December 19, 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: Correction to RCRA On-Line Description of EPA’s Dietrich Letter Regarding 

Scope of Fossil Fuel Combustion Waste Clause of Bevill Amendment

Dear Mr. Johnson:

I write to follow-up on a letter sent by our counsel last October (copy attached) to your 

predecessor, 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 the 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 ash, 

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 guidance set forth in the Dietrich 

letter has been relied 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 statement 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letter’s reference to the above referenced “co-managed” wastes has been “superseded” by what is 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. In particular, the 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“SUPERSEDED” by the 2000 Bevill Amendment Regulatory Determination, 65 Fed.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-Associate Deputy Assistant Administrator 

for EPA’s Office of Solid Waste, to then-USWAG Chairman Paul Elmer.
Barnes Johnson

December 19, 2013

Page 2

32214, 32219 (May 22, 2000)2(a hard copy of the RCRA Online description with this error is 

attached). The reference to the Regulatory Determination is to a section in the preamble to the 

Determination requesting comment on reinterpreting the scope of the co-management concept in 

the Dietrich letter to encompass only 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 application of the

uniquely associated waste concept to the fossil fuel combustion waste clause of the Bevill 

Amendment would inappropriately 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 reasons 

outlined by USWAG in its comments on the proposed 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 fossil 

fuel combustion waste clause of the Bevill Amendment was never finalized and that, as a result, 

the RCRA Online description of the Dietrich letter is in error. Unfortunately, however, the error 

has not been corrected. The solution to correcting the mistake appears straight forward –delete 

the phrase “SUPERSEDED: See 65 FR 32212, 32219; 5/22/2000)” from the RCRA Online 

description of the Dietrich letter. 

It is important to make clear that the original contours of the Dietrich letter remain in 

effect and that the 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 the 

erroneous RCRA Online entry for the Dietrich Letter may be a source of continuing confusion 

for regulators and the regulated community. Therefore, thank you for your assistance in having 

the mistake corrected as soon as possible. 

Sincerely, 

James R. Roewer

Executive Director

cc: 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”1currently 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.3The 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 Dietrich

letter, 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.” 4The

online description suggests that the co-management practices identified in the Dietrich

letter, which were studied in EPA’s 1999 Report to Congress5and 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 Director
12/18/13 RCRA Online Database

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Document Record Detail

Full Document:

T itle: FOSSIL FUEL COMBUSTION WASTE EXCLUSION IN 261.4(B)(4),

FUEL MIXTURES

RCRA Online Number: 12021

Date: 01/13/1981

T o: Elmer

From: Dietrich

Organization of Recipient: Utility Solid Waste

Description: Fossil fuels include coal, oil, and natural gas. “Primarily” means fossil

fuels constitute 50% of the fuel. Wastes from the burning of coal and

hazardous waste are excluded under the Bevill exemption for fossil

fuel combustion (FFC) wastes if coal is >50% of the fuel. Boiler

cleaning solutions, boiler blowdown, demineralizer regenerant,

pyrites, and cooling tower blowdown are exempt if they are codisposed or co-treated (SUPERSEDED: See 65 FR 32213, 32219;

5/22/2000). Activities that are not directly associated with FFC are not

excluded (e.g., plant maintenance or construction). Combustion

wastes that are specifically listed are not excluded. Boiler blowdown,

boiler cleaning solutions, demineralizer regenerant, pyrites, cooling

tower blowdown (hereinafter “other wastes”) disposed of or treated

separately from FFC wastes or mixed with only small amounts of FFC

waste are not exempt (SEE ALSO: 56 FR 7134; 2/21/91, 58 FR 42468;

8/9/93).

Regulatory Citation(s) : 261.4(b)(4)

Statutory Citation(s): 3001(b)(3) Read US Code 42, Chapter 82

T opic(s): Bevill Amendment; Boilers; Burning; Combustion of Hazardous

Waste; Disposal; Exclusions (RCRA); Gas; Hazardous Waste;

Natural Gas; Special Wastes; Treatment

Approximate Number of Hardcopy

Pages:

8

EPA Publication Number: NA

RPPC Number (if applicable): 9441.1981(01)

Official OSW Policy: Yes

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