### December 1 9 , 2013

VIA ELECTRONIC AND HAND DELIVERY

Barnes Johnson

Director

– Office of Resource Conservation and Recovery Environmental Protection Agency

Two Potomac Yard 2733 Crystal Drive, North Building Arlington, VA., 22202

.

Re: C o rrection to RCRA On

- Line Description of EPA’s Dietrich Letter Regarding Scope of Fossil Fuel Combustion Waste Clause of Bevill Amendment

Dear M r

. Johnson :

I write to follow

- up on a letter sent by our counsel last October (copy attached) to your predece ssor, Suzanne Rudzinski, requesting her assistance in correcting an error in the RCRA Online database’s description of EPA’s 1981 “Dietrich letter.” 1 

### As you know, the Dietrich letter sets forth the Agency’s long

- standing interpretive guidance regarding th e contours of the fossil

fuel combustion waste clause of the Bevill Amendment.

Among other things, the letter provides that certain low volume wastes generated in conjunction with the production of electric power that are co

- managed with fly ash, bottom a sh, bottom slag or flue gas emission control wastes (referred to as “co

- managed” wastes) are included within the scope of the Bevill Amendment’s exclusion for fossil fuel combustion wastes from Subtitle C hazardous waste regulation. The interpretive guida nce set forth in the Dietrich

letter has been r e lied upon by regulators and the regulated community for over thirty years

, and the Agency has issued no formal guidance to the contrary.

The error in the RCRA Online description of the Dietrich Letter is the state ment that the

letter ’s reference to the above referenced “co

- managed” wastes has been “superseded” by what is referred to as the “uniquely associated” waste concept. I n particular, t he RCRA Online Database entry for the Dietrich Letter provides that the co

- management portion of the Dietrich letter was

“ SUPERSEDED ” by the 2000 Bevill Amendment Regulatory Determination, 65 Fed. Reg.

1 The letter, dated January 31, 1981, was issued by Gary Dietrich, then

- Associ ate Deputy Assistant Administrator for EPA’s Office of Solid Waste, to then

- USWAG Chairman Paul Elmer.

### Barnes Johnson

December 1 9 , 2013 Page 2

32214, 32219 (May 22, 2000) 2 

### ( a hard copy of the RCRA Online description with this error is attached)

. T he reference to t he Regulatory Determination is to a section in the preamble to the

D etermination requesting comment on reinterpreting the scope of the co

- management concept in the Dietrich letter to encompass on ly the co

- management of so

- called “uniquely associated” low volume wastes with high volume coal combustion wastes.

As explained in detail in the attached October 2012 letter, the proposed a pplication of th e uniquely associated waste concept to the fossil fuel combustion waste clause of the Bevill

Amendment would in appropriately narrow the scope of the Bevill Amendment in a manner inconsistent with the clear intent of Congress and with the plain language of the Amendment. Of particular importance here, this proposal was never finalized (nor should it be for the reas ons outlined by USWAG in its comments on the propos ed reinterpretation ).

Indeed, when I raised this issue with EPA staff in your office earlier this year, staff readily admitted that the proposal to apply the “uniquely associated” waste concept to the foss il fuel combustion waste clause of the Bevill Amendment was never finalized and that, as a result,

th e RCRA Online description of the Dietrich letter is in e rror . Unfortunately, however, th e error has not been corrected

. The solution to correcting the mi stake appears straight forward

– delete the phrase “ SUPERSEDED: See 65 FR 32212, 32219; 5/22/2000)” from the RCRA Online description of the Dietrich letter.

I t is important to make clear that the original contours of the Dietrich l etter remain in

effect an d that t he uniquely associated waste concept has no applicability to co

- managed Bevill exempt fossil fuel combustion wastes

. This is the legal advice that USWAG counsel will

continue to provide to USWAG members. Nonetheless, we remained concerned that th e erroneous RCRA Online entry for the Dietrich Letter may be a source of continuing confusion

for regulators and the regulated community. Th erefore, t hank you for your assistance in having

th e mistake corrected as soon as possible

.

Sincerely,

James R. Roewer

Executive Director

c c: Rosemarie Kelley, EPA
Betsy Devlin , EPA
Douglas Green, Venable LLP

2 RCRA Online No. 12021, http://yosemite.epa.gov/osw/rcra.nsf/0c994248c239947e85256d090071175f/db19fb013f06b99585256e150051c757! OpenDocument

.

### October 5, 2012

VIA EMAIL & Hand Delivery

Suzanne Rudzinski Director – Office of Resource Conservation and Recovery Environmental Protection Agency

Two Potomac Yard 2733 Crystal Drive, North Building Arlington, VA., 22202

Re: Error in RCRA Online Description of EPA’s Dietrich Letter Regarding Scope of Fossil Fuel Combustion Waste Clause of Bevill Amendment

Dear Ms. Rudzinski:

I write on behalf of the Utility Solid Waste Activities Group (“USWAG”) to bring to your attention an error in EPA’s RCRA Online database and to request your assistance in correcting this error. Specifically, the RCRA Online description of the 1981 “Dietrich

Letter” 1 

### currently mistakenly states that the portion of the letter that describes how certain “co-managed” wastes qualify for the Bevill exemption for fossil fuel combustion wastes is “superseded”. 2 

### This letter is still a valid and current interpretation of the Bevill Amendment fossil fuel combustion waste exemption and we request your Office’s assistance in having this error corrected as soon as possible to prevent any potential confusion by federal and state regulators or in the regulated community.

The Dietrich letter sets forth the Agency’s controlling interpretation of the fossil fuel combustion waste clause of the Bevill Amendment and provides, in relevant part, that certain low volume waste streams generated in conjunction with the production of electric power that are co-treated or co-disposed with fly ash, bottom ash, boiler slag, or flue gas emission control wastes from coal combustion (referred to as “co-managed wastes”) are included within the scope of the Bevill Amendment’s exemption from

1 The letter, dated January 31, 1981, was issued by Gary Dietrich, then-Associate Deputy Assistant Administrator for EPA’s Office of Solid Waste, to then-USWAG Chairman Paul Elmer.

2 RCRA Online No. 12021, http://yosemite.epa.gov/osw/rcra.nsf/0c994248c239947e85256d090071175f/db19fb013f06b99585256e150 051c757!OpenDocument (last visited Oct. 3, 2012). Douglas H. Green

T 202-344-4483

F 202.344.8300 dhgreen@venable.com

### Suzanne Rudzinski

October 5, 2012 Page 2

Subtitle C regulation. 3 

### The co-managed wastes identified in the Dietrich letter were among the primary categories of wastes studied in EPA’s 1999 Report to Congress and among those determined by EPA not to warrant Subtitle C regulation in the Agency’s final May 2000 Regulatory Determination for fossil fuel combustion wastes.

In fact, when identifying the “remaining wastes” required to be addressed in EPA’s 2000 Regulatory Determination, EPA explained, consistent with the Dietrichletter, that such wastes included the “mixing, co-treatment, co-disposal, or comanagement” of large-volume wastes with low-volume wastes,” including, among others, “[d]ischarge of boiler blowdown to a large-volume waste impoundment,” “[d]ischarge of demineralizer regenerant to a large-volume waste impoundment,” “[d]ischarge of metal cleaning wastes to a large-volume waste impoundment,” and “[d]ischarge of boiler chemical cleaning wastes to a large volume waste impoundment.” 58 Fed. Reg. 42466, 42470 (Aug. 9, 1993). In issuing its final 2000 Regulatory Determination, EPA specifically acknowledged that the Determination encompassed “all remaining fossil fuel combustion wastes,” which included the co-managed wastes identified above. 65 Fed. Reg. 32214 (May 22, 2000). Therefore, the Dietrich letter remains of vital importance today because it defines the scope of fossil fuel co-managed wastes included within EPA’s final 2000 Regulatory Determination for fossil fuel

combustion wastes.

USWAG members became extremely concerned, therefore, when it was recently brought to their attention that the RCRA Online description of the Dietrich Letter now states that the co-management concept set forth in the letter has been “superseded.” 4 

### The online description suggests that the co-management practices identified in the Dietrich letter, which were studied in EPA’s 1999 Report to Congress 5 

### and included in EPA’s

3 Consistent with the Bevill Amendment’s legislative history, the Dietrich letter explains, in relevant part, that the Bevill Amendment’s co-management concept encompasses those low volume wastes “that are generated in conjunction with the burning of fossil fuels” and “that traditionally have been and which actually are mixed with and co-disposed or co-treated with combustion wastes.” Dietrich Letter at 6 (emphasis in original). The categories of low volume wastes included in this interpretation include, but are not limited to, “(1) boiler chemical cleaning wastes [with no distinction between fireside and waterside], (2) boiler blowdown, (3) demineralizer regenerant, (4) pyrites, and (5) cooling tower blowdown.” Dietrich

letter at 8.

4 Specifically, the RCRA Online Document Record Detail page for the Dietrich letter contains a summary of the letter, including text describing the co-management practices described in the letter. That particular clause, however, is now followed by a “SUPERSEDED” notation, stating in relevant part: “Boiler cleaning solutions, boiler blowdown, demineralizer regenerant, pyrites, and cooling tower blowdown are exempt if they are co-disposed or co-treated ( SUPERSEDED: See 65 FR 32213, 32219; 5/22/2000 ) ” (emphasis added).

5 EPA’s 1999 Report to Congress makes no reference to the “uniquely associated” concept; to the contrary, the Report addressed co-managed wastes that included “[l]ow volume wastes [that] are generated as a result of supporting processes . . . that are ancillary to, but a necessary part of, the combustion and power

### Suzanne Rudzinski

October 5, 2012 Page 3

final 2000 Regulatory Determination, have been narrowed to include only those comanaged low volume wastes that qualify as so-called “uniquely associated wastes”—an idea that EPA first put forward for comment in the context of fossil fuel combustion wastes in the 2000 Regulatory Determination, see 65 Fed. Reg. 32214, 32220 (May 22, 2000) (“EPA solicits comment on this discussion of uniquely associated wastes in the context of fossil fuel combustion and will issue final guidance after reviewing and evaluating information we receive as a result of this request.”).

USWAG submitted extensive comments to EPA in response to this suggestion, detailing why the concept of “uniquely associated wastes” is not applicable to the fossil fuel combustion waste clause of the Bevill Amendment and cautioning that application of this concept to fossil fuel combustion wastes would be unlawful. The relevant portion of USWAG’s comments is attached for your convenience (Att. A). Among other things, the comments explain that the “uniquely associated waste” concept has been utilized by EPA solely in circumstances to define the parameters of the Bevill Amendment exclusion for solid wastes from the extraction, beneficiation, and processing of ores and minerals, and is specifically tailored to the different statutory text of the mining waste clause of the

Bevill Amendment. 6 

### The uniquely associated waste concept has never been utilized to define the parameters of the fossil fuel combustion waste clause of the Bevill Amendment; indeed EPA has made clear that this concept does not apply to fossil fuel

combustion wastes. 7



### The defining conditions of whether a low volume waste that is co-managed with a high volume waste qualifies for the fossil fuel combustion waste clause of the Bevill Amendment are (1) that the wastes be “ generated in conjunction with the burning of fossil fuels ” and (2) that the wastes “traditionally have been and . . . actually are mixed with and co-disposed or co-treated with combustion wastes.” Dietrich letter at 6 (emphasis added). In fact, the “remaining [Bevill] wastes” that EPA was required to address in the 2000 final Regulatory Determination, as set forth in the judicially binding

generation processes.” EPA, Report to Congress: Waste from the Combustion of Fossil Fuels (1999), at Vol. 2, p. 3-2. Indeed, some of the co-managed wastes studied, including boiler chemical cleaning wastes, floor and yard drains, and laboratory wastes, do not fall within the uniquely associated concept. Id . The report found that these co-managed wastes should remain exempt from Subtitle C regulation. Id . at Vol. 1, p. 3-5.

6 See 45 Fed. Reg. 76618, 76619 (Nov. 19, 1980); see also 63 Fed. Reg. 76619, 28578-79 (May 26, 1998) (“Under the Agency’s longstanding interpretation, a waste must be ‘uniquely associated’ with mining and processing of ores and mineral to be subject to the Bevill exclusion” under RCRA section 3001(b)(a)(ii) for solid waste from the extraction, beneficiation and processing of ores and minerals.).

7 See EPA, Response to Comments Document, Land Disposal Restrictions – Phase IV: Final Rule, vol. 14, at 3-30 (April 30, 1998) (“Todays rule [which included application of the uniquely associated waste concept to extraction, beneficiation and 20 mineral processing wastes] does not in any way affect the RCRA Bevill regulatory status of wastes from the combustion of fossil fuels.”) (emphasis added).

### Suzanne Rudzinski

October 5, 2012 Page 4

Consent Decree establishing the deadline for the Determination, specifically included “fly ash, bottom ash, boiler slag, and flue gas emission control wastes from the combustion of coal . . . when such wastes are mixed with, co-disposed, co-treated, or otherwise co-managed with other wastes generated in conjunction with the combustion of coal or other fossil fuels . . . .” (emphasis added). 8 

### Any suggestion that EPA somehow substituted this definition with the “uniquely associated waste” concept in issuing its 2000 Regulatory Determination would potentially put the Agency at risk of not meeting its legal commitments under the Consent Decree. Not surprisingly, therefore, EPA never finalized the application of the uniquely associated waste concept to the fossil fuel combustion waste clause of the Bevill Amendment. Any attempt to do so would either be at odds with EPA’s legal obligation under the 1992 Consent Decree or would constitute an unlawful narrowing of the scope of the Agency’s final 2000 Regulatory

Determination.

The error in the RCRA Online description of the Dietrich Letter is especially troubling given that USWAG raised this precise issue early last year with EPA’s Office of Civil Enforcement when we learned that EPA inspectors were erroneously using the “uniquely associated waste” concept in conducting RCRA compliance inspections of utility coal ash management practices. A copy of USWAG’s letter to EPA on this point is attached (Att. B). As explained in that letter, application of the “uniquely associated waste” concept to fossil fuel combustion wastes would exclude from the scope of the final Regulatory Determination specific low volume wastes that when co-managed with high volume wastes EPA has explicitly identified as being included within the scope of the Bevill Amendment, including, boiler blowdown, cooling tower blowdown, regeneration waste and boiler chemical cleaning wastes (which include waterside chemical cleaning wastes) 9 

### ( compare 58 Fed. Reg. at 42470, identifying these co-management wastes as “remaining Bevill wastes” that were subsequently studied and included in EPA’s 2000 final Regulatory Determination, with 65 Fed. Reg. at 32220, seeking comment on the notion that these low-volume wastes are not “uniquely associated” and thus do not qualify as co-managed Bevill wastes).

8 See par. 4 of Consent Decree Entered on June 30, 1992, in Frank Gearhart, et al. v. William K. Reilly, et

al. , No. 91-2435 (D.D.C.).

9 Other EPA pronouncements have confirmed that boiler chemical cleaning wastes, boiler blow down, cooling tower blow down and demineralizer regenerant, are subsumed within the Bevill Amendment when co-managed with CCRs in surface impoundments. See e.g., EPA Hotline Questions and Answers – Status of Fossil Fuel Combustion Waste Exclusion (April 1995). RCRA Online No. 13740, http://yosemite.epa.gov/osw/rcra.nsf/ea6e50dc6214725285256bf00063269d/87749A7185B63FDD8525670 F006BCD79/$file/13740.pdf (last visited Oct. 3, 2012).

### Suzanne Rudzinski

October 5, 2012 Page 5

#6045200V1 

### Having expressly studied and included the co-managed wastes identified in the Dietrich letter within the scope of EPA’s 2000 final Regulatory Determination, EPA cannot modify the scope of that Determination by altering its description of the Dietrich

letter in the RCRA Online database. USWAG has filed a Freedom of Information Act (“FOIA”) request with the Agency to try to obtain a better understanding of the events that led to this error. Regardless of the results of the FOIA request, any suggestion that co-management concept reflected in the Dietrich letter has somehow been “superseded” as described in the RCRA Online description is clearly wrong as a matter of law and is not binding on the regulated community

Given the significant confusion that this erroneous description of the Dietrich letter can have for regulators and the regulated community, we ask for your Office’s assistance in having the error corrected by the removal of the “superseded” language from the RCRA Online description of the Dietrich Letter. Thank you for your assistance in correcting this mistake.

Please do not hesitate to contact me, or USWAG Executive Director, Jim Roewer (202-508-5645), with questions.

Very truly yours,

Douglas Green On behalf of the Utility Solid Waste Activities Group

cc: Rosemarie Kelley, EPA Betsy Devlin, EPA Jim Roewer, USWAG Executive Director1 2 / 1 8 / 1 3 R C R A O n l i n e D a t a b a s e

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