
­
"
boiler
cleaning
solutions,
boiler
blowdown,
demineralizer
regenerant,
pyrites
and
cooling
tower
blowdown"
­
and
those
that
do
not
­
"
pesticides
or
herbicide
wastes,
spent
solvents,
waste
oils
or
other
wastes
that
might
be
generated
in
construction
or
maintenance
activities"
and
listed
hazardous
wastes
under
40
C.
F.
R
QQ
261.31­.
33.
bid.
Thus,
the
staffs
concern
that
the
Policy
may
potentially
apply
"
to
an
unlimited
range
of
wastes"
is
unfounded
because
a
strict
set
of
criteria
must
be
met
before
low
volume
wastes
may
be
co­
managed
with
high
volume
FFC
wastes.

Again,
the
legislative
history
of
the
Bevill
Amendment
is
the
key
to
understanding
the
limited
scope
of
the
Dietrich
Policy.
Rep.
Bevill
was
explicit
in
explaining
that
the
objective
of
the
Bevill
Amendment
was
to
maintain
the
regulatory
status
quo
that
existed
for
FFC
waste
management
in
1980
until
EPA
determined
through
its
study
of
those
waste
streams
and
how
they
are
managed
whether
a
change
in
regulatory
status
was
warranted.
See,
e.
g.,
126
Cong.
Rec.
3361
(
1980)
(
The
amendment
"
would
require
EPA
to
defer
imposition
of
regulatory
requirements
on
the
waste
disposal
of
the
byproducts
of
fossil
fuel
combustion
.
.
.
until
after
EPA
has
completed
studies
to
determine
whether,
if
at
all,
these
materials
present
any
hazard
to
human
health
or
the
environment.").
In
the
context
of
co­
management
of
FFC
wastes
with
qualified
low
volume
wastes,
both
Rep.
Bevill
and
Rep.
Rahall
stressed
that
EPA
should
not
alter
the
regulatory
status
of
existing
FFC
management
practices
without
a
demonstrated
need
Mr.
Richard
J.
Kinch
Mr.
Dennis
C.
Ruddy
May
8,2003
Page
5
for
increased
regulation
based
on
the
Bevill
study
and
the
statutory
process
for
making
a
regulatory
determination.
Addressing
his
remarks
directly
to
EPA,
Rep.
Bevill
explained
on
the
House
floor
when
he
offered
his
amendment:

EPA
should
recognize
that
these
"
waste
streams"
often
include
not
only
the
byproducts
of
the
combustion
of
coal
and
other
fossil
fuels,
but
also
relatively
small
proportions
of
other
materials
produced
in
conjunction
with
the
combustion,
even
if
not
derived
directly
from
these
fuels.
EPA
should
not
regulate
these
waste
streams
because
of
the
presence
of
these
materials,
if
there
is
no
evidence
of
any
substantial
environmental
danger
from
these
mixtures.

Id.
at
3362.
Rep.
Bevill's
remarks
were
echoed
later
in
the
debate
in
a
similar
message
to
EPA
by
Rep.
Rahall:

In
the
real
world,
these
waste
materials
[
fly
ash
waste,
bottom
ash
waste,
slag
waste,
and
flue
gas
emission
control
wastes]
do
not
include
solely
fly
ash,
bottom
ash,
slag,
or
scrubber
sludge.
Quite
often,
other
materials
are
mixed
with
these
large
volume
waste
streams,
with
no
environmental
harmful
effects,
and
often
with
considerable
benefit
­
as
when,
for
example,
boiler
cleaning
acids
are
neutralized
by
being
mixed
with
alkaline
fly
ash.
These
appear
to
me
to
be
environmentally
beneficial
practices,
which
EPA
should
encourage.
At
the
very
least,
however,
the
Agency
should
take
no
steps
to
discourage
them
until
it
has
developed
a
full
factual
understanding
of
the
situation.

Id.
at
3364.
In
other
words,
the
management
practices
in
existence
in
1980
were
not
to
be
set
aside
unless
EPA's
Bevill
study
demonstrated
a
need
for
redefining
the
scope
of
permissible
co­
management.
Of
course,
the
Agency's
Bevill
Study
did
not
make
this
demonstration,
but
in
fact
reached
just
the
opposite
conclusion
by
finding
that
such
co­
management
practices
do
not
warrant
RCRA
Subtitle
C
regulation.

In
sum,
the
"
uniquely
associated
wastes"
proposal
neither
honors
congressional
intent
nor
enhances
environmental
protection.
It
imposes
significant
costs,
while
increasing
risks
to
public
health
and
safety.
It
is
poor
public
policy
because
it
unnecessarily
blurs
a
clear
bright
line
policy
that
has
been
well­
understood
for
more
than
20
years
by
imposing
a
set
of
confusing
guidelines
certain
to
generate
a
barrage
of
requests
for
clarification
to
the
Agency
for
years
to
come
and
the
potential
for
litigation.
It
appears
to
be
a
solution
in
search
of
a
problem
with
none
of
the
attributes
that
suggest
that
it
would
benefit
the
environment
or
streamline
administration
of
the
RCRA
Bevill
Amendment
program
for
FFC
wastes.

Accordingly,
we
request
that
EPA
retain
the
existing
Dietrich
Policy
on
the
scope
of
Bevill
co­
management
and
to
formally
withdraw
its
proposal
to
adopt
the
"
uniquely
Mr.
Richard
J.
Kinch
Mr.
Dennis
C.
Ruddy
May
8,2003
Page
6
associated
wastes"
approach
for
FFC
wastes.
We
are
prepared
to
meet
with
the
Agency
to
discuss
this
important
issue.
Please
call
me
if
you
have
any
questions.

Sincerely
yours,

u
James
R.
Roewer
Executive
Director
Enclosure
Excerpt
From
Comments
of
the
Utility
Solid
Waste
Activities
Group,
the
Edison
Electric
Institute,
the
American
Public
Power
Association,
and
the
National
Rural
Electric
Cooperative
Association
On:

EPA
S
REGULATORY
D
ETERM
I
NATION
ON
WASTES
FROM
THE
COMBUSTION
OF
FOSSIL
FUELS,
65
Fed.
Reg.
32214
(
May
22,2000)

Comments
Originally
Submitted
To
EPA
Docket
No.
F­
2OOO­
FF2F­
FFFFF
On
September
19,2000
TABLE
OF
CONTENTS
I
NTRODUCTI
ON
....................................................................................................
1
I.
General
Comments
on
the
Regulatory
Determination.
................................
3
A.

B.
Additional
Federal
Re
Mine
Placement
National
Subtitle
D
Regulations
Are
Not
Warranted
..........................
4
Is
Not
Warranted
.............
........................................................
6
C.
EPA
Appropri
ly
Determined
No
Fu
Regulation
of
d
........................
7
II.
Uniquely
Associated
Wastes
Concept
.........................................................
8
A.

B.

C.

D.

E.
The
Dietrich
Policy
Correctly
Interprets
Congressional
Intent
to
Exempt
Certain
Low
Volume
FFC
Wastes
That
Are
Co­
Managed
with
High
Volume
FFC
Wastes.
....................
9
EPA
Has
Not
Justified
for
Imposing
on
FFC
Wastes
a
Framework
Designed
for
Other
Bevill
Waste
Categories.
..............
12
The
Uniquely
Associated
Wastes
Proposal
Contradicts
the
Regulatory
Determination
and
Report
to
Congress
.....................
17
The
Dietrich
Policy
Clearly
Delineates
the
Scope
of
the
Bevill
Combustion
Waste
Exemption,
Whereas
the
Uniquely
Associated
Proposal
Creates
Needless
Confusion.
...........
19
EPA's
Proposed
Reinterpretation
Would
Impose
Significant
Costs
and
Increase
Risk
to
Public
Safety
with
Little
or
No
Environmental
Benefit.
............................................
23
Ill.
Mill
Rejects
Co­
Management
Guidance
Document
.....................................
31
IV.
Response
to
Request
for
Economic
Information
..........................................
33
CONCLUSION
........................................................................................................
37
APPENDIX
A.

B.
Letter
from
Gary
N.
Dietrich,
EPA
Associate
Deputy
Administrator
for
Solid
Waste,
to
Paul
Emler,
Jr.,
USWAG
Chairman
(
Jan.
13,
1981)

The
EOP
Group,
Inc.,
Economic
Analysis
of
the
Regulatory
Determination
on
Wastes
from
Combustion
of
Fossil
Fuels
(
Sept.
2000)
II.
Uniquely
Associated
Wastes
Concept.

EPA's
proposal
to
impose
the
"
uniquely
associated
wastes"
framework
on
Bevill
fossil
fuel
combustion
wastes
(
65
Fed.
Reg.
at
32219­
20)
is
a
complete
mismatch
that
neither
honors
congressional
intent
nor
advances
environmental
performance.
Rather,

it
would
impose
significant
costs
and
risks
to
public
health
and
safety,
and
from
the
standpoint
of
sound
public
administration
replaces
a
clear
bright
line
policy
that
has
been
well­
understood
for
nearly
20
years
with
a
confusing
guideline
certain
to
generate
an
endless
stream
of
inquiries
to
the
Agency
for
clarification
and
the
possibility
of
litigation
for
many
years.
EPA
should
retain
the
existing
Dietrich
Policy
on
the
scope
of
BeviII
co­
management
(
Letter
from
Gary
N.
Dietrich,
EPA
Associate
Deputy
Administrator
for
Solid
Waste
to
Paul
Emler,
Jr.,
USWAG
Chairman
(
Jan.
13,
1981)

("
Dietrich
Policy")
(
copy
attached
as
Appendix
A)),
which
has
proven
to
be
an
environmentally
protective
and
workable
approach
since
shortly
after
enactment
of
the
Bevill
Amendment.
EPA
has
presented
no
justification
whatsoever
for
this
significant
­
8
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change
of
course
that
contradicts
congressional
intent
and
the
findings
presented
in
the
Report
to
Congress
and
the
Regulatory
Determination.

A.
The
Dietrich
Policy
Correctly
Interprets
Congressional
Intent
to
Exempt
Certain
Low
Volume
FFC
Wastes
that
Are
Co­
Managed
with
High
Volume
FFC
Wastes.

Nearly
20
years
ago,
EPA
articulated
in
the
Dietrich
Policy
its
interpretation
of
the
scope
of
the
Bevill
"
wastes
produced
in
conjunction
with
the
combustion
of
fossil
fuels,

which
are
necessarily
associated
with
the
production
of
energy"
and
therefore
are
included
within
the
scope
of
the
Bevill
FFC
exemption
when
co­
managed
with
high
volume
FFC
wastes.
Dietrich
Policy
at
7.
In
so
doing,
the
Agency's
Dietrich
Policy
presents
a
proven
framework
for
determining
which
low
volume
wastes
Congress
intended
to
allow
to
be
co­
managed
with
the
specified
exempt
high
volume
wastes
and
retain
the
BeviII
exemption.
EPA
supplied
the
clarification
in
response
to
a
request
from
the
electric
utility
industry
submitted
October
10,
1980
in
which
USWAG
sought
clarification
of
the
recently
enacted
Bevill
Amendment.
Letter
from
Paul
Emler,
Jr.,

USWAG
Chairman
(
Oct.
10,
1980).
EPA's
deliberations
and
opinion
were
thus
contemporaneous
with
enactment
and
implementation
of
the
Bevill
Amendment.

The
Agency's
interpretation
of
legislative
intent
was
unequivocal
and
supported
with
legislative
history
citations:

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
I
102,
remarks
of
Congressman
Bevill;
also
see
remarks
of
Congressman
Rahall,
Congressional
Record,
February
20,
1980,
p.
H
I
104.)

­
9
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Dietrich
Policy
at
5
(
emphasis
in
original).
EPA
explained
further
that
Congress
intended
that
such
low
volume
wastes
that
"
traditionally
have
been,
and
which
actually
are,
mixed
with
and
co­
disposed
or
co­
treated
with"
the
four
enumerated
high
volume
waste
are
included
within
the
scope
of
the
Bevill
amendment.
u.
at
7.

EPA's
policy
was
not
only
a
valid
interpretation
of
congressional
intent,
it
was
the
only
permissible
interpretation.
The
Bevill
Amendment's
FFC
clause
addresses
"
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."
RCRA
§
3001(
b)(
3)(
A)(
i).
In
presenting
his
amendment
on
the
House
floor,
Rep.
Bevill
explicitly
explained
his
intention
that
the
list
of
waste
materials
in
the
amendment
be
read
broadly,
to
incorporate
the
waste
products
generated
in
the
real
world
as
a
result
of
the
combustion
of
fossil
fuels.
.
.
.
EPA
should
recognize
that
these
"
waste
streams"
often
include
not
only
the
byproducts
of
the
combustion
of
coal
and
other
fossil
fuels,
but
also
relatively
small
proportions
of
other
materials
produced
in
coniunction
with
the
combustion,
even
if
not
derived
directly
from
these
fuels.
EPA
should
not
regulate
these
waste
streams
because
of
the
presence
of
these
materials,
if
there
is
no
evidence
of
any
substantial
environmental
danger
from
these
mixtures.

126
Cong.
Rec.
3362
(
1980)
(
emphasis
added).
In
other
words,
the
phrase
"
fly
ash
waste,
bottom
ash
waste,
slag
waste,
and
flue
gas
emission
control
waste"
was
not
limited
to
fly
ash,
bottom
ash,
slag,
and
flue
gas
desulfurization
sludge,
but
referred
broadly
to
waste
mixtures
that
consisted
primarily
of
those
high
volume
combustion
wastes
but
also
included
non­
combustion
wastes
"
produced
in
conjunction
with
.
.
.

combustion"
of
fossil
fuels.
M.
Rep.
Bevill
left
no
doubt
as
to
the
scope
of
the
exemption.

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There
is
no
room
for
Agency
interpretation
where
``
Congress
has
directly
spoken
to
the
precise
question
at
issue."
Chevron
USA,
Inc.
v.
NRDC,
Inc.,
467
U.
S.
837,
842
(
1984);
NRDC
v.
Browner,
57
F.
3d
1122,
1125
(
D.
C.
Cir.
1995).
In
step
1
of
the
Chevron
analysis,
"[
llf
a
court,
employing
traditional
tools
of
statutory
construction,

ascertains
that
Congress
had
an
intention
on
the
precise
question
at
issue,
that
intention
is
the
law
and
must
be
given
effect."
Chevron,
467
U.
S.
at
843
n.
9
(
1984).

Congressman
Bevill's
floor
statement
quoted
above
is
precisely
focused
on
the
co­
management
issue.
Congressman
Rahall
provided
additional
detail
and
demonstrated
a
keen
awareness
of
the
significance
of
utility
waste
co­
management
to
the
purposes
of
the
Bevill
Amendment:
I
In
the
real
world,
these
waste
materials
do
not
include
solely
fly
ash,
bottom
ash,
slag,
or
scrubber
sludge.
Quite
often,
other
materials
are
mixed
with
these
large
volume
waste
streams,
with
no
environmental
harmful
effects,
and
often
with
considerable
benefit
­
as
when,
for
example,
boiler
cleaning
acids
are
neutralized
by
being
mixed
with
alkaline
fly
ash.

126
Cong.
Rec.
3364
(
1
980).`
Congressman
Rahall
stated
further
that
the
"
Amendment
would
assure
that
EPA
allows
persons
burning
coal
to
avoid
unnecessary
regulation
of
the
byproducts
produced
by
that
combustion,
as
those
byproducts
are
currently
being
managed
in
the
real
world,
by
real
people,
with
real
sense."
M.

There
is
nothing
to
the
contrary
in
the
legislative
history
applicable
to
combustion
wastes
that
would
justify
a
departure
from
the
Dietrich
Policy's
conclusion
that
Congress
1
The
proposed
uniquely
associated
waste
framework
explicitly
excludes
from
the
Bevill
exemption
the
very
example
of
an
eligible
low
volume
waste
stream
identified
by
Congressman
Rahall
­­
boiler
chemical
cleaning
wastes
­
a
direct
contradiction
of
this
unequivocal
indication
of
congressional
intent.

­
11
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intended
that
the
Bevill
FFC
exemption
should
extend
to
certain
low
volume
wastes
provided
they
are
co­
managed
with
high
volume
wastes
and
further
provided
they
do
not
pose
a
"
substantial
environmental
danger."
Dietrich
Policy
at
5.
The
proposed
uniquely
associated
waste
policy,
if
applied
to
FFC
wastes,
would
be
contrary
to
law.

B.
EPA
Has
Not
Justified
Imposing
on
FFC
Wastes
a
Framework
Designed
for
Other
Bevill
Waste
Categories.

The
Federal
Register
discussion
simply
presents
the
unsupported
and
circular
argument
that
EPA
must
"
define
appropriate
boundaries
for
the
Bevill
exemption,

because
there
is
no
authority
to
grant
Bevill
status
to
wastes
that
are
not
uniquely
associated."
2
65
Fed.
Reg.
at
32220.
However,
the
term
"
uniquely
associated"
appears
nowhere
in
the
combustion
waste
clause
of
the
Bevill
Amendment.
Use
of
this
concept
is
not
a
legislative
imperative
as
EPA
suggests;
rather,
as
discussed
above,
the
uniquely
associated
waste
concept
contradicts
congressional
intent
to
recognize
historic
fossil
fuel
combustion
waste
co­
management
practices.

The
low
volume
wastes
addressed
in
the
Dietrich
Policy
are
not
currently
and
were
never
intended
to
be
exempt
when
managed
separately.
The
Bevill
exemption
for
these
wastes
is
contingent
upon
co­
management
with
the
four
specified
high
volume
wastes.
In
sharp
contrast,
EPA's
proposed
uniquely
associated
waste
approach
ignores
the
co­
management
concept
entirely,
failing
to
even
acknowledge
the
existing
Dietrich
Policy.
Rather,
the
uniquely
associated
waste
approach
was
designed
for
other
Bevill
waste
categories
that
do
not
share
the
co­
management
concept
with
FFC
wastes.

2
As
discussed
in
detail
in
subsection
1I.
D.
below,
EPA
has
indeed
already
clearly
delineated
the
boundaries
of
the
Bevill
FCC
Exemption.

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Concurrent
with
development
of
the
Dietrich
Policy
to
address
the
FFC­
specific
issue
of
co­
management,
EPA
began
to
develop
the
uniquely
associated
waste
concept
as
it
grappled
with
the
scope
of
the
Bevill
exemptions
applicable
to
other
Bevill
wastes.

These
paths
have
diverged
for
nearly
20
years
as
the
result
of
separate
statutory
language
and
legislative
history
for
the
different
categories
of
Bevill
wastes.
It
is
inappropriate
and
illogical
for
EPA
now
to
force
the
management
of
Bevill
FFC
waste
onto
that
other
path.

On
November
19,
1980,
the
effective
date
of
the
Bevill
Amendment,
EPA
issued
an
interim
final
amendment
to
codify
the
Bevill
exemptions
applicable
to
"[
slolid
waste
from
the
extraction,
beneficiation,
and
processing
of
ores
and
minerals,
including
phosphate
rock
and
overburden
from
the
mining
of
uranium
ore."
45
Fed.
Reg.
76618,

76619
(
Nov.
19,
1980)
(
implementing
RCRA
§
3001
(
b)(
3)(
A)(
ii)).'
In
that
notice,
without
elaborate
discussion,
EPA
introduced
the
term
"
uniquely
associated"
to
describe
the
limits
on
the
scope
of
the
Bevill
exemption
applicable
to
those
wastes.
u.
EPAs
task
was
to
determine
which
wastes
were
exempt
from
Subtitle
C
and
which
were
not
included
within
the
scope
of
the
applicable
Bevill
exemption.
The
concept
of
co­

management
was
not
mentioned
because
EPA
was
interpreting
the
scope
of
"[
slolid
waste
from
the
extraction,
beneficiation,
and
processing
of
ores
and
minerals,"
not
what
other
wastes
may
be
co­
managed
with
Bevill­
exempt
wastes
without
jeopardizing
the
exemption.

3
The
Federal
Register
notice
also
addressed
the
Bevill
cement
kiln
dust
clause,
RCRA
§
300
1
(
b)
(
3)
(
A)
(
i
i
i)
.

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­
13
­
As
discussed
above,
EPA
was
concurrently
and
independently
considering
the
scope
of
the
Bevill
exemption
applicable
to
co­
managed
fossil
fuel
combustion
wastes.

A
separate
path
was
clearly
necessary
since
the
legislative
history
of
the
other
Bevill
waste
streams
includes
no
indication
that
Congress
was
aware
of
or
desired
to
include
within
the
scope
of
the
exemption
the
concept
of
co­
management.
4
Whereas
for
fossil
fuel
combustion,
Congress
specified
the
four
principal
waste
streams
by
name
as
they
were
actually
managed
at
the
time
(
k,
co­
managed
with
the
wastes
identified
in
the
Dietrich
Policy),
Congress
simply
referred
generally
to
wastes
from
the
mining
and
mineral
processing
industry
sectors.
EPA
has
explicitly
stated
that,
contrary
to
Rep.

Bevill's
statement
that
the
FFC
waste
streams
"
be
read
broadly"
(
126
Cong.
Rec.
3362),

"
there
is
nothing
in
either
the
amendments
themselves
or
in
the
legislative
record
supporting
them
to
suggest
that
Congress
construed
the
term
`
mineral
processing'

broadly."
54
Fed.
Reg.
15321
(
April
17,
1989).
5
In
the
context
of
subsequent
regulatory
actions
focused
on
the
mining
and
mineral
processing
and
oil
and
gas
production
industries,
EPA
reiterated
the
term
"
uniquely
associated".
Through
the
years,
EPA
has
engaged
in
a
resource­
intensive
case­
by­
case
series
of
interpretations
of
this
term
through
informal
interpretative
letters.

See,
e.
a,
Letter
from
Dan
Derkics,
Chief,
EPA
Large
Volume
Waste
Section
to
Julie
4
EPA
does
indicate
recognition
of
the
co­
management
issue
in
at
least
one
reference
to
other
Bevill
wastes.
In
the
Oil
and
Gas
Regulatory
Determination,
EPA
provided
a
list
of
"
other
wastes
associated"
and
stated
that
"[
dlrill
cutttings
and
rigwash
are
generally
co­
mingled
with
drilling
muds,
and
the
Agency
therefore
has
grouped
them
with
large­
volume
wastes
for
purposes
of
discussion
in
this
determination."
53
Fed.
Reg.
25446,
25453­
54
(
July
6,
1988).

This
statement
appears
to
have
overlooked
a
contrary
statement
by
Rep.
Bevill.
See
126
Cong.
Rec.
29982
(
1
980).
5
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Wanslow,
NMEID
(
June
6,
1989);
Letter
from
J.
Winston
Porter,
EPA
Assistant
Administrator,
to
James
Nugent,
Texas
Railroad
Commission
(
Jan.
13,
1987);

Memorandum
from
Sylvia
Lowrance,
Director,
EPA
Office
of
Solid
Waste,
to
Jeffrey
Zelikson,
Director,
Hazardous
Waste
Management
Division,
EPA
Region
9
(
June
30,

1993).

Only
recently,
in
the
1998
Phase
IV
LDR
rule
and
background
documents
did
EPA
formally
elaborate
upon
the
concept
as
applicable
to
mining
and
mineral
processing
wastes.
63
Fed.
Reg.
28556,
(
May
26,
1998);
EPA,
Technical
Background
Document:
Identification
and
Description
of
Mineral
Processing
Sectors
and
Waste
Streams
43­
46
(
April
1998).
Those
documents
contain
a
description
of
the
uniquely
associated
waste
concept
that
is
in
large
part
identical
to
the
discussion
used
in
the
May
2000
FFC
Bevill
Regulatory
Determination.
However,
EPA
explicitly
stated
that
the
discussion
of
uniquely
associated
wastes
in
the
Phase
IV
rulemaking
"
does
not
affect
any
Bevill
Exempt
wastes
other
than
mining
and
mineral
processing
wastes."
EPA,

Comment
and
Response
Document
for
the
January
25,
1996
Supplemental
Proposed
Rule,
Land
Disposal
Restrictions
at
4­
16
(
April
1998);
EPA,
Response
to
Comments
Document,
Land
Disposal
Restrictions­
Phase
IV:
Final
Rule,
vol.
14,
at
3­
30
(
April
30,

1998)
("
Today's
rule
does
not
in
any
way
affect
the
RCRA
BeviII
regulatory
status
of
wastes
from
the
combustion
of
fossil
fuels.").
Despite
this
statement,
EPA
cites
the
Phase
IV
LDR
rule
as
authority
for
application
of
this
concept
to
combustion
wastes.

EPA,
Public
Comment
Summary
and
Response
Document
for
the
Regulatory
Determination
at
X­
9
,
X­
14
(
April
25,2000)
("
FFC
Response
Document").
No
other
authority
is
provided
anywhere
in
the
record.
I
0
­
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EPA's
"
uniquely
associated"
concept
was
designed
to
tackle
the
task
of
determining
whether
a
given
mining
waste
­
or
later
oil
and
gas
production
waste
(
see
53
Fed.
Reg.
25446,
25454
(
July
6,
1988))
­
qualified
for
the
Bevill
exemption,
with
no
consideration
of
co­
management.
EPA
improperly
assumes
that
its
interpretation
of
the
Bevill
FFC
exemption
must
be
"
entirely
consistent
with
the
Agency's
current
policies
and
practices
with
regard
to
other
Bevill­
exempt
wastes."
FFC
Response
Document
at
X­
9.
Where
Congress
has
established
a
separate
and
distinct
standard
for
Bevill
eligibility
standard
among
the
various
Bevill
waste
categories,
the
quest
for
consistency
among
these
separate
wastes
is
wholly
arbitrary
and
unlawful.
EPA
has
lost
sight
of
clear
legislative
policy
and
the
Agency's
own
20
year
policy
of
treating
these
different
Bevill
wastes
according
to
the
different
congressional
standards
encompassed
in
the
legislative
record.

As
justification
for
the
uniquely
associated
waste
proposal,
EPA
has
stated
that
it
must
"
define
appropriate
boundaries
for
the
Bevill
exemption,
because
there
is
no
authority
to
grant
Bevill
status
to
wastes
that
are
not
uniquely
associated."
M.
As
we
have
already
demonstrated,
that
statement
is
legal
error
because
there
is
nothing
in
the
combustion
waste
portion
of
the
Bevill
Amendment
(
or
corresponding
legislative
history)

that
introduces
the
phrase
"
uniquely
associated"
or
the
definition
EPA
has
given
to
that
phrase.

Perhaps
if
EPA
is
determined
to
apply
the
label
"
uniquely
associated"
to
utility
combustion
waste
co­
management,
it
could
apply
that
label
to
the
universe
of
eligible
wastes
as
defined
by
the
Dietrich
Policy.
But
given
the
clear
evidence
that
Congress
intended
a
broad
universe
of
eligible
co­
managed
wastes,
EPA
may
bring
about
more
­
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confusion
than
clarification
by
using
the
uniquely
associated
waste
concept
in
the
combustion
waste
context.
Clearly,
whatever
label
EPA
ultimately
chooses,
EPA
is
on
solid
legal
ground
in
recognizing
the
BeviII
status
of
co­
managed
wastes
within
the
boundaries
described
in
the
Dietrich
Policy.

C.
The
Uniquely
Associated
Wastes
Proposal
Contradicts
the
Regulatory
Determination
and
Report
to
Congress.

Although
the
Federal
Register
notice
presents
the
uniquely
associated
waste
gh
the
Agency
were
writing
on
a
blank
slate,
it
is
in
fact
a
reversal
of
the
Regulatory
Determination's
fundamental
conclusion
that
the
co­
managed
wastes
studied
by
EPA
during
the
Bevill
Phase
II
FFC
Study
do
not
warrant
regulation
under
RCRA
Subtitle
C.
There
is
no
justification
in
the
Report
to
Congress
or
elsewhere
for
this
part
of
the
Determination.
I
,

I
I
Even
though
EPA
acknowledged
when
it
issued
the
Dietrich
Policy
in
1981
that
it
lacked
"
definitive
information
about
the
hazardous
properties
of
these
other
wastes
or
i
their
mixtures
with
combustion
wastes,"
EPA
understood
clearly
that
Congress
intended
to
include
them
within
the
exemption
so
that
their
future
regulatory
status
could
be
determined
by
the
results
of
EPA's
study
of
these
waste
management
practices.

Dietrich
Policy
at
5.
The
mandate
to
perform
a
study
of
Bevill
exempt
wastes
and
issue
a
Regulatory
Determination
was
intended
to
test
the
congressional
hypothesis
that
these
co­
management
practices
were
appropriate
and
did
not
pose
a
"
substantial
environmental
danger."
126
Cong.
Rec.
3362.
The
Agency
fully
understood
this
intention
since
1981
and
indicated
in
the
Dietrich
Policy
that
only
eyidence
of
environmental
danger
from
particular
co­
management
activities
could
lead
to
reexamination
of
the
scope
of
the
Bevill
FFC
Exemption.
Dietrich
Policy
at
5.

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­
1
7
­
Based
upon
the
statutory
language
and
legislative
intent
as
explained
in
the
Dietrich
Policy,
EPA
delineated
specific
exempt
co­
management
practices
that
were
subject
to
evaluation
in
the
Phase
II
Bevill
FFC
Study.
These
waste
streams
are
listed
in
a
judicial
consent
decree
(
Gearhart
v.
Reillv,
No.
91­
2345,
Consent
Decree
4
(
D.
D.
C.
1992))
and
in
EPA's
Phase
I
Regulatory
Determination
(
58
Fed.
Reg.
42466,

42470
(
Aug.
9,
1993)):

Discharge
of
boiler
blowdown
to
a
large­
volume
waste
impoundment,

Discharge
of
demineralizer
regenerant
to
a
large­
volume
waste
impoundment,

Discharge
of
metal
cleaning
wastes
to
a
large­
volume
waste
impoundment,

0
Discharge
of
boiler
chemical
cleaning
wastes
to
a
large­
volume
waste
impoundment,

0
Discharge
of
plant
wastewater
treatment
effluent
to
a
large­
volume
waste
impoundment,

Discharge
of
coal
mill
rejects
to
a
large­
volume
waste
impoundment,

0
Discharge
of
oil
ash
in
a
large­
volume
waste
landfill
or
impoundment,

Disposal
of
plant
wastewater
treatment
sludge
to
a
large­
volume
waste
landfill,

Disposal
of
coal
mill
rejects
in
a
large­
volume
waste
landfill,
and
0
Reuse
of
metal
cleaning
wastewaters
in
a
FGD
feedwater
system.

­
Id.
EPA
pursued
an
extensive
data
collection
and
analysis
effort
to
assess
the
environmental
risks
associated
with
these
co­
managed
waste
streams.
In
the
1999
Report
to
Congress
the
Agency
concluded
that
these
wastes
do
not
pose
a
substantial
danger
to
human
health
or
the
environment
and
do
not
warrant
Subtitle
C
regulation.

1999
RTC
at
3­
73
­
3­
74.
The
2000
Regulatory
Determination
confirmed
that
recommendation.
65
Fed.
Reg.
at
32215.

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Nonetheless,
the
proposed
"
uniquely
associated
wastes"
concept,
in
effect,

would
overturn
the
Bevill­
exempt
status
of
a
significant
number
of
the
very
waste
streams
studied,
including
co­
managed
boiler
blowdown,
cooling
tower
blowdown
and
sludges,
water
treatment
regeneration
wastes,
boiler
waterside
chemical
cleaning
wastes,
and
laboratory
wastes.
H.
at
32220.
The
proposed
policy
reversal
is
simply
an
unlawful
end
run
around
the
Bevill
process
for
determining
the
regulatory
status
of
Bevill
wastes.

D.
The
Dietrich
Policy
Clearly
Delineates
the
Scope
of
the
BeviII
Combustion
Waste
Exemption,
Whereas
the
Uniquely
Associated
Proposal
Creates
Needless
Confusion.

I
I
The
most
important
reason
to
retain
the
Dietrich
Policy
interpretation
is
that
it
has
proven
itself
effective
in
furthering
congressional
intent
to
recognize
certain
historic
co­

management
practices
provided
they
are
not
environmentally
harmful.
The
policy
has
succeeded
because
it
provides
clearly
delineated
guidance
on
what
practices
are
and
are
not
appropriate.
~

The
Dietrich
Policy
articulates
the
clear
constraints
on
co­
management
of
FFC
waste.
To
summarize
these
requirements:

0
the
wastes
must
be
generated
in
conjunction
with
the
combustion
of
fossil
fuels;

0
the
wastes
must
be
co­
managed
with
one
or
more
of
the
four
specified
combustion
wastes;

0
there
must
be
no
evidence
of
substantial
environmental
danger
from
the
I
I
particular
co­
management
practice;
I
0
the
exemption
extends
on1
wastes
that
traditionally
have
been
and
which
1
I
actually
are
co­
managed
high
volume
FFC
wastes;
and
I
0
the
wastes
must
not
be
listed
hazardous
wastes.
~

I
I
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The
Bevill
FFC
Exemption
does
not
extend
to
co­
managed
"
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
or
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."
Dietrich
Policy
at
6.

Within
this
framework,
the
Dietrich
Policy
provides
exceptional
policy
clarity
and
boundaries
through
its
delineation
of
acceptable
co­
management
practices.`
It
is
currently
relied
upon
not
only
by
the
industry
but
by
state
regulatory
agencies.'

Regulators
and
the
regulated
community
have
a
clear
understanding
of
the
applicable
rules,
and,
as
a
result,
co­
management
does
not
present
compliance
issues.
The
imposition
of
a
new
and
significantly
different
approach
would
result
in
needless
confusion,
litigation,
and
unending
requests
for
clarification.

6
In
contrast,
EPA
proposes
to
use
the
following
"
qualitative
criteria"
to
determine
­­
on
a
0
case­
by­
case
basis
­­
whether
a
waste
is
"
uniquely
associated":

Wastes
from
ancillary
operations
are
not
"
uniquely
associated";
and
The
classification
depends
upon
"
the
extent
to
which
the
waste
originates
or
derives
from
the
fossil
fuels,
the
combustion
process,
or
combustion
residuals,
and
the
extent
to
which
these
operations
impart
chemical
characteristics
to
the
waste."

65
Fed.
Reg.
at
32220.

Dietrich
Policy
by
reference
in
the
Aquifer
Protection
Permit
(
APP)
to
Arizona
Public
Service
Company's
Cholla
facility.
The
APP
specifies
the
materials
that
may
be
disposed
in
coal
ash
impoundments
as
follows:
7
For
example,
the
Arizona
Department
of
Environmental
Quality
(
ADEQ)
incorporated
the
The
materials
listed
above
authorized
for
disposal
shall
not
contain
any
hazardous
wastes,
as
defined
in
40
CFR
261,
except
for
those
wastes
which
are
co­
disposed
in
accordance
with
42
USC
6921(
b)(
3)(
A)
and
40
CFR
261.4(
b)(
4)
and
further
clarified
by
the
January
13,
1981
EPA
letter
from
Gary
N.
Dietrich
to
Mr.
Paul
Elmer
Jr.
known
as
the
"
Dietrich
Letter."

­
20
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Perhaps
because
EPA
developed
the
uniquely
associated
waste
concept
for
other
industries
and
not
in
consideration
of
FFC
waste
co­
management,
the
proposed
list
of
"
uniquely
associated"
and
"
not
uniquely
associated"
wastes
is
inconsistent
with
the
current
waste
management
practices,
state
and
federal
regulatory
approaches,
the
Phase
Ii
Study,
the
Report
to
Congress,
and
the
Regulatory
Determination.
The
first
four
of
the
wastes
on
the
"
not
uniquely
associated
list"
(
boiler
blowdown,
cooling
tower
blowdown
and
sludges,
regeneration
wastes,
and
boiler
waterside
cleaning
wastes)
are
specifically
identified
in
the
Dietrich
Policy
as
"
necessarily
associated"
with
the
combustion
of
fossil
fuel
and
Bevill­
exempt
when
co­
managed.
Dietrich
Policy
at
4­
5,
8.

However,
EPA
now
proposes
to
consider
these
wastes
not
"
uniquely
associated"
with
the
combustion
of
fossil
fuel
­­
presumably
because
EPA
believes
that
these
waste
streams
do
not
come
into
contact
with
FFC
wastes
and
hence
there
is
no
transfer
of
chemical
characteristics
from
FFC
wastes
to
the
waste
streams
on
the
"
not
uniquely
associated"
list.
But
EPA
has
never
explained
the
relevance
of
the
"
physical
touching"

requirement
or
its
scope.
Indeed,
by
definition,
co­
managed
wastes
are
in
contact
with
high
volume
combustion
wastes
and
the
chemical
characteristics
of
the
mixture
are
dominated
by
the
high
volume
wastes.

It
is
particularly
strange
that
EPA
proposes
to
remove
the
Bevill
exemption
from
co­
managed
"
boiler
waterside
cleaning
wastes."
65
Fed.
Reg.
at
32220.
Indeed,
as
discussed
above,
Congressman
Rahall
specifically
referred
to
co­
m
"
boiler
cleaning
acids"
(
126
Cong
Rec.
3364)
and
in
turn
the
Dietrich
Policy
included
I
"
boiler
cleaning
solutions"
within
the
scope
of
the
co­
management
bxemption.
Dietrich
Policy
at
4.
Subsequently,
in
the
Report
to
Congress,
EPA
reported
on
the
study
of
­
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these
wastes
and
defined
"
boiler
chemical
cleaning
wastes"
as
"
wastes
resulting
from
the
periodic
cleaning
of
the
inside
(
waterside)
of
boiler
tubes
with
chemical
solutions."

1999
RTC
at
3­
3
(
emphasis
added).
EPA
would
retain
a
part
of
the
boiler
chemical
cleaning
waste
stream
­
what
it
now
calls
"
Boiler
Fireside
Chemical
Cleaning
Wastes"
­­

within
the
Bevill
universe
under
the
"
uniquely
associated
wastes"
framework.
65
Fed.

Reg.
at
32220.
However,
those
wastes
were
referred
to
in
the
Report
to
Congress
as
"
air
heater
and
precipitator
washwater,"
defined
as
"
wastes
resulting
from
the
periodic
cleaning
of
the
outside
(
fireside)
of
heat
exchanging
surfaces".
1999
RTC
at
3­
3
(
emphasis
added).
What
is
clear
from
this
progression
is
that
terminology
that
may
have
served
well
in
the
context
of
other
industries'
waste
streams
is
mismatched
when
applied
to
FFC
wastes.

The
application
of
the
"
ancillary"
criterion
to
FFC
wastes
as
set
out
in
the
uniquely
associated
waste
proposal
is
an
arbitrary
construction
that
will
require
endless
clarification.
Indeed,
in
the
Report
to
Congress,
EPA
described
that
"
comanagement
occurs
when
a
waste
management
unit
receives
both
large
volume
[
FFC
wastes]
and
other
wastes
that
are
generated
ancillary
to,
but
as
a
necessary
part
of,
the
combustion
and
power
generation
processes."

these
wastes
alternately
as
"
directly
associated"
(
Dietrich
Policy
at
6)
and
"
necessarily
associated"
(
a.
at
7).
It
would
be
arbitrary
for
EPA
now
to
declare
certain
co­
managed
wastes
"
not
uniquely
associated"
because
they
are
from
"
ancillary"
processes
based
upon
nothing
more
than
a
redefinition
of
terminology.
at
3­
1.
In
the
Dietrich
Policy,
EPA
describes
EPA's
application
of
the
uniquely
associated
concept
­
the
lists
of
"
uniquely
associated
wastes"
and
"
not
uniquely
associated
wastes"
­
seems
to
confuse
the
­
22
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combustion
chamber
for
the
complex,
extended
industrial
process
of
fossil
fuel
combustion
for
electricity
generation.
The
process
at
issue
with
fossil
fuel
combustion
wastes
is
the
entire
combustion
process
necessary
to
generate
electricity.
That
process
is
not
narrowly
limited
to
the
combustion
chamber.
Cooling
towers,
heat
exchangers
and
water
treatment
are
essential
sub­
processes
necessary
for
the
generation
of
electricity
­­
electricity
cannot
be
generated
by
the
combustion
chamber
alone.
Thus
the
sub­
processes
from
which
the
co­
managed
wastes
are
generated
are
not
"
ancillary"

as
EPA
seems
to
interpret
that
term
in
the
uniquely
associate
waste
proposal.
The
co­

managed
wastes
at
issue
in
the
Dietrich
Policy
should
also
qualify
as
"
uniquely
associated
wastes"
under
the
proposed
new
framework.

E.
EPA's
Proposed
Reinterpretation
Would
Impose
Significant
Costs
and
Increase
Risk
to
Public
Safety
With
Little
or
No
Environmental
Benefit.

The
specific
waste
management
practices
in
jeopardy
under
the
uniquely
associated
waste
proposal
are
historic
utility
industry
co­
management
practices
that
are
environmentally
protective
and
cost­
effective.
Their
elimination
would
impose
significant
economic
costs
on
the
industry
with
little
or
no
environmental
benefit.

Specifically,
EPA
proposes
that
the
following
wastes
would
not
be
uniquely
associated
and
therefore
would
not
be
eligible
for
BeviII
status
whether
or
not
co­
managed:

0
Boiler
waterside
cleaning
wastes;

0
Boiler
blowdown;

0
Cooling
tower
blowdown
and
sludges;

0
Intake
or.
makeup
water
treatment
and
regeneration
wastes;

Laboratory
wastes;

General
construction
and
demolition
debris;

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0
General
maintenance
wastes:
and
0
Spillage
or
leakage
of
materials
used
in
processes
that
generate
non­
uniquely
associated
wastes.

65
Fed.
Reg.
at
32220.
The
first
four
waste
streams
identified
on
the
proposed
"
not
uniquely
associated"
list
were
explicitly
included
in
the
scope
of
the
Dietrich
Policy
as
exempt
when
co­
managed
with
fossil
fuel
combustion
wastes.

As
a
threshold
matter,
it
is
important
to
acknowledge
that
the
Bevill
co­

management
exemption
is
of
practical
importance
only
when
the
low
volume
waste
stream
would
test
characteristically
hazardous.
A
non­
hazardous
low
volume
waste
may
be
co­
managed
with
a
Bevill­
exempt
FFC
waste
stream
without
regard
to
the
Bevill
exemption
to
the
same
extent
as
two
ordinary
nonhazardous
wastes
may
be
co­

managed
without
running
afoul
of
EPA
regulations.

EPA
correctly
acknowledged
that
most
co­
managed
low
volume
waste
streams
are
not
expected
to
exhibit
hazardous
characteristics.
1999
RTC
at
3­
16.
However,
the
low
frequency
of
testing
hazardous
does
not
indicate
that
a
reclassification
of
the
scope
of
permissible
Bevill
co­
management
would
have
insignificant
impacts.
To
the
contrary,

responses
to
a
preliminary
USWAG
questionnaire
indicate
that
the
cost
impacts
of
the
proposal
reach
the
significant
rulemaking
threshold.
The
potential
for
several
significant
affected
waste
streams
to
test
characteristically
hazardous
under
EPA's
proposal,

combined
with
the
cost
of
necessary
process
changes
and
the
cost
of
hazardous
waste
management,
translate
to
significant
additional
economic
burdens.
Even
though
these
wastes
may
test
hazardous
only
occasionally
at
some
plants,
utilities
would
be
forced
to
implement
costly
process
changes
to
prepare
for
the
contingency
of
segregated
hazardous
waste
management.
Given
the
low
probability
that
a
particular
stream
will
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test
hazardous
after
any
generation
event
and
the
low
environmental
risk
from
traditional
co­
management
practices,
such
modifications
would
not
be
cost­
effective.

EPA
seems
ready
t
administrative
uniformity,
without
any
acknowledgement
th
significant
consequences
of
its
proposal.
Indeed,
it
is
astonishing
that
the
proposal
was
not
even
mentioned
as
a
possible
option
in
the
1999
Report
to
Congre
economic
analyses
supportin
Determination.
he
Report
to
Congress
and
the
Regulatory
Historically
co­
managed
low
volume
wastes
are
integral
to
the
combustion
of
fossil
fuels
to
generate
electricity.
Reliable
electric
service
is
dependent
upon
sub­

processes
that
generate
these
streams.
The
most
significant
low
volume
waste
streams
that
would
be
affected
by
the
proposal
(

i.

e.,

waste
streams
that
potentially
could
test
hazardous
when
separately
managed)
are
boiler
chemical
cleaning
wastes
and
water
treatment
demineralizer
regeneration
wastes.
In
the
following
subsections
we
seek
to
provide
insight
into
traditional
generation
and
management
practices
for
these
waste
streams,
including
the
cost
and
risk
impacts
of
EPAs
proposal.

1.
Boiler
Chemical
Cleaninn
Wastes
Boiler
chemical
cleaning
wastes
("
BCCW")
are
generated
during
scheduled
cleaning
of
the
boiler
water
contact
surfaces
(
m,
tubes,
drums,
headers)
with
chemical
solutions
to
remove
minerals
and
metals
(
a
calcium,
copper,
iron,
magnesium,
nickel,

zinc,
etc.)
to
increase
heat
transfer
efficiency.
Iron
and
copper
deposits
are
the
greatest
concerns
due
to
their
adverse
effects
on
equipment
performance.
If
left
unchecked,

oxides
of
these
metals
accumulate
and
reduce
heat
transfer,
restrict
flow
and
promote
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corrosion
of
the
underlying
base
metal.
Periodic
cleaning
is
therefore
necessary
to
maintain
boiler
thermodynamic
efficiency
and
structural
integrity.

The
frequency
of
boiler
cleaning
is
dependent
upon
boiler
size,
configuration,

and
operating
conditions.
Because
cleaning
involves
significant
scheduled
boiler
down
time,
there
is
a
strong
incentive
to
extend
the
interval
between
cleanings,
thus
minimizing
waste
generation.
USWAG
members
report
cleaning
frequencies
between
2
and
10
years,
across
the
wide
range
of
boiler
types,
operating
conditions,
and
maintenance
procedures.

Drum­
type
boilers
are
typically
cleaned
using
chelate
chemicals.
The
resulting
waste
stream
has
the
potential
to
exhibit
the
toxicity
characteristic
for
chromium
and
lead,
with
chromium
being
the
most
significant
issue.
Initial
rinses
frequently
exceed
the
toxicity
characteristic
("
TC")
level
for
chromium,'
while
the
necessary
subsequent
rinses
contain
significantly
lower
concentrations.
Generally,
USWAG
members
generate
between
approximately
100,000
and
500,000
gallons
of
BCCW
waste
per
cleaning,
depending
upon
the
size
of
the
boiler
unit.

8
The
chromium
present
has
been
demonstrated
to
be
generally
trivalent,
and
these
wastes
would
therefore
be
candidates
for
the
Cr
(
Ill)
exclusion
in
40
C.
F.
R.
§
261.4(
b)(
6).
In
any
event,
EPA
should
recognize
that
BCCW
that
exceeds
the
TC
level
for
chromium
does
not
present
the
environmental
risks
of
concern
with
hexavalent
chromium­
containing
wastes.
See,
45
Fed.
Reg.
72029
(
Oct.
30,
1980)
(
Proposal
to
amend
the
hazardous
waste
toxicity
characteristic
to
apply
to
hexavalent
rather
than
total
chromium);
45
Fed.
Reg.
72035
(
Oct.
30,
1985)
(
Interim
Final
Rule
adopting
§
261.4
Cr
(
Ill)
exclusion).
EPA
has
stated
that
"[
gliven
the
relatively
low
toxicity
of
trivalent
chromium,
its
low
migratory
potential,
and
the
lack
of
indication
of
potential
for
oxidation
under
usual
land
disposal
conditions,
the
Agency
does
not
believe
that
land
disposal
of
trivalent
chromium­
containing
wastes
in
common
landfill
or
impoundment
situations
poses
a
present
or
potential
hazard
to
human
health
or
the
environment
via
soil
migration
to
groundwater."
45
Fed.
Reg.
at
72030.

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Chemical
cleanings
on
supercritical
boilers
are
generally
not
chelate­
based
and
the
TC
for
chromium
is
not
an
issue.
The
resulting
waste
is
typically
nonhazardous,

although
there
is
the
potential
to
exhibit
the
characteristic
of
corrosivity.
These
cleanings
can
yield
up
to
1.75
million
gallons
of
waste.

EPA
has
clarified
that
the
point
of
generation
of
BCCW
occurs
with
the
aggregation
of
the
various
rinses.
62
Fed.
Reg.
25998,
26006
(
May
12,
1997).
The
resulting
aggregated
waste
is
expected
to
exceed
the
TC
level
for
chromium
much
less
frequently
than
the
initial
rinse.
It
is
difficult
to
estimate
the
frequency
the
stream
might
test
hazardous
on
an
industry­
wide
basis
since
it
is
dependent
upon
numerous
factors
related
to
metallurgy,
boiler
design,
operating
conditions,
and
maintenance
procedures.

One
utility
reported
that
50%
of
the
BCCW
generated
since
1994
has
tested
hazardous
for
chromium
after
permissible
aggregation
of
rinses.
Thus,
it
is
clear
that
the
point
of
generation
clarification
will
not
render
insignificant
the
proposed
elimination
of
the
co­

management
exemption.

Furthermore,
aggregation
of
rinses
is
not
an
available
option
at
many
utility
plants.
For
smaller
boilers,
aggregation
of
rinses
would
require
approximately
five
20,000­
gallon
tanks
to
be
staged
on­
site
and
interconnected
for
recirculation.
There
is
simply
insufficient
space
available
in
many
units
to
accommodat,
e
this
approach.
The
only
option
for
ny
facilities
would
be
to
run
temporary
piping
considerable
distances
between
the
boilers
and
the
tanks.
For
some
of
the
largest
boilers,
aggregation
would
require
approximately
twenty­
five
20,000­
gallon
tanks,
which
would
be
difficult
to
stage
and
interconnect
in
any
proximity
to
the
boilers.
,

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In
the
absence
of
the
Bevill
co­
management
exemption,
utilities
that
currently
co­

manage
BCCW
would
have
three
basic
management
options:
(
1)
collect
the
first
rinse
(
likely
TC
hazardous
for
chromium)
and
treat
on­
site;
(
2)
collect
the
first
rinse
(
likely
TC
hazardous
for
chromium)
and
transport
it
off­
site
to
a
treatment,
storage
and
disposal
facility
("
TSDF");
or
(
3)
aggregate
rinses
in
a
recirculating
interconnected
tank
system,

with
on­
site
or
off­
site
treatment
and
disposal,
depending
upon
TCLP
results.

For
non­
chelate
cleanings,
the
volume
of
waste
would
likely
steer
the
choice
of
treatment
options
to
off­
site
treatment
and
disposal.
Because
of
the
volumes
of
waste
at
issue,
transportation
and
disposal
fees
could
increase
by
as
much
as
$
1,000,000
per
cleaning
if
the
waste
exhibits
a
hazardous
waste
characteristic.
As
a
baseline,
one
utility
reported
current
cleaning
costs
of
$
200,000
to
$
250,000
with
on­
site
co­

management.

For
chelate­
based
cleanings,
costs
would
be
significant
whether
the
waste
is
treated
on­
site
or
transported
off­
site.
If
the
aggregated
rinses
exhibit
the
TC
for
chromium,
treatment
on­
site
to
remove
the
hazardous
characteristic
and
satisfy
the
land
disposal
restrictions
may
not
be
possible
in
some
cases.
One
utility
reports
that
its
contractor
has
thus
far
been
unsuccessful
in
chemically­
treating
BCCW
to
remove
chromium
so
as
to
render
the
wastewater
nonhazardous.
On­
site
treatment
and
discharge
to
a
P
O
W
or
under
an
NPDES
permit
may
be
a
potential
option
for
some
affected
utilities.
However,
on­
site
treatment
prior
to
NPDES/
POTW
discharge
would
require
significant
process
changes
as
well
as
increased
risk,
liability,
and
regulatory
obligations
related
to
storage
and
use
of
treatment
chemicals
on­
site
(
a
risk
of
release,
OSHA
hazard
communication
requirements,
and
EPCRA
reporting
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28
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requirements).
Furthermore,
not
all
plants
are
authorized
or
permitted
to
discharge
these
wastes
via
an
NPDES­
permitted
outfall
or
to
a
POW.
Utilities
remain
concerned
,
I
1
I
,
that
the
trend
towards
increased
restrictions
in
NPDES
permits
will
eliminate
this
option
completely
over
time.

,
I
The
cost
of
aggregating
rinses
in
a
recirculating
interconnected
tank
system
is
,
estimated
at
$
10,000
to
$
30,000
for
rental
of
temporary
tanks
alone.
One
utility
estimated
the
recurring
costs
of
on­
site
treatment
at
$
0.50
to
$
1
.
OO
per
gallon.
In
,
I
I
addition,
process
modifications
would
be
necessary
since
BCCW
discharges
are
typically
hard
piped
directly
to
the
coal
combustion
waste
disposal
unit
at
plants
that
co­
I
manage
this
waste
stream.

~

,
,
One
USWAG
member
company
reported
that
it
has
traditionally
treated
its
BCCW
on­
site
and
does
not
utilize
the
co­
management
exemption
for
BCCW.

However,
the
treatment
sludge
generally
exceeds
TC
levels
for
chromium,
and
the
company
co­
manages
that
waste
stream
with
high
volume
coal
combustion
wastes.
For
this
company,
the
proposed
modification
to
the
co­
management
policy
would
increase
its
costs
associated
with
management
of
the
treatment
sludge
as
a
hazardous
waste
by
$
80,000
per
boiler
cleaning
event.
~

~

Many
utilities
will
have
no
choice
but
to
transport
hazardous
BCCW
off­
site
for
,
treatment
and
disposal.

transportation
of
large
numbers
of
tanker
trucks
(
35­
60
per
cleaning)
to
treatment
and
disposal
facilities,
which
are
often
hundreds
of
miles
away
from
utility
plants.
Member
ff­
site
treatment
and
disposal
involves
the
highway
I
I
I
I
companies
indicated
a
range
of
costs
for
off­
site
transportation
and
disposal
of
$
1.25
­

$
1.50
per
gallon,
or
approximately
$
125,000
to
$
750,000
per
cleaning.
In
addition,

I
I
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significant
process
modifications
would
be
necessary
for
many
plants.
The
risk
to
public
safety
from
unnecessary
off­
site
transportation
should
not
be
minimized.
Many
major
transportation
corridors
across
the
country
are
operating
at
capacity
and
the
periodic
strain
of
an
additional
35
to
60
tanker
trucks
should
be
avoided.

Yet
another
cost
associated
with
EPAs
proposal
would
be
costs
associated
with
the
extension
of
boiler
downtime
resulting
from
a
change
in
current
co­
management
practices.
One
USWAG
member
anticipates
an
increase
in
downtime
of
8
and
12
hours
per
cleaning
with
associated
lost
revenue
of
$
65,000
to
$
135,000.

2.
Demineralizer
Reseneration
Waste
The
production
of
high
purity
water
is
essential
to
the
operation
of
utility
boilers.

Utilities
must
regenerate
the
demineralizers
used
in
the
water
purification
process
using
both
sulfuric
acid
and
caustic.
The
regeneration
process
generates
both
low
pH
and
high
pH
wastes
that
are
frequently
co­
managed
in
coal
ash
surface
impoundments
where
neutralization
occurs.
One
utility
reported
generation
of
500,000
to
1,000,000
gallons
of
demineralizer
regeneration
waste
per
month.

In
the
absence
of
the
Bevill
co­
management
exemption,
treatment
of
both
characteristically
hazardous
waste
streams
would
be
necessary
to
neutralize
the
acidic
and
caustic
wastes.
Modifications
would
require
process
changes
and
possibly
state
treatment
permits.
One
utility
estimated
the
process
changes
would
cost
$
3
million.
In
addition,
increased
on­
site
handling
would
increase
the
potential
for
release
and
exposure
to
employees
and
the
environment.

­
30
­
WASH1
:
314660:
5:
9/
19/
00
