December 22, 1992


SUBJECT:   EPA Office Director Giving Instructions on Violating Laws

FROM:        William Sanjour, Policy Analyst /s/
                    Office of Solid Waste

TO:             John Martin
                   Inspector General

The attached memorandum from Ms. Sylvia Lowrance, Director of the EPA Office of Solid Waste, dated September 22, 1992 is an instruction to EPA regional waste management division directors on how to evade the requirements of the law. It instructs them an how to issue permits to operate hazardous waste incinerators which do not meet EPA minimum performance standards and places the public health in jeopardy.


EPA regulations(1) require hazardous waste incinerators to be able to destroy 99.99% of the so-called POHCs (principal organic hazardous constituents) of the waste burned. This is referred to as a DRE (destruction and removal efficiency) of four nines. For some wastes which contain the highly toxic dioxins and furans, the DRE is 99.9999% or six nines(2).

Before issuing a permit, EPA regulations require the applicant to conduct trial burns to guarantee that the incinerator is capable of meeting the performance standards. The regulations do not require all possible future wastes to be tested but only require surrogates, which represent the most difficult wastes, to be tested. The preamble to the regulations(3) explains:

Although the DRE performance standard applies to each waste feed burned, this does not mean that a separate trial burn for each waste or each different mixture of wastes is required. ... If the owner or operator established (through a trial burn) operating conditions for those wastes which are most difficult to destroy, this could provide the alternative documentation for the permitting official to allow certain other wastes to be burned at the same conditions.
There are several wastes, particularly those which are designated as hazardous waste because they contain dioxins or furans, in which the hazardous constituents are present in very low concentrations, i.e. parts per million or less. These particular wastes, which are referred to as the dioxin-listed wastes, are denoted by EPA as FO20, FO21, FO22, FO23, FO26, and FO27. These wastes are designated as hazardous only because of the very minute quantities of toxic chemicals they contain and for no other reason(4). As stated before, EPA regulations require that a permitted incinerator be required to destroy these wastes to six nines.

In recent trial burns conducted on a new Superfund incinerator in Jacksonville, Arkansas, it was found that the DRE for dioxin in the waste was not six nines, and was not even four nines, but was only 99.96%(5). As a result of the publicity generated by this finding by (6), the whole subject of the ability of incinerators to meet EPA standards for low concentration wastes has come under scrutiny. It is now clear that incinerators cannot achieve the required DRE for very low concentrations of toxics in the waste and that DRE decreases with decreasing concentration. Furthermore, this fact has been well known in EPA since the early eighties(7)(8)(9) but has not been widely disseminated..

Issue # 1

The memo states:

The regulations ... require that an incinerator burning [the dioxin-listed wastes] achieve a DRE of 99.9999% ... and that this performance be demonstrated in a trial burn ...
But then goes on to say:
... an incinerator which demonstrates six nines DRE on harder-to-burn POHCs complies with the DRE performance standard applicable to dioxin-listed wastes, even if six nines is not actually achieved on low levels of dioxin present in the waste [emphasis added].
The memo goes on to instruct how, in writing a permit, the permit writer should select surrogate POHCs for trial burns in such a way that the DRE is achieved, even though the required DRE cannot be achieved for the POHC in low concentration wastes such as the dioxin-listed wastes.

The purpose of a trial burn is to demonstrate that the incinerator can meet the minimum performance standards. The performance standard is 99.99% destruction or removal of POHCs in the waste (not surrogates) and 99.9999% DRE for dioxin-listed wastes (again, not surrogates). The surrogates are not the standard. As stated in the previously quoted preamble passage; "the DRE performance standard applies to each waste feed burned". The surrogates are supposed to be selected to serve the purpose of demonstrating that the standards can be met. They are not supposed to be used to thwart the standards as Ms. Lowrance is doing here.

Issue # 2

Ms. Lowrance's memo recognizes that incinerators often cannot meet EPA's performance standards. The memo says:

The data show that a properly operated incinerator, which reached 99.99% DRE (four nines) on higher concentrations of POHCs, will often achieve less than four nines when the concentration of a POHC (principal organic hazardous constituent) in the waste is less than 1,000 ppm. At this time, we have not determined a definitive scientific explanation for this phenomenon [emphasis added].
An incinerator which cannot achieve four nines when the concentration of a POHC is less than 1,000 ppm (parts per million) cannot meet EPA minimum performance standards for many wastes including, but not limited, to the dioxin-listed wastes. The prejudice of the author of the memo is clearly seen in the fact that she considers an incinerator to be properly operated which does not meet EPA's minimum performance standards.

Issue # 3

The prejudice of the writer is again shown in the above quotation when she illogically concludes that a high concentration of a surrogate POHC is harder to burn than a low concentration of dioxin even though it achieves a higher DRE.

Issue # 4

Again in reference to the above quotation it should be noted that dioxin is only present in very low concentrations in wastes. It is never present in high concentrations. But even with these extremely low concentrations, EPA found it necessary to require a higher DRE than most other wastes in order to protect human health. The Agency originally proposed a standard of four nines, but after considering the data in the comments on the proposed regulation, the Agency concluded that a minimum of six nines was necessary to protect human health, in spite of the very low concentrations of dioxins present in the wastes. These issues are discussed at length in the Federal Register preamble to EPA's dioxin regulations(10).

The attempt by Ms. Lowrance to downplay the importance of achieving six nines DRE for dioxin-listed wastes by emphasizing their low concentration flies in the face of her own published regulations.

Issue # 5

Having instructed the regions on how to issue permits without requiring the incinerators to meet the minimum performance standards, Ms. Lowrance then goes on to instruct them in how to deal with the public concern over dioxin poisoning. The memo says:

Given the public concern over dioxin-listed wastes, we believe that it is necessary to perform a site-specific risk assessment ...
And later:
Thus we believe that it is appropriate to perform site-specific risk assessments for incinerators proposing to burn such wastes with low levels of dioxins ...
However the EPA regulations explicitly rejected this approach as being both illegal and impractical. The preamble to the regulations in the Federal Register states(11):
The first [option] considered was to establish "acceptable" levels of risk and to use risk modeling on a case-by-case basis ...

The first option is now effectively precluded by statute. See RCRA amended Section 3004(a)(1)(B) ...

The Agency also rejected the first option because ... it is extremely resource intensive ... It also requires agreement on the models, assumptions, and acceptable risk levels. Since such modeling is inherently subject to debate, EPA questions its practicality for case-by-case applications in this context.

Issue # 6

By substituting the site-specific risk assessment approach for the approach laid down in the law, Ms. Lowrance is writing her own regulations in violation of the Administrative Procedures Act which requires public notice and the opportunity for public comment.

Issue # 7

The memo says:

The trial burn for the incinerator could be used to demonstrate six nines DRE on POHCs more difficult to burn than dioxin. If successful, these data could be used as a basis for the permit. The permit would require the facility notify the permit authority and test for dioxin emissions when it burns its first shipment of dioxin-listed wastes [emphasis added].
In keeping with the rest of the memo, the "more difficult" surrogate POHCs would be present in much higher concentrations than are the dioxins in dioxin-listed wastes so as to assure a successful trial burn. The permit would then be issued based on these fallacious trial burn results.

Experience has shown that once a permit is issued, it is almost impossible to revoke or even to enforce in spite of countless violations. This was the subject of a memo I recently wrote which documented EPA's lack of enforcement against hazardous waste incinerators even when they violate basic permit conditions over long periods of time(12).

It is therefore disingenuous to suggest that once a facility has a permit, that some vague risk assessment procedure can be used as a meaningful enforcement tool.

Issue # 8

The regulations state that a permit issued under the conditions put forward by Ms. Lowrance (i.e. the incinerator does not comply with the minimum performance standards for some wastes) is not a valid permit and can be revoked. The preamble says(13):

If test or other data indicate non-compliance with the performance standard, then the Agency will have grounds to modify, revoke, or re-issue a permit so as to insure that the performance standards will be met.
Issue # 9

In the preamble to the EPA regulations for dioxin-listed wastes we find the following discussion(14):

One commenter argued that incinerators burning [dioxin-listed] wastes should be required to demonstrate compliance with the incinerator performance standard for organics by conducting trial burns for dioxins, rather tan by using a surrogate Principal Organic Hazardous Constituent (POHC) that is more difficult to incinerate. ...

Although the commenter's point is desirable in theory, determining compliance with a six 9s DRE (or even a four 9s DRE) would be very difficult if not impossible ... The concentrations ... in these wastes are too low to find measurable amounts in the stack gas (at six 9s DRE) at present limits of detection.

Those words were written in 1984 and published in 1985. Since then the state of the art has advanced to the point where these very low concentrations can now be measured. The proof is in the measurements performed on the Jacksonville, Arkansas incinerator.

An EPA manager, concerned about the public's exposure to toxic chemicals, would have used this new capability to do what the regulation thought desirable and require trial burns to use low concentration dioxin-listed wastes rather than high concentration surrogates. Nothing in the regulation precludes doing so.

Instead, when faced with this enhanced measurement capability which revealed the shortcomings of some incinerators, Ms. Lowrance chose to paper over the problem.

Issue # 10

Early in the memo there is an admission that it is not known why the DRE decreases with decreasing concentration of the POHC. Nevertheless, further down the memo, in the discussion labeled Regulatory Interpretation, there is an attempt made to put forward the theory that the six nines DRE really is achieved but then new dioxins are formed, called PICs (products of incomplete combustion), and it is these PICs that cause the DRE to appear to be exceeded. The implication being that the problem is not a problem of the incinerator not being able to achieve the minimum performance standard but rather a problem of PIC formation and therefore the incinerators can be permitted while EPA tries to figure out what to do about PIC formation.

There are several things wrong with this analysis. First of all, the PIC theory is nothing more than an unproven hypothesis. As the memo says earlier, no one really knows why the DRE decreases with decreasing concentration of the POHC. Second, it is not the only theory. Other theories have been put forward by research scientists(15). Thirdly there is the moral question of why the taxpayers should bear the burden of trying to figure out how to make hazardous waste incinerators work while they are being poisoned by them. Remember that the incinerator operators have been assuring the public for years that they can meet the EPA performance standards.

However, none of this is really relevant since the regulations define DRE as the difference between what goes in the furnace and what comes out the stack(16). What happens in between has no bearing in the law. Therefore, Ms. Lowrance's approach is an attempt to redefine "DRE" without going through appropriate rule-making procedures.


Ms. Lowrance is breaking the law in two ways. First, she is violating the requirement of EPA regulations to conduct trial burns so as to assure that incinerators are capable of meeting the minimum EPA performance standards. Second, she is promulgating new regulations for permitting hazardous waste incinerators in violation of the Administrative Procedures Act and EPA rule-making procedures.

She has shown callous disregard for the health of people exposed to toxic fumes from hazardous waste incinerators and a determined bias in favor of the hazardous waste incinerator operators. In this regard she is part of the culture of EPA hazardous waste management officials as seen in the recent example of the permitting of the WTI incinerator in East Liverpool, Ohio(17). This culture seems to view the transgressions of incinerator operators as victimless crimes because they never see or hear from the victims. They make glib assurances to the public about their concern for public health, but when the chips are down, the financial health of the incinerator operators always seems to take precedence over the public's health.


cc: William Reilly
    Sylvia Lowrance


1. 40 CFR 264.343(a)(1).

2. 40 CFR 264.343(a)(2).

3. 46 FR 7675 (January 23, 1981).

4. 40 CFR 261 App. VII.

5. Allyn M. Davis, Director, Hazardous Waste Management Division, EPA Region 6, letter to Mr. Randall Mathis, Director, Arkansas Department of Pollution Control and Ecology, March 2, 1992.

6. Pat Costner, The Incineration of Dioxin in Jacksonville, Arkansas: A Review of Trial Burns and Related Air Monitoring at Vertac Site Contractor's Incinerator, Jacksonville, AR (Washington, DC: Greenpeace Toxics Campaign, January 29, 1992).

7. A. Trenhoim and others, Performance Evaluation of Full-Scale Hazardous Waste Incinerators [EPA/600/2-84-181]. U.S. EPA, November, 1984.

8. John C. Kramlich and others, Experimental Investigation of Critical Fundamental Issues in Hazardous Waste Incineration [EPA/600/2-89/048]. U.S. EPA, September, 1989.

9. Peter Montague, "All Hazardous Waste Incinerators Fail to Meet EPA Regulations, EPA Says," Rachel's Hazardous Waste News #280 (April 7, 1990). Environmental Research Foundation, P.O. Box 73700, Washington, DC 20056-3700.

10. 50 FR 1990-1992 (January 14, 1985).

11. 50 FR 1991 (January 14, 1985).

12. 12. William Sanjour, "EPA's Regulation of Commercial Hazardous Waste Incinerators". Memorandum to David Bussard, October 8, 1992.

13. 46 FR 7670 (January 23, 1981).

14. 50 FR 1991 (January 14, 1985).

15. See e.g. Kramlich op. cit.

16. 40 CFR 264.343(a)(1)

17. William Sanjour, Letter to John Martin, EPA Inspector General re WTI incinerator in E. Liverpool, Ohio, May 15, 1992.

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