EPA
United States      Solid Waste and
Environmental Protection Emergency Response   EPA530-R-92-021
Agency        (OS-305)            July 1992



RCRA Implementation


Study Update:
          The Definition

          of Solid Waste
                                   Printed on Recycled Paper

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NOTE:  Any policy or regulatory options described in this
report are preliminary and do not reflect final positions
of the U.S.  Environmental Protection Agency.

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                         TABLE OF CONTENTS
 Chapter  1:
 Chapter  2:
 Chapter  3:

 Chapter  4:
 Chapter  5:
 Appendix A:
 Appendix B:

 Appendix C:

 Appendix D:

 Appendix E:

 Appendix F:
 Appendix G:

Appendix  H:
 Conserving  and Recovering  Resources
 Resource Recovery  as a RCRA Goal
 Regulation  of Recycling:   Control  and  Potential
 Impediments
 Implementation Issues
 A Plan for  Change
 Recent Court Cases
 Summaries of RCRA  Implementation Study Meetings on
 the Definition of Solid Waste
 Environmental  Damages  Caused  by  Hazardous Waste
 Recycling Practices
 Damages Listed in the January 4, 1985  Final Rule (50
 FR 658-661)
Memorandum  dated April 26,  1989 from the Director
 of the U.S.  EPA Office of Solid Waste to Hazardous
Waste Management Division Directors in EPA Regions
 I-IX
Petition from the  National Association  of Solvent
Recyclers
Memorandum  dated  October 22,  1991 from  James  R.
MacRae,  Jr. of  the U.S.  Office of Management and
Budget (OMB) to the EPA  Administrator,  requesting
reconsideration of the  waste-derived  products rule
Proposal of the Business  Recycling Coalition for a
special  recycling subtitle

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                             UPDATE:
                  THE RCRA IMPLEMENTATION STUDY

     In  July  1990,  the  Environmental  Protection Agency   (EPA)
completed an analysis of  the nation's hazardous waste management
program under  the Resource  Conservation and Recovery Act (RCRA).
Entitled  The Nation's  Hazardous Waste  Management Program  at a
Crossroads;    The   RCRA   Implementation  Study.  this  analysis
represented the Agency's effort to take a thorough, objective view
of how  well the program  achieves its goals  of  protecting human
health  and  the  environment  and  encouraging   the  recovery  of
resources.

     An essential goal for the Agency is  to develop clear, concise
regulations.  To this end, EPA is evaluating major regulations to
examine  their  ease  of   implementation,   enforceability,   and
environmental  impact.   As a starting point  for  this  effort, the
Agency is reexamining its definition of solid waste,  which is the
subject of this updated  report.   This definition  is crucial to the
hazardous  waste  management  program, since  it  determines  which
materials  are  subject  to RCRA  controls.    The attached  report
presents  EPA's  preliminary approaches  to  developing  a  better
definition.

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CHAPTER 1:  CONSERVING AND RECOVERING RESOURCES

Summary

     As the United States enters the 21st century, many of us are
beginning to question our habits of consumption.   We  can no longer
afford to  squander our  material  or energy  resources.   American
companies are trying to prevent pollution at its source by reducing
the  waste  that they  generate.   Many  private citizens  now take
environmental concerns into account when they decide whether or not
to buy a particular product.  States are  changing their laws to
conform to their constituents' desire to recover resources instead
of throwing them away.

     In  spite  of  these  efforts,  many  human   activities  will
inevitably continue to  generate waste.   Waste  is both a problem
that we must deal with and a potential source of valuable materials
that we can use again.   Reusing materials saves time  and money and
contributes  to  our  economic  vitality.     Many   industrial  and
commercial  operations   depend   on  using   recovered  materials.
Technologies to recover resources  can also bring about markets to
move  these resources  to  those  who can  use  them.    Recovering
resources gives entrepreneurs many opportunities  to  seek out and
develop markets.

     If we can extract materials from wastes and use them again, we
will depend  less on foreign sources of raw materials;   we can
create more American jobs.  If we reduce imports, and  even increase
exports of recovered or reclaimed materials, we can have a positive
effect on the United States balance of payments.   We must respond
to this challenge if we  are  to  compete successfully  in the world
economy.

     Leaders  must  ask   what they can do  to  respond  to  this
challenge.   Entrepreneurs will decide if the potential profits of
a  venture  outweigh the risks,  and will  make their investment
decisions accordingly.   The most important role the government can
play in this national effort is to take a  hard look  at obstacles
that entrepreneurs face.   It  should ask whether the myriad of laws
and regulations are unnecessarily  impeding  new  and useful  ideas.
For example,  EPA  has  promulgated  stringent  regulations over the
past eleven years to control  recycling of hazardous wastes.   These
materials,  if not managed properly,  can cause serious  harm to human
health and the environment.   However, the cumulative effect of the
federal RCRA  program,  other EPA programs,  and  state and  local
controls  is that an entrepreneur confronts  a bewildering maze  of
restrictions.   He must ask the government's permission (sometimes
several times)  for many or most  of his  plans.    Getting  this
permission  takes  a  toll  in time and  frustration  and creates
tremendous uncertainty.   Jobs and potential profits may be lost if
the permission is not granted.  In addition, recoverable materials
may be lost or destroyed through treatment  and disposal.

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     Government programs to prevent waste mismanagement can affect
recycling  in  different ways.    Some  industries  adapt to  new
regulations  relatively  easily,   while  others  are  profoundly
affected.  The cost of complying with requirements can cause some
companies or  industries to shift  from  recycling  to disposal, or
vice versa.  Entrepreneurs who are considering resource recovery
must  invest a  good  deal   of  time  in   learning  the Subtitle  C
regulations,  since  those  regulations  will  often  affect  the
operation's chances of success.  Some of these entrepreneurs will
proceed  with their  plans   to  recycle  hazardous  waste  (such as
solvents) at  highly-regulated  facilities.   Others  may  decide to
conduct  the recycling  outside  of EPA's  jurisdiction  or  under
special exemptions in the regulations.  Others may simply abandon
their  recycling  plans,  which  means that potentially  valuable
resources in their wastestreams will not be recovered.

     The purpose  of  this report is to  generate discussion about
how the  RCRA program should apply to recycling,  and how best to
encourage recycling of hazardous materials  that also  is protective
of the environment.  The report includes a brief description of the
statutory mandate of Subtitle C.  It also discusses the Subtitle C
requirements  that companies have  repeatedly mentioned  as  being
significant barriers to recycling.   Through this report, EPA hopes
to get answers to many  questions.   If all  regulatory barriers to
recycling were  removed,  what would happen?   Would  new recycling
operations  start  up,  reducing  the demand for  virgin materials?
Would new  jobs be created to  process  secondary  materials?   Can
recycling operations be safely conducted without heavy government
oversight?  If recycling becomes easy, will industries still try to
reduce waste production?

     To  accomplish its  goals,  EPA  needs to balance  two different
and sometimes conflicting Congressional mandates:  to protect human
health and the environment  and to encourage recycling.  The Agency
developed the  regulations  for  recycling hazardous waste with the
primary  purpose of  protecting human health  and  the environment.
Resource recovery has generally been a secondary consideration.
This  report is aimed at putting the two  goals on  a more  equal
footing.    We want  to  investigate  ways  to tailor regulatory
standards for  some  recycling activities to  encourage recycling,
without sacrificing protection of human health and  the environment.
     EPA has developed three tentative options to achieve this end.
These options are:

o    Redefine  "solid  waste" so that it  conforms more closely to
     materials that actually  pose waste  disposal problems.  Many
     secondary materials would be conditionally excluded from the
     definition of solid waste,  or subject to varying degrees of
     control depending on the generating  or managing industry's
     past  performance.   Secondary materials  burned  for  energy

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     recovery or placed on the land would be wastes  unless that  is
     their normal manner of use.
               »

o    Make incremental, relatively narrow exceptions  to the current
     definition (such as variances) to reduce situations where the
     regulations result in environmentally irrelevant distinctions.

o    Develop tailored controls for selected kinds  of recyclable
     secondary materials and processes.

These options are discussed in more detail  in Chapter  5.

RCRA Jurisdiction

     A difficult issue in the RCRA program is jurisdiction:  how  to
decide when materials are subject to RCRA controls.  The hazardous
waste program under Subtitle C covers materials that  are defined  as
"solid wastes"  in section 1004(27)  of  RCRA,  and that are listed  or
identified by EPA as hazardous.  This report addresses Subtitle C
wastes, but  the reader should note  that solid wastes  are also
regulated under Subtitle D of RCRA. Whether a material is a solid
or hazardous waste is also relevant to the use of authority under
section 7003 of  RCRA to  remedy situations which may present  an
imminent  and  substantial  endangerment to  human health and  the
environment.  However, the reader should note that the Agency has
always interpreted  section 7003  more  broadly than the regulatory
definition of solid waste.

     The definition of solid  waste in  section 1004(27)  of RCRA is:

     ...  any  garbage,  refuse,  sludge from a  waste treatment
     plant,  water supply treatment plant,  or air pollution control
     facility and other discarded material including  solid, liquid,
     semisolid,  or  contained  gaseous material  resulting  from
     industrial,  commercial,  mining, and agricultural operations,
     and from community activities
     ... [emphasis added]

This definition sets the boundaries of the RCRA program.   Because
the  term  "discarded"  is  not  defined  in  the  statute,    it  is
sometimes difficult to  decide whether or when recycled materials
have been "discarded" in such a way that they may appropriately be
considered solid wastes.  Some provisions of RCRA  (such as sections
3004(1),   (q),  (r) ,  and 3014)  command EPA  to regulate particular
recycling  activities.   Additional   guidance  is   found  in  the
legislative history, which indicates  that Congress  generally  did
not intend for Subtitle C to  cover production processes,  and also
indicates that Congress1  ultimate aim was to prevent hazardous
materials from becoming a disposal problem.   Over the past  ten
years,  EPA  has reviewed the  statutory language  and  legislative
history of RCRA,  and has constructed  an  interpretation of  "solid
waste" at 40 CFR 261.2.

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Reexaminincr the Definition of Solid Waste

     RCRA's jurisdiction  over recycling depends on  how the term
"solid waste" is defined.   The current definition at  40  CFR §261.2
interprets the statutory term "discarded" and classifies materials
destined  for  recycling  as  wastes  or  non-wastes.    EPA  has
established these broad classifications by evaluating the degree to
which a particular  recycling activity resembles waste  management
(which would normally  involve discarded materials)  or  production
(which would not normally involve discarded materials).  Thus, if
a material  is burned  for energy  recovery or  used in a manner
constituting disposal   (for  example,  applied  to the land),  that
material is considered  to be discarded because these activities are
quite similar  to managing a waste.   If a material, is  used  as a
substitute  for a  commercial product  or as a  feedstock  for an
industrial process,  it would not be considered discarded because
these uses resemble production of new materials rather  than waste
management.

     Reclamation activities, which  are a subset of all recycling
activities,  frequently have aspects  to them that  resemble  both
treatment and production.  The Agency has historically  classified
these activities  according to the type  of  material (sludge,  by-
product, or spent material) that is reclaimed (for examples of this
kind of classification, see 40 CFR 261.2(c)-(e)).  If a  recyclable
material  is classified as  a  solid and hazardous  waste, it is
subject to the requirements  of 40 CFR 261.6, which are  similar to
requirements for generators,  transporters, or storers of hazardous
wastes.   These requirements  typically apply  up until  the point
recycling begins, although in some cases the recycling activity is
regulated as well  (for example,  burning for energy recovery,  use
constituting disposal,  and certain reclamation activities involving
emissions of volatile  compounds).

     The current rules, adopted in 1985,  have many useful features
and mark a  significant improvement  over the 1980  rules that they
replaced.   However,  they  arguably do not strike the best balance
between protecting human health and the environment and encouraging
recycling.   In some respects they may  be  deficient in achieving
either of these obj ectives.

Recent Public Forums                                            "

     After EPA completed its  initial RCRA Implementation  Study, the
Agency  conducted  several  forums  to  discuss   its  findings.
Representatives from State environmental agencies, industry, other
Federal agencies,  environmental groups, and  Congressional staff
attended  these  forums.    Full  summaries of  these  meetings  are
contained in Appendix  B of this report.

     Virtually everyone who  attended the forums agreed that EPA

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should  encourage  (or at  least not  discourage)  "environmentally
sound recycling."  However, considerable differences arose over how
to define that phrase.  EPA believes that special regulations for
environmentally  sound  recycling  could provide  incentives  for
entrepreneurs to  expand available recycling  technologies,  while
also encouraging careful management practices.  The marketability
of  a  particular  recycled material  could  influence  whether its
recycling was conducted in an "environmentally sound" manner.  If
a recycled  product  becomes more  difficult  to sell because of a
decline in  public demand, the recycling activity  may be managed
less  carefully,  with  possible negative  consequences  for  human
health and the environment.  If the regulations governing recycled
materials are revised, the Agency may wish to take this possibility
into account.

     While  acknowledging that  recycling  should be  encouraged,
attendees at the forum expressed dissatisfaction with the results
of  the current  regulatory definition of  solid  waste and  the
regulation of secondary materials  (i.e., solid wastes that either
exhibit a hazardous  characteristic or have been listed by EPA as a
hazardous waste).

     The state environmental officials generally disliked the fact
that  the  current  regulations  contain  exemptions that are "self-
implementing" :  they allow facilities to decide by themselves that
their activities are exempt, without notice to regulatory agencies.
Thus,  environmental problems may  occur before these agencies can
take  steps  to  prevent or  mitigate  them.    However, the  state
officials also believed that the regulations  over-control some low-
risk activities.   For example, a secondary material is often used
in a way similar to the way a virgin material is used, and may be
composed of similar  raw materials.  In spite  of these similarities,
the RCRA  regulations require  stricter controls  for the secondary
material  (and often no controls at all for  the virgin material) .
This  difference may cause  facilities  to  use virgin  rather than
secondary materials in production,  thus resulting not only  in
additional  risks  associated with  extracting  and developing  the
virgin  materials, but also lost  opportunities for recovery  and
reuse of materials.

     Participants from  other  organizations  (regulated  industry,
waste treatment,  environmental  groups, Congressional  staff,  and
other  Federal  agencies)   expressed differing  opinions about  the
regulations.  Some believed that  the RCRA program  should control
all hazardous secondary  materials; for example, that EPA should
regulate the levels of toxic constituents in products composed of
recycled materials.  Others believed that recycling should never be
regulated as waste management.  A more  commonly expressed view was
that  at least some  forms of  recycling are waste management  and
should  be regulated under Subtitle C  or some  other authorities.
Some participants  showed concern about the "stigma" of having their
wastes  designated as hazardous, even though the  handling of some

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"non-hazardous" wastes posed similar environmental risks. ;

     The participants identified several specific problems with the
current regulations (discussed in more detail in Chapter 3) .  These
were:

o    The  "derived-from"  rule,  which  provides  that  treatment
     residues of  listed  hazardous  waste (including residues from
     recycling) are themselves hazardous.  This rule can cause low-
     risk wastes to be regulated unless the operator of a recycling
     facility chooses to go through the  lengthy delisting process.

o    Facility-wide corrective action requirements, which discourage
     new   recycling  activities   at   older   sites   with   past
     environmental problems.

o    Permitting and the permitting modification procedures, which
     delay new recycling activities at both new and older sites.

Participants also identified certain problems with implementing the
regulations (described in more  detail in Chapter 4) .  The principal
problems were:

o    The  difficulty  of  determining in  advance  how  a waste  is
     actually likely to be handled.  This difficulty is exacerbated
     by the "self-implementing" nature of the exemptions described
     above, which allow exempted parties  to  operate  without the
     knowledge of regulatory  authorities and  to claim  exemptions
     where these are not justified  (for example, where "recycling"
     is actually  hazardous waste treatment).

o    Inconsistent regulatory interpretations in different states.
     This can affect  interstate transport and recyclers competing
     in interstate commerce.

     In summary,  the majority view among interested parties is that
EPA   should  use  its   regulatory  authorities  to  encourage
environmentally sound recycling, and that the current regulations
are difficult to  implement  and in  some  cases  may discourage such
recycling.

     Besides  regulatory  impediments, many other  factors  affect
"recyclability."  Chief among these are technical, practical, and
logistical  barriers,  and shifts  in market  demand  for  various
recycled  products.   The Agency's  power  to  modify  these  other
factors  is very  limited, but  EPA  believes that by  identifying
unneeded regulatory barriers and trying  to  address or remove them,
we can still play an important  part  in encouraging environmentally
sound  recycling.   Following   is  a  brief discussion of  three
principal regulatory impediments that we have identified, with some
tentative suggestions for change.

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Regulatory Barriers                        •

     The first impediment is that the definition of solid waste in
both over- and under-inclusive.   It sometimes causes potentially
hazardous materials to go unregulated, while other materials that
present minimal hazards are fully regulated.   This impediment is
in part a result of the difficulty in categorizing all materials as
either  "wastes" or  "non-wastes,"  which is  called  for under the
current definitions in the statute and the regulations.

     The second impediment is that too many critical distinctions
(such  as that  between  whether a  recycling  activity resembles
production  or waste  management)  do  not  correspond  to  actual
differences in environmental risks.   The result is that activities
or materials which may pose the same environmental hazards (such as
listed  and  unlisted  sludges being  reclaimed)  are  nevertheless
treated differently.  The ensuing economic consequences track the
differences  in regulatory status, not the environmental  hazards
involved.

     The third impediment is that the regulations are too complex.
This is because some provisions  were crafted to address legal or
procedural issues or policy  distinctions rather than  for  ease of
understanding.

     Two recent opinions by the U. S. Court of Appeals for the D.C.
Circuit may  suggest one avenue  for  resolving  these impediments.
(See Appendix A).   In those opinions, the court indicated that it
will adopt a more  pragmatic approach  towards interpreting Subtitle
C jurisdiction.  Under that approach, materials  would be considered
solid wastes unless  they are recycled in a truly continuous fashion
and unless they do  not  constitute a waste  disposal  problem.   EPA
would  thus  have  the discretion to  set  out conditions  (such  as
management practices) under  which materials or  activities would be
excluded because they are not part of the waste disposal problem.
Once the Agency establishes these conditional exclusions,  persons
operating  in  conformance  with  the  conditions  would  not  be
considered to be managing a solid waste. This approach would be an
incentive to  recycling  activities that are  now discouraged  from
operating  by  such  features  of  the  hazardous waste  rules  as
permitting,  facility-wide corrective action, and the derived-from
rule.

     This avenue  would  bring  about changes  in an  incremental
fashion.  A simpler, more sweeping approach would be, for example,
to define a  solid waste  as  any material  which  escapes into the
environment or has the realistic potential for doing so.  EPA might
include whole classes of secondary material  management units within
RCRA  (such  as land disposal and combustion units)  and  exclude
certain others if the  materials in  them were  securely contained
(such as tanks and  various  non-combustion  units).   This approach
would  eliminate  some of the  most   complicated  features  of  the

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current rules.  For example, the Agency would distinguish between
different  ways  of recycling  secondary  materials  only if  the
potential  for release  to  the environment  were different.   The
approach would also further RCRA's goals of waste minimization and
pollution prevention, since  release-free, secure processes would
be encouraged because they would not be regulated.

     In addition,  interpreting the statutory term "discarded" to
mean actual release or  significant threat of release is arguably
consistent with a  normal understanding of the term,  and also has
support  in   the   most   recent   court  cases  interpreting  RCRA
jurisdiction  over  solid  waste.    Under  this  approach,  many
management units that are  traditional  RCRA targets (such as land
disposal and combustion units) would still be managing wastes, as
would  insecure  storage  units.   On the other hand,  truly closed
reclamation systems,  such  as those presently excluded  at 40 CFR
261.4(a)(8),  would  not  involve  waste   management  if  volatile
emissions were adequately controlled.

     The  simplified  approaches  described  above  would  only  be
feasible if regulatory flexibility were built in to address site-
specific circumstances that  did  not fit the general  rules.   This
flexibility is  necessary  both  to  protect  human health  and  the
environment and to encourage resource recovery.

     These  approaches offer  a  glimpse of  a  simpler  regulatory
scheme  which  would  be  more favorable to  recycling while  also
offering  full  environmental protection.   However,  some  will
inevitably argue that the  approaches  cannot be adopted under the
current statutory mandate,  and that Congress must amend RCRA before
these  changes can  be made.   In  spite of this view,  the Agency
believes  that this  report  is  useful as a  starting point  for
updating the  definition of  solid  waste  and the  hazardous  waste
recycling  provisions.     Our  ultimate   goal   is  to  encourage
environmentally sound recycling  and to organize  the regulations
around more practical, environmentally- based distinctions.

     The remainder of  this report will discuss resource recovery as
a goal  of  the RCRA program, perceived regulatory impediments to
that goal, implementation  issues,  and  ways  to change the program
that address these topics.
CHAPTER 2:
RESOURCE RECOVERY AS A RCRA GOAL
     Section 1003 of RCRA states that its objectives are
     11 to promote the protection of health, and the environment and
     to conserve valuable material and energy resources by   ...
     assuring  that  hazardous  waste  management  practices  are
     conducted  in a manner which  protects human health  and  the
     environment; . .  .  requiring that hazardous waste be properly
     managed in  the first  instance thereby reducing the need  for

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     corrective action at a future date; ...  [and] minimizing the
     generation  of  hazardous waste  and  the  land  disposal  of
     hazardous waste by encouraging process substitution, materials
     recovery,  properly   conducted   recycling  and   reuse,  and
     treatment ..  . "

     The question of how best to carry out this goal raises several
issues, which are discussed below.


General        P

     Over a period of eleven years, the Agency has established the
RCRA Subtitle C program to control hazardous waste management.  The
program has evolved in  response to EPA's determination that certain
waste management practices need controls, and also in response to
specific Congressional directives  (for example, the section 3004(q)
program  for  burning  hazardous  waste).    In  addition  to  safe
management  of hazardous  wastes,  Congress  also defined  RCRA's
objectives  to  include  minimizing  waste  generation  and  land
disposal.

     In the past,  the Agency has considered the general effects of
Subtitle  C  regulations on recovery,  recycling,  and  reuse  of
materials.    However,  EPA  has  not  yet  evaluated  particular
provisions  to  determine precisely how they affect the regulated
community's  decisions  about  process substitution,  recovery  of
materials, recycling,  and reuse.

     When making regulatory decisions, the question for EPA is how
much weight should  the Agency give to resource recovery?   In the
May  19,  1980  preamble to  the hazardous waste  regulations,  EPA
stated that:

        .  . Although  promoting  waste   re-use  and  recovery  is
     certainly one of  the goals of  RCRA,  Subtitle C does  not
     require  EPA  to consider  resource  recovery implications  in
     establishing hazardous waste management standards; nor does it
     suggest   that   promoting  resource   recovery   should  take
     precedence over assuring  proper management of hazardous waste
     ...  [45 FR  33092, May 19,  1980].

Tailored Controls for  Recycling

     Should the RCRA regulations be tailored to distinguish between
recycling  operations  and  simple  treatment  and  disposal?   Some
materials can be recycled quite safely,  while their treatment and
disposal  poses substantially  increased  risks.   At times,  the
reverse  is true  as  well.   An  ideal   regulatory   scheme  would
adequately protect human health and the environment no matter which
option  were chosen.   This would allow  other factors,  such  as
economics, to be taken into account by the waste manager.

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     An example  of  this ideal scheme is a material consisting of
iron filings and lead shot.  Recycling this material could involve
a magnetic separation technique which generates no lead-containing
dust and which is quite safe  if the separation occurs in units that
contain the material completely.   The iron filings could be used as
a feedstock in steel production and the lead shot could be reused
directly  with  no  further  processing.   Alternatively,  a  non-
recycling  treatment  technique  might  involve   adding a  binder
material to "fix" the  lead shot in place and render it immobile,
with later disposal in a landfill.  However, the treatment-with-
disposal  technique  could  result  in greater environmental  harm
because of possible leaching of the lead.

     To tailor  controls for recycling this material, EPA  could
consider such factors as containment of the waste  during separation
and possible controls on airborne lead particulates. For treatment-
and-disposal,  EPA might  consider  controls such as  specifications
for the binder material, containment of the waste while the binder
is added to it, possible air emission controls,  and land disposal
restrictions.   The Agency could then impose RCRA  controls for this
lead shot and  iron filings waste to ensure equivalent protection of
human health  and environment under  either  management technique.
The regulated community would then base its decision about whether
to recycle  or treat and dispose  on other factors than  the  RCRA
regulations.

      A second  example  is  a  used solvent  that is  recycled  by
filtration,   and   then  reused   with   no   other   processing.
Alternatively, the treatment technique for the used solvent could
be incineration, with subsequent disposal of the incinerator ash.
If the  only material  incinerated was  the  used  solvent and  the
combustion conditions were good, very little ash might result from
the incineration. Even if  the potential for volatilization of the
solvent were similar in both  cases (except during actual burning),
incineration may pose a greater danger to the environment because
of possible emissions of incomplete combustion products and metals
present in the used solvent.

     To tailor controls for recycling the used solvent, EPA  could
consider  such  things as the need for  containment  of the waste
before and during filtration, the need for air emission controls to
capture the volatilized solvent,  and  restrictions  on where  the
filter cake could be disposed.   For  treatment-and-disposal,  EPA
could consider  such things  as the need  for containment of  the
solvent before incineration,  air emission limits on the incinerator
emissions, and and restrictions on where the incinerator ash could
be disposed.

     A third example is  recycling of  solder  drosses  skimmed  from
the surface of molten tin-lead solder.  These drosses could either
be recycled by melting them to  separate the usable solder  from the
lead and tin oxides  that are  present in the dross. Alternatively,

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they could be treated and  disposed  by being bound with a binding
agent placed in  a landfill.  For recycling,  EPA could evaluate such
things as the need for containing the  solder drosses before and
during recycling,  the potential for air emissions from recycling,
and necessary controls on disposal of  any residues from recycling.
For treatment-and-disposal, EPA could consider such things as the
need for containment before and during treatment, the effectiveness
of the binding material, the potential for air emissions from the
treatment process,  and  necessary  controls  on  disposal of  the
treated wastes.

     If the  Agency pursues such an approach, we would consider many
questions.  Which criteria would EPA use to  select hazardous wastes
for this kind of tailoring?  If the Agency attempts to  use net risk
reduction as a criterion, will it have enough data to compare the
risks of recycling and treatment for the same material? Under this
approach, an industry  requesting special  controls would  have to
provide information to assist EPA to  make  such  a comparison.   If
risks appear to be similar for both management techniques, should
the Agency still provide  a regulatory preference?  If so, why?  Are
some materials  of  strategic value  to the  United States,  making
their recovery a national priority even  if  recycling poses greater
risks than disposal?

Universal Waste

     Finally, some wastestreams do  not  fit well into  the control
structure imposed on most hazardous  wastes.  Many of these wastes,
such as used oil and batteries,  are  ubiquitous and are often found
in household and commercial facility wastestreams.  Large portions
of these wastestreams are either excluded from regulation under the
household waste  exclusion, or exempt under the conditionally exempt
small quantity generator regulations at 40 CFR 261.5.   EPA refers
to these wastes as  "universal wastes,"  as  a term of convenience.
Other wastes which  may  be  hazardous in some  cases and  which are
typically  found  in  non-industrial  settings  are  light  bulbs
(including fluorescent or mercury-vapor lamps),  automotive fluids
such as used antifreeze, other automotive components such as used
oil filters and glass,  rags or wipers used  to  apply  solvents or
clean  up spills  or  contaminants,   used  refrigerants  from  air
conditioning and refrigeration  systems;  pesticides;  photographic
supplies  and  materials,  Pharmaceuticals,  dry-cleaning  cartridge
filters,  reagent-grade  laboratory  chemicals,  mercury-containing
thermometers, pressure gauges, and switches, and paint application
wastes.                                             ..--.;•

     Because the RCRA regulations exclude or exempt many of these
wastes,  they  frequently are disposed rather than collected  for
recycling.   Recycling  technologies  exist  for valuable  resources
such as  certain kinds  of batteries  and used  oils.  However,  the
price of  virgin materials can  determine  the availability  of  an
infrastructure  to  collect  and transport the  wastes to  recycling

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facilities.    Recycling can  also  be affected  by  the cost  of
complying with additional hazardous waste management and permitting
standards.   State  and local officials are now  targeting many of
these  materials under special  programs  designed to  encourage
collection, including manufacturer "take back" programs.  Some have
suggested  that  allowing   special   regulations  or  conditional
exemptions   for  certain   kinds of  recycling   would  encourage
development of a recycling  infrastructure.  These special controls
might ultimately lead to recycling of (and the appropriate level of
control  over)  the  excluded portions  of the wastestreams,  thus
encouraging  recovery  of the valuable  resources now  being thrown
away.

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CHAPTER  3  -
IMPEDIMENTS
REGULATION  OF  RECYCLING:   CONTROL  AND  POTENTIAL
     Requirements  imposed on  recycling  can  affect  a company's
decision  about  whether  to  recycle  or  dispose  of  its  waste
materials.  Following is a discussion of regulatory provisions that
some have cited as barriers to recycling.

     RCRA Subtitle C regulates hazardous wastes, which are a subset
of "solid wastes."   In order  to  be a hazardous waste, a material
must first be defined as a "solid waste."  EPA originally defined
materials as  "solid wastes" if  they were either:  1)  a garbage,
refuse, or sludge, or 2)  other waste materials that  are discarded,
or (for certain materials) sometimes discarded.

     In  January   1985,   EPA   refined  the  original  regulatory
definition of solid waste so that some recycling activities (such
as those that are similar to normal production processes) are not
covered by  waste management requirements, and  so that materials
recycled in these ways  are not wastes.   However, some recycling
operations, such as burning a material or placing it on the land,
closely resemble managing a waste.  The Agency therefore decided in
1985 that hazardous secondary  materials recycled in  these ways are
"solid wastes."

     The January 1985 regulation contains a three-part definition
of solid waste:

     The first  part states that materials that  are abandoned by
being disposed,  burned or incinerated (or accumulated, stored or
treated before  one of these activities)  are always solid wastes
(see 40 CFR § 261.2(a)(2)(i)).

     The  second part states  that  recycled  materials  are  solid
wastes when recycled in certain ways, and are not solid wastes when
recycled in other ways (see § 261.2(a)(2)(ii)).

     The  third part  states  that certain  "inherently wastelike"
materials are  always  considered  solid wastes,  even when recycled
(see § 261.2(a)(2)(iii)).

     The regulated  community  generally has not expressed serious
disagreement with  EPA's  jurisdiction over materials in the first
and  third parts  of  this  definition.   The  second part of  the
definition, however,  has  been the  subject of  considerable debate
and legal challenge.

     The second part defines certain recycling activities as waste
management.   Any  secondary material  that is  not  a commercial
chemical product  being used as intended  is regulated as a solid
waste if it is recycled in the following ways:

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                                14

Burning for Energy Recovery, or Use to Produce a Fuel

     This activity is considered waste management when the material
is used  for its  energy value.   To distinguish between  using a
material for energy versus burning it to destroy it,  EPA has issued
a statement of enforcement policy (see 56 FR 1157 (March 1.6, 1983)
and 56 FR 7149, 7183  (February 21, 1991)).

Use in a Manner Constituting Disposal

     This activity  is considered to  be waste management  when a
material is recycled by being placed on the land either  directly or
after incorporation  with other materials.   Different  classes of
this kind of reuse are:

o    Use  in fertilizers,  pesticides,  or  to alter  the  physical
     structure of soils.

o    Use to build marine habitats such as coral reefs.

o    Use as an anti-skid material or for suppressing dust on road
     surfaces.

o    Use as landfill cover material.

o    Use as a construction material:   as  an  ingredient  in concrete
     or  other paving materials,  as  highway fill,   road  base,
     building  or  residential  fill  material, or as construction
     material for retaining walls, levies, and berms.

Speculative Accumulation

     This  activity  is  considered  to be  waste  management  when
materials are accumulated with the intention of recycling them, but
are stored  for a  long period of  time  before the recycling takes
place.

     For all three of the above  recycling activities,  commercial
chemical products  that are normally  used in these ways  are  not
solid wastes.  All other secondary  materials (e.g., by-products,
spent materials,  sludges), are  solid wastes  when recycled in these
ways.

Reclamation

     In addition, a  fourth kind  of  recycling is  considered to be
waste management only when certain types of secondary materials are
recycled by that technique.  The technique is known as reclamation,
and  it  involves  processing  to  recover  a  usable product,  or
regeneration.   Under  the  current  definition,  some  materials
undergoing reclamation  are  considered to be  wastes (e.g.,  spent
materials), while others are not  (e.g., by-products).

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     Finally,  some  recycling activities are not defined as waste
management, regardless of the material  recycled.  These are:

o    Use  or  reuse  of  secondary  materials  as ingredients   in
     production  processes  (for example,  using chemical industry
     stillbottoms as feedstock).

o    Direct  use  or  reuse  as  an  effective  substitute   for  a
     commercial product (for  example, using hydrofluorsilicic acid,
     which is an air emission control dust,  to fluoridate drinking
     water).

o    Return  of  secondary  materials to  their  original  primary
     production  process, without  prior reclamation (for example,
     returning spent electrolyte from primary copper production to
     the copper production process  from which  it came).

     In  all  of  these  activities,  the  material involved  is  not
considered  a  solid  waste.    However,  there are four important
exceptions: if the material is being used to produce a  fuel, or to
produce a product  that will  be applied to  the land,  or is being
accumulated  speculatively,  or  is  inherently wastelike, it  is  a
solid  waste.    Furthermore,   in order  to  be  excluded from   the
definition of solid waste,  the material must be legitimately used
or recycled, not merely treated or disposed of under the guise  of
recycling.

     Determining whether a given material  is a solid waste has
enormous implications for its management.  A determination that the
material is not a solid waste can mean that virtually no controls
are  imposed  on  its  transport,  handling,  storage,  and  final
disposition.  On the other hand, a determination that the material
is a solid  (and hazardous)  waste can mean  that  its transport  is
strictly  controlled,  as  are  its  handling,  storage,  and  final
disposition.                                            :

     This all-or-nothing feature of the regulations (and  to some
extent, the statute) means that EPA must establish  its authority
(i.e, determine whether a material  is a  solid waste)  before it can
even inquire about safety.  If a secondary material  is not a solid
waste,  it may go unaddressed even if it presents serious health and
safety risks.  This emphasis  on a threshold determination of waste
versus non-waste places an imprimatur on definitional language and
diverts attention  from environmental hazards.   Furthermore,  the
possibility  of tailored standards  at  an intermediate level  of
control is not able to be pursued.

     On  the  other  hand,   some parties  claim  that the  current
definition of  solid waste regulations  may  sometimes  discourage
recycling.   Industrial facility owners who must choose  between
using virgin raw materials or  a hazardous waste for some  purpose
may select the  virgin material  even when two materials are  equally

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suitable for the purpose.  In some cases, the virgin and hazardous
waste materials are physically or chemically  different, i.e., the
waste may pose more of a hazard than the virgin material.  In other
cases,  there are  few or no  differences between  the virgin and
hazardous waste material.  In the latter case, choosing a  virgin
material rather than  a  recyclable hazardous waste  may result  from
reluctance to comply  with hazardous wastes requirements.

     For example,  a primary metal smelting facility may choose to
process  virgin ores  exclusively.  This facility  is subject to
various  regulatory  requirements  and  guidelines  imposed under
federal and state  laws.  However, if the facility  chose to accept
metal-bearing  hazardous wastes to  use  in its  smelter, not  only
would  it  likely become  subject to  RCRA requirements  for  storing
hazardous wastes before their use, it would also  become subject to
the   extensive  corrective  action   requirements  solid   wastes
previously disposed of.  In addition, its smelting process  residues
might  become regulated hazardous wastes, with extensive management
requirements.   This would be the case even if the  risks  posed by
the  facility and  its residues  were unaffected  by accepting the
secondary material.

     Even  if it is true that some RCRA regulatory  requirements
discourage recycling,  it does not necessarily follow that materials
with recycling potential should be excluded from RCRA just to  make
'recycling easier.  While other EPA programs (the Clean Air Act, the
Clean Water Act, and the Toxic Substances Control Act)  can provide
some control over  industrial processes,  the materials captured by
the  RCRA waste listings and characteristics'tend to  be materials
contaminated by toxic constituents  or collected by air and water
pollution  control  devices.    They  frequently  are  concentrated
sources  of  unwanted toxics created in the manufacturing  process.
As discussed further  later in this chapter, conditional exclusion
from jurisdiction may  balance  control  with  encouragement of
recycling.    But  the need"  still remains  to  control secondary
materials that may pose a serious hazard when mismanaged.

Regulation  of Hazardous Wastes that are  Recycled

     The  current  hazardous  waste  regulations   contain   several
special  provisions for hazardous wastes that are recycled.  For
example, reclaimed hazardous waste from  small quantity generators
is exempt from manifest requirements under certain conditions  (see
§  262.20(e)).   If  they were  destined  for  disposal,  the  same
hazardous wastes would require a  manifest for transport off-site.
A shipment of hazardous scrap metal that is  destined for recycling
need not be manifested, and  its  storage before recycling  is not
regulated  under RCRA.   A shipment of the  same  material that is
destined  for disposal must, in certain  cases,  be manifested and
sent only  to a  "designated facility"  (generally  defined as a
permitted or interim  status hazardous waste facility).  From these
examples  (which are  illustrative rather than exhaustive), it is

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apparent that special provisions for recycling may act to encourage
recycling  instead  of  disposal.    These  special   standards  or
exemptions reflect judgments by the Agency about the hazard posed
by the  given material  in a  recycling (as opposed  to disposal)
situation,  and  the  environmental benefit   to  be  gained  from
recycling rather than disposal.

     In  addition  to   the   examples   mentioned  above,   certain
provisions  in the  RCRA  hazardous waste  regulations  explicitly
mandate recycling (as opposed to disposal, or treatment  that is not
recycling).  Under RCRA Section 3004(m), Congress directed EPA to
develop treatment standards that minimize threats to human health
and  the environment  for each  hazardous waste.   The treatment
standards must  be met  before the waste  is  land disposed.   EPA
judged  certain  recycling techniques to be the best demonstrated
available technology for some hazardous wastes, and based treatment
standards on  the performance of these technologies.  Examples of
these technologies are extraction of oil from petroleum waste and
thermal recovery of metals.

     In  theory,  recycling  has  clear  social  advantages  over
treatment or disposal.  Usable substances that would otherwise be
discarded or  released into  the  environment  can be  reclaimed or
used.    Recovering  and  reusing   a  material  seems  intuitively
preferable  because  it  slows  down the exhaustion of  our finite ,
resources. Recovery allows us to retain and use resources here in
this  country,  rather  than  relying  on  materials  from  other
countries.   It  may also cause fewer health and  environmental
problems than disposing of large volumes of wastes and relying on
the production of virgin materials and products.

     On the other hand, recycling hazardous wastes is  not always an
environmentally benign practice.  EPA believes that some recycling
operations should be regulated because  of documented environmental
harm caused by improper recycling practices.  See the damage cases
in Appendix C to  this report  (Environmental Damages Caused  by
Hazardous Waste Recycling Practices),  as well as the damage cases
listed  in the appendix to the January 4, 1985 final rule (50 FR
658-661) (reprinted in Appendix D to this report).

     The most frequently mentioned impediments to recycling are:

     o    The "derived-from" rule.

     o    The "stigma" attached to  being designated as a hazardous
          waste.

     o    Permitting requirements.

     o    Facility-wide corrective action.

     o    Financial assurance.

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                                18
          Liability concerns.
     These issues  are described below.   Some  of these potential
impediments do not result  from actual controls on recycling, but
from some  ancillary activity, such  as  storage before recycling.
Examples  are  corrective  action,  the  derived-from  rule,  and
permitting procedures.

The Derived-from Rule

     The "derived-from" rule (40 CFR 261.3 (c) and (d))  states that
residues  generated  from  treating,  storing,  or  disposing  of
hazardous waste are themselves hazardous wastes, and are subject to
hazardous waste  regulatory controls.  Residues  from treating or
recycling listed hazardous wastes remain listed hazardous wastes
unless  they  are delisted.    However,  residues from  treating or
recycling hazardous wastes that are  hazardous  only because they
exhibit  a characteristic   are  hazardous  only  if the  residues
themselves exhibit a characteristic.

     EPA promulgated this  rule  because  residues  from hazardous
waste treatment, storage or disposal may still pose  a danger to
human health  and  the environment.   Sludges formed  by  treating
hazardous  wastewaters  contain higher  concentrations of  toxic
constituents  than  did  the  original wastewaters.    Similarly,
incineration  ash often  contains  metals  and  undestroyed  organic
constituents  (see,  for  example,   45  FR  33096  (May  19,  1980)).
Therefore, EPA has assumed that  residuals from listed wastes are
hazardous until shown to be non-hazardous.

     These residues  may  be wastes intended  for disposal,  or they
may be part of a product that EPA  continues to regulate under RCRA
because it still contains wastes.   We use the term "waste-derived"
product for this latter category  because the  hazardous waste or
residue is  often  sold  as  a  commercial  product.    Such  products
include  hazardous wastes  used in a manner constituting disposal
(regulated under 40  CFR  Part 266,  Subpart C)  such as  fertilizers.
made from emission control dust  from primary steel production in
electric furnaces.  Waste-derived  products also include hazardous
waste fuels (e.g.,  fuels consisting of spent solvents and virgin
fuels such as gasoline or number 2 fuel oil).

     The derived-from rule may affect the viability of recycling
these residues or products.  Two cases are described below.

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                                19

      Case	1	- Recycling  listed hazardous  wastes  results in  a
 "derived-from" residual.
      In  some  kinds  of  recycling,  a  production  process  that
ordinarily  uses  only virgin  raw  materials will  combine  these
materials with small amounts of a hazardous waste.  For example,  a
primary copper smelter may also process listed wastewater treatment
sludges from the electroplating industry.  This reduces the amount
of  virgin  copper  ore  needed  to  operate the  smelter,  thereby
conserving  a  valuable mineral.    Under  the  derived-from  rule,
residuals from the smelter are considered to be a listed hazardous
waste, even if introducing the waste had no effect on the resulting
residual.

      EPA recognizes that  some recycling may  produce  non-hazardous
residuals.   The  Agency  is interested  in ways  to  identify  such
residuals  efficiently  and to  avoid  regulation  of  them,  thus
lessening  the  negative  impact  of  the  derived-from rule on
recycling.  Some  ideas we are considering include concentration-
based exemptions,  priority  delisting,  and    "class  delisting".
These ideas are discussed below.

      The Agency  has published  a proposed regulation that would
allow certain  hazardous wastes  (including residues)  to be  exempt
from  Subtitle C regulation if they contained  less than a specified
concentration of hazardous constituents  (see 57  FR 21450, May 20,
1992).   This  initiative could,  if  finalized,  alleviate concerns
about the potential effect of  the derived-from rule on recycling
activities.  In the delisting  program,  EPA is considering  giving
priority to petitions  for  delisting  recycling residues.    This
approach could speed up  review  of delisting petitions for  such
residues, as  well as decisions  to  delist if  such  decisions are
justified.

      EPA is also considering a new program to  identify wastestreams
that  are subsets  of waste codes.   Examples  of  such  a subset are
wastestreams that would each meet the F004  listing description but
that  are generated by different facilities, possibly in different
industries.   The wastestreams would  be sufficiently  similar in
composition and  contaminant  types  to allow  "class  delistings."
Under this  approach,  EPA would  identify the kinds  of recycling
processes that are  likely to produce  residues  with  low levels of
toxic constituents,  and then would consider rulemakings to exclude
the residues from the derived-from rule.    (See, e.g., the current
exemption at  40  CFR 261.3 (c) (2) (ii).(A)  for waste pickle  liquor
sludge from lime stabilization (49 FR 23284,  June 4,  1984)).  EPA
can currently delist these residues at the request  of individual
generators,  but class exemptions may speed up  the process.   As  a
variation on this approach, the Agency could rescind the exemptions
if the generator  failed  to meet  certain pre-established testing
conditions.

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                                20

     One  class  of residues  that might  be eligible  for  a class
delisting  would be -certain smelter  slags derived  from burning
hazardous wastes in boilers and industrial furnaces.  The current
regulations  allow  certain conditional  exemptions  from emissions
standards for these boilers and  furnaces.  One way for a  smelter to
be conditionally exempt is to  accept  only hazardous wastes with
organic Appendix VIII constituents in concentrations of 500 parts
per million or less (see 40 CFR 266. 100 (c)) .   The smelting process
is likely to destroy the low levels of organic toxic constituents
present  in the  hazardous wastes that  are  accepted under this
condition.  The slags may be no  different than slags  from smelters
which process no hazardous waste  at all.
     case
products.
2  -  Recycling  results  in  regulated  waste-derived
     Some  hazardous  secondary materials  are  incorporated into
products that are placed on the land,  even where land placement is
not  the ordinary use of the  material.   Examples  include using
metal-bearing sludges as ingredients in aggregate,  and using metal-
bearing   hazardous    wastes   as  micronutrient   ingredients  in
fertilizers.

     The derived-from rule  was intended to maintain control over
the hazardous constituents in a waste.  However, the rule may also
discourage  the incorporation  of  hazardous wastes  into products
because it  classifies the resulting "waste-derived product" as a
hazardous   waste.     For  example,   the  derived-from  rule  may
overregulate some waste-derived products that have very  low levels
of toxics.  In some cases, similar products manufactured with raw
materials could contain comparable levels of hazardous constituents
from non-waste sources.  This  could  put manufacturers of waste-
derived products at a competitive disadvantage, even though their
products  are  essentially identical  to  those  made only  of raw
materials.  In other cases,  certain waste-derived  products  may not
be hazardous in their•intended  use.

     As discussed above,  the Agency has  developed a proposal that
would set concentration-based exemptions  from Subtitle C  regulation
for  certain hazardous wastes,  including recycling residues and
waste-derived  products  (see 57 FR 21450,  May  20.  1992).   These
exemptions  would provide a way (besides the delisting program) for
waste-derived  products that do not pose a  significant hazard, to
exit from the  Subtitle C system.  In  addition, EPA  is considering
establishing notification requirements to obtain more information
about   waste-derived  products  and   the   levels  of  hazardous
constituents they contain, and  to provide a way to  restrict their
uses if appropriate.

     EPA  might also   choose  to give  priority to  petitions for
delisting waste-derived products, like the approach described above
recycling  residues  destined  for disposal.    In addition,  EPA is

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                                21

considering whether,  in evaluating  delisting  petitions  for waste-°
derived products, comparisons to  the  risk  levels posed  by similar
products manufactured using virgin  materials  are appropriate.

     Finally, another consideration frequently raised by concerned
parties is the  so-called  "stigma" affecting the marketability  of
products  made using  hazardous waste ingredients.   When  virgin
materials are used,  the product  often  is perceived by the public  as
safe, while an identical product manufactured using hazardous waste
ingredients may  be  incorrectly perceived  as  posing an  increased
risk.  If it is appropriate for the federal government  to attempt
to "level the playing field"  for waste-derived products,  EPA could
use several approaches to counteract  these perceptions.   Examples
of  such  approaches are public  education  efforts,  using  special
terminology  for  hazardous  wastes  that are  recycled,   or other
strategies when  EPA has  evaluated the  relative risks of the two
types of products and found them to be similar.

Permitting

     Facilities that  treat, store,  or dispose of hazardous waste
must .operate under terms of a permit  addressing conditions at the
facility  or  under  self-implementing  technical standards during
"interim  status,"  a  type  of  interim  permit.     The  current
regulations require permits for  storing hazardous  waste before
recycling, while  the  recycling  process  itself may be exempt from
regulation (see 40 CFR 261.6(c)(1)).  This has resulted in a some
recycling facilities arranging operations so that hazardous wastes
are not stored before  the wastes are  recycled.  However, for certain
wastestreams,  storage before recycling  is not regulated,  or is
subject to minimal regulation.   For example,  storage of hazardous
wastes containing precious metals that are reclaimed is subject
only to recordkeeping requirements to prove the materials are not
accumulated speculatively.   Moreover, tank or container storage
preceding on-site recycling normally would not require a permit due
to the  90-day accumulation provision in  40  CFR  262.34.   Other
recycling facilities (such as boilers  and industrial furnaces that
burn hazardous  waste for  energy  recovery) are  subject  to  full
permitting of both the storage and recycling processes.

     A RCRA permit  ensures that hazardous  waste management units
are designed and operated to conform with the standards  of 40 CFR
Part 264.   The  permitting  process  also  allows  the public  to
participate in  selecting  sites for  facilities,  in  decisions  to,
grant or  deny a  permit,  and in  decisions about  the facility's
operating conditions.  In addition, facility-wide corrective action
is tied to the obligation  to  obtain  a permit.

     The permitting process can easily discourage  hazardous waste
recycling.  Preparing and  processing complicated applications and
attendant delay   from  citizen   participation  in the process  is
obviously an  impediment  for new  facilities  requiring  a  permit

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                                22

before  they  can  commence  operation.    Such  factors  are  also
bothersome  for existing  recycling  facilities because they must
often compete  with manufacturers using raw materials  who do not
have to absorb permit-related expenses.

     On the other hand, permits can also promote recycling.  Some
parties have stated that generators often will send their hazardous
wastes only to permitted  facilities  in order to reduce  potential
liability and to assure themselves that the wastes will be handled
properly.   Removing the  requirement  for a recycler to obtain a
permit could  therefore potentially  reduce the  amounts of waste
recycled  if generators choose  to send waste only  to  permitted
treaters and disposers.

     EPA  is  considering  ways  to  reduce  the  disincentives  to
recycling which  are inherent  in the  permitting process.  Without
changing   the   current  regulations,   EPA   could  modify  its
implementation scheme to encourage recycling.  For^example, EPA may
consider  giving  priority to  recycling  facilities when  permit
applications are processed.  One such approach would give natipnal
priority to recyclers  from particular industries.  Another would
allow states or EPA Regions to establish their own priorities on a
case-by-case basis.  Still another approach would classify similar
recycling activities and  rank the classes in order,  so that all
recycling facilities would be given the same  national  priority as
others in the  same  class.  However, these approaches might not be
consistent  with  the   Agency's  current  policy  of   permitting
priorities based on statutory deadlines and potential  risks posed
by  activities  at the facility.  The  Agency's discretion is also
limited by statutorily mandated permit deadlines. Finally, states
with  authorized  hazardous  waste programs  may set   their  own
permitting priorities, within general guidelines. Such states may
not consistently follow any priority  plans that  EPA develops.

     Another approach would require changing existing regulations.
EPA is  considering developing regulations  that  would specify
certain recycling practices that do not require the  full facility-
specific  oversight and approval of the  Part  B process  to assure
conformance  with  management  standards.  EPA could  develop such
regulations  for  a particular  recycling process (such as solvent
recovery by distillation), or for wastestream-process combinations
 (such  as   recovery of  silver from  spent  photographic  fixer
solutions, or  storage of nickel-cadmium batteries collected before
reclamation).

     EPA is considering four general  approaches to accomplish this
result.  They  are:

     #1. Conditional exclusions from the definition of solid waste.

     #2. Conditional exemptions from  regulation.

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                                23

     #3. Permits-by-rule.

     #4. Class permits.

Each of these approaches is discussed below.

Approach #1.

     The  first  approach grows  out  of  language  used  in  case
decisions .on RCRA rendered by the D.C. Circuit Court.  Under this
approach, EPA  would determine  what a  discarded material  is  by
assessing whether the  material,  as  managed  before  and during
recycling,  is  "part  of the waste disposal  problem."   Under this
"conditional exclusion" approach, EPA  could  state in advance which
circumstances would be considered to be  part of the  waste disposal
problem and which would not.   For  example, EPA  could state that
managing hazardous secondary materials in the following ways would
not consitute discarding:
     in units conforming to tank and container standards;

     at  facilities  operating  under   financial  assurance
     contingency planning conditions; and
and
o    where  the recycling  operation  itself  did  not  involve  an
     element of disposal

Materials being recycled under these conditions would not be solid
wastes.  To comport with the "continuous process" discussion by the
court,  it  may be necessary  to specify that the  recycling occur
within the same company,  or a company utilizing a similar process.
EPA might also limit this approach to recycling activities with a
record of safe operation to  provide further  assurance that their
operations will not  be part  of the waste disposal  problem.   The
current  regulations  already  allow  some recycling  facilities  to
apply  for  exclusions if they make  certain showings  (see  40  CFR
260.30 and 260.31).

     However, conditional  exclusions  also present difficulties.
A  large number of conditions would be indistinguishable  from a
regular  permit.     Implementing  this   scheme  could  also  prove
difficult.   Secondary materials  can  easily  be transported  from
generators to processing facilities.   Notification,  tracking and
recordkeeping are therefore needed for safe operation and effective
oversight of recycling operations.  Imposing such requirements if
the  materials  are  not defined  as   solid  wastes  poses  legal
difficulties.    There is  also  the  question  of  enforcing  the
conditions: does  any  deviation mean that the facility has fallen
into Subtitle C?

Approach # 2.

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                                24

     Under  conditional  exemptions  from regulation,  facilities
managing materials in  certain ways would still be managing solid
and hazardous waste, but would be  subject to reduced requirements
and  no  permit.    Some  current  regulatory  provisions  already
incorporate this  approach.   See,  e.g.,  the exemptions at 40 CFR
261.6(a)(3), and  the  "90-day" rule of 40 CFR  262.34.   EPA could
consider allowing either  complete or conditional exemptions from
regulation   to  recycling   processes   or   process   and  waste
combinations.  We would consider this approach (as well  as Approach
fl above)  for  recycling that did not involve  land  placement or
combustion.  Under this approach, there would be no limitations of
authority on tracking  and other  requirements.     However, to the
extent that  facilities are  treating or storing hazardous waste
under a conditional exemption, "permit-by-rule11  issues, discussed
below, are raised.

Approach #3.

     Under  the  "permit-by-rule"  approach,  facilities  managing
materials  in compliance  with applicable  requirements would  be
deemed to  have  a RCRA permit.    This approach  is  specifically
authorized under Subtitle C  for  used oil recyclers (see proposed
40 CFR 270.60(d),  November 29, 1985 (50 FR 49212)).  Some "permits-
by-rule" currently  apply to  certain hazardous  waste  management
activities  (see 40 CFR 270.60).   These are  largely  facilities
subject  to another  EPA  permitting  program  which provides  the
procedural safeguards  (such  as Section 3004(u)  corrective action
and Section  7004  public participation) that a  Subtitle  C permit
would provide.   EPA has  viewed  these safeguards as a necessary
prerequisite to  granting  permits-by-rule.    EPA will  evaluate
whether  any  other  hazardous  waste  recycling  activities  are
regulated under other environmental laws such that the Agency could
develop a permit-by-rule approach for  RCRA  Subtitle  C  permitting
requirements.

Approach #4.

     Under a class  permit system, specified  facilities  managing
wastes in compliance with certain requirements  would apply for a
RCRA permit under a  streamlined system.  The system would be based
on national  findings  of what  should be  included in permits  for
these facilities, which reduces the need for case-by-case review.
EPA proposed such an approach on July  20, 1984  (49 FR  29524)  for
generators storing their hazardous wastes in containers and above-
ground tanks,  but has not  finalized  the  proposal.    It may  be
possible to  select  certain  recycling  processes, or process  and
waste combinations, that would benefit from a similarly streamlined
permitting procedure.   EPA will investigate the number and types of
facilities that could benefit from this approach.

     Some of the possible  approaches  raise another question:  even
if the regulatory controls can be applied without the full Part B

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                                25

permitting  process,  RCRA statutory provisions seem to direct  the
permitting  process to  incorporate  facility-wide  corrective action
and  public participation.    Corrective action  requirements  are
discussed in the following section.  Concerning the Section 7004(b)
requirement for public  participation, the  approaches  described
above could be modified to address this requirement.   For example:

o    In the current  regulations, variances from  the definition of
     solid  waste are granted to  particular  facilities under  the
     procedures of 40 CFR 260.33.  Public hearings or opportunities
     to  comment exist   when  these  procedures  are   followed.
     Conditional  exclusions from  the definition  of  solid waste
     (which would   also  be  facility-specific)   could   also   be
     developed  to  include an opportunity  for public comments  or
     hearings.

o    Under  conditional exemptions  from regulation, the exemption
     could  include  opportunities  for public  comment.     As   an
     example,  precious   metals  reclaimers,   exempt  from  most
     hazardous waste requirements under 40  CFR 261.6(a)(2)(iv)  and
     Part 266, Subpart F, can nonetheless be regulated on  a case-
     by-case basis (with public input) under 40 CFR 260.41.

o    "Permits-by-rule" could be issued with requirements that  the
     permittee comply with the local public notice  requirements of
     Section 7004(b)(2).   This  approach would facilitate  citizen
     suit enforcement.    In addition,  facilities obtaining RCRA
     permits-by-rule  are generally subject  to other  EPA permit
     programs  that   require  public involvement  (e.g.,  the Safe
     Drinking Water Act underground injection program).

o    The  proposed class permit  for  hazardous   waste  tank  and
     container storage by generators did not propose to change the
     process for public  participation in hazardous  waste permit
     decisions.  Likewise, a class permit for recycling activities
     could  also , include   the  current  public   participation
     requirements for full permits.

     EPA notes  that  if one  or  more of the  approaches  discussed
above are pursued,  we would have to address whether non-recycling
treatment facilities  with similar characteristics  should be allowed
under the same  expedited regimes.   Unless for policy  reasons  we
wish  to  place  treatment without  recycling  at  a  competitive
disadvantage,  it appears that the characteristics of  the  facility
or its operation may be  more important in determining whether a
permit is necessary,  rather than whether any recycling occurs.   An
issue that  is  closely  related to permitting  is  facility-wide
corrective action.   This is discussed below.

Facility-wide Corrective Action

     RCRA Sections 3004(u) and  3008(h)  require corrective action

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                                26

for releases at hazardous waste management  facilities with permits
or interim status.  Specifically,  interim status  facilities may be
ordered under Section 3008 (h) to clean up hazardous waste releases.
Permits  issued after  November 8,  1984 also  require corrective
action for releases of hazardous wastes or hazardous constituents
from all solid waste management units at hazardous waste treatment,
storage, or disposal  facilities,  regardless  of the time at which
waste was placed  in  the  unit.   The authority under RCRA Sections
3008(h) and 3004(u) extends to the entire facility.  Complementary
authority in Section 3004(v) extends corrective action to releases
that have migrated beyond the facility boundary.

     This broad authority may significantly  affect a recycler's
decisions about managing hazardous waste.   A facility located on
heavily  industrialized property may conduct  its hazardous waste
management operations  in such  a way that it does not need a RCRA
permit  and  is therefore not subject to facility-wide corrective
action  requirements  that could include  all  waste disposal sites
from prior eras.   The facility may even decide not to recycle at
all.  In contrast, a facility located at a  new, nonindustrial site
may not be as  concerned about the  possibility  of facility-wide
corrective action, and  may be more likely to conduct operations
that require a permit.

     Some  parties  have stated  that  the  potential  for  RCRA
corrective action orders  or  permit compliance schedules are a major
consideration in deciding whether to recycle hazardous wastes.  For
example,  a primary  smelter could be  required  to  conduct  full
facility-wide corrective action if any hazardous  waste is accepted
at the site for metal  recovery.  Once the cost for this requirement
is taken into account, there may be no net  cost savings from using
hazardous waste as a substitute for virgin ore. Because corrective
action   is  linked  with  permit   requirements,   the  regulatory
provisions that allow recycling to occur without  a permit (such as
40  CFR 261.6(c)(2))  encourage facilities  to  arrange their waste
management  operations so  that  a  permit  is  not  required  (for
example,  storing  wastes before  recycling  them).    Conversely,
recycling operations that must be conducted with a permit may not
occur at many facilities  that are concerned about  corrective action
requirements.

     An  example   of  the  effect   of  RCRA  corrective  action
requirements could be shown by a  solder reclaimer who operates a
facility which recovers residual materials from soldering processes
for their lead and tin values.  If the residual soldering materials
are categorized as RCRA hazardous wastes, the facility would become
subject  to  RCRA corrective action  requirements  if  it  stores the
residual soldering materials before recovering them.  The owner or
operator of the facility  may place materials received from off-site
directly into the recycling  process, or arrange operations in other
ways to avoid the need to obtain a RCRA permit.  If they obtained
a RCRA permit and were  subject to  corrective action,  they could

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                                 27

 incur clean-up  costs  that might be large  enough to make further
 operation economically impossible.

      Another example is shown by the practice of recycling "cupels"
 from fire cupel assay analyses on precious  metal  ores.  Cupels are
 containers used by commercial  laboratories to  hold  ore samples
 while assaying  the ore for  its precious metal content.  Once the
 assay is finished, a  cupel  may be classified as  a RCRA hazardous
 waste because  of its lead  content.   Technology  is  available to
 recycle the cupels  (in smelters).   However, the  primary smelting
 facilities that could recycle  cupels would  be  subject to RCRA
 corrective action requirements if they store the cupels (received
 from off-site commercial laboratories) before inserting them into
 the  smelters.    Since the  cupels  may  constitute  only a  small
 fraction of the  inputs to the smelter,  the smelter operator may not
 accept the  cupels because  of the  accompanying RCRA  corrective
 action requirements.   The  cupels would then be disposed instead of
 recycled.

      Under the current statute, EPA is  significantly limited in its
 discretion to   modify the  corrective  action  requirements  for
 hazardous waste management  facilities.   The requirements are not
 based on the likelihood  that a  particular facility will pose  a
 hazard.   Rather, any facility that must obtain a permit under RCRA
 Section  3005  must comply with  corrective action  requirements.
 However,  facilities that  are  not required to obtain a hazardous
 waste permit  (such as facilities whose  operations  do not bring them
 under RCRA  Subtitle  C  jurisdiction)  are not  subject  to  the
 corrective action requirements of  RCRA  Sections  3004(u) or (v) .
 Thus, by exempting certain  recycling  operations from  permitting
 through conditional exclusions, or  other means discussed in  the
 preceding  section,   the  RCRA  Subtitle  C  corrective  action
 requirements  would not apply.

       EPA may  be  able to  develop a conditional  exclusion or
 exemption program  under  which  recyclers  would  be  subject to
 corrective  action only under  some  circumstances.   For example,
 based on  an industry's past  practices, EPA  might  identify by rule
 certain kinds of recycling activities by rule that are unlikely to
 be  located  at   sites  requiring  corrective action.    Generally,
 Section 3004 requires EPA only to regulate facilities "as necessary
 to protect human health and the environment."  EPA might therefore
 craft conditional  exemptions  or  permits-by-rule,  which   could
 include a mechanism to require corrective action on a case-by-case
 basis to  guard  against any releases from the class of  facilities
 exempt from full corrective action.  The  Agency proposed this type
.of  mechanism  for  used   oil  recyclers  (see  proposed  40  CFR
 270.60(d)(3), 50 FR 49258,  November 29, 1985)).  EPA notes that in
 these situations  it  would  retain  CERCLA  Section  106  and  RCRA
 Section 7003 authorities.  EPA will  investigate whether there are
 types of  facilities  that  are  unlikely  to  be located  where
 corrective action is  necessary, and how  an effective  scheme for

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limiting corrective action requirements might be developed.

     Another rationale for limiting corrective action requirements
at recycling facilities is that the objectives of RCRA Section 1003
might be  furthered if increased  amounts  of  hazardous  waste were
recycled.    Some  would  argue   that  hazardous  waste  recycling
operations  should  comply with the  same rules  as other treatment
facilities, in order  to  have a  level  playing field for all waste
processing operations. In addition, new hazardous waste facilities
could come  into  being that  are  willing to comply with corrective
action, permitting and other  regulatory requirements. For example,
there  is  currently excess  capacity for  burning hazardous waste
fuels, even though the burning units are  subject to full Subtitle
C controls.

     On the other  hand,  owners  of some facilities  (notably those
producing recoverable metal-bearing wastes)  appear to be dissuaded
from initiating recycling activities because of the possibility of
facility-wide corrective  action,  even though sufficient recycling
capacity exists.  Building new capacity instead  of using existing
capacity  is expensive,  and  would delay the recovery of resources
during  the time needed  to  finance,  construct  and permit a new
facility.   Industries within the United States are handling this
situation to  some  extent by exporting metal-containing hazardous
wastes abroad.

     The Agency  is aware of the advantages of a level competitive
playing field.  However, while the statute and legislative  history
express  a  strong  preference   for properly-conducted  resource
recovery over conventional treatment, RCRA Sections 3004 and 3005
do  not  explicitly  allow regulatory preferences based on resource
conservation or  recovery  goals.

Financial Assurance

     RCRA  Section  3004(a)(6) gives EPA the  authority tp  require
owners  and operators  of hazardous waste treatment,  storage and
disposal  facilities  to maintain financial responsibility  for the
facility's  operation.  EPA has determined  that financial assurance
for the facility's closure and post-closure periods is necessary,
as  well as liability  coverage  for sudden accidental occurrences
 (and,  in  some cases,  for non-sudden accidental occurences).  The
amounts of  closure and post-closure financial assurance are based
on  estimates of closure  costs  and maintenance  during the post-
closure  care period.   The  regulations establish  the  amounts of
liability  coverage   at   $1  million  per   occurrence   for  sudden
accidents,  with  a  $2  million annual aggregate.   Several financial
mechanisms  can be used to meet the financial assurance requirements
 (see  40 CFR  Part  264, Subpart  H,  and Part 265,  Subpart  H, for
further  information).

     Many  parties have stated  that  the  financial  assurance

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                                29

 requirements  discourage recycling because  of the  large  monetary
 "cushion"  required of hazardous waste facilities that must obtain
 permits.   In  addition,  many of the financial  assurance mechanisms
 (such  as the  letter of credit)  must  be provided by another party.
 Interestingly, many of those who say  that financial assurance is an
 obstacle   to  recycling  relate  that  difficulties  in  obtaining
 financial  backing  are often due to the lack of an existing permit.
 They  also  state that third parties  providing the mechanism  for
 financial  assurance are more likely  to provide the mechanism if a
 permit has been  issued.  Generators  have also indicated that they
 would  not  send  hazardous  waste to  facilities operating  without
 adequate   financial   assurance.    Those who   describe  financial
 assurance  requirements as an obstacle to  recycling state that  a
 permit that would  be  easier  to  obtain than  the full RCRA "Part B"
 permit would be useful in locating and constructing hazardous waste
 recycling  facilities.

     EPA   would  welcome  further  discussion   about  whether  the
 financial   assurance  requirements   significantly    discourage
 recycling, and whether streamlined permitting procedures would make
 it  easier for a  recycler  to  obtain  financial assurance.   As
 described  earlier  in  this chapter, recycling  hazardous  wastes  can
 sometimes pose significant health and environmental risks.  Lack of
 financial  assurance contributed greatly to  the dozens  of abandoned
 hazardous  waste  recycling facilities  on the  National  Priorities
 List of the Superfund Program.  Facilities  that conduct hazardous
 waste  recycling may  not  always  have  the  financial  resources
 necessary  to  conduct  clean-ups  of  releases.  EPA would therefore
 carefully  evaluate any proposals  to  reduce  financial assurance
 requirements.

     EPA   will   also  investigate  whether  different  financial
 standards  for recyclers  might be  justified   and what  types  of
 coverage are necessary.  It  is important to note that many larger
 problems at recycling facilities  resulted  from over-accumulation
 and mishandling of potentially recyclable materials.  EPA also is
 interested in  ways  to  impose  full  financial  responsibility
 requirements, on a  case-by-case basis, on facilities which could be
 conditionally exempted from financial responsibility requirements.
 EPA  believes   that  if  facilities   are   exempted  from  these
 requirements under one of the mechanisms discussed elsewhere in
 today's report,  some  case-by-case  "override"  mechanism should be
 available  to  impose  stricter requirements on a  facility whose
 financial  status merits closer oversight.

 Liability

     Many parties have said that liability  imposed on handlers of
hazardous waste is an impediment to recycling.  Examples of these
 impediments   are   potential   financial   liability  under   the
Comprehensive Environmental Response,  Compensation and Liability
Act  (CERCLA),  potential  criminal  penalties  under  RCRA,   and

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                                30
liability under State laws.
     EPA  notes  that  CERCLA liability  extends  to  all  hazardous
substances, not just the subset of hazardous substances identified
as hazardous wastes under RCRA.  Further, concern about liability
often brings about more careful handling of hazardous substances.
However, some parties have stated that intermediaries in recycling
networks  (such  as   scrap  dealers  who  aggregate  batteries  for
shipment  to battery smelters) may incur  CERCLA  liability  for
handling  the materials  since  they  are arguably  "arranging  for
treatment or disposal" of hazardous  material.  Potential liability
costs may be so high that intermediaries may decide not to handle
hazardous materials, or to charge high fees to generators.  Either
result  could make collecting  and processing  hazardous  materials
(especially the "universal wastes" discussed earlier) more costly.
These increased costs could in  turn  lead to more frequent disposal
in non-regulated, less secure  facilities.

     Facilities may choose not  to use hazardous waste as inputs to
their processes or as products because of these liability concerns.
If it is an appropriate role for the federal government, EPA will
investigate mechanisms to ameliorate these concerns.  For example,
would development of  EPA  standards for hazardous waste-derived
products  to ensure  that  the  products  are  not hazardous  reduce
concerns and open markets?

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                                31
CHAPTER ,4. - IMPLEMENTATION ISSUES

Definition of Solid Waste

     The regulated community has stated that it is often difficult
to determine when materials are "solid wastes" under  the regulatory
definition.  Difficulties arise because parties may claim that they
intend to conduct an activity outside the scope of RCRA, which may
or may not be considered legitimate by the appropriate regulatory
agency.  The regulatory  definition is also very complex,  and the
definition  may vary  from state  to  state,  causing  a  regulated
hazardous waste to cease being  regulated when it crosses a state
border.  Interpretations among  states may also vary,  so that one
state agency may consider a material to be a hazardous waste, while
another reaches the opposite conclusion.

"Intent" in the Regulations

     Some persons have argued that if a person intends to recycle
a  secondary material, then  that material  is not  a  solid waste
because it  is not  "discarded" or intended to be discarded.  This
argument contains two assumptions:  (1)  recycling is  not under RCRA
jurisdiction and (2) intent is the determining factor in defining
recycling (and therefore RCRA jurisdiction).  The Agency does not
agree that all recycling is outside of RCRA jurisdiction.   In the
1985 and  1980  rules, as well as all of  the Agency's subsequent
policy  statements,  EPA has  defined some  secondary materials  as
solid wastes regardless of whether they are recycled.   The Agency
has also sought to reduce reliance on a person's subjective state
of mind (intent) when determining RCRA applicability.

     Nevertheless,  the current  rules do  not  totally  eliminate
considerations of intent  from decisions about whether a material is
a  solid waste.   Because  current  rules  contain exemptions  and
exclusions, some parties may claim that they are engaging in non-
regulated conduct, or that they  intend to do so.  This possibility
inevitably raises implementation difficulties.

     These  difficulties  are  compounded by the self-implementing
nature  of the  exclusions  from  the definition  of  solid  waste.
Parties who are recycling materials in such a way that they are not
managing  wastes need not  notify  EPA (or,  in some  cases,  an
authorized  state)  of their  recycling  activities.   They  are,
however,, required, to keep records documenting  their  claims that
they are not regulated (see  40  CFR  261.2 (f)).   Since regulating
agencies may not even be aware of a facility's existence,  serious
environmental problems may develop that could have been addressed
with earlier awareness.

     The Agency is considering ways to further reduce  reliance on
intent when determining  RCRA applicability,  or ways to  ascertain

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                                32

intent through objective and verifiable means.  Some parties have
suggested  ways to  simplify the  process  of  determining  when a
material is a "solid waste," and reduce the reliance on determining
a person's  intent.  For  example,  one way would be to distinguish
between "products" and "secondary materials,"  including all of the
latter within RCRA jurisdiction and excluding the former.

     Some parties have suggested that EPA should consider the value
of a material when deciding whether to regulate  that material.  In
the  past,  EPA has  rejected the  notion  that a material's value
should be a major factor in determining  whether it is subject to
RCRA controls (see 50 FR 617, January  4, 1985).   However,  the
Agency has  considered the  value of  materials  when establishing
controls on how the materials are managed (for example, the reduced
regulatory requirements of 40 CFR Part 266, Subpart F for precious
metals that are  reclaimed) .   EPA is  aware  that the value  of a
material  affects how  carefully it  is managed,  but the  Agency
continues to believe that a pure "value test" is inappropriate in
deciding whether something is a waste. This is  especially true in
light of  recent  market shifts in which  increased costs  for land
disposal may  allow recyclers to charge processing  fees  based on
otherwise applicable  disposal  charges.   Further,  many  materials
which can  be recovered  from  hazardous waste often  fluctuate in
price,  making it difficult to determine the value  of a material.

     A more promising way to simplify the  applicability of RCRA is
to make more of the key distinctions turn on environmental rather
than legalistic issues grounded in an intent test.  For example, as
noted  earlier,  the  existing  regulations  distinguish  between
unlisted sludges  or by-products being reclaimed (which currently
are not defined as solid wastes), and listed sludges or by-products
being reclaimed  (which  currently  are defined  as  solid  wastes).
However, the  risks posed by  listed sludges  and  by-products,  in
comparison  with  characteristic  sludges  and by-products,  may be
quite similar.  The two  1990 opinions from the D.C. Circuit Court
indicate that  Subtitle C jurisdiction might  be defined  to better
capture  those activities which pose the  greatest  environmental
risks.     A  revised  definition  of  solid waste  could  include
characteristic  sludges  and by-products   being reclaimed  under
certain conditions, for example, when such materials are managed in
land-based  units  (and  thus  are  part  of the "waste  disposal
problem").

     Other  environmental criteria might  be  used to  define  when
sludges  (or other materials)  are not part of the waste  disposal
problem.   In fact, certain management activities should perhaps
always be classified as hazardous waste management, such as storage
in  a surface impoundment  and  other types  of  land  placement.
Variances might  be established for those  few materials  that are
products or truly "in-process" materials that are managed in this
way.

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                                33
Sham Recycling
     Another  difficulty in  implementing  the definition of  solid
waste  is that parties  frequently  "recycle"  their hazardous wastes
in ways that avoid waste management costs but do not significantly
recover  energy or  material  values.   The  recycling  may also  be
intended actually to treat the waste ?- so-called "sham recycling."
Because the  costs  of handling hazardous wastes  are  significantly
greater than for non-hazardous wastes,  some handlers  of  hazardous
wastes see unregulated recycling  - whether  legitimate or not — as
a way of avoiding high  disposal costs.  Thus "recycling" activities
may occur in which hazardous waste contributes little value to the
final  output,  or  is  actually disposed of  during the  recycling
activity.  An example  is the direct use of a hazardous waste  as an
ingredient  in  certain consumer products  in   which  hazardous
constituents are in effect treated, while contributing nothing to
the final product.

Sham Criteria

     EPA has discussed sham recycling criteria in various  preambles
(see 50 FR 638,  648-9,  January 4,  1985, and 53 FR 526-7, January 8,
1988)  and  in guidance to the Regions.   These  criteria  include
consideration of the similarity  of the  secondary material to  an
analogous  raw  material or  product,  the  degree  of processing
required to produce a finished product,  the  value of the  secondary
material, whether there is a guaranteed market for the end product,
whether the secondary  material is handled in a manner consistent
with the raw material it replaces, and other relevant factors, such
as whether toxic constituents present in the secondary material are
necessary for the product,  or merely present as contaminants.  The
sham  recycling  criteria are  discussed  in  an  April  26,  1989
memorandum from  the Director of  EPA's  Office of  Solid  Waste to
EPA's Hazardous Waste Management  Division Directors in Regions I -
X (see Appendix E.)  EPA developed these criteria to establish an
objective  way  of   defining  "recycling"   that merits  reduced
regulatory controls.

     The recent  regulations  for  boilers  and industrial  furnaces
provide objective criteria for certain types of recycling (see 40
CFR 266.100(c),  56  FR 7208 (February 21,  1991)).   Some parties have
suggested that criteria be established in the regulations.  If the
Agency incorporated  sham recycling criteria  into the regulatory
definition of solid waste,  would  implementation of the definition
become easier?  Are there other criteria  that EPA and authorized
states should use when deciding whether a recycling activity is a
"sham?"

     Other parties have suggested that  a   focus  on  "sham"  vs.
"legitimate" criteria is misplaced.  The criteria EPA has used are
partly based on the marketability of  a material,  and  even  on the
sources of  income a  facility receives.    For  example,  EPA  has

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historically  believed that  levels  of hazardous  constituents in
waste-derived materials which are used as effective substitutes for
a product should be compared to constituent levels normally found
in  similar  products  which  are  non-waste-derived.   While  not
automatically ensuring that a product is safe, this comparison at
least ensures that  introducing  a  hazardous waste substitute does
not make a product more dangerous  than it would otherwise be.  The
disadvantage  of this  approach  is that  higher concentrations of
hazardous  constituents  in  the  waste-derived  product does  not
necessarily prove that there is a significant risk in either the
recycling process or the recycled product.

     Determining whether a particular  recycling  scheme deserves
less  stringent controls  is related  to the  larger  question of
whether to give regulatory preference to recycling activities in
general.   If EPA  decides  that  there  is no  reason  to  reduce
regulatory requirements for recyclers, we may begin to regulate
facilities that are now exempt.   If we decide to give regulatory
preference  to  recyclers,  the  "legitimacy"  issue  is of  great
importance.

     The presumption that recycling  generally poses fewer risks
than treatment  or disposal may not be true in  some cases.  Should
recycling risks be compared to treatment or disposal activities, or
to production activities?  If EPA  compares  recycling to production
activities,  what  criteria  could be  used  to define recycling
activities so that they receive (or continue to receive) special
regulatory treatment?  What factors predict a material's potential
for  release  to  the  environment?    Are  economic  or financial
considerations  appropriate criteria in certain circumstances?

Verification

     One way  to improve implementation is to require  that parties
who  claim to be unregulated must register or verify  their claim.
Under the current federal regulations, parties who claim not to be
subject to regulation must keep records documenting the reason for
their claim;   however, they need not notify EPA or an authorized
state  that they  are  not  subject to  regulation.   This  lack of
notification can cause problems  when  enforcement responses are
needed  and it  is  difficult  for EPA  or  the  authorized states to
locate  violators.   Some  parties  have  suggested  a  notification
requirement  to make EPA Regions or  state hazardous waste agencies
aware  of a facility's  existence.   The Agency could  also require
parties  to submit  a  certification  stating that their activities
 (and the materials they manage)  are legitimate and eligible  for the
regulatory exemption or special provision they are claiming.  Such
certifications could be periodic,  signed  by responsible persons
"under penalty  of law," stating that the person has made necessary
inquiries  and has determined that the facility is complying with
all  applicable requirements (such as the determination under 40 CFR
262.11 of whether a waste is hazardous).  These submissions (or at

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least a documentation of the reason for the claim, without actual
submission) would greatly  enhance  regulatory enforcement.   EPA
will investigate whether such notification requirements should be
imposed as  conditions of being excluded from the definition of
solid waste.

     Another way  to address this  issue  would be  to establish a
procedure under  which the  Agency could  address  situations  on a
case-by-case basis.   For  example,  EPA could (through rulemaking)
allow Regional Administrators  and Directors of  authorized state
programs to find,  on a facility-specific basis,  that a material  is
inherently  waste-like.   This authority  would  be  similar to the
authority  generally available  to the Administrator at  40  CFR
261.2(d).  Alternatively,  even if recycling is legitimate and meets
the terms of an exemption, the implementing agency  could find that
additional controls should be applied because of facility-specific
circumstances, such as  those  currently established at  40  CFR
260.41 for precious metal-bearing wastes being reclaimed.

Inconsistent State Regulations

     An authorized state which implements  the  RCRA  Subtitle  C
program need  not adopt in  toto the  federal definition  of solid
waste.   Under RCRA Section 3006(b), authorized states  (i.e., those
approved to operate a  state  hazardous waste program in lieu of the
federal program)  must have  state  programs that are equivalent to
the federal program, and consistent with the federal program.  An
authorized state  may regulate more wastes than those covered by the
federal program,  or may regulate the wastes more stringently than
provided for by the federal regulatory requirements.

     In some situations,  one state (with regulations identical to
the federal definition of solid waste)  does not regulate a material
that is being recycled (such as a characteristic by-product that is
being reclaimed).   Another state (with regulations that are broader
in scope than the federal  definition of solid waste) regulates the
same material  exactly as a  hazardous  waste would be regulated*
This inconsistency complicates how  the  material  is handled  in
interstate transport.

     These inconsistencies arise for several reasons.  For example,
Section 3006 of RCRA gives an authorized state a specified time to
adopt EPA rule changes that are more  stringent;  however,  the same
provision does not require  an  authorized state to adopt  changes
that are less stringent.  In addition, some authorized states still
operate  under  the  1980  definition  of  solid  waste,   pending
authorization  for the  1985 definition.    (If EPA  revises  the
definition  of  solid waste  again,  there may  be three  different
categories of definitions  which  are operable throughout the United
States)

     Some  of  these  inconsistencies  are  inevitable  under  the

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                                36

American system of  federalism,  and are a direct outgrowth of the
scheme Congress wrote into RCRA Subtitle C.  These inconsistencies
cannot be  eliminated without major  changes  to the long-standing
balance of  power  between states  and the federal government, and
without statutory changes to RCRA.

Inconsistent Interpretations Between States

     A similar problem arises when two authorized states have the
same  regulations  but interpret them differently.   In recycling
situations,  materials  often   must   be  classified  into  "spent
materials," "sludges," "by-products," or "scrap metal"  (terms that
are defined in the regulations).  The recycling activity must also
be classified.  These classifications (which are not always  easy to
make) determine whether the material  is a solid waste.   (Exclusions
and exemptions are available  in  40 CFR 261.2(e), 261.4,  and  261.6.)

     For example,  one problem arises  in classifying skimmings  (also
called "drosses") that form during wave  soldering operations, and
that  are skimmed  off the  surface of the molten solder bath.  The
drosses could be classified as "by-products," and thus would not be
regulated  as RCRA hazardous  wastes when  reclaimed.    However,
another reading of the regulations might classify at least  some of
them  as  "spent  materials"  which   would  be  regulated  as  RCRA
hazardous wastes when reclaimed.

     A  material  that does  not  clearly fit  into  one  of these
classifications or exclusions may be interpreted as a regulated
material  by one  state,  and  an unregulated material  by  another
state.   National  companies  may  find  identical  materials being
regulated differently in states  with identical regulatory language.
The  problem  is even more  complicated in  interstate transport
situations.  Even if a move towards national regulatory  consistency
is made, state regulatory authorities will always have to make some
some  site-specific  determinations.   EPA  is considering developing
training materials  specifically designed for states to  address the
consistency problem.  In addition, EPA is exploring the  feasibility
of states  coordinating with  each other when making site-specific
determinations.   For example, EPA could  provide a forum for state
agencies and Agency staff to discuss  application of the  regulations
to specific situations.  One  way to bring the states together might
be to hold periodic telephone conferences among the states  in each
Region  and  publishing the  summaries  nationally,  or through  a
periodic national  summary of  issues  raised by  individual states.
Hazardous Waste  Recycling Regulations

      Some  of the problems with  implementing the hazardous waste
recycling regulations are similar to the problems with implementing
the  definition  of  solid waste  -  inconsistent regulations among
states,   inconsistent   interpretations   of   identically-worded

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regulations, and a lack of notification by exempt parties.   Each of
these problems, and possible solutions, was described above.  The
problems that appear to be most significant are permit exemptions
for facilities without storage and waste-derived products placed on
the land.  These are discussed below.

Exemption for Facilities Without Storage

     The  regulations  at  40  CFR  261.6(c)(2)  provide   reduced
requirements for recyclers who do not store hazardous wastes before
recycling them  (use  of the manifest and notification).   If such
facilities  are  required to  obtain permits for  other operations
(such as a hazardous waste landfill or incinerator)   they must also
comply with air emissions standards in Parts 264 and 265.  However,
these facilities need not obtain RCRA hazardous waste permits for
their activities.  This exemption applies to recycling facilities
managing hazardous wastes other  than those provided with  special
recycling exemptions  in 40  CFR 261.6(a).   Storing wastes before
recycling is fully regulated and requires a permit  (see 50 FR 618
and 650, January  4,  1985) because the  Agency has determined that
regulation of such storage is necessary to protect human health and
the environment.  In practice, hazardous wastes can  be received at
a facility  and  held  for a short time before  being placed in the
recycling  unit  (for  example,  while  the  transport  vehicle  ,is
unloaded).  EPA interprets the "no prior storage"  requirement to be
a  site-specific  determination  that is made  by the  regulating
agency.  The Agency is aware that authorized states vary in their
interpretation of this regulatory provision.

     This exemption from permit requirements means that direct off-
loading  to  a recycling unit is  not regulated.  In contrast,  an
identical operation  at a  facility that must  store  wastes before
recycling them  requires a  full  Part B permit.   In addition,  the
facility that  stores before recycling  must comply with  general
facility requirements  (such as waste analysis, employee training,
contingency plans) while the facility that does  not store wastes
before recycling them  is subject  to  none of these  requirements.
The community may not be  involved in the  siting of the facility
(other than through local zoning  oversight).   Although  Clean Air
Act or Clean  Water Act  controls may  cover  some  "non-storing"
facilities,  facility-wide corrective action or RCRA air emissions
controls would  not be  required,  as they  would  be at  a  nearly^
identical  facility  that  must  store  hazardous  wastes   before
recycling.

     EPA  will  investigate  whether  the  current   situation  is
acceptable or whether there are unacceptable risks to human health
and the environment,  and, if  so, possible ways  to reduce the risk.
For  example,  are  limited  requirements  for  these  facilities
appropriate?  Such requirements might be similar to those  imposed
on generators who accumulate hazardous wastes under the conditions
of 40 CFR 262.34, or similar to the general facility standards of

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Parts  264  and 265,  Subparts  A-E) .    Does the  public  need to
participate  in siting these  facilities?    Should  EPA Regions or
authorized   states  impose  permitting   requirements  on  these
facilities  on a case-by-case  basis?   EPA  believes that certain
situations  (such as direct transfer of hazardous waste fuels  into
industrial furnaces) always warrant regulatory  control. The Agency
has therefore promulgated specific standards for those situations
(see 40  CFR 266.111, at 56  FR 7226,  February  21,  1991,  and the
accompanying preamble discussion at pp. 7195-6).

Coverage of Waste-Derived Products Placed on the Land

     Some parties have questioned the  current regulatory exemption
for hazardous waste-derived products used  in a manner constituting
disposal (i.e., placed on the land).  This  exemption allows for the
conditional use of hazardous waste-derived products placed on the
land.  As discussed  in  the  January"4, 1985 rulemaking (see 50 FR
627-629) , the  Agency  was not  then prepared to regulate hazardous
waste-derived commercial products that are placed on the land.  For
this reason, EPA provided an exemption from  substantive regulation
until the Agency could develop an appropriate regulatory mechanism
to determine whether such use  of hazardous waste-derived products
would protect human health and the environment.

     Under the January 4, 1985  rulemaking, hazardous waste-derived
products that  are  placed on the land  are  fully regulated unless:
1) the  product is a  commercial product  (i.e., produced  for the
general public's use),  and 2)  in the course of  producing  the
product, the  hazardous wastes  have undergone  a chemical  reaction
such that they are chemically  transformed  (i.e.,  inseparable by
physical means).  An exception was made for fertilizers,  which by
their nature release constituents into the environment.  While not
automatically  protecting human health and  the environment,  this
approach did provide some assurance that hazardous wastes would be
used to produce legitimate products with decreased risks,  instead
of being  disposed  of under  the guise of a  product made  from
hazardous wastes.

     On August 17, 1988, the Agency promulgated the Land Disposal
Restrictions for First Third Wastes (see 53 FR 31138-31222).   The
Land  Disposal Restrictions  prohibit placing   certain  hazardous
wastes on the land unless  treatment  standards  based  on the  best
demonstrated  available  technology   (BOAT)   for  treating  those
particular  wastes  are met  before such placement.    After  these
regulations were promulgated,  EPA reconsidered whether to regulate
hazardous waste-derived  products  used on  the land.   The   Agency
modified the  conditions  of  the exemption  at 40 CFR 266.20(b)  by
requiring waste-derived products to meet the applicable treatment
standards for the hazardous wastes contained in the product before
the product  was  placed on the  land.   The  earlier  exception  for
fertilizers was  maintained  only for  zinc-containing  fertilizers
produced using hazardous waste K061.   Although this change further

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ensured that the hazardous wastes contained in such products would
not pose significant risks to human health and the environment, the
Agency has not made a final determination that these controls are
the most appropriate regulatory approach.

     Some parties have stated that the conditions of this exemption
are still inadequate. Wastes meeting BDAT levels are still subject
to regulation  and must be  disposed of in  Subtitle  C landfills,
unless they  are determined to no longer  be hazardous.   However,
when used in a  "product," the waste could eventually be placed in
other  locations  (for example,  if  the product is  used  as  fill
material at a housing construction site).  Some have suggested that
the Agency  has allowed  the Land Disposal  Restriction treatment
standards to act  as surrogate "delisting"  levels when  used  in a
"product" (which  EPA has  never  defined).   However,  the treatment
standards were based on  the performance  of the best treatment
technology available for a particular waste,  rather than on health
considerations.     The   treatment  standards   did   not  include
considerations of possible routes of exposure other than those that
are likely from a land disposal unit.

     In  addition,  the  exemption  for  hazardous  waste-derived
products  used  in   a  manner  constituting disposal  is  self-
implementing.   Under 40  CFR 268.7(b), land disposal restrictions
notifications  and certifications that the  applicable  treatment
standards have  been  met  are sent to the regulating  agencies,  EPA
and the  State  regulatory agencies  do  not  have  an opportunity to
review and approve of the activities.

     To  address this issue,  the Agency  is  considering possible
changes  to  the  current  exemption  for hazardous  waste-derived
products.   For example,  EPA could require  that producers of  all
such products notify the Agency of their activities and provide two
demonstrations.  The first demonstration would be that the product
is a bona fide, genuine product.  This demonstration would be made
by showing that the waste-derived product does not contain higher
levels  of hazardous  constituents  than those  normally found  in
similar  non-waste-derived  products,   and  by   showing  that  the
performance  of  the  product is similar to  that  of analogous  non-
waste-derived products.   The second  demonstration would be made by
showing that use  of the product is protective of human health and
the environment,  considering the relevant routes of  exposure.   It
has  been suggested,  however,  that  the  first  demonstration  is
irrelevant and  counter-productive (see the letter from the Office
of Management and Budget in Appendix 6).

     EPA  is interested  in  learning  of any  other concerns  about
placing hazardous waste-derived products  on the land,  as  well as
ways that EPA can appropriately control  these  wastes.   Does  it
matter whether a use is  "legitimate"  if that use poses no risks to
human health or the environment?  Finally,  EPA will explore whether
a risk to human health and the  environment is posed by hazardous

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waste-derived products that are not used  in a manner  constituting
disposal.   Examples, of such products  are aggregate used to make
ceramic tiles, abrasive for grinding wheels, or roofing  shingles.
The  Agency  notes  that  if  legitimate  hazardous  waste-derived
products  are not  placed  on  the  land, then  they  are  not solid
wastes.    EPA  would probably have  to  add  conditions  to   the
exclusions at 40 CFR 261.2(e), or use TSCA authorities.
CHAPTER 5:  A PLAN FOR CHANGE

Need for Change

     As the previous  chapters illustrate,  the issues surrounding
RCRA regulation of recycling are many and complex. Almost everyone
urges EPA to make changes, and there is a clear consensus that the
rules  and definitions  should  be  made simpler  and more "user
friendly."  However, opinions vary widely about which changes the
Agency should make,  or even whether EPA should  make any  changes
that are specific to recycling.

o    Some  would  take  recycling  activities completely   out  of
     Subtitle C and establish less stringent requirements.  Such
     requirements might  include keeping records  relevant  to the
     "legitimacy" of the recycling operation, submitting periodic
     reports, and  operating under  general  performance  standards
     such  as  spill clean-up.    Under  this  approach,  permitting
     procedures would  be simpler  or  self-implementing.  Residues
     from recycling would be regulated  only  if  they exhibited a
     hazardous waste characteristic or were themselves  listed as
     hazardous wastes;  the "derived-from"  rule  would not  apply.
     This approach, according  to its  supporters, would  encourage
     the maximum  amount  of recycling.   See,  for  example,  the
     proposal of the Coalition for Business Recycling in Appendix
     H.

o    Others suggest instead that recycling  should  be  controlled
     under Subtitle C.   Under this approach,  improvements would
     occur by making certain administrative changes to the program,
     such as class permits or expedited delistings.  Supporters of
     this view do not necessarily  agree that recycling  should be
     encouraged by preferential regulation.  They believe that the
     land disposal  restrictions and market  forces  will lead  to
     increased recycling  in any event,  with recycling having  a
     market advantage over treatment  when it  recovers  valuable
     material at a reasonable cost.  Supporters of this  view also
     argue that needed improvements to the Subtitle C program (such
     as lessened transaction costs) should  not be available only
     for recy'clers.

o    A third option would leave many or most of the regulations in

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     place, but make certain changes to encourage recycling.  These
     changes might include modifying  or expanding variances from
     Subtitle C coverage, developing  "special collection system"
     rules  for universal  hazardous  wastes,  developing  generic
     delistings that  would  enable truly non-hazardous  wastes to
     leave the regulatory system easily, and simplifying terms and
     definitions.

Plan for Change

     EPA has  concluded that we  should revise  the  definition of
solid waste and the  regulation of recycling under  RCRA.   In the
course of making these changes, we may find that we can make more
general changes to the RCRA  program,  but early improvements to
foster environmentally beneficial recycling are  a higher priority.
 We  believe that  a  plan for  change  should  have  the  following
preliminary goals:

o    The definition of solid waste should be easy to understand by
     regulators and the regulated community;

o    Decisions about which materials are regulated and how they are
     regulated should depend on environmental considerations;

o    The regulations should strike a balance between protecting the
     environment and encouraging recycling.

     The Agency has developed  three very general approaches that
would move  the regulations  in  this direction.   Each is discussed
below.

1.   Two-tiered approach.   EPA could  use the logic  of  the court
cases  discussed   above to  create  a  scheme  with  two  tiers  of
materials based on how the materials are managed. First, EPA might
craft  a common sense definition  of   "waste"  that  includes  any
material stored, handled,  disposed of,  used on the land, or burned
for  energy  recovery,  regardless of any intent  to  "discard,"  and
regardless of whether the materials are listed or not.  Since some
primary products  and  raw  materials are produced specifically for
such uses, EPA could publish a list of excluded materials such as
pesticides  registered  under FIFRA,  fossil  fuels, etc.   Materials
spilled or leaked and not  recovered would  also be wastes  once
spilled, even if  not  originally  intended  for  land  placement or
burning.  Materials in the first tier would  generally be subject to
full RCRA  controls if hazardous,  although exemptions  for waste-
derived products that  were placed on the land  or  used as fuel could
be  appropriate  if the product met certain protective  levels of
toxic constituents.

     In the second tier would be certain secondary materials bound
for  uses  or processes other than land placement or burning  for
energy recovery.   These materials may or may not pose environmental

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problems.   Some materials bound  for energy  recovery or use have
been managed poorly  in  the past,  such  as spent solvents. If they
are hazardous,  regulatory controls for  these  materials might be
necessary to prevent further mismanagement.   Other materials might
not pose problems unless  they were burned or placed on the land,
but controls might be needed to 'ensure  that the materials were not
disposed  of in this manner.    Under  this  approach,  EPA  would
designate all or some secondary materials as "wastes" unless they
were managed  under  certain  conditions.   These  conditions  might
include notification, tracking,  or certain operating conditions,
but would not be as  extensive as  full Subtitle C regulation.

     If the Agency adopted this scheme,  materials might be added or
removed from the second tier of conditional controls depending on
how well  or poorly  a particular  industry had  managed its wastes
over a period  of time.    EPA would also  consider a case-specific
mechanism to bring individual facilities under Subtitle C control
if they  conduct activities which  pose significant  potential for
environmental harm.

2.   Technical  Improvements to  Current  Regulations.   A  second
option would be to leave many or most of  the regulations in place,
but make certain  amendments  which would  allow some  secondary
materials to come under more  appropriate levels  of  control.   For
example, EPA might modify  some of the variance procedures in 40 CFR
§§260.31 and 260.32  to allow more  facilities  to be eligible,  or it
could  allow variances  for any person who  could  show that  his
operations  were not "part of  the waste  disposal problem."   The
Agency could establish new exclusions in  40 CFR §§261.2 and 261.4,
or it could expand  existing  exclusions (for  example,  the "closed
loop" exclusion at 40 CFR §261.4(a)(8)).   EPA  might also examine
existing exclusions  to make sure current conditions ensure adequate
protection,  and might  establish  case-specific mechanisms  under
which  individual  facilities  could be brought under Subtitle  C
control if they pose environmental problems.

3.   Target Special  Categories of  Recyclers.   Finally, a  third
option would be to develop streamlined controls for certain  kinds
of recyclable secondary materials.  Under this approach,  EPA might
develop special requirements for  metals  bound  for  reclamation  or
solvents bound for use as  fuel in cement  manufacture. The Agency
would first have to  establish criteria for selecting materials and
deciding whether they pose serious disposal problems, whether they
replace primary materials  whose extraction and processing pose high
environmental  costs, or   whether  they  are  generated  in  large
volumes.    EPA  would also have  to decide  which  controls  were
appropriate, such as  conditional exclusions, generic delisting, and
class permits.   Under  this approach, recyclers and treatment,
storage,  and  disposal  facilities  would  be  subject  to  the  same
standards.  If  controls changed for recyclers, the  Agency  would
eventually  consider  changes for treatment, storage,  and disposal
facilities  as well.   Recycling could be encouraged by  being  the

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subject of  early action  by the  Agency,  and so  could  receive a
temporary preference over treatment and disposal.
SUMMARY

     This report summarizes  our preliminary ideas about reducing
barriers to recycling and resource recovery, while still protecting
human health and the environment.  In moving towards that goal,  we
hope  to  make the  RCRA regulations  conform more  closely  to the
environmental concerns  that  we all share.   Our general approach
emphasizes tailored controls for particular industries, processes
or wastes  which pose a hazard in some circumstances  but  not in
others.  As a first step,  we have identified the following areas
for the development of tailored regulations:
Waste  derived-products  (such  as  building  materials
fertilizers) that use hazardous wastes as ingredients.
                                                              and
o    Metals reclamation,  with emphasis on  regulatory provisions
     related to permitting,  derived-from  intermediate materials,
     and slags.

o    Universal wastes, such  as  batteries,  pesticides, used oils,
     household  hazardous   waste,   waste   from   small  quantity
     generators, and antifreeze.

o    Low-risk storage, with  emphasis  on issues related to tanks,
     containers,   onsite   and   off site    storage,   unregulated
     processing, "closed loops",  90-day accumulation,  "no" storage
     recycling facilities, and transfer facilities.

     We believe that  this report is a useful  starting point for
making the RCRA program more risk-based and  easier to  implement.

NEXT STEPS

     The ideas in this report are  tentative and  preliminary.   To
help us develop more finished options, we plan to convene a group
under the Federal Advisory Committee Act (FACA) .   This group will
assist us in defining regulatory choices so that we can then decide
which suggested revisions  merit inclusion  in  a  Federal Register
proposal.     We  expect  the   FACA  committee  to   consist   of
representatives  from ' trade groups,  environmental  groups,  the
hazardous  waste  treatment   industry,  Congressional  committees,
academia, state and local governments,  the  Office  of Management and
Budget ,  and other interested  federal agencies .   We  expect  the
committee to  consist of  approximately  twenty members,  who will
participate in 8-10 meetings.  Through  discussions and exchanges of
opinions  among participants,  we  hope to  further  clarify  the
problems to be addressed and the most  reasonable solutions.

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RCRA Implementation Study Update
           Appendix A
Discussion of Recent Court Cases

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     The Circuit Court of Appeals  for the  District  of Columbia
 Circuit has addressed the regulatory definition  of  solid waste in
 three principal cases.

     The first case, American Mining Congress v.  EPA  (AMC-'IV.  824
 F.  2d 1177  (D.C. Cir. 1987), held  that EPA's jurisdiction did  not
 extend to some cases involving continuous  processing  of  a
 naterial by either a single plant  or possibly within  a generating
 industry.  824 F. 2d at  1193.  EPA's interpretation of that
 decision can be found in the January 8,  1988 proposed revisions
 to  the definition of solid waste (53 FR  519).

     Decisions in two more recent  cases  further  clarified the
 scope of the Agency's jurisdiction.  The first case is American
 Petroleum Institute v. EPA (API).  906 F. 2d 729  (D.C.  Cir. 1990).
.That case addressed EPA's authority to regulate  an  air pollution
 control dust from primary steel production in electric arc
 furnaces (K061), when the dust is  used as  a feedstock in a
 secondary industrial process.  The case  also addresssed  EPA's
 authority to regulate the residue  from the secondary  process.

     In the First Third  Land Disposal Restrictions  Rule  (53 FR
 33162-64 and 31198-99) EPA had indicated that RCRA  jurisdiction
 did not apply to the K061 waste when placed in a high temperature
 metals recovery unit, because the  waste  was not  significantly
 different from the analogous raw materials that would otherwise
 be  placed in the furnace.  The K061 waste  was considered
 "indigenous" to the high temperature metals recovery  unit.  Under
 the Agency's approach, the K061 waste would lose its  status as a
 regulated hazardous waste when it  entered  the furnace; therefore,
 the residues from the reclamation  process would not be derived
 from the treatment of a hazardous  waste.  Thus, a treatment
 standard of "no land disposal" was promulgated for the residues
 from high temperature metals recovery of K061 waste.

     The A£I court, however,  held  that the recycling was not
 conducted as part of an  "ongoing manufacturing or industrial
 process" within "the generating industry.  . .  ",  and therefore
 could be within the scope of Subtitle C.  The first American
 Mining Congress decision thus did  not apply.  Since the  only
 reason the Agency had given for not providing a treatment
 standard rested on an unduly restrictive view of its
 jurisdiction, the court remanded the issue with instructions that
 the first American Mining Congress decision did not bar
 regulation of the slag from the recycling process.  906  F. 2d at
 740-42.

     The second recent case is American Mining Congress v. EPA
 TAMC II. 907 F. 2d 1179  (D.C.  Cir.  1990).  The court there found
 that EPA's assertion of RCRA jurisdiction over certain mineral
 processing wastes was correct,  and rejected petitioners'  claim
 that the materials were not "discarded".   The  petitioners claimed
 that sludges from wastewaters that are stored  in  surface

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impoundments and that may at some time in the future be reclaimed
are not "discarded".  The court rejected this claim, stating that
the holding of AMC I was that "only materials that are destined
for immediate reuse in another phase of the industry's ongoing
production process and and that have not yet become part of the
waste disposal problem" are not solid wastes.  907 F. 2d at 1186.
Moreover, the court held that the term "discarded" in the
statutory definition of solid waste was ambiguous and therefore
within the Agency's discretion to interpret.

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     RCRA Implementation  Study Update
               Appendix  B
  Summaries  of RCRA  Implementation Study
Meetings on the Definition of Solid Waste

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            DEFINITION OF SOLID WASTE: INTEREST GROUPS
                        RICHMOND, VIRGINIA
                        DECEMBER 5-7, 1990

                             OVERVIEW


     EPA met with representatives  from industry,  industry trade
associations, environmental  interest groups, congressional staff,
and other Federal government agencies to solicit  input regarding
issues related to the current definition of solid waste and
hazardous waste recycling regulations.*  The meeting was
organized into four sessions designed to identify issues  and
suggestions for change.

     Sylvia Lowrance, Director of the Office of Solid w&6t*.,
opened the meeting on December 5, 1990 by welcoming the group and
offering some perspective on EPA's goals for the  meeting.   David
Bussard then discussed current EPA activities, and the process
the meeting would follow.  He briefly reviewed EPA's goals for
considering changes to the current definition of  solid waste and
the hazardous waste recycling regulations and presented three
broad theories which have been suggested to the Agency for
defining jurisdiction over hazardous waste recycling.  The
theories were:

          If a material is recycled, it is not a waste;

          Recycling is one type of waste management;

          Some recycling is waste management and some is not.

     OSW staff then presented a brief overview of the current
status of the program.  This discussion was followed by a
presentation of schematics representing several typical recycling
scenarios which demonstrate how the current regulations apply to
hazardous waste recyclers and potential issues posed by each
scenario.

     The group then divided into six small  groups for the first
of four small group discussions.   On Wednesday afternoon,  during
the first session,  participants identified  issues related to the
definition of solid waste.    (These small  group discussions, and
those conducted Thursday and Friday morning,  are summarized in
detail on the following pages.)

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     The three small groups continued their discussion of issues
the following day.  Upon the conclusion of these discussions,
each small group summarized key issues and presented summaries to
the full group.  After lunch on Thursday, the small groups
discussed the goals and theories that serve as the basis for the
definition of solid waste.

     On Friday morning, the small groups presented summaries of
their ideas on goals and theories to the full group.  This was
followed by small group discussions on recommendations for
resolving problems with the current definition, and presentations
by each small group of their final recommendations.

     Sylvia Lowrance closed the meeting at lunch on Friday,
December 7, 1990, by reviewing some of the recurring themes and
issues that. w«j'$ discussed at this meeting and at the Regional
and State meetings held earlier on the same topic, and expressed
her appreciation for the group's participating and providing EPA
with their ideas and perspectives.

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        Meeting Summary for the Definition of Solid Waste

                   Meeting III:   Interest Groups

                              GROUP A


WEDNESDAY,  P.M.
First Small Group  session - Discussion of Issues

At the outset,  the group's facilitator posed  the  question,  "Given
your experience, what are issues and problems that  exist  with the
current regulatory definition of solid waste?" The responses of
the group members  varied.   An overriding concern  was the
complexity  of the  current definition and the  need for a
regulatory  structure that encourages recycling.

A participant pointed to  the application of the mixture and
derived-from rules as a problem and  used the  example of slags
generated from  specialized metals production.  Under the  current
definition  of solid waste,  the slag  would be  considered "derived-
from", and  regulated when used in road aggregate.   The
participant suggested that the slag  be judged on  its own  merits
rather than by  application of the derived-from rule.  Many group
members supported this position.

Many in the group also objected to applying the derived-from  rule
to residues resulting from recycling operations.  A  participant
stated that recycling should  be viewed as an  industrial process
and any residues that are  generated should be  analyzed based on
their own merits.  A participant suggested the adoption of a
reasonable de minimis level,  below which a material would not be
regulated.  This individual also saw the current permitting
requirements as a problem, a  point which had wide support.

A participant referred to  the unnecessary complexity of the
current regulatory structure  and the way waste/reuse activities
are cross-classified by material type.   A participant suggested
that materials be classified  in terms of the problems they cause
rather than material type.  This individual went on to say that
recycling could be encouraged more effectively by regulating it
on a more industry-specific basis.

A participant stated that RCRA and the  definition of solid waste
have created economic disincentives to  recycling;  it is often
cheaper for industry to use virgin materials.

Several participants made the point that the regulation of
recycling operations is not based on environmental concern and
there is currently no regulatory benefit associated  with
protecting human health and the  environment.   As an  example of

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the latter, a participant cited a well-lined surface  impoundment.
From a regulatory standpoint, there is currently no benefit
associated with good housekeeping practices.

A participant suggested that there is a need for a clear
distinction between hazardous waste treatment/disposal  and
legitimate recycling.  A participant saw the need to  distinguish
between waste recycling and materials processing operations  and
stated that in-process materials should never be regulated as
solid wastes.  This individual suggested that regulation of
secondary materials be dependent on the management/mismanagement
of those materials.  For example, K061 in a waste pile  should be
regulated as a waste, whereas K061 going to a smelter should not
be considered a waste.

A participant stated that product stewardship programs  are
hindered by the definition of solid waste, and referred
specifically to drum residues and off~specification products.
This position was strongly supported by others present.  Among
these individuals, the consensus was that manufacturers should be
able to reclaim useable materials from their products without
regulation.

A participant stated that financial responsibility should be a
key consideration for recycling facilities.  The great  number of
recycling facilities that have become Superfund sites is largely
attributable to the fact that many recyclers in the past were
very small operations or sham facilities with no financial
backing.  A participant agreed, saying that this proves that
recycling is not an inherently hazardous process.  Past
environmental problems caused by recyclers were due to  a lack of
capital and the total lack of regulation by EPA at that time.

A participant referred to a  range of materials that should be
regulated that are currently escaping regulation, and cited  used
oil as an example.  Several  group members saw the state
variations in the definition of solid waste as a contributing
factor in the'complexity of  the current program.  A participant
specifically mentioned the inconsistency among states regarding
the approval of beneficial use of materials.

A participant pointed to the lack of a concise body of
regulations  and guidance.  Under the current program, Agency
policy can be  found  in fragmented preambles, interpretive
 letters, Agency memoranda, guidance documents, etc.,  instead of
being part of  one  consolidated source.  This only adds  to the
 confusion  and  complexity of  the current definition.

Two  exclusions  in  the current definition were recognized by  the
 group as being too narrow.   Specifically, the majority  of
 representatives  agreed that  40 CFR 261.2(e) should be broadened
 to  allow  reclamation prior to reinsertion into the manufacturing

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process.  One participant  suggested that the definition of
reclamation is too broad and  should be  more clearly distinouished
from that of *incidental processing".

The other exclusion the group discussed as  being too narrow is
the closed-loop exclusion  in  40 CFR 261.4(a)(8).   Several
participants indicated that they would  like to  see this exclusion
broadened to encompass off-site movement of waste to a  recycling
facility.  A participant stated that this notion  destroys  the
concept of closed-loop in  that off-site shipment  of waste  breaks
the loop.

The group also discussed the  possibility of creating a  new
subtitle under RCRA for the regulation  of recycling.  Several
participants favored this  approach  because  under  another
subtitle, recyclers could  avoid the stigma  of Subtitle  C
regulation.

Upon ranking all the issues discussed in terms of  importance to
the group members, the following three  issues received  the
greatest number of votes:  the regulatory structure  is  not
focused sharply enough on  environmental  concern;   the current
program does not promote recycling;  and, there is no distinction
in the current program between hazardous  waste treatment/disposal
and legitimate recycling.
THURSDAY, A.M.
Second Small Group Session - Discussion of Goals

The group reconvened on Thursday morning to discuss goals for the
definition of solid waste.  All group members agreed that EPA's
goal of protecting human health and the environment was necessary
and proper.  A participant suggested that a way to achieve this
goal is to try to exclude those processes where direct
reinsertion takes place and no land placement occurs.

Another goal that was discussed and agreed upon was the promotion
of recycling.  Several group members encouraged the institution
of incentives to recycling, and in particular, equal treatment of
waste-derived products as compared with virgin-based products.
Several participants agreed that waste-derived products pose no
greater risk than products formulated from virgin materials, and
that the regulation of waste-derived products should be based on
the characteristics of the products themselves,  not the
regulation of the secondary materials from which they are made.

There was general agreement in the group on the fact that the
derived-from rule should not operate for waste-derived products.
The participants discussed the current regulation of waste-
derived products that are applied to the land.  Under 40 CFR Part
266 Subpart C, such a product can be applied to the land if the

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hazardous constituents are physically inseparable and the  BOAT
standards have been met.  However, group members pointed to the
fact- that the regulation of these products varies from  state to
state.

A participant prompted considerable discussion regarding the
possibility of developing Toxic Substances Control Act  (TSCA) to
encompass the virgin products that are currently not regulated.
There was considerable agreement among group members that  RCRA
should regulate wastes and not products.

A second goal that was agreed upon was a slightly amended  version
of EPA's fourth goal. This was to simplify the regulatory
structure, including permitting, in order to improve
implementation and enforcement.  The majority of group  members
agreed that if EPA revamps the regulatory program, the  market
will not require any work.

The group generally supported the other two goals that  EPA had
set forth, those being to promote recycling and to clearly define
jurisdiction.  There was disagreement over the issue of exactly
what the jurisdictional test should be.
THURSDAY, P.M.
Continue Second Small Group session - Discussion of Theories

The group discussed the three theories put forth which was
explained by EPA in the opening session on recycling.  The group
favored a theory that fell somewhere between theories 1 and 3.
Theory 1 states that if a material is recycled, it's not a waste.
Theory 3 holds that some recycling is waste management and some
is not.

A participant suggested that EPA define a waste as something that
has outlived its useful life and is being permanently disposed.
This  individual saw recycling as wholly separate from waste
management, as recycling deals with recyclable materials, not
wastes.  A participant supported theory 3 and suggested that
regulation of recycling operations be dependent on whether a
specific operation is more like a manufacturing process or a
waste management process.  This participant went on to say that
some  recycling operations have no element of discard, while
others certainly do.

A participant suggested that EPA regulate on- and off-site
recycling the same.  Another participant had the same concern and.
posed the question of whether transport over a certain distance
rendered a material waste-like, and therefore, subject to
regulation.  This rekindled the discussion of expanding the
closed-loop exclusion to encompass off-site transport.  A
participant asserted that the closed-loop exclusion was

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structured around the premise that releases  of  hazardous
constituents would be prevented by employing closed  conveyances
and that the off-site transport of waste  totally  opens  the  loop!

A participant suggested that portions of  recycling operations
that closely resemble waste management could be regulated but
regulation of the entire recycling process is unnecessary.  This
participant used the example of surface impoundments employed as
part of a recycling operation.  These units  are similar to
conventional waste management units and thus, could be  regulated
separately from the recycling process itself.

Some members of the group agreed that they could support theory 3
only after it underwent some modification.   Some participants
favored the following:  recycling is not waste  management, but
some recycling needs to be regulated to protect human health and
the environment under a new program that does not prejudice the
use of waste-derived products as opposed to virgin-based
products.
FRIDAY, A.M.                                ,
Third Small Group Session - Specific Recommendations for
Redefinition of Solid waste

During the last small group meeting, Group A discussed specific
recommendations for revising the current definition of solid
waste.  A participant suggested that under current statutory
authority, if some types of off-site recycling are not going to
be regulated as treatment, storage, and disposal facilities
(TSDFs),  a regulatory fix is in order to develop some new
management standards.

This revived the discussion of what to employ  as a jurisdictional
test to determine what is regulated and what is not.   A
participant proposed five basic management standards that,  when
met, would render a material not discarded, and therefore,  not a
solid waste.

They are as follows:

1)   Notification by the generator of recyclable materials  and by
     the recycler;
2)   Storage standards set by EPA for both on-site and off-site;
3)   Prohibition of speculative accumulation;
4)   Tracking of off-site shipments of recyclable materials by a
     bill of lading or shipping paper;  and
5)   Recordkeeping for inspection purposes.

It was immediately noted that these standards  do not  deal with
the issue of residues.  The same participant who proposed the
five basic standards stated that this issue would disappear by

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meeting the standards and thereby freeing a material  from the
definition of solid waste.  If something is not a solid waste,
nothing can be "derived-from" it.

A participant brought up the issue of recovering energy from
waste as opposed to materials recovery.  He suggested that EPA
set fuel specifications for the constituents  in 40 CFR Part 261
Appendix VIII.  This idea was not supported by the group  but
there was some agreement on a suggestion that EPA set generic
guidelines on how to define recycling in terms of energy
recovery.  The group agreed that materials recovery should be
handled separately from energy recovery.

Discussion turned to the issue of a definition of "recycling".  A
participant questioned whether there should be a strict
definition or a general one, in which case the Agency would
decide on a case-by-case basis.  The individual who had suggested
the standards replied that they were not intended to  definitively
bring an activity in or out of the definition of recycling.
Rather, the standards would apply to those operations that had
been deemed legitimate recycling.

The facilitator asked the group what types of processes would be
totally exempt under this proposal.  The group agreed that the
existing exclusions from the definition of solid waste (closed-
loop and direct reinsertion) would still operate.  In other
words, if a process met the criteria of closed-loop,  the  new
management standards would not apply and that process would still
be  free from RCRA regulation, including the requirement to notify
EPA.  A participant wondered how EPA knows who is claiming
exclusions like closed-loop without a notification.   An EPA
representative answered that states can require notification from
facilities otherwise exempt under the Federal program.  There was
no  agreement  in the group on this issue.  Some thought some form
of  notification should be required for facilities claiming
across-the-board exemptions like closed-loop, and others  thought
notification was unnecessary.

All participants agreed that some storage standards should be set
by  the Agency.  A participant recommended that these  standards be
 less  stringent than the storage requirements  currently in Part
 264 in order  to encourage recycling.  The group discussed the
 concept  of  regulatory  stringency being linked to the  potential of
 a particular  practice  to become part of the waste disposal
 problem.   For example,  storage  in tanks is generally  viewed as
 being more  benign,  in  terms of  environmental  concern, than
 storage  in  surface  impoundments.  The majority of participants
 favored  a regulatory approach that would bring into consideration
 the potential for mismanagement associated with each  hazardous
 waste management  technology.

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The prohibition of speculative accumulation was agreed upon  by
all group members,  in terms of the tracking requirement, most
favored some form of tracking other than a manifest, but all
agreed that if it had to be a hazardous waste manifest, they
would not balk at the requirement.  Finally, all members thought
that recordkeeping was a necessary component of a'successful
program.                                      ,

At this point, the facilitator asked if there was anything else
that should be required under these proposed standards.  A
participant replied that financial assurance would be necessary.
There was general agreement among group members on this point.
One participant added that generators and collectors are a
special problem because many of them are small and lack capital.
It was generally accepted that recyclers should be required  to
demonstrate financial responsibility as well, not only for
cleanup, but for closure too.

It was suggested that a closure plan be required as well.
A participant was concerned that the requirements for financial
responsibility and closure would kick in post-closure and
corrective action requirements, and in essence,  become a
permitting program without a permit.

Another participant countered that generators should be assured
that the recyclers to whom they send recyclables will close
properly.  A different participant suggested that if the
management standards are met, one would not have to worry about
financial responsibility and closure.   Under this scenario,  one
would be subject to those requirements only if the material being
handled slipped back into the definition of solid waste through
mismanagement.  There was debate on this position and a solution
was never reached on the issues of financial assurance and
closure.

The facilitator then raised the question of whether certain
activities would be ineligible for the new program,  i.e.,  still
subject to Subtitle C.  A participant answered that there is a
need for a revised definition of recycling/reclamation so that
sham operations would not qualify.  This individual put forth a
two-part jurisdictional test to be applied to recycling processes
to determine whether the material being reclaimed is or is not a
solid waste.  Roughly, the test would require 1)  some continuity
of process, and 2) that the process qualify as not being part of
the waste disposal problem.  If a particular recycling operation
satisfied these criteria, there would be no element of discard,
and therefore, the material being managed would  not be a solid
waste.                     -

In the end, it was generally agreed that the proposed management
standards put forth by the group were basically  conditional
exemptions from full Subtitle C regulation,   in  addition,  many

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participants agreed that a legislative amendment would give much
more flexibility for developing a new program to regulate
recycling.

The group summarized their recommendations in the form of the
management standards and jurisdictional test for the large group
before breaking for lunch.
                                10

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        Meeting Summary for the Definition of Solid Waste

                  Meeting III:  Interest Groups

                             GROUP B
WEDNESDAY, DECEMBER 5, 1990, P.M.
First Small Group Session - Discussion of Issues

The group's facilitator asked the group to identify issues posed
by the present definition of solid waste.

The following question was raised:  Is the group examining issues
pertaining to hazardous or solid waste recycling, since the
issues are different?  The respond was that our focus is
primarily on hazardous waste recycling but there could be
implications for solid waste.

One participant asked if anyone in the group could define
recycling at the outset, since there is no RCRA definition.  The
response was that recycling is essentially use, reuse or
reclamation.

The group generated a list of 24 issues, which are identified
below:

1)   Is EPA examining hazardous or solid waste recycling, or
     both?

2)   What is the rationale for the present definition of solid
     waste (what criteria determine if an activity is recycling,
     and if a material is being recycled?  Do these criteria
     include assessments of the value of secondary materials; do
     they include consideration of environmental consequences,
     etc.)?

3)   The present definition regulates materials that are not
     wastes.

4)   The present regulations do not encourage recycling.   They
     actually provide disincentives for recycling.

5)   RCRA is overused as a vehicle to regulate bonafide products
      (e.g., cement) made from hazardous wastes, and it is
     inappropriate in this role (RCRA was described as a "multi-
     faceted flogging vehicle").  In many cases the contents of
     the products are the same as those produced from virgin
     materials, yet RCRA extends jurisdiction based solely on the
     fact that the fuel used to make the product contains
     hazardous waste.  Further, cement kilns cannot obtain local
     air permits, this capacity is non-existent.

                                11

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6)   The derived-from rule is applied to products regardless  of
     the characteristics of the resulting product.  This blind
     application is inappropriate.

7)   Do product standards address hazardous waste concerns?

8}   It is difficult to define reclamation; why does it trigger
     regulation when a material continues to have value and is
     reused?  (An example is steel dust compressed into brick
     versus reuse in metals recovery.)

9)   Should secondary materials destined for reuse after
     reclamation be defined as solid waste?

10)  The definition of solid waste should not include dirt being
     moved at a facility during remedial investigation (improper
     application of the contained-in policy).  Contaminated soil
     should be regulated, but uncontaminated soil should not be
     regulated.   Examples were cited in Wisconsin and
     Pennsylvania where any soil being moved is subject to
     regulation.  Regulating soil without considering risk
     provides a disincentive to conducting remedial actions.

11)  Products should not be regulated under RCRA.  They should be
     regulated,  if at all, under other statutes (e.g., TSCA).
     RCRA jurisdiction has been stretched too far.  There is
     enough waste to regulate under RCRA.  Also, a generic
     rulemaking approach tends to over- or under-regulate.   It
     was also noted that TSCA considers economic factors,  while
     RCRA does not, and that to appropriately evaluate products
     some economic factors need to be considered.

12)  EPA should use a broad definition of solid waste and offer a
     way to avoid regulation of bonafide products (e.g.,  de
     minimis).

13)  When used oil was proposed to be listed, the industry
     realized that the ripple effect of regulation would destroy
     the used oil recycling business.  The definition needs to
     have some flexibility so that only those materials or
     practices that pose serious problems are regulated,  and
     beneficial recycling is not burdened with unnecessary
     regulation.

14)  In the mining industry, many materials are regulated as
     wastes that are not viewed as wastes by the industry.   The
     definition of solid waste in Part 261 only applies to
     hazardous waste, not non-hazardous solid waste,  which raises
     a question about industrial D wastes.  Regulation as a
     hazardous waste would destroy parts of the mining industry.
     There should be a definition of non-hazardous solid waste.
     In addition, a stigma attaches to mining materials when they

                                12

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     are defined as wastes, and there is potential liability  if
     these wastes are determined to be hazardous, since they  are
     placed on the ground.  EPA needs to clarify the definition
     of use constituting disposal.

15)   EPA needs to clearly define sham recycling and legitimate
     recycling.

16)   The regulations impose a stigma on the recycling industry by
     identifying secondary materials as solid and hazardous
     wastes.  As a result, recycling is viewed as waste
     treatment.

17)   The closed-loop exemption is too narrow.  Does material have
     to go back to the point of origin to be considered closed-
     3-pop?  The exemption should allow units such as open tanks
     and consider off-site applications, if there are not
     significant releases to the environment.

18)   EPA should focus more on the practical reality than on the
     theoretical basis (e.g., theology)  of RCRA.  The Agency
     should use a broad definition and some type of "no action
     decision" process that is fast and certain.  The cement kiln
     industry is hurt by the fact that they are not regulated.
     States withhold air permits because they view the
     unregulated activity as potentially harmful.  The public
     also develops a negative perception.  Much of this,  however,
     will be addressed by the boiler and industrial furnace (BIF)
     rules.

The group briefly discussed generic rules,  and how they don't
account for each specific situation.  Members suggested using
categorical standards that would address recycling industries.
Expedited case-specific evaluations and exemptions were also
suggested.

19)   EPA should not regulate intermediate management of secondary
     materials.  Presently, virgin materials and "wastes"  that
     contain the same constituents are regulated differently.

The group briefly discussed the definitions of treatment,
disposal, and recovery.  They agreed that all of these key terms
require clarification.

20)   The definition of discarded material is flawed,  because it
     includes materials that are recycled.

21)   Many of the recycling National Priorities List (NPL)  sites
     have resulted from historic practices.  EPA should identify
     current practices that pose risks to human health and the
     environment.  It was noted that even recent cases indicate
     that storage and disposal on-site cause the majority  of problems,

                                13

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22)   EPA must consider the implications that regulating recycling
     would have on secondary materials export.

23)   The entire definition is too complex.  The uncertainty  is  a
     disincentive for recycling.  Also, EPA should encourage
     product stewardship and allow spent materials to be returned
     to manufacturers (case studies B and C in the Chemical
     Manufacturers Association  (CHA) paper).  Reclamation should
     not always trigger RCRA jurisdiction.

24)   Burning for energy recovery should not disappear once the
     BIF rules become final.  Cement kilns are conserving
     resources through recycling.

The facilitator asked the group to think overnight about which  of
these issues are the most important issues concerning the
definition of solid waste.


THURSDAY, DECEMBER 6, 1990, A.M.
Second Small Group Session - Discussion of Issues (Cont.)

The facilitator asked the group to consolidate similar issues,
and to discuss the relative importance of the issues they had
identified.

The group discussed case-specific regulations versus generic
rules.  It was noted that a case-specific approach may be
extremely complex, and take a long time to fully develop, but
that this complexity reflects the real world situations EPA  is
trying to regulate.  Others in the group felt that case-specific
evaluations are not realistic, but that some categorical
standards might be feasible.

The group also discussed the concept of value, and how this
affects the definition of solid waste.  Participants suggested
that materials that are now defined as wastes still have value  to
those that recycle the material, and that this value promotes
proper management.  An EPA representative noted that while
secondary materials can have value, the group must also consider
what environmental risks a material poses.  A participant
suggested that EPA wait until a material is a waste (is not
reused) to define it as a waste.  The participant pointed out
that regulating the management of secondary materials and
regulating them as wastes are different.  The participant also
noted that a great deal of material is regulated by the
Department of Transportation  (DOT)
rules when shipped, and that  industry accepts regulation but is
aware of the stigma of labeling the material a waste, and of the
Qverregtilation imposed by Subtitle C.
                                14

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An EPA representative added that with respect to recycling, many
recyclers are paid for accepting the secondary materials  they
recycle.  This raises the question of whether these materials
have value to the recycler (usually value is paid  for), and
whether value will ensure proper management in this type  of
situation.

A participant posed an example of shipping a 55 gallon drum of
virgin toluene to facility A, where it is used.  When it  is
shipped back to the generator it is considered a waste even
though it poses ,no more risk to the public than when it was first
shipped.

One participant suggested that EPA not identify a material as a
waste until it is truly disposed.  Products should not be.
regulated under RCRA.  There was a question of whether intent to
dispose would become the ba^is for regulation.

An EPA representative noted that from an enforcement perspective,
intent to dispose is not a useful regulatory standard.

The participant offered an example where a spent solvent  is
generated; 95% is recovered and the remaining 5% is sent  to a
cement kiln, so all of it has been reused.  It should never be a
waste.  An EPA representative asked how, if this material is not
regulated as a waste, EPA will know if this material is being
managed properly.  The participant recognized that there  are
problem facilities, but noted that in the solvent industry many
of these resulted from past practices that are not now common.
It was noted that RCRA may be responsible for improved practices.

A participant indicated that EPA should deregulate recycling,  yet
keep some measure of control over recycling practices.  For
instance, batch hauling agreements and tolling agreements where
the generator retains ownership of the material should not be
regulated because there is an incentive for the material to be
properly managed.  Commonly owned off-site facilities may fit
into this category.  Such practices should be subject to
speculative accumulation limits.

An EPA representative noted that speculative accumulation limits
are also difficult to implement.  One response was that the
burden of implementation is a different issue.

A participant stated that one way to encourage recycling is to
remove the stigma of labeling secondary materials as wastes,  and
make the alternative to recycling a strict regulatory scheme with
penalties.

Group members generally agreed that EPA does face implementation
and enforcement difficulties, but that does not justify blindly
applying RCRA to recycling.  The single biggest problem

                                15

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encountered by recyclers is the regulation of materials  that  are
to be reused or reclaimed as wastes.  These materials may  warrant
some level of regulation, but this may need to be outside  of
Subtitle C.  Perhaps these materials could be labeled as
materials to be recycled.

An EPA representative asked if the recycling market can  be self-
policing (e.g., market driven).  A participant did not see this
as promising.  Another participant noted, however, that  the
industry is starting to take back used motor fuel, and starting
to police itself better.

A participant noted that CMA has developed an initiative on
responsible care, which is a self-policing code of management
practices.  Following the code is a condition of membership in
the organization.  Practices include items such as self-
evaluations, evaluations of contractors practices, and examining
past practices to identify environmental concerns.  This is
commitment to improving the practices of the industry.

Other members noted that it takes time and money to change the
thinking and practices of corporate America.

A participant noted that Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) liability also drives
waste management practices in the "right" direction.  Other
members of the group were not sure market incentives would be any
better.

A participant noted that several Congressional bills (Heinz-
Worth/Torres) contain provisions that would create market
incentives  (credit systems, etc.)  to promote the recycling of
difficult commodities.

One participant stated that used oil collectors presently  pay 10-
13 cents per gallon for used oil.   They do not recover any value
from this oil until it is reprocessed.  If regulations drive the
cost of management up, recycling will decrease.  Naturally, the
economics vary as markets fluctuate.  Some materials, such as
used oil, may not be best regulated under Subtitle C.  Subtitle C
substantially changes the economics of recycling.

A participant indicated that industry is concerned about the
impact of regulation on the ultimate products (e.g., cement made
using hazardous waste-derived fuel).  The participant asserted
that no cement kilns that burn hazardous waste fail to meet
existing product standards.  The same participant did not  feel
that using  cement as building materials is disposal on the land,
and added that the derived-from rule is a significant burden from
this standpoint.
                                16

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The group was then asked to select the issues they  felt  were  most
important.  These are listed below:

1)   The current approach regulates materials that  are not
     discarded.  Materials that are recycled should not  be
     regulated as though they are discarded.  Interim management
     of secondary materials should not be regulated the  same  as
     discarded materials.

2)   Revisions to the definition need to reflect corporate
     America's increased environmental awareness, and should  be
     based upon the risks and problems that exist today.

3)   The current definition creates disincentives to recycling.

4)   The derived-frbia rule, inappropriately subjects recycled
     materials to RCRA jurisdiction.

5)   Reclamation should not serve as a regulatory trigger in  all
     instances; there are situations where this discourages
     beneficial recycling.

6)   The EPA needs to define value, and the role it plays in
     fostering beneficial, yet safe recycling.  Economic value is
     not adequately considered under the present rules.

7)   EPA needs to define sham and legitimate recycling.

8)   All regulatory definitions affecting recycling should be
     clarified.

Participants also voiced several other issues, including:  EPA
should be proactive in RCRA reauthorization to drive this issue
toward resolution; the closed-loop exemption is too narrow and
EPA should evaluate what is closed  (open tank issue), the need to
return to the point of origin, and off-site possibilities.  It
was also reiterated that the present definition is  simply too
complex.

An EPA representative mentioned that an important issue  is how to
ensure that recycling is protective yet still provide an
incentive to recycle.

A participant  suggested that the rules be structured to  exempt
recyclers who  comply with appropriate management standards
 (conditional exemption).  The group generally agreed that
hazardous wastes that are recycled  (with the possible exception
of waste-derived products) should be regulated, but not  as
wastes.  The following  issue was posed:  How, if these materials
are no different from hazardous wastes, can EPA justify  imposing
different management standards, and what standards  will  encourage
                                17

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recycling?  One response was that the stigma alone  is  a big
problem.

A participant noted that there is a difference between regulating
a material as a Federal hazardous waste versus a  state hazardous
waste.  California regulates used oil as a hazardous waste  until
it meets certain specifications.

A participant stated that RCRA has made it so expensive to
dispose of hazardous wastes that it has created a need for  a
recycling market.  As recycling costs approach those of treatment
and disposal, recycling will die.

One thing that EPA is missing is data concerning the volume of
secondary materials that are recycled, and the risks,  management,
and impi-.ct.?  ».»i. recycling these materials, compared with those
posed by treatment and disposal.

A question was raised concerning how the derived-from  rule
applies to residues from the recycling process.  Does  it apply or
should the residues be evaluated based on their own merits? The
group did not agree on a position with respect to this issue.  It
was noted that fully characterizing these residuals would require
a long time.  A participant indicated that one approach is  to
rely on the derived-from rule, with a modified delisting process
to determine if recycling processes generate hazardous waste.
Another participant suggested that another approach is to rely
upon de minimis-type standards for both products and residues.

End Morning Session


THURSDAY, NOVEMBER 6, 1990, P.M.
Third Small Group Session - Discussion of Goals and Theories
(Started discussion of solutions)

A representative of EPA suggested that, given the imbalance of
the group (mostly comprised of industry representatives) the
group should keep in mind the concerns of the environmental
groups.  These concerns are real considerations that Congress and
EPA must balance when making decisions relating to this  issue.

It was pointed out that the group is sensitive to these  concerns;
no one in the group has advocated complete exemption from the
rules, only reasonable regulation under a program that  focuses on
recycling.  A participant noted that there is a significant cost
in killing the recycling industry, yet the group members accept
the fact that they are looking to achieve a balance.

A participant suggested that industry in general should  be more
proactive in advocating their own positions and how these are
compatible with protecting the environment.

                                18

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The facilitator asked the group to examine the goals  for the
definition of solid waste that EPA has presented, including:

     •    Protecting human health and the environment;
     •    Promoting environmentally sound recycling;
     •    Clearly defining jurisdiction; and
          Simplifying the definition to ease implementation,
and comment on whether these are correct, and if there are other
goals EPA did not identify.

A participant asked if the group should establish priorities for
the goals. Another group member responded that Congress has made
it clear that protection of human health and the environment
(HHE) is the number one prjovify.  Another issue was identified
regarding what EPA is protecting HHE fronu.  This raises the issue
of the scope of jurisdiction of RCRA, and begs the question of
whether recycling is within that scope.

A participant said that waste is waste, and the issue becomes how
to regulate different wastes and different uses.

Both an EPA representative and a participant noted that recycling
can be a means of protecting HHE.

A participant read portions of the national policy from RCRA,
Section 1003.

A participant suggested that pollution prevention is a possible
goal.

Several participants indicated that reducing the need for
disposal is an important goal of the definition, as is reducing
the demand for natural resources.

A participant added that the overall impact on the economy is
also a concern; EPA should not burden business with excessive
regulation that unnecessarily restricts recycling.

In response to a question, the facilitator indicated that beyond
the statutory requirements there is no intended order of priority
for the goals the Agency has identified.

A participant asked if we are looking at net savings in terms of
energy and resources.  The participant noted that it is cheaper
to. recycle than to produce products from virgin materials, and
that it is important to consider the net effect of recycling on
the economy.  The participant also argued that since recycling
generates products, there should be an element of cost considered
in regulating recycling.
                                19

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The participant stated that since the objectives  and  goals  are
specified in the statute  (Section 1003) the group does  not  have
much latitude to change these.  One response was  that the groups
objectives, although perhaps more detailed, are consistent  with
statutory objectives.  Cost, if considered, was identified  as a
new consideration.

A participant suggested an additional goal - if EPA satisfies all
the other goals - the Agency should seek the least cost solution
to regulating recycling.  This approach is part of the  amended
Clean Air Act (CAA).  An  EPA representative noted that  the  Agency
now performs RIAs to identify the most efficient  regulatory
approach to a problem.  OMB also reviews cost concerns  during the
rulemaking process.  It was noted that businesses also  find least
cost solutions  (although  they are constrained by  the  regulatory
decisions that have already been iu??.dc} .  The participant
suggested that if "least  cost" analysis is occurring  now, the
group should not have a problem including it as a goal.

A participant introduced  the concept of a flexible regulatory
program as a goal.

A participant noted the difference between cost-benefit (benefits
outweigh costs) and cost-effective  (least costly  means  of
achieving goal), and indicated that he supported  making cost-
effectiveness a goal, once the other goals have been  satisfied.

The facilitator asked the group if simplifying the definition is
consistent with recommendations for case-specific evaluation.
The group discussed the EPA/state viewpoint versus the  regulated
industries viewpoint.  It was suggested that site-specific
evaluations provide industry with certainty, although they  impose
a significant burden on EPA.  For industry, simplifying the
definition means establishing a clear line of who is  regulated
and how, while  for EPA simplifying the definition means
developing generic rules  that establish this same clear
jurisdictional  line.

A participant did not agree with simplifying the  definition.  The
participant felt that site-specific, risk-based analysis is
necessary before beneficial recyclers will be exempted  from
regulation.  The participant also suggested that  EPA  develop  an
expedited procedure for performing such analyses.

An EPA  representative pointed out that case-specific  evaluation
is very much like requiring a permit.

A participant added that  the waste definition is  EPA's
jurisdictional  hook, and  that EPA wants control over  materials
they believe may pose a problem.  Several members indicated that
while they do not object  to EPA jurisdiction in the recycling
industry, they  prefer a different or separate regulatory schem*

                                20

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for recycling.  The participant added that certain processes
don't fit the preventative scheme of RCRA.  The group recognized
that recycling must be regulated to some extent to satisfy
environmental interests, and because some practices do pose
potential risks.

The facilitator asked the group to discuss the three theories
presented by EPA:

     •    Recycling is not waste management;
     •    Recycling is waste management; and,
     •    Some recycling is waste management and some is not.

A participant indicated that recycling is waste management
(unless the material is abandoned), but that it should be
regulated.

A participant suggested that closed-loop recycling is not waste
management.  This individual also noted that RCRA jurisdiction is
based on defining a material as a waste and that there is a
difference between a "RCRA waste" and the normal concept of
waste.

The facilitator then asked for volunteers to argue the three
theories, even if individuals did not personally ascribe to those
points of view.

Advocates for theories 1 and 2 started the discussions,  and were
joined by advocates of theory 3.
Theory 1 -
Theory 2 -
Theory 1 -
Theory 2 -
Theory 1 -
Materials that can be used again are not waste;
waste is something you throw away.

Not true.  You are just hiding the element of
discard when you recycle by storing oh the ground,
burning materials, or generating waste-derived
products.

Materials thrown on the ground may be wastes, but
materials that are reused are not wastes.

There is risk associated with recycling hazardous
materials.  Hazardous constituents leach to ground
water when stored on the ground, are released to
the air when burned or distilled, and remain in
products.  These activities and products should be
regulated.

Solvent stills are totally enclosed.  Only still
bottoms remain, and these are sent to a cement
kiln to be mixed as fuel.
                                21

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Theory 2


Theory 1
Theory 2 -
Theory 1 -
Theory 2 -


Theory 1 -



Theory 2 -




Theory 1 -
Theory 2 -

Theory 1 -

Theory 2 -


Theory 1 -
How are secondary materials stored prior to
recycling?

In drums or tanks.  Those materials that are
stored on the ground  (coal ash) have the same
constituents as ordinary soil, and when they are
used the constituents are bound up so they cannot
be released.  The process conserves natural
resources, energy, money, and land required for
disposal.

Doesn't the storage of waste materials on the
ground pose the likelihood of contaminating ground
water?                   .

Our material is very similar to naturally
occurring soil.  The only reason our material is
regulated is that it is defined as a waste -
virgin products with the same composition are not
regulated.                                    - .

Are you suggesting that we need some product
specifications for these types of materials?

Yes, similar virgin products should meet
specifications if our recycled product is required
to meet such requirements.

It doesn't matter what you call it, you are
managing the material to protect the environment,
and that is waste management.   Coal ash stored on
the ground is clearly a waste.

In certain operations the coal ash comes straight
out of the plant into a silo,  onto a truck,  and is
sent off-site to be used to make Portland cement.
Here, it is a product.  Yet some states require us
to get a permit, and would even require a permit
for the cement manufacturer.

How are you sure your storage is safe?

Our facility is inspected.

Not if your facility is not regulated (e.g.,  you
do not manage a waste).

We should be regulated, but only based on our
activity, and in a manner that is fair compared to
other products.  Further, materials that we bring
in and sell or reuse, directly (products to be
recycled) should not be regulated as wastes.
                                22

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Theory 2


Theory 1
Theory 3 -



Theory 1 -


Theory 3 -

Theory 1 -
Theory 3 -
Theory  1 -
Theory  2  -


Theory  1  -



Theory  3  -
You accept that the secondary materials you
receive contain hazardous constituents?

Yes, but so do the other 100,000 gallons of virgin
product we store on-site.  There is no RCRA
regulation of that.  The disparity of regulation
is almost comical.  A lot of problems arise where
we have to compete with virgin materials.  Both
recycled and virgin products contain the same
materials, compete for the same market, and are
used for the same purpose, yet they are regulated
quite differently - so differently that the
economic viability of the recycled product is
threatened.

Waste is material that has no further use to the
generator - it may have value to some, but it has
no use to you.

Are you saying that materials that I cannot reuse,
but someone else can, are wastes?

Yes.

No, these are by-products.  Your approach would
extend RCRA to all production facilities across
the U.S.  We accept that our facilities should be
licensed because some of the materials we generate
(e.g., residuals) are hazardous wastes.

If your facility is regulated (e.g., permitted)
what difference does it make whether the material
is called a waste or not?

We have not defined what is recycling or what
operations would be subject to any regulatory
requirements.  It may be helpful to identify
certain types of beneficial recycling that do not
need regulation as a waste.

How do we ensure that the environment is
protected?

Product liability and CERCLA liability exist to
ensure that products are safe and recycling
operations do not pose environmental problems.

So the government  (taxpayers) picks up the tab
after the damage is done.  What do you gain
compared to current regulation as a waste if
recycling facilities must be licensed in a manner
other than under Subtitle C?
                                23

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Theory 1 -

Theory 3 -
Theory 2 -
Theory 1 -

Theory 2 -
Theory 3 -
Lack of stigma and no derived-from rule.

In some cases the derived-from rule should not
apply, but that is exactly why theory  3  is the
proper approach.  In some cases the residual
wastes are worse than the wastes from  the virgin
product.

With different standards for different operations,
how can the public be sure they are adequately
protected?

The example of Times Beach was raised  (liquid
sulfide sold for dust control contained dioxin and
caused substantial environmental and human health
impacts).  How do you avoid this type  of
situation?

We cannot prevent all accidents.

If a product must meet health-based standards,
then situations like Times Beach would not occur.
Other situations, such as transport, can always
pose some risk.

We do not want to regulate all recycling, only
recycling that poses significant problems.
The facilitator asked the group to select the theory that they
supported.

Several members of the group wanted it made clear that although
they do not believe recycling is waste management, they do
believe recycling should be subject to some degree of regulation.
Theory 1 was modified to reflect this position  (see below).

Other members expressed the idea that only certain types of
secondary materials management or reuse require regulation, but
true recycling does not, and therefore EPA should clearly define
beneficial or true recycling and subject other  forms of recycling
to regulation.  Theory 2 was modified to represent this viewpoint
 (see below).

Finally, several members favored theory three,  noting that
effectively there is little difference between  the group's
modified theory 2 and EPA's theory 3.

The group thus supported the following theories:

1)   Recycling is not waste management, however, it should be
     subject to appropriate management standards.
                                24

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2)   Recycling is not waste management  (and should not be subject
     to regulation), however, recycling must be clearly defined
     (activities that are not truly recycling should be subject
     to regulation).

3)   Some recycling is waste management and some is not (some
     recycling should be regulated and some should not).

The group felt that regulating recycling as something other than
waste management helps escape the stigma associated with the term
waste, and the burden imposed by RCRA on wastes.

The facilitator asked the group to move on to examine
solutions/changes to the definition of solid waste.  The
facilitator asked the group to generate a list of suggested
changes to the present definition that they would makfe-if they
were the EPA Administrator.  These are listed below:

1)   Modify the derived-from rule so that waste-derived products
     are not automatically considered hazardous waste (establish
     de minimis caps for specific constituents; create an
     expedited delisting procedure).

2)   Modify the definition of solid waste such that reclamation
     does not automatically trigger regulation of a material as a
     waste (exempt all on-site reclamation; exempt reclamation
     when it does not pose adverse health risks).

3)   Create an EPA recycling program that encourages hazardous
     waste recycling and is separate from the current hazardous
     waste regulations.  Study the problems that recycling poses
      (both hazardous and solid waste).  Encourage sound
     recycling, but tailor a program to the real risks posed.

4)   Amend the definition of secondary material to exclude
     materials that are part of an ongoing commercial process
      (AMC opinion).

5)   Incorporate a distinction between on-site and off-site
     reclamation.  On-site reclamation of useful materials should
     be subject to reduced requirements, if regulated at all.

6)   Develop a clear demarcation of what is regulated and what is
     not, and once EPA decides what is regulated, the Agency
     should develop some continuum of regulation for recycling
     activities.

7)   Exclude waste-derived cement that meets national product
     standards such that it does not pose an unreasonable risk to
     human health.  If it meets the standards, it should not be a
     solid waste.  EPA should examine all the data, and exempt
     those products that meet the appropriate standards.

                                25

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8)   Establish a separate subtitle for secondary materials that
     are reused.  Collect information on secondary materials,
     uses, and risk, and formulate appropriate requirements
     (e.g., interim storage requirements).

9)   Develop an opt-in system where recyclers are subject to
     Subtitle C unless they make some demonstration such that
     they can opt-into a reduced regulatory scheme.

10)  Define sham recycling and clearly regulate it as waste
     management.

11)  Revise the present definition to read "materials are solid
     wastes if they are abandoned by being (A) disposed, or (B)
     incinerated without energy or useful product recovery."

12)  Materials are not solid wastes if they are recycled in
     accordance with separate recycling regulations.  Used oil
     that is managed in accordance with applicable provisions of
     Part 266 should not be a solid waste.

13)  Clarify that by-products are wastes if they are discarded,
     but are products if they are reused.  Define reuse and
     disposal.

14)  Define recycling such that sham recycling is clearly
     excluded.  Clearly define sham along the lines that those
     who do not use materials in a manner consistent with the use
     of virgin materials in a manufacturing process are not
     performing legitimate recycling.

15)  EPA should take action to revise the definition quickly to
     avoid statutory changes and the uncertainty of RCRA
     reauthorization.

16)  EPA should establish a clean fuel standard.

17)  EPA should encourage product stewardship by allowing
     customers to return used materials to a generator for
     reclamation without regulating the material as a solid or
     hazardous waste.

End Thursday small group session.


FRIDAY, DECEMBER 7, 1990, A.M.
Small Group Report to Large Group

Group B reported to the large group on their goals and theories
discussion outlined above.
                                26

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Fourth Small Group Discussion - Discussion of Solutions  (Cont.)

The facilitator asked the group to continue identifying  suggested
changes to the definition, and to openly discuss these
suggestions.

A participant suggested a framework for revising the definition
of solid waste based on a continuum of regulation, ranging from
no regulation to full Part B permitting.  The participant's
framework would not regulate closed-loop recycling, materials
used on-site, or those directly reinserted into a process.  The
framework would establish minimum requirements for materials
stored off-site, and evaluate waste-derived products.  The
participant suggested that the group focus on determining which
controls are appropriate, rather than how these will be
implemented.  The participant also asked whether the solution is
to remain under Subtitle C or not.

A participant suggested that the group pull suggestions  from the
issues and solutions to build an overall solution or framework.

A participant noted that used oil is regulated (secondary
materials/recovered materials) under Part 266.  The participant
asked if the group's objective is to remove the regulation of
recycled materials from Subtitle C.

One participant reminded the group that now, if a material is not
a waste, it is not regulated.  The group needs to define what are
secondary materials, identify what is a product and what is a
waste, and what are appropriate requirements for recycling and
for products.  The group should not focus on what subtitle these
materials should be regulated under until we identify the
substantive requirements for these secondary materials and
activities.

A participant suggested that one approach to developing a
continuum is to create a process with some presumed level of
regulation, and the opportunity for generators to demonstrate
that they warrant less regulation than the baseline.  This
approach is protective but provides relief where justified, and
it places the burden of making a demonstration on the facility
 (an analogy was offered of a process-specific delisting).  It was
added that this may be done on a class or category basis, and
that product specifications could also be developed.

Members of the group asked if this approach continues to regulate
wastes under Subtitle C.  They also noted that it provides that
secondary materials are wastes - which they identified as a
problem.

A participant noted that EPA has to define terms, particularly
sham recycling.  They also have to develop criteria for sham

                                27

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recycling, and other criteria that identify what is a waste.
This would entail developing a regulatory definition of what
constitutes a secondary material.

The participant noted that this approach maintains EPA's present
jurisdiction over wastes, but that EPA would still have to  rely
on some other authority for protection from waste-derived
products.  The participant responded that products could be
regulated under some other authority, such as TSCA.

A participant noted that an opt-out process still deals in  waste.
The participant indicated that developing such a procedure
(similar to a process-specific delisting procedure) would be a
substantial undertaking for EPA, and asked what we are gaining by
developing such a procedure (e.g., stigma remains a problem).
The participant also noted that ws still have to address
residuals.

A participant added that EPA may have to undertake examination of
recycling operations case-by-case.

A participant stated that one approach to drawing a
jurisdictional line can be characterized as distinguishing
manufacturing from waste management.  The participant indicated
that closed-loop recycling without reclamation should not be
regulated, nor should on-site reclamation without storage.
Storage for less than 90 days requires some regulation, whereas
storage for more than 90 days may require permits.  The
participant felt that storage on the ground in waste piles  also
may require permits.  It was reiterated that there is a lot to
talk about, and that the group should focus on standards,  not
semantics.

A participant indicated that EPA's current "Strawman" approach
(draft approach for regulating mining wastes)  would regulate
waste piles.

A participant noted that RCRA reauthorization is a crapshoot, and
we don't know what kind of changes will result.

One participant stated that it is difficult to decide on specific
requirements when we don't know with which materials we are
dealing.

Participants raised the issue of corrective action.  It was
generally felt that corrective action is an important issue,
because it is a burden to industry, yet serves an important
function.  This issue was not resolved.

A participant suggested identifying secondary materials and
establishing a separate regulatory framework for these materials,
including standards.  EPA should also identify bonafide uses of

                                28

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these materials.  For example, EPA could  impose some  storage
requirements and transportation requirements  (depending  on  the
materials and their use - and recognizing a continuum of risk).
Requirements could range from Subtitle C  to no requirements.  The
participant agreed there is a need for a  level playing field.
Within this framework can we provide incentives for recycling
(e.g., credit system, grants, etc.)?

A participant asked why a secondary material that is  the same as
a virgin material should be regulated.  One response  was that
exempting these materials leads us down a slippery slope, towards
exempting problem materials because not all problem materials are
regulated.

It was noted that the group has examined  the appropriate
requirements for different parts of the recycling process.  The
group then looked at the generic on-site  recycling diagram  to
identify the requirements they felt were  appropriate  at  each
stage of the recycling process.  They generally agreed that the
continuum concept represents a reasonable approach to revising
the definition, although many specifics were not discussed and
consensus on exactly how the continuum would be structured was
not reached.

A participant said the key is to identify at what point  a waste
is generated.  The participant then examined what generators
would not be regulated.  The participant suggested exempting
direct reuse (no reclamation), reuse as feedstock, and closed-
loop with reclamation (provided the loop does not have to be all
piped or closed tanks, other on-site uses are allowed, and
possibly off-site closed-loop allowed where it involves the same
company).

For storage of less than 90 days,  the same participant suggested
no requirements, but there was not agreement on this.   It was
also suggested that storage not be regulated if there is no
potential for migration (e.g., storage in tanks).   The
participant suggested regulating storage if it is for more than
90 days.  The participant noted that storage after reclamation
should be exempt because the value of the product ensures proper
management, and would prohibit speculative accumulation.

The same participant suggested DOT regulation of transportation
if waste is sent to different facilities of the same company,  or
is subject to batch tolling agreements (generator retains
ownership).

The group was not in agreement on this approach and they also
discussed the level of regulation appropriate for pile and tank
(including aboveground, underground,  covered,  etc.)  storage.  Ore
participant suggested presenting more general ideas.
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The group generally agreed that notification be required  for
recyclers.  Tracking recyclable materials was discussed and the
group did not want to use a hazardous waste manifest to track
these materials (a generic tracking form was more acceptable).
It was suggested that packaging could be covered by DOT
requirements, that recordkeeping and reporting are related to
tracking, and that storage standards may be applicable if storage
is for greater than 90 days.  Again, there was not full
discussion of each approach or consensus on these suggestions.

A participant suggested a generic framework that incorporates
many of the concepts the group discussed throughout the meeting.
The participant offered a diagram of this approach and this was
used as a partial basis for the group's final presentation on,
solutions.

Several group members noted that waste-derived products pose
problems.  They agreed that it is very complicated to evaluate
product risk versus its competitiveness with virgin products.
They recognized that this relates to one aspect of the sham
recycling issue (sham product).  It was also noted that RCRA is
not a product statute, and that reuse, to the extent it does not
pose undue risk, is beneficial.

End Friday morning small session.

Presentation to large group on solutions.

Group B generally took the position that EPA should not regulate
secondary materials as wastes.  The current system imposes a
stigma on materials that are recycled.  The group recognized the
jurisdictional issue, but felt that the stigma issue is a
significant problem.

The group recognized some need for a continuum of control based
on risk.  It was not clear exactly how this extends to products.

The group believed it is important for EPA to clearly identify
secondary materials, as well as the risks associated with their
recycling and management, and then to establish standards for
their storage, transportation and the management of residuals.
These standards may require a separate subtitle to clearly define
the requirements and to adequately distinguish between recycling
and waste management activities.

The group attempted to develop a general framework for revising
the definition, and while there was not complete consensus and
several issues were not fully discussed,  this general framework
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(based on the continuum concept) would start by exempting certain
activities that are like manufacturing.  These include:

     •    On-site direct reinsertion into a process without
          reclamation;
     •    On-site reclamation in closed loop;
     •    On-site recycling with storage in tanks for less than
          90 days;
          No speculative accumulation would be allowed; and
     •    Extend closed-loop to off-site recycling provided the
          material is returned to the generator,  or subject to
          batch tolling agreements.

This framework would use DOT requirements to regulate
transportation.

Finally, the group identified the following 14 recommendations:

1)   Modify the derived-from rule such that products are not
     regulated as hazardous wastes.  Consider developing de
     minimis caps for specifying constituent levels in the
     products, creating an expedited delisting procedure, and
     exempting products that meet certain testing standards.

2)   Establish a RCRA recycling program.   There was no clear
     consensus whether this should be under Subtitle C or a new
     subtitle.

3)   Establish a secondary materials recycling program such that
     facilities opt into the program (and out of  Subtitle C)  if
     they comply with the standards.

4)   Some participants recommended quick action by EPA to avoid
     statutory changes.

5)   Amend the definition of secondary material to exclude
     materials that are part of an ongoing process.

6)   Distinguish between on- and off-site reclamation,  and do not
     blindly use reclamation as a trigger for RCRA jurisdiction.

7)   Some wanted to revise the definition to exempt recycling,
     and only include materials that are  abandoned or incinerated
     without energy recovery.

8)   Regulate by-products as wastes when  disposed,  and as
     products when reused.   .

9)   Encourage product stewardship through allowing the return of
     secondary materials to the generator for regeneration
     without designating them as a solid  waste.
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10)  Establish a clean fuel standard.

11)  Overall, use a risk-based analysis based on management to
     establish appropriate requirements for recycling.

Two questions followed the presentation:

1.   Would the group support tracking materials sent for closed-
     loop recycling off-site?

The response was yes, under DOT requirements.

2.   What was the issue behind establishing a separate subtitle
     for regulating recycling?

     The response was that there is a significant stigma
     associated with a secondary material being defined as a
     waste and regulated under Subtitle C.  To maintain
     jurisdiction and avoid this stigma, the group favored
     creating recycling regulations under a separate subtitle.
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        Meeting Summary for the Definition of Solid Waste

                  Meeting  III:  Interest  Groups

                             GROUP C
WEDNESDAY P.M.
Small Group Session Discussion of Issues

The purpose of the opening session was to identify and discuss
the group members' issues with the current definition of solid
waste and recycling.

Before the beginning of the'issues identification and discussion
session, questions were raised about the focus of the discussion
as it relates to hazardous wastes (Subtitle C) or non-hazardous
wastes (Subtitle D).  In response, an EPA representative noted
that the focus would be on hazardous wastes, but other concerns
and objectives for non-hazardous wastes are important and would
also be addressed.

The facilitator then requested that members of the group identify
their top three or four issues or problems with the definition of
solid waste (and hazardous waste) recycling regulations.  A
summary list of the issues that were identified is attached.

The following is a detailed summary of each of the issues as they
were presented by each of the group members:
A.   The current regulations focus on manufacturing activities
     (e.g., chemical manufacturing, petroleum refining), however
     the interpretation of the regulations also brings in non-
     manufacturing activities such as laundering and dry
     cleaning.  As a result, the current exemptions apply only to
     manufacturing activities anc\ not "other" activities (e.g.
     "... reinsertion into a manufacturing process ..." as
     opposed to an industrial process).

B.   Precious metals should not fall under the scope of RCRA but
     should be regulated under a different system.  For example,
     hazardous waste transport regulations are inappropriate for
     precious metal wastes destined for recovery/recycle.
     Although the market value fluctuates, the resulting value of
     wastes are great enough that there will always be a market
     for these materials (e.g., silver - $150,000/ton is the
     lowest value).

C.   When is a material discarded,  and where is the point of
     generation for a discarded material?  e.g., use of a
     corrosive waste to neutralize in another part of the same

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H.
process  -  is  it hazardous waste treatment or "beneficial
use"?  If  a characteristic wastewater is mixed with other
process  waste waters and segregation is not possible, how
far up the pipe do you go to determine the point of
generation?

Reclamation does not fall within the definition of
discarded; e.g.,  incidental energy recovery brings wastes
under regulation.   When batteries reach secondary smelters,
they become hazardous wastes.   At this point,  when
reclamation of the batteries begins, storage of lead is
considered land disposal; batteries cannot be stored in
tanks.

Land Disposal Restrictions (LDR)  prohibitions create
•rfe«::y:>f 3,.xng  disincentives because of the restrictive storage
regulations.   Storage prior to transport to a recycling
facility in a timely manner is difficult.   This is partly
due to generator concerns about sham recyclers and making
sure that  the receiving facility is legitimate.

Potential  for mismanagement and environmental contamination
across the board.   A number of current operating activities
are not  regulated and more comprehensive coverage is needed.
A cement kiln may handle a waste in an environmentally sound
manner,  but mismanagement of this same waste can lead to
serious  environmental damage.

The regulations are so complex and ambiguous,  enforcement
implications  make it difficult to distinguish the scope of
the regulations which many times leads to interpretation
problems.

The current definition diverts management from recycling to
land disposal. For example,  spent potliner from the aluminum
industry has  a fuel value but also has high fluoride
content.  The mineral wool industry typically uses coke for
fuel, but  spent potliner can be used as a substitute and the
fluoride actually aids the process by keeping the molten
material fluid.  Its use reduces coke consumption and
reduces  sulfur dioxide emissions.   Because the potliner is a
hazardous  waste and subject to the storage requirements and
the derived from rule, and since the mineral wool furnace
would be regulated as a RCRA unit if it used the potliner,
spent potliner cannot be used a fuel.   Furthermore,
hazardous  waste incinerators will not accept potliners
because  of slagging.

The definition of reclamation is too broad such as including
dewatering.   (No discussion followed this issue.)
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J.
K.
M,
N,
Q.
Inflexible application  of  derived-from and mixture rules.
Some mineral processing companies  are discouraged from
employing recycling  capacity  to  avoid burdens 6f Subtitle  C.

The burdens of recycling under Subtitle C  also affect co-
location of integrated  facilities  (mines,  mills,  and
smelters),  if recycling were present,  permitting burdens,
including corrective action for  all  Solid  Waste Management
Unit's  (SWMU's) would apply to all operations (mines and
mills).  Recycling is discouraged  if it involves  a Subtitle
C permit and corrective action.

There must be other  mechanisms to regulate other  than RCRA.
The precious metals  industry  has proposed  alternative
regulations for establishing  industry protocols that do not
require permitting,  however violator;* would fall  under RCRA
regulation.

 More emphasis needs to be placed on enforcement  of  the
strong/broad program that already exists rather than
developing more regulations.  You cannot write  a  rule to get
the "bad guy" because they will always  break  the  rules.

The closed loop interpretation is too narrow.   An  ongoing
industrial process with a break in the  action will bring the
material under regulation as  a hazardous waste.

Speculative accumulation interpretations need clarification.
For some processes, more than a year  is sometimes required
to process materials that would otherwise meet  the recycling
criteria.  The time factor brings the materials under
regulation.  The speculative accumulation interpretation
should be more flexible and consider  the nature of the
process.

What should EPA do about waste-derived products?  The Agency
needs to make a decision on making a cut from the derived-
from rule, both administratively and procedurally.  Although
there are markets for waste-derived products,  existing
product specifications do not address common law/liability
aspects (levels of hazardous constituents).  For example,
cement specifications are primarily strength,  flexibility,
etc., but there are no  standards for metals such as lead,
cadmium, and arsenic.

Expand exemptions to include solid waste products.  Some
solid wastes generated by the paper industry can be used as
a product, but because they are labelled solid wastes, they
are disposed.   Examples include log flume grit,  which can be
used as a soil and has been used as cover material in some
states;  used bark which has BTU value (since the bark is
considered a solid waste and the burning unit  would be a

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     solid waste incinerator that would require a permit; the
     bark is disposed).  Other types of bark could be used as
     mulch but because it is a solid waste and because of
     liability issues, no one will take it and it must be
     landfilled.   Also, a facility  wanted to burn used
     Christmas trees, but the State rejected these activities
     because it would constitute solid waste incineration and a
     permit would be required.

R.   The regulated community and some of the States do not
     understand the regulations.  One state said RCRA did not
     apply to spent potliner because it was being sold as a
     product.  The State had misinterpreted the definition of
     solid waste and as a result was more lenient in regulating
     the wastes.  The current regulatory process of regulating by
     preamble and by memorandum only adds to the confusion for
     the regulated community.  [A participant of the group noted
     that even if the definition of solid waste were perfect, the
     fact that no one understands it is a major problem.]

S.   The restrictive nature of the current closed-loop exemption.
     The current definition of closed-loop recycling is too
     narrow, there are some materials that can be recycled on-
     site but do not allow the use of closed pipes.   Some of the
     interpretations of closed-loop are not clear.  How are batch
     processes handled?

T.   The current regulations are based on mismanagement scenarios
     which are not appropriate for some wastes.  For textiles and
     laundering operations, soiled materials (i.e.,  clothing and
     rags) that contain hazardous constituents are considered
     hazardous; the Agency's reasoning being they could get
     dumped improperly and create an environmental problem.   EPA
     should use reasonable mismanagement scenarios based on
     current and/or probable scenarios,  and not on pre-RCRA
     historical mismanagement practices or extreme/absurd worst-
     case scenarios.

U.   The all or nothing approach, with the exception of Part 266.
     For spent potliner, all reuse possibility is cut off because
     it falls under regulation.   If spent potliner were not a
     solid waste, the material would be completely out of the
     system.  These types of materials should be regulated but
     more flexibility should be allowed for increasing recycling/
     reuse possibilities possibly by using a subset  of management
     standards.

A point was discussed that the current regulations add another
layer of regulation on recyclers because they need permits for
their "product" [raw material] storage that virgin materials
industries do not have to comply with.   This point was not made
                                36

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into a specific issue, but was added as an  illustration to  some
of the points raised during the discussion.
THURSDAY, A.M.
Small Group Discussion of Issues  (continued)

During this session, the group continued their discussion  of
issues.  The following is a continuation of a detailed summary of
each of the issues as they were presented by each of the group
members:

V.   Concept clarification of spent and discarded material should
     be addressed.  The current definition brings a lot of
     materials under regulation.  Because a material is spent,
     doss it really need to be regulated as a solid waste?  How
     much do you want to regulate the potential of a material to
     pollute?  A point was raised that if there is a potential
     for pollution, there should be regulation.  If one facility
     recycles, and another disposes the same material, how should
     the material be regulated?  For reusable textiles, items do
     not get disposed, but because reclamation is required these
     materials fall under regulation.  There is a burden on the
     person handling the materials.  The broad definition of
     reclamation may also be included under this issue.

W.   Consolidation of issues B, D, E, H, I, K, and L.  All of
     these fall under the issue of recycling disincentives.  A
     participant noted that this issue should also be broken down
     into two parts:  1) some regulations are not appropriate,
     such as requiring precious metal wastes to be stored in
     tanks; and 2) elements of the rules that actually discourage
     recycling such as permitting and corrective action.

X.   Consolidation of issues G, P, and R.  These points all
     address the confusion/interpretation issues and the
     complexities of the explicit exemptions versus explicit
     inclusions.  Complexity is increased with either approach
     and the burden is placed on EPA.

A newcomer to the group raised concerns that generic issues such
as the mixture rule and the derived-from rule make the .definition
of solid waste more complex.  To get rid of the complexity a
specific approach is required, but that makes matters more
complex for the Agency to evaluate all of:the individual  issues.
The trend to increase or expand the scope of regulations  and try
to capture everything dictates to industry how to run their
manufacturing processes.

The group proceeded to discuss criteria for determining what is a
waste, which centered around the criteria of what is "spent" or
"discarded".  A tiered approach was suggested where basic minimum

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standards should be set within a broad regulation.  The Agency   ;
could develop more stringent tiers that may include full  Subtitle
C.  The first tier would consist of "less than Subtitle C"
regulations and be a "safety net" so that nothing falls through
the cracks.

The tiered approach may require that some degree of hazard be
evaluated to develop the tiers.  One member raised an  issue that
this approach may not be satisfactory because a degree of hazard
may not be appropriate.  The burden of what constitutes recycling
falls on the Agency and it would be difficult to set protective
minimum standards for the first tier.

Y.   Consolidation of issues A, I, S, N, and 0 concerning the
     scope and definition of solid waste and recycling.   These
     issues include the inappropriate application of the
     regulations for some wastes  (A), the broad coverage,of
     reclamation (I), the restrictive scope of closed-loop (S,
     N), and the narrow scope/inflexibility of speculative
     accumulation (0).

The facilitator instructed each of the group members to review
the issues that had been discussed and identify the three of
greatest concern.  All the votes were tallied and the top five
concerns were selected.  Because the group had only one
representative from the environmental community, priority issues
of concern to such groups were included in the top issues.  The
following five issues were identified:

          Disincentives/regulations inappropriate for recycling
           (W)
          Confusion and complexities (X)
          Potential mismanagement — need a better way to
          distinguish potential hazards (F)
          Definition and scope of spent and discarded materials
           (V)
          Problems with interpretations and applicability with
          respect to waste-derived products (P)

After the top five issues were determined, a participant
commented that the issues were overly broad, did not lead to
obvious solutions and that the real issues are not really
presented by the list.  The facilitator explained the overall
process by identifying the next steps of discussing the goals and
objectives, discussing the recommendations, and considering the
issues and goals/objectives identified in the previous steps.
The groups issues were presented to all meeting participants at
the plenary session.
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THURSDAY, P.M.
Small Group Discussion — Discussion of Goals and Objectives

The facilitator explained that the purpose of this session was  to
discuss the goals and objectives identified and presented by  the
Agency and to discuss how they should be modified with respect  to
the group's concerns.

The group discussed only two of the goals:  clearly define
jurisdiction, and simplify regulatory structure to improve
implementation.  The discussion then shifted to proposing
additional goals and objectives and identifying problems of the
current regulation with these goals in mind.

Jurisdiction was discussed first.  A clarification of
jurisdiction was requested and an Agency representative
responded.  With regard to regulatory standards specific to
recycling, there is a continuum of possibilities ranging from
regulating all recycling, to permit-by-rule or setting minimum
management standards, to not regulating any recycling.  There
should be some reasonable method of determining where
jurisdictional boundaries fall for specific cases.   The following
issues and comments were raised during the discussion:

          Definition of "discarded" should help define the
          jurisdiction.   If the material is not discarded,  it
          should 'not be regulated.

          If a material is in the system,  but gets  out,  how does
          it come back into the system (how does/should
          jurisdiction apply?)  if it is mismanaged?  There  should
          be some minimum reporting/monitoring requirements so
          that no one is completely out.

          Defining jurisdiction and simplifying the regulatory
          structure to improve implementation cannot be  done
          separately.

          Establishing a broader jurisdiction than  what  is
          currently in place would  have to be established by
          Congress.

          Some members did not object to a broad jurisdiction,
          only to the application of that  jurisdiction.   Full
          regulation is not required in some  cases.

          Other members objected to a broad jurisdiction  because
          in most cases,  full regulation was  applied  that imposed
          unfair and unnecessary burdens,  particularly on small
          businesses.   There are some activities that come under
          regulation that should not be regulated because of th«
          broad authority.   Small businesses  do  not understand

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          the regulations and have to hire outside consultants to
          help them comply with the regulatory requirements.

          There are paperwork burdens on EPA resources, but some
          reporting requirements are necessary to have a paper
          trail for enforcement purposes.

The discussion then shifted to the subject of simplifying the
regulatory structure and interpretation.  The group's discussion
focused primarily on the types of interpretation problems that
occur because of the current regulatory structure.  The major
issues that were raised included:

          The regulatory structure needs to be improved to
          minimize the need for interpretations.  Make the
          regulations clear enough for the regulated community to
          understand.

          Better coordination with the States is required.  Some
          states may develop regulatory interpretations that are
          different from EPA.  One member suggested that all
          internal EPA Headquarters interpretations and memoranda
          should be published and made available to the regulated
          community.

          One suggested approach was for EPA Headquarters to set
          policy and general interpretations and let the states
          and Regions implement the rules.

The discussions then focused on the need for some regulations to
be developed and to establish "credibility" for certain types of
processes.

          There are some recycling industries that would benefit
          from regulation such as large-scale businesses that
          have the resources to operate and comply with
          regulations.

          Other recycling industries, such as cement kilns, want
          to be regulated to gain credibility.  If EPA sets some
          minimum standards  (e.g., metal feedstock limitations,
          emissions standards, etc.), the kilns can comply and be
          allowed to operate with EPA "approval".  Others
          mentioned that the regulations could be viewed as a
          sign of credibility.

          An opposing viewpoint noted that the "NIMBY's" (Not In
          My Backyard) and "NOPE's"  (Not On Planet Earth) would
          resist these processes despite EPA permitting and
          "approval".  A RCRA Subtitle C permit can be a stigma.
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          It was suggested that EPA adopt a long-term commitment
          for public education to help alleviate these attitudes
          and the stigma attached to Subtitle c regulations.  The
          educational burden falls on the Agency because the
          public will not believe industry.

Additional goals and objectives were proposed:

          Develop regulations based on current and realistic
          mismanagement incidences, not on pre-RCRA management
          practices.

          Conduct periodic reviews of the regulatory structure
          and the development process.

          Strive for more cooperation/collaboration between all
          interested parties to minimize court confrontations.
          (Eliminate the "see you in court" attitude.)

The next topic of discussion was to identify problems with the
current Subtitle C program.

          Some group members identified the "stigma" of operating
          under Subtitle C, which included the costs of operating
          under the requirements of the current regulations.

          Some regulations are technically inadequate.   For
          example, if 1% F006 is used in the feedstock for a
          smelter for recovery,  the slag becomes hazardous waste
          by the derived-from rule.  There is no environmental
          risk if the F006 goes from the generator directly to
          the smelter (no element of storage),  and the slag
          should be evaluated as a process waste.

          How can the Agency determine what is a legitimate
          recycling process?

          The Subtitle C corrective action and financial
          assurance requirements are disincentives for  recycling.
          Along the same lines,  the permitting process  needs to
          be streamlined to reduce the time required to obtain a
          permit.  It was pointed out,  however,  that as long as
          public hearings are conducted,  the time  factor  cannot
          be avoided.

          One group member reiterated the concern  about the
          restrictive speculative accumulation regulation.   The
          material (mixed radioactive wastes)  may  require storage
          for more than a year before the recycle/recovery
          process is ready to accept the material.
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Discussion of Theories

The next topic of discussion covered theories on solid waste
jurisdiction over recycling which have been put forward to the
Agency.  EPA presented these theories at the beginning of the
conference.  The theories discussed were:

     1)   If a material is recycled, then it's not a waste.

     2)   Recycling is one type of waste management.

     3)   Some recycling is waste management and some isn't.

The facilitator directed the group members to debate these
theories.  (Note:  During this discussion, there was no
representation from any environmental groupO  The central topic
revolved around the issue of the definition/interpretation of
"discarded".  The following points were presented during this
discussion.

          The recent court decisions (AMC II) focus on the
          definition "discarded".

          If a material is recycled, it is not discarded and its
          market value diminishes the environmental hazards.
          Management problems of materials with a market value
          should be regulated, but not necessarily under RCRA.

          It is necessary to track hazardous material.  The
          cradle-to-grave approach will cover any potential
          environmental threat, therefore some sort of regulation
          is required.

          Situation:  A listed waste is generated but it is also
          a marketable product.  If the material is used as a raw
          material at the front end of the process, the elements
          of discard are gone.  However, the Subtitle C storage
          requirements for this material offset any recycling
          incentives.

          Market fluctuations will affect the elements of discard
          for some materials.  For example, when the price of
          scrap steel goes up, junk cars come off the street;
          when the price of scrap steel goes down, junk cars
          remain/accumulate on the street.

          The threat to human health and the environment should
          be the final test.  Cannot really use an economic test
          to ultimately determine waste versus product because of
          volatile markets.
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          Residuals generated from the recycle/reuse of materials
          should be evaluated on their own merits for hazard, and
          not automatically considered hazardous from the
          derived-from rule.

          Some criteria need to be developed to determine the
          difference between disposal/discard and legitimate
          recycling.  One approach would include a multi-media
          evaluation to develop the definition of
          discard/recycle.

The general viewpoint was that legitimate recycling is not waste
treatment or management and that residuals generated from
legitimate recycling should be evaluated as waste on their own
merits.  There were some opinions that materials that are
legitimately recycled should maintain some regulation such as
tracking because of the potential threat to the.environment.
Some preventative mechanisms similar to corrective action,
financial assurance, and enforcement tools may need to be in
place to protect human health and the environment.

Several participants suggested that theory 3 (some recycling is
waste management and some is not) is probably the answer, however
the present approach and the theory still require much work.

The facilitator then directed the discussion to the topic of
recommendations for setting criteria for fixing the system or
designing a new system.  The relatively short discussion centered
around two main issues:  risk evaluation and recycling criteria.

One concern consisted of the approach for assessing the degree of
hazard or risk.  One member suggested evaluating whether the
element of discard for materials poses a human health or
environmental threat.  Different types of risk scenarios were
suggested including absolute risk versus incremental risk.

The second issue focused on developing regulatory language for
sham/legitimate recycling criteria.  Several approaches and
elements were suggested:

          Self-implementing standards.

          Tiered management standards for various levels of risk.

          Element of discard determined by economic and market
          trends.

          Element of discard determined by materials management.
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FRIDAY, P.M.
Small Group Discussion -- Discussion of Recommendations

During this session, the group discussion on identifying  and
developing recommendations for revising the current system
continued.  Two participants were not present for this session.
The facilitator asked each of the members to make three
recommendations for modifying the current system.

Two basic approaches were proposed:  (1) "fixing" the current
system, and (2) developing a new set of regulations for recycling
("Subtitle E").  Overall, the group agreed that Subtitle  C
regulations provide disincentives for recycling.


"Fixes" Within Current Regulatory System

Because of the time constraints and the fact that the majority of
the group members wanted to discuss the second approach in more
detail, the discussion for this first approach was not addressed
at length.  The "fixes" that were identified included the
following:

          Expand/clarify closed-loop exemption.  Allow some
          reclamation, some accumulation, and consider batch
          processes.

          Hard look at enforcement of "sham" recyclers.   Develop
          a tough policy to discourage sham recycling.

          Develop a new system (Recycling Subtitle/Section) with
          appropriate controls.  Determine sham/legitimate
          definitions, licensing/permitting requirements,
          management standards, and self-implementing
          regulations.

          Develop explicit definitions for solid wastes,  or
          expand the specific exemptions.  Exclude obvious
          "marketable commodities" from the definition of solid
          waste  (e.g., used oil, slags, scrap metal, overburden
          from mining).

          Implement a self-implementing concentration-based
          automatic delisting to help determine a degree  or
          threshold of hazard.

          Revise/revisit §266.

          Evaluate industry-specific categories of secondary
          materials  (e.g., K061, used oil, spent potliners);
          develop a specific regulatory approach rather than a
          generic application of Subtitle C.  However, the burden

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          falls on the Agency to develop these  categorical
          standards.  The process may be facilitated by promoting
          regulatory negotiations between  industry, environmental
          groups, and EPA.  This would eliminate  a  lot  of the
          litigation over the regulations.

          Streamline rulemaking procedure.  Currently rulemaking
          is an available tool, however, in its present form it
          is not effective.

          Multi-media evaluations within regulatory approach and
          development.  This approach would minimize the transfer
          of hazardous constituents from one media to another.


Recycling Subtitle

The subject of a separate set of regulations was discussed at
length.  There was some disagreement within the group concerning
generator responsibility.  One party held that once the material
left the original generator for recycling,  the generator is not
held responsible for assuring that the material is legitimately
recycled*  The recycler has the ultimate responsibility for the
waste.  The opposing view maintained that some sort of
responsibility must remain with the generator for the wastes to
be properly recycled; the cradle-to-grave concept must remain
otherwise the system will not work.

Another point of contention revolved around recycling
permitting/licensing.  The group members called for a streamlined
procedure with less burdensome requirements.   Some group members
insisted that some preventative measures such as some form of
corrective action and financial assurance requirements are needed
to protect the environment.  However,  other members of the group
maintained that any permitting requirements that resemble
Subtitle C would be a disincentive for recycling.

The main criteria to be evaluated for these "recycling
regulations" are as follows:

          Articulate difference between "sham" and "legitimate"
          recycling.   Legitimate recyclers  would fall  under a
          new/separate set of regulations that are less
          burdensome than Subtitle C (disincentives removed),  and
          sham operations would fall under  full  RCRA (Subtitle  C)
          regulation.  One group member suggested  that the
          Agency's current criteria  may be  adequate or at least
          provide a guideline.

          EPA licensing of off-site  recyclers  (streamline
          "permitting" process,  notification).   This would allow
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generators to know that the recycling process  is
legitimate.

     -    The permit/license should be "reasonable,"
          with a lower burden than full Subtitle C.

          The permitting/licensing process should have
          certain assurances incorporated into the
          system so that the generator will have a
          certain level of confidence that the waste
          will be recycled properly; permit-by-rule may
          not assure generator knowledge.

          The permit/licensing process should also be
          streamlined to reduce disincentives to
          recycling.  For example, the application for
          a license could function as an interim
          license.  Furthermore, reduced corrective
          action and financial assurance requirements
          should be implemented.

          Some evaluation of waste-derived products
        ;  will have to be made to determine legitimate
          recycling to grant a license.  One suggestion
          was to flag certain recycled materials as
          hazardous.  There are regulations governing
          the commerce of hazardous materials.

Residuals generated by the recycling process should be
evaluated for hazard ,by its own merits rather than a
derived-from rule determination.        ;

Recycling facilities should not have to comply with
SWMU corrective action out, but only have to comply
with corrective action requirements for "future"
releases.  EPA should use authorities under CERCLA and
RCRA §7003 for clean-up of past releases.  Also, EPA
should  reform the current Subtitle C financial
assurance requirements.
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                             GROUP C
                          LIST OF ISSUES
A.   Narrow scope/focus of current program  (manufacturing versus
     other activities).

B.   Precious metals should not be regulated under  the  current
     RCRA system  (e.g., current hazardous waste transport
     requirements are  inappropriate for precious metals
     industries).

C.   Concept of "discarded" and point of generation of
     "discarded."

D.   Reclamation should not nec.f.ss.so.'ily be within definition of
     "discarded materials (LDR prohibitions for storage in "non-
     tank" units).

E.   LDR program provides disincentives for hazardous waste
     recycling  (e.g.,  storage - see D)

F.   Potential for mismanagement and environmental  damages - need
     a better way to distinguish/regulate potential hazards.

G.   Complexities of current regulations lead to problems  in
     interpretations.

H.   Current definition discourages recycling and many  times
     recyclable materials are disposed (e.g., discouraging fuel
     substitution value of spent potliners).

I.   Broad definition  of "reclamation".

J.   Inflexible application of derived-from and mixture rules.

K.   Subtitle C permits and,corrective action discourage
     hazardous waste recycling.

L.   There is a better way than RCRA.

M.   Need more emphasis on enforcement of strong (broad) program
     rather than development of overly strict regulations to get
     bad guys.

N.   Current closed-loop interpretations are too narrow.

O.   Need more flexible "speculative accumulation" rule.

P.   Problems with interpretation and applicability of waste-
     derived product rules (can expand this problem to municipal
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     solid waste recycling and products derived from municipal
     solid waste).

Q.   State permitting of municipal solid waste incinerators and
     recycling options.

R.   "Confusion factor" - not many people understand definition
     of solid waste —problems with interpretation of regulations
     (regulation by preamble and memorandum).  See G.

S.  » Restrictive nature of current "closed-loop" exemption.

T.   Regulation based on past mismanagements  (instead of
     current/probable mismanagements).

U.   All or nothing approach (with exception of §266).

V.   Use of spent and discarded (recognizable product)
     -    issue of "reusable" materials
     -    need to emphasize hazard or potential hazard.

W.   Disincentives to recycling.  Regulations (Subtitle C) not
     appropriate for recycling activities,  (B, D, E, H, I, K, L).

X.   Confusion, complexities explicit exemptions (versus explicit
     inclusions), (G, P, R).

Y.   Scope/Definition of recycling or solid waste (fix within
     current system;  regulatory revisions).
     -    too narrow (restricted to manufacturing),  A
     -    Broad coverage of reclamation, I
     -    Restrictive scope of closed-loop, S, N
     -    Narrow scope of speculative accumulation,  O.
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                             GROUP C
                         RECOMMENDATIONS

The group provided the following recommendations:

"Fixes" within current regulatory system

          Expand closed-loop exemption - allow some  reclamation
          and some accumulation

          Hard look at enforcement of "sham" recyclers

          New subtitle for recycling activities

          Explicit definitions - exclude "loarlwstable commodities"
          from the definition of solid waste (e.g.,  used  oil,
          slags, scrap metal)

          Concentration-based delisting (self-implementing)

          Revise/revisit Part 266

          Evaluate industry-specific categories of secondary
          materials  (e.g., K061, used oil, spent potliners)—>
          specific regulatory approach, rather than  generic
          application of Subtitle C

          Streamline rulemalcing procedure

          Multi-media evaluations within regulatory  approach and
          development


Recycling Subtitle

          Articulate difference between "sham" and "legitimate"
          recycling

          EPA licensing of off-site recyclers  (streamline
          "permitting" process, notification)

          SWMU's out; corrective action for "future" releases;
          reform financial assurance  (CERCLA and RCRA §7003 for
          clean-up of past releases)

           (See diagram)
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                  All  Materials
 Co-product
Secondary
 Material
Clear market
Recognized
commodity
Can be further
used in commerce
                Reuse/
                Recycle
                                              Sham
                       Legitimate

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        Meeting Summary for the Definition of Solid Waste

                  Meeting III:  Interest Groups

                             GROUP D
WEDNESDAY P.M.
First small Group Session - Discussion of Issues

The facilitator asked the participants to generate issues related
to the definition of solid waste and recycling of hazardous
wastes.

A participant suggested that EPA leave the regulatory system  as
it is, a "no-action" approach.

Other issues raised are categorized as general and specific.  The
general issues raised were:  1) a Subtitle C permit is a
disincentive to recycling, 2) an inequitable situation exists
because hazardous wastes are regulated differently than hazardous
secondary materials; some hazardous secondary materials being
recycled pose different risks than hazardous wastes being
treated, 3) the current regulations need to be clarified, and 4)
an alternate, graduated regulatory system needs to be developed
to eliminate the current "in/out" regulatory scheme.

The specific issues were:  1) definitions of terms related 'to
"solid waste" need to be revised, 2) regulations for waste-
derived products need to be revised, 3) transportation
regulations are a disincentive.

The first general issue discussed was regarding the permit
disincentive.  One participant suggested that EPA require a
permit for only some recycling facilities, letting others operate
without a permit.  This would encourage more facilities to
recycle-  This same individual mentioned that recycling was an
ancillary operation to their business and not the major
operation.  The Subtitle C permit was enough to discourage their
company from recycling because of the cost involved in obtaining
and maintaining a permit.  Another participant agreed that the
"C" permit is a disincentive to recycling.  The participant knew
of one  facility that shouldered administrative costs in excess of
$100,000 over a period of at least 2 years before acquiring a "C"
permit.

The second general  issue raised was the inequity created by
different  regulations for hazardous waste and hazardous secondary
materials.   In other words,  some hazardous wastes are regulated
too stringently, and some secondary materials are not regulated
sufficiently.  For  example,  one participant stated that the
hazardous  waste regulations  bear no relation to the degree of

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risk posed in certain situations.  The participant stated that
the derived-from rule provides overregulation in some
circumstances.  The participant also provided one example
involving sludges.  The participant mentioned that a few years
ago, sludges were looked upon as having value; today, they do not
have that status.  There is a need to examine the actual threat
presented by sludges.

A participant stated that procedures and environmental standards
(regulations) are not currently based on the risk presented by
the material and the manner in which it is used.  This should be
changed to accurately reflect the risk posed.  Another
participant mentioned that the use-constituting-disposal
regulations did not accurately reflect the degree of risk posed
by waste-derived products that may be placed on the land.  The
regulations should allow these products tc> '}y^ us,®£, without
attaching the title "hazardous waste" to the product; i.e., drop
the derived-from principle.  Another participant asked if
recycling and waste treatment should be regulated in the same
manner.  Do they pose the same risk, or is each category composed
of activities that pose varying degrees of risk?  Shouldn't the
regulations accurately reflect the degree of risk posed?  One
participant suggested that not all types of recycling are benign;
therefore the degree of regulation should accurately reflect the
risk presented by the material and in the manner it is recycled.

The third general issue was the need for clarification of the
current regulations.  The participant suggested that there was a
need to focus on an implementable, comprehensible,  and
enforceable definition of solid waste.   Generators and recyclers
need a clearer definition to follow.  This participant also
suggested that there is a need to eliminate Table 1 in Section
261.2, to create a clearer regulatory scheme.

The fourth general issue was the need for the elimination of the
current "in/out" regulatory scheme.  Some participants believed
that it should instead be a graduated regulatory scheme (still
excluding closed-loop recycling)  where most recyclers had to
follow some retirements ranging from limited standards to full
permits.  One participant stated that the "bad"  guys,  or sham
recyclers who should be regulated ("in")  have created a bad name
for valuable (environmentally advantageous) technologies such as
thermal treatment.  A system which has clear "in/out"
jurisdiction would change this situation.

The first specific issue raised was that the definitions of terms
surrounding the definition of solid waste should be revised.   One
example was the lack of distinction between solid waste and
product.  At what point does a waste cease to be a waste?  One
participant emphatically requested that the definition of
"secondary material" be revised/clarified.   Another participant
suggested that "legitimate recycling" be defined as recycling

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where there is a proven market for the product.   (Government
creation of a market will not work.)  The facilitator asked the
participant if the government or the potential sham recycler
should be the party who determines whether a legitimate market
exists for a given "product."  The participant thought that the
responsibility for determining a legitimate market should be the
recycler's.

A participant mentioned that a lot of sham recyclers are energy
recovery facilities or material/feedstock "substituters."

The second specific issue brought up was waste-derived products.
One participant thought that the use-constituting-disposal
regulation was not logical.  The regulations apply to waste-
derived cement that would eventually be used on ground-level but
not to cement that would be used in building a second story.  The
same participant mentioned that products, whether or ncv Derived
from waste, should be regulated based on their own merit.  There
should be another method to determine if a waste-derived product
is to be considered a product or a waste, other than the
"derived-from" rule,, (and other than the provision for a
constituent becoming physically inseparable from the product and
the product meeting LDR standards.)

A discussion regarding the nature of waste-derived products
ensued.  A participant explained that toxic heavy metals (such as
lead and cadmium) are released from the cement as buildings
deteriorate.  This is a concern that is an even higher priority
than the concern of leaching metals.  In addition, lead is
dangerous to the person who inhales lead particles.  A second
participant stated that the Occupational Safety and Health
Administration (OSHA) has set lead levels for the 8-hour work
day.  The first participant stated that OSHA lead levels are for
workers in a fairly controlled environment, within an 8-hour
work-day.  The participant went on to say that OSHA lead levels
are totally inadequate.  Another participant mentioned that
metals are ordinarily added to cement as part of the production
process.  The American Society for Testing and Materials (ASTM)
regulates the amounts going into the product.  The first
participant replied that the ASTM levels are not strict enough.

A third specific issue raised by a participant was that the
transportation regulations are a disincentive to companies with
new recycling technologies.

A fourth specific issue was raised by a participant.   The
participant mentioned that if certain types of recycling are left
unregulated under Subtitle C, then a credible Subtitle 0 program
should be established.
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THURSDAY A.M.
Small Group Discussion of Issues Continues

The issues brought up the previous day were rehashed, and
discussed in more detail.  At the end of the morning session,  the
issues were prioritized.  The issues discussed were:

          Should recyclable materials be called wastes?

          Permit issues.  Corrective action, financial burden,
          "seal of approval," self-implementing standards, length
          of time to acquire a permit, pre-construction ban, and
          constantly changing regulations are a disincentive to
          getting a permit.

          Create a graduated regulatory system.

     -    Use the degree of risk to determine appropriate
          regulation.

     -•   Closed-loop recycling.

     -    Indigenous principle.

     -    Off-site recycling.

     -    Use constituting disposal.

The first issue involved the suggestion that a secondary material
should not be labeled as a waste until it is examined to
determine its recycling value.

The second issue discussed involved all the problems with the
Subtitle C permit process.  One person suggested that on-site
recyclers should not be required to obtain any permit.   Another
participant explained that corrective action is a great
disincentive to obtaining a-permit because of the threat of
having to clean up Solid Waste Management Units (SWMUs).  The
participant's facility is IS square miles.  The participant did
not want to subject the facility to the possibility of having to
remediate any potential SWMU leaks or spills.

Another participant knew of one site that was burning hazardous
waste for energy recovery and being paid by generators to do it.
Because of the tremendous financial burden imposed by the
(storage) permit, the facility must continue to be paid for
taking and burning waste from generators.  The economics, in this
situation, are dictated by the permit and its financial burden.

An EPA representative asked what was taking so long in the RCRA
permit process.  The participants responded that the Agency
review and public hearings consume the most time.   One

                                54

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participant knew of one incinerator that took nine years to
permit.  This led to a discussion of a proposed self-
certification process for some facilities, such as recyclers, but
not necessarily for landfills or surface impoundments.  For
example, a facility will be subject to some regulations (not  full
"C" permitting requirements), and will provide the regulations to
the facility, let the facility have the burden of complying and
proving that their facility is only subject" to the modified
standards for reasons X, Y, Z.  One participant stated that in
California and Wisconsin, there are "special waste" categories
that are similar to a "C-" and "D+" program.  The burden rests
with the regulated facility to prove that their operation belongs
under  the "C-" or "D+" program.

The discussion of self-certification led to the topic of the^re-
construction ban.  Some participants felt that certain facilities
such as recyclers with operations inside buildings, and perhaps
incinerators, should be allowed to self-certify and build their
facility.  This would replace the current system of the pre-
construction ban where a facility cannot begin construction until
their  permit is in hand.  One participant mentioned that many
times  under other EPA programs, the Agency has allowed a company
to build a facility before getting its permit.  When this
happens, EPA often feels pressured to grant the permit, because
of the company's huge capital investment,  other participants
stated that self-certification has worked in other programs such
as TSCA.  Facilities built  for managing PCS waste have been built
"pre-permit" and that has worked.  A participant mentioned that
self-certification would not be feasible  for landfills and
surface impoundments because of the difficulty involved in
attempting to  change anything once it was built  (i.e., ground-
water  monitoring wells).  The participant pointed out that self-
certification  might be  feasible for  incinerators if the company
built-in the potential  for  changes to the structure.  For
example,  adding more air emission control devices may be
 feasible.

The  .next issue discussed was the possibility of a graduated
 system of regulation.   This would  involve a spectrum of
 regulation from the  full  Subtitle  C  permit  to the  imposition  of
 certain management standards.   One participant suggested placing
 the recycling of hazardous  secondary materials under Subtitle D.

 The next issue discussed was the  need to  regulate based on the
 degree of risk presented.   This was  only  mentioned briefly.

 The closed-loop recycling issue followed  next.  The  participants
 disagreed on how the closed-loop  should be  modified,  if at all.
 A participant stated that the modification  proposed  in the
 January 8,  1988 Federal Register allows too broad  an
 interpretation of closed-loop recycling.  The  regulated community
 may read into that and reuse the secondary  material  for an

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illegitimate use.  other participants  disagreed,  supporting a
modification of the closed-loop principle.   Another participant
stated that there was substantial  inequity  in  the way some
recycling processes were regulated.  Some recyclers store  before
recycling, and therefore cannot qualify  for the closed-loop
exemption because the storage unit is  not hard-piped to  the
recycling unit. However, the process is  similar to closed-loop
recycling.  This participant believed  that  the residues  generated
from the recycling process should  not  be regulated.   The EPA
representative asked if the closed-loop  issue  was  a  definitional
issue or a management standards issue.   One  participant  responded
that it was both.  The representative  added  that this was  the
reason to create broader regulations:  the current definition has
only a few "definitions" that create the in/out or regulated/not
regulated situation.

The indigenous principle was briefly mentioned by a  participant.
The participant suggested that the indigenous principle  was too
complicated and that the regulations would be sufficient without
it.  Instead, the participant suggested a broad spectrum of
regulations that would cover most types of recycling, with
processes that historically fit into the "indigenous principle"
subject to only a few minor regulatory standards.


THURSDAY P.M.
Small Group Session - Discussion of Three Theories and
Application to specific Recycling Schematics

The facilitator presented the three theories regarding the
definition of solid waste,  and asked the participants to choose
the theory that most closely reflected their opinions.

The group did not reach a consensus.   Most participants chose
theory 1, stating that recycling is not waste management and
others chose theory 2,  stating that recycling is waste
management,  with some exceptions (such as closed-loop recycling).
The proponents of theory 1  expanded the theory to  state that
"things" produced are either products or secondary materials.
Secondary materials are either recycled or managed as a solid
waste.  If they are recycled,  they are not called  "solid wastes,"
but are labeled as "recyclable materials."   This type of system
would provide the generator the opportunity to determine the
value of the secondary material before it is labeled as a waste.
Depicted graphically,  it appears as:
                               56

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                         Things generated
                                           Product
Solid Waste — —  Secondary Material
                    Recyclable Material
The discussion then proceeded to the topic of regulation based on
degree of risk.  An EPA representative asked the group how
storage before recycling should be regulated.  Two participants
responded that regardless of whether the storage is prior to
recycling or, prior to treatment, the storage standards should be
based on the risk involved from that type of storage.  Several
group members agreed that regulations, in general, should
accurately reflect the degree of risk presented based on the
material itself and the way in which it is used.  One participant
argued that recycling processes that pose similar risks as
treatment should not necessarily be regulated in the same ways as
treatment under RCRA because these recycling processes (similar
to production processes) are already covered by other laws.  For
example, financial assurance and corrective action should not
apply to recycling operations that are similar to production
processes; instead, they should only apply to other treatment,
storage or disposal facilities.

The facilitator asked if there were any other parameters (other
than risk) which should determine the degree of regulation, such
as value.  The participant stated that value should not be a
factor in determining how a secondary material is regulated
because values of materials fluctuate constantly.  Value is not a
sufficiently objective test.  The participant provided the
example of lead values, which have varied over 400% in the last
twelve years.

This led to a discussion regarding the jurisdiction of RCRA.
Most of the group agreed that if the CWA or CAA left a loophole
open that RCRA could possibly cover, then RCRA should cover it.

Discussion of Solvent Recycling Schematic -

The facilitator brought the participants' attention to the
individual schematics  (posters) in the room.  The facilitator-
asked the participants to attempt to apply their "new" theories
to the specific scenario of solvent recycling.

The discussion revolved around the off-site recycling of
solvents.  Transportation was discussed.  Most, although not all,
participants agreed that it would be too difficult to enforce

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solvent reclamation and transportation  standards based  on the
"intent" of someone to recycle.  Therefore, a paper  trail,
perhaps a manifest designed specifically  for recyclable
materials, should be required.  One participant commented that  a
"manifest" would not be an impossible imposition on  industry, and
was acceptable.

The EPA representative asked if a notification from  the recycler
should be required,  some participants  thought that  a
notification would be proper.  However, two participants  thought
that the manifest would be sufficient,  and a notification would
not be necessary.

Storage regulations/standards were the  next topic.  A participant
thought that there should be a time limit for storage of
secondary materiel*; that are to be directly reused,  others
mentioned that storage, in general, should be regulated based on
the quantity of material being stored.  The participants
suggested permit-by-rule as an option for storage at recycling
facilities.

The group then discussed the topic of waste-derived products and
the suggestion of providing product standards/specifications.
One participant suggested that EPA develop product standards for
waste-derived products.  Another participant asked what would
occur if EPA's standards for waste-derived products were
different than ASTM standards for a product made from raw
materials.  The participant stated that this would be unfair.
The participant stated that different standards developed by EPA
might be necessary to catch the sham recyclers.   One participant
agreed that ASTM provides some product standards,  but not very
many.  Other participants suggested using TSCA standards.   One
participant commented that TSCA was ineffective.   Another
participant suggested developing different specifications for
industrial-use and commercial-use products.

The participant commented that comparing a waste-derived product
to a raw material-derived product is not a sufficient test to
determine if legitimate recycling has occurred.   The participant
provided one example of lead slag that is sold as  air blasting
abrasive.  The participant believed that there was too great a
health risk involved in this kind of use.   In  this circumstance,
even if lead was similar to what is normally used  as air blasting
abrasives, it was too dangerous,  in the participant's opinion.

A participant suggested that facilities be required to self-
certify their own products.   The participant suggested that there
need to be product standards for waste-derived products, but for
purposes of implementation,  facilities could self-certify  the
quality-of their products.
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One participant disagreed with the establishment of  product
specifications, stating that sham recyclers could take  advantage
of that kind of system.  The participant pointed out that  an
inherent incentive to perform legitimate recycling exists  in  the
desire of the manufacturer to create a quality product.  These
manufacturers are aware of the "product liability" that exists  if
they do not turn out a quality product.  Another participant
responded that it is not enough to try to depend on  the tort
system to catch sham recyclers.  In addition, if too much
hazardous waste recycling is encouraged, there will  be  an
increase in hazardous constituents in more products.  High metal
levels are a problem with used oil, and are also a concern with
the recycling of solvents.

Other participants suggested that product standards  may  not be
necessary because consumers will automatically demand a  high-
quality product with legitimate ingredients.  A participant
responded by saying that relying on consumers is inadvisable
because the elements that make a product useable can be  contained
in a product in addition to hazardous constituents that  do not
belong.

An EPA representative mentioned that EPA could control waste-
derived products in many ways; three of which are:   1) product
specifications, 2) a Material Safety Data Sheet (MSDS),  or 3) an
override authority.

The participant questioned, if product specifications were
developed, would testing of the products be required, and how
often would it be required.  One participant suggested that the
testing should not be required very often because this would
discourage the use/recycling of secondary materials.

The next topic raised was the applicability of corrective action
to recycling facilities.  No consensus was reached on this topic.
One participant stated that corrective action should  only apply
to parts of the recycling facility.  The participant  stated that
it is illogical to require corrective action for a recycling
process that is located inside a structure/building.  Two other
theories were proposed.  The first, presented by the participant,
was that corrective action be required only for the recycling
operation at the facility.  This would eliminate the potential
requirement to remediate SWMUs at the facility.  One participant
asked the group if they thought that recyclers would still be
inhibited if the first theory was imposed.  One participant
commented that it may not be relevant, because many states are
already requiring remediation.  The second theory, presented by a
participant, was that corrective action be required only for
future releases, not past releases.

The next topic discussed was residue from recycling operations,
specifically, cement kiln dust.  A participant stated that cement

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kiln dust is different from ash  (derived  from hazardous  waste
incineration).  The participant  stated that the  cement kiln dust,
which is captured in the electrostatic precipitator,  contains
only 0.5% of the total constituents burned.  The participant
commented that EPA has not yet completed  the study  of cement kiln
dust called for in the RCRA statute; therefore,  EPA does not have
a complete idea of the normal constituents in cement  kiln dust.
Another participant stated that  his association  supports the
creation of management standards for cement kiln dust and will
work with EPA to establish them.

In response to the discussion on residues, participants  commented
about the derived-from rule and  upcoming  de minimis rule.  Most
agreed that the derived-from rule is not  entirely appropriate for
many situations and that the de  minimis rule will substantially
improve the situation.  However, one participant raised  the  point
that a problem with dilution would occur  xi de minimis levels are
promulgated.
FRIDAY A.M.
Small Group Discussion - Developing Solutions

This discussion centered around the metal-bearing sludge
schematic.  The group attempted to propose new regulatory
standards for this schematic, consistent with the new framework
they had developed.  The discussion expanded to issues broader in
scope than the metal-bearing sludge schematic.

The major issue addressed was storage.  Participants suggested
that recycling facilities accepting waste from off-site be
subject to substantive standards, but not permitting
requirements.  They suggested allowing 90 days for storage before
a more stringent requirement would apply.  Two other participants
suggested an even longer time frame for storage before recycling.
Another participant suggested that uniform storage standards
should be implemented, but with varying time frames for storage
based on the risk presented by the secondary material.

A participant from the mining industry explained how a certain
smelter operation worked.  The participant added that there is no
"storage" involved in the operation.   Waste materials containing
metals are deposited directly into a bedding plant (the first
step in the smelting process).  Raw materials or waste materials
are deposited into the bedding plant where fluxes and
concentrates are added.   The feedstocks are then fed into a
second bed and finally a third bed.  The material is moved to the
dryer and then to the furnace for smelting.

The facilitator directed the group's attention to a conflict
within the current regulations regarding the storage of
intermediate materials during recycling.   Although this occurs

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many times, as in the process of recycling lead-acid batteries,
the Land Disposal Restrictions directly conflict.  Land Disposal
Restrictions require treatment to meet a certain standard before
placement on the land.  The participant suggested that LDR
standards not apply to recyclable materials when the materials
are stored for a limited time.

In conclusion, the group suggested that secondary materials being
recycled be called "recyclable materials" and not solid wastes.
They suggested that there be a continuum of standards established
that would apply to various recycling activities, based on the
risk presented.  Few, if any, of these recycling facilities would
be required to have a permit.  Some facilities, but not all,
would comply with corrective action (a modified type of
corrective action)> and financial assurance requirements.
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        Meeting Summary for the Definition of Solid Waste

                  Meeting III:  Interest Groups

                             GROUP E
WEDNESDAY P.M.
First Small Group Session - Discussion of Issues

The group's facilitator asked the group members to identify those
issues that they considered the big issues related to the
definition of solid waste and hazardous waste recycling and the
current regulatory program.  Group members were asked to identify
broad, rather than industry-specific issues.

The issues that participants brought up were diverse.  One
participant suggested that certain materials identified as wastes
should be classified as products/commodities.  For example, even
though blast furnace slag is bought and sold and the United
States is the largest net importer of the material, it is
regulated as a solid waste at the point it touches the ground.
The participant expressed concern with this designation and felt
that the definition was overly simplistic.  Several participants
agreed that market value should be used to determine when a
material is subject to regulation.  A participant felt that land
placement should not necessarily constitute classification as a
solid waste.

A participant suggested that the current listing process is
arbitrary.  The participant questioned the hazardousness of some
of the wastes that are presently listed.

Several participants expressed concern regarding EPA's nebulous
expression of what recycling is.  A participant questioned
whether EPA wants to treat recycling as waste management,
manufacturing or as some combination of the two, implying that
this is the crux of the matter.  The participant commented that
the complexity of the current program (i.e. wastes are treated
differently in different processes and for different uses) leads
to confusion.

One participant added that the definition of spent material is
unclear.  Another participant argued that the current definition
of solid waste with respect to speculative accumulation
discourages recycling of wastes generated in small quantities.
To accumulate sufficient quantities for recycling, wastes must be
accumulated over a period of time.  The participant noted that
because there are few treatment methods for mixed waste
 (hazardous/radioactive), the waste triggers many other problems
if it is not recycled within the limits of the speculative
accumulation provisions, and is classified as a solid waste.

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Several group members agreed that the current derived-from  rule
is problematic for recycling residues.  A participant argued  that
the derived-from rule contradicts environmental goals by
requiring that non-hazardous wastes, derived from hazardous
wastes, be landfilled.  Several participants agreed that these
materials should be considered on their own merits.

A participant noted that RCRA does not address cross-media
contamination (or at least, potential for contamination) caused
by compliance with other environmental laws and regulations.
Another participant stated that approximately 80 percent of RCRA
wastes result from compliance with the Clean Air Act and the
Clean Water Act.  One participant questioned whether these
materials should be given some type of special status.

A participant argued that the fundamental issue is that all
materials cause environmental damage when mismanaged.  Therefore,
RCRA makes an illogical distinction in only covering wastes.  The
participant argued that RCRA regulations are based on the status
of a material (i.e. waste or non-waste) when this status does not
necessarily reflect environmental risk.  The same participant
added that part of the solution would be to simplify the current
definition of solid waste by expanding it.  The participant
suggested that essentially all materials could be classified  as
waste and then evaluated on the basis of risk.  An EPA
representative suggested that there are consequences to this
scheme.  For example, mining materials high in lead would be
treated as high in risk and regulated heavily.  The participant
does not necessarily support a materials management hierarchy but
wished to raise the question of whether or not we want RCRA to be
the one piece of legislation that handles all environmental
threats.  A participant concurred that RCRA may have overstepped
its intended boundaries by trying to protect against damages  from
materials that are essentially the same as products.

A participant responded that perhaps Congress had done a better
job than given credit for in defining waste as discarded
materials.  The participant explained that although "wa'stes" and
"non-wastes" can have the same level of toxicity, the potential
exposure to the environment, which is dependent upon the release
of materials to receptors, must also be considered in assessing
environmental risk.  The potential for exposure is substantially
increased when the material has no value (it is typically
disposed).  The group member argued that recycling results  in a
material that has value and that the recycled material should ba
regulated as a product.  The participant suggested that material3
 (both  entering and exiting the recycling process) should be
evaluated on a market value basis.

A participant indicated that the complexity and inflexibility of
the current permit process is a major issue for commercial  off-
site recyclers.  The participant added that the current

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regulatory system discourages recycling by placing  too  many
burdens on the recycler.  A participant noted the lack  of
consistency in the states and regions with respect  to granting
variances.

A participant felt that the delisting process is time consuming,
costly, and unresponsive to industry's needs.  The  participant
suggested that delisting is not a good alternative  for  exempting
a particular material.  Another participant added that  the
current delisting.process is unresponsive because we expect too
much from it.  We expect the delisting process to remove all
wastes that should not be in the system.  The current all or
nothing structure of the Federal program  (waste/non-waste,
storage/not, storage) results in the expenditure of  excessive time
and money for defining boundaries.  Implementation  of a
gradat.ionrX regulatory program will reduce the time spent
assessing boundaries and will allow attention to be given to the
appropriate issues.

A participant was concerned with the current regulations as they
apply 'to the storage of non-liquid hazardous waste  prior to being
recycled or reclaimed.  The participant did not feel that it was
being treated equitably with the storage of liquid  waste.
Additionally, the participant suggested that in cases where
materials recovery occurs along with energy recovery, burning for
energy recovery should not necessarily classify a material as a
solid waste.

A participant felt that a major issue with respect  to hazardous
waste recycling is how to define "legitimate" recycling versus
"sham" recycling.  An EPA representative indicated  that it is
easy to define recycling but that it is not as easy to define it
in a way that enforcers and implementors can apply  it in the
field.

A participant explained that perhaps we need to look at recycling
differently.  Presently, we focus on a single component of a
multi-component problem.  The participant suggested that we need
to implement a life-cycle evaluation into our decision-making so
that the overall environmental impact of a particular situation
can be assessed.  The same participant provided an example,
saying that we may make a decision based on the level of toxicity
in two different kinds of waste instead of factoring other
possible environmental implications, such as the need to dig up
virgin materials, into the decision.

The group then discussed how the issues that they had enumerated
could be grouped to facilitate further discussion.   The group
divided the issues that they had raised into several tiered
categories including "big picture," or macro issues, problems
specific to the current regulatory program (e.g.,  the derived
from rule), and issues related to the complexity of the current

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system.   The issues in each category that the group  formed  are
summarized below:


"Bio Picture" Issues

     •     Certain materials identified as wastes should be
          classified as products or commodities.

     •     How does EPA want to view recycling ? (As waste
          management, manufacturing, or some combination).

     •     Attempting to classify a material as waste or non-waste
          does not necessarily reflect potential environmental
          damage.

     •     The '-ci.'!,!. u.c nonfe" structure of the current ^ragram
          results in expenditure of large amounts of time and
          money in defining boundaries (waste/non-waste,
          storage/non-storage).

     •     An overall environmental impact evaluation should be
          used in decision-making.


Specific Problems

     •     The derived-from rule is problematic for recycling
          residuals.

     •     Legitimate and sham recycling must be clearly defined,
          such that enforcers/implementers can apply the
          definitions in the field.

     •     The definition of spent material is unclear.

     •     The speculative accumulation concept hinders recycling
          when small quantities are generated.

     •     The delisting process is not a good alternative for
          exempting the material.

     •     Storage of non-liquid hazardous waste prior to
          recycling is not equitable with the storage of liquid
          hazardous waste.

     •     In cases where materials recovery occurs along with
          energy recovery, burning for energy recovery should not
          necessarily classify a material as a solid waste.
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Complexity Issues

     •    The regulations are too complex.

     •    The permit process is  inflexible, particularly  for  off-
          site recyclers.

     •    There is a lack of consistency  in the states/Regions  in
          dealing with variances.


THURSDAY A.M.
Second Small Group Session -Discussion of Issues

The facilitator asked the group  to identify what specifically in
the Subtitle C pfogram is burdensome to recyclers.  Several of
the participants expressed concern in discussing small issues
without knowing what direction the full regulatory program will
take in the future.  The facilitator responded that the
discussion of goals and theories later on would address the
group's big picture issues.  The group agreed to discuss  further
the specific problems with the current program and focused on the
burdens of listing, permitting,  and the derived from rule.


Listing

A participant reiterated that the listing process is burdensome.
Another participant explained that the burdensome issue is that
listing, in combination with the derived  from rule, reduces the
value of secondary materials because secondary materials  derived
from a listed waste are automatically considered hazardous
regardless of their own waste characteristics.  Additionally, the
recycler receives no credit for  reducing  the toxicity of  the
residual and/or making the waste more amenable to recycling.  The
participant commented on a process that reduces the metal content
of wastes from the steel industry.  An inert slag is produced
that, to date, has been acceptable for use in road construction
and railroad ballasts.  However, the participant was concerned
that more regulations and/or litigation would require the
industry to manage the slag as a hazardous waste and thereby
dispose of it rather than reuse  it.  Several group members agreed
that  they would like the system  to allow  residuals to be
reevaluated on their own waste characteristics.


Permitting

Many  group members agreed that the current permitting process is
burdensome for recyclers.  One participant added that the permit
process and the overall complexity of the regulations strain the
recyclsrs1 resources, especially with respect to the small

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recycler.  It becomes cheaper, when all factors  are  considered,
to dispose of the wastes rather than recycle them.   Several
participants commented that even the permit modification  process
for storage is burdensome .

The participant stated that one of the biggest issues  is  that  the
permitting process triggers facility-wide corrective action which
is again a disincentive to recycling.  A facility is more likely
to send their wastes off-site for disposal than  to set up some
type of reclaiming process and be subject to corrective action.
Although corrective action is only triggered when contamination
is from a solid waste management unit (SWMU) , the facility is
faced with the burden of proving that a SWMU was not the  source
of contamination.  Therefore the cost of conducting  corrective
action is going to be prohibitive.
The participant added that small, potent i<*l recyclers are not
going to be able to afford to attend to the requirements of the
permitting process.  Another participant added that the excessive
paperwork of the current hazardous waste recycling regulatory
system discourages small businesses from going into recycling.

A participant expressed concern that the current breadth of
storage permits is overly broad and that there are some cases
where the requirement to obtain a storage permit is unnecessary.
For example, facilities like lead-acid battery reclaimers need a
storage permit for the storage of uncracked batteries.  The
participant questioned why the rules do not provide, in some
limited fashion, an interim storage requirement or exemption
similar to the 90-day provision for generators.

A participant commented that the current permitting process fails
to allow owners/ operators to identify priorities in corrective
action.  Facilities are unable to direct their resources to the,
most hazardous sites first but must devote equal attention and
resources to all permitting/corrective action initiatives.  This
inevitably leads to a situation where there is not enough money
devoted to any one site.  One participant suggested that perhaps
permitting and corrective action should be separate requirements.

A participant commented that the combination of classifying a
recycler as a Treatment, Storage and Disposal facility (TSD)  and
requiring public comment make siting difficult.  The public would
be much more amenable to having a recycling facility in their
town rather than a TSD, but the permitting process essentially
labels a recycler as a TSD.  Another commenter agreed that the
stigma of a hazardous waste designation makes siting extremely
difficult.

A participant noted that the length of the permitting process is
a problem.  Staff turnover in state and regional offices leads to
different people revisiting the same issues,  extending the time

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it takes to process a permit.  Another participant  added that  a
facility's permit is often split in half, and a  facility must  go
to the state for. the base RCRA program and to EPA for  the HSWA
program.  Therefore, dual regulation of the program also
contributes to the lengthy permitting process.   Another
participant commented that dual regulation is further  complicated
for RCRA/CERCLA sites.
Derived-From, Mixture. Contained-in Rules

A participant asked why the Agency has not considered eliminating
the derived-from, mixture, and contained-in rules and instead,
implementing a de minimus rule.  Many participants agreed that
these rules both bring materials into and keep materials in the
program that are innocuous.  Another participant added that the
rules mistakenly label materials hazardous that are not hazardous
by their waste characteristics.  A participant argued that these
rules ignore the fact that recycling often extracts the hazardous
components from a material.

A participant argued that once you buy into listing, these rules
seem appropriate.  The participant added that these three rules
are there to protect the listing program and that the listing
program was implemented to jump start RCRA when it began.
However, now wastes mainly enter the program by being a hazardous
waste by characteristic.

Ah EPA representative explained that without the mixture rule,
people would be able to attain a prescribed concentration level
by diluting their wastes.  Such actions do not necessarily reduce
the toxicity of a waste.  The EPA representative suggested that.
the derived from rule is similar, but approaches toxicity from an
environmental loading perspective.  More importantly,  it
recognizes that residuals may still pose threats to human health
and the environment even after treatment.  Another EPA
representative added that these rules ease enforcement.   One
participant asked how the mixture rule prevents dilution with
respect to characteristic wastes.  An EPA representative
responded that although the mixture rule does not really work
with characteristic wastes, the land ban regulations minimize
potential problems of dilution of characteristic waste.

The participant added that the rules keep materials (both
hazardous and nonhazardous) in the system that no longer require
a regulatory system.  For example, in the precious metals
reclamation industry a platinum or carbon catalyst material is
generated that contains a residue of a listed organic solvent
(e.g., trichloroethylene) used to wash the catalyst material.
The material is sent to a refiner who burns it to concentrate th«
platinum and ends up with a drum of platinum concentrate ash,
which still carries the listing code,  worth several thousand

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dollars.  The drum is then sent to a refiner  in England  for
further refining.  The participant commented  that  there  is  no
need for regulation for materials that have a high market value
because the value ensures that releases will  be minimized.   The
participant reiterated that the current program does  not allow
for a release from the system based on market value.  Group
members agreed that there is controversy over the  waste/product
status of a material.


THURSDAY P.M.
Third Small Group Session - Discussion of Goals and Theories

The facilitator asked the group to discuss EPA's goals in
redefining solid waste and the three theories presented  by  OSW  in
tilt; initial presentation for defining solid waste when materials-
are recycled.  The facilitator suggested that dealing with  these
goals and theories would bring the group back to the "big
picture" issues brought up by group members in the earlier
sessions.


Discussion of EPA Goals                               ,

Protection of Human Health and the Environment

The group agreed that protection of human health and the
environment is a good goal for the Agency.   The group discussed
the present connotations of the goal.   A participant noted that
this goal has become a cliche and gets into the issue of whether
you ignore all other considerations in achieving this goal.
Another participant added that "protection of human health and
the environment" is no longer simply a statement of a goal;  the
phrase connotes that considerations outside of human health and
the environment are ignored.   Yet another participant added that
as one goal it is unquestionably the abiding goal;  however,  the
goal should not be equivalent to zero risk.  The participant
agreed that a goal synonymous with zero risk is unworkable.
Another participant reminded the group that protection of human
health and the environment is a statutory goal.

A participant commented that dictating a life-time  exposure  level
of 10"  without regard to cost is a misplaced goal.   This
participant added that protecting human health and  the
environment with a numerical strategy without addressing other
factors is problematic.   Several participants commented that the
goal should be qualified.   Another participant suggested adding
"to the extent that it is do-able,  practical and economical" or
"to the greatest net extent feasible by means of waste
minimization, recycling,  and waste treatment and disposal."   A
participant added that the environmentalists would  say this
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suggestion is a major retrenchment from protection of the
environment.

The group discussed the implications of having tough regulations
to get industry to minimize its wastes as a way of achieving the
Agency's goals.  Several group members agreed that this tactic
works to some extent because industry wants to avoid the burdens
of the regulatory program.  Other participants were concerned
that those facilities whose materials cannot be reduced will be
faced with an unfair burden.

The group agreed that they do not believe the goal should mean
zero risk, but that protection of human health and the
environment is an essential goal.'

Promote Environmentally Sound 'Recycling

The group agreed that EPA should seek to promote environmentally
sound recycling through the definition of solid waste.  One
participant suggested that the words "environmentally sound" be
removed from the goal because it is stated in the first goal and
because recycling implies environmental soundness.  Other group
members disagreed and felt that the goal should not be altered.

Clearly Define Jurisdiction

The group initiated the discussion by talking about "adequately"
defining jurisdiction rather than just "clearly" defining
jurisdiction.  A participant suggested that we may need a
jurisdictional basis that does not depend upon distinguishing
between a waste and a non-waste.  Another participant suggested
that one of two things could be done.  Either the definition of
waste could be broadened to include all materials that have been
used once or the jurisdiction of RCRA could be expanded to
include not only wastes but secondary materials.  One would
require a regulatory change and the other a legislative change.
A participant commented that regulatory alterations would not
solve the program's problems.  One participant added that
presently EPA does not have the legal authority to provide the
best solutions and therefore the statute needed to be changed.
The participant suggested that although RCRA does not have the
jurisdiction, EPA does through other statutes.  Additionally,
some problems are covered by the regulations of other Federal
agencies.  An EPA representative asked the group if it made good
policy sense to have a material regulated under numerous statutes
with several agencies potentially having regulatory control over
the management of that material.

The participant summarized that what is being examined is a
trigger for government action to solve an environmental problea,
and that clearly defining the jurisdiction of RCRA is only a
small part of that.  A participant suggested that perhaps the

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goal is to organize a multimedia approach.  The participant
questioned whether we had lost sight of the statute's original
jurisdiction over discarded material.  It is not within RCRA's
scope to expand the framework to include all materials with
potential environmental harm.  An EPA representative commented
that to some degree, Congress did intend for EPA to regulate
hazardous waste recycling.

The group agreed that regardless of where the jurisdiction lies,
it must be clearly defined.  The group also agreed that EPA's
goal of simplifying the regulatory structure to improve
implementation was obvious as noticed by the used oil and Small
Quantity Generator (SQG) language.


Discussion of Theories

The facilitator asked the group to think about how recycling
should be defined and to decide which of the three theories most
appropriately defined recycling.

One participant commented that there must be a clear distinction
between recycling and waste management.  It must be clearly
stated that those materials associated with recycling are not
wastes but secondary materials.  The participant suggested that
secondary materials be removed from the definition of solid waste
and regulated under a separate regulatory structure.   An EPA
representative asked whether in this regime recycling would be
given a preferred status over treatment and disposal.   The
participant understood the drawbacks to such a regime (i.e.
similarities between some treatment and recycling processes),  but
felt that EPA must clearly define one discipline from the other
and address each of them in ways that most benefit the
environment.

One participant commented that he did not believe that it was
ever Congress1 intent to regulate recycling under RCRA.   However,
if you adopt the approach that if it is recycled then it is  not a
waste, the statute becomes almost unenforceable.   All  facilities
producing hazardous waste could claim that their wastes  are
destined for recycling.  Then it becomes the Agency's  burden to
determine a facility's intent for a given material.

An EPA representative questioned the efficacy of regulating  a
recycling process and a treatment process that are essentially
the same under two separate sets of requirements.   The group
discussed the relative risk of storing at a recycling  facility
versus storing at a treatment facility.   A participant argued
that the economics make the difference (i.e.  material  will be
handled as a valuable commodity,  and therefore the recycler  will
be more likely to securely store it).   Another participant added
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that the group is not arguing for the relaxation of the basic
generator requirements.

An EPA representative questioned whether perhaps the scope of
RCRA should not be expanded but that some things (e.g.,
legitimate recycling) be treated differently.  One participant
provided the analogy of a material entering under Subtitle D and
then, if hazardous, going to Subtitle C.  Another participant
commented that given the current jurisdictional regime, the
Agency had to expand the definition of solid waste to ensure that
environmental risks from recycling were minimized.

The EPA representative suggested that a regulatory structure is
often not designed to govern the activities of those facilities
that act within the regulatory structure.  They have been
designed in response to significant problems and to eliminate
recurrence of such problems.  The EPA representative noted that
the group appeared to agree that the current definition of solid
waste and the regulatory program are problematic.  The EPA
representative added that there could be potential problems
associated with establishing a separate subtitle for recycling
because it would make the distinction between legitimate and sham
recycling even more important.  One participant concurred and
added that developing a new subtitle simply exchanges one
boundary definition problem for another (waste/non-waste for
legitimate/sham recycling).

A participant suggested classifying secondary materials as solid
waste but tailoring a separate management program specifically
for these materials.  A participant added that this type of
regulatory change would appear to environmentalists and the
public to be backing down from the strictness of the current
program; everything would still be labelled a waste but some
wastes would be treated less stringently.  One participant
countered, stating that removing certain operations from under
the jurisdiction of RCRA will disturb the public.  Some
facilities will go from being RCRA Subtitle C permitted
facilities to facilities not subject to Subtitle C, and this will
appear to the public to be a weakening of standards.

The facilitator asked the group to vote on one of the three
theories presented by OSW.  The group generally agreed that
recycling should continue to be regulated under RCRA and that
most other alternatives were unlikely to be implemented.   A
participant felt that defining the boundaries of legitimate and
sham recycling would be possible and that recycling should be
removed from Subtitle C jurisdiction.  Another participant agreed
that secondary materials should not be identified as wastes and
that recycling should be regulated under a new RCRA subtitle.
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One participant commented that the group was  having a hard time
choosing a theory because none of the three theories work verv
well.  The group reworded the three theories  to  read:

     (1>  If it is recycled, it is not a waste;  it  is a  secondary
          material, for which a separate RCRA regulatory
          structure should be designed.

     (2)  Recycling is one type of waste management  that deserves
          a separate set of regulations *

     (3)  Some recycling is waste management, some is  not.

A participant suggested that the first theory was a  possibility
but that the second theory would be easier to implement
politically.-feea^'we jvfc would not require any court eases  to £>e
overturned.  One participant commented that although the  first
theory would be admitting that the current statute needs
modification, it would not be unusual to say this.

A participant clarified that the second theory does  not require
that a separate category be created for secondary materials.  The
theory starts with full Subtitle C regulation and reduces these
requirements for recycling.   The benefit of this theory is that
all materials are kept in one system and no waste is lost between
programs.  The first theory would establish a different subtitle
using bits and pieces from Subtitle C.   The benefit to such a
program would be that secondary materials would no longer be
labelled wastes and that derived-from and mixture rule problems
would be avoided.

One participant commented that a disadvantage to keeping all
materials in one system would be that the distinction between a
secondary material and a waste would have to be made again and
again.   Additionally,  if Subtitle C needed to be changed, the new
subtitle would be unaffected.   A participant argued that there
would be some levels of equal treatment  between the two
subtitles,  and therefore,  if Subtitle C  were changed, the new
subtitle would also have to  be modified.   The first participant
explained that in a system of two subtitles,  all  materials would
start through Subtitle C with respect to the definition of solid
waste but before they reached the listing process there would be
a mechanism that places secondary materials into  the new
subtitle.  If a recycling facility fails  to meet  the new subtitle
requirements, the penalty would be Subtitle C  regulation.
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THURSDAY P.M.
Fourth Small Group session  -  Discussion of Theories (Continued)

The group decided to discuss  several  different ways to regulate
solid waste.  A participant volunteered to present several
models.

The participant reiterated  the group's  consensus  that the current
definition of solid waste is  both  under and over  inclusive.   He
presented the following diagrams:
Scopt of Current Regulations
   What the Regulations
   Should Cover
                                AIR  EMISSIONS
                                WATER DISCHARGES
GENERATOR
WASTE
       WASTE OR
       SECONDARY
       MATERIAL
   REC
                         RESIDUE
                           HW LANDFILL
                 PRODUCT
                AIR EMISSIONS
                WATER DISCHARGES
The primary focus of the diagram was whether materials  to be
recycled should be classified  as wastes  or  as  secondary
materials, and how that decision affects the classification of
recycling residues.

There is a continuum between virgin materials,  secondary
materials and waste.  Presently, EPA regulates those materials
that are discarded and some of what is recycled.   (In the
following diagrams, what is boxed  is regulated)1

         Virgin  Recycling     Discard
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Theory 1 says that we will take the same  spectrum of materials
and simply carve it up a different way.   In  this  scheme,
everything that .is recycled is called a secondary material  but is
potentially subject to regulation and everything  that is
discarded is called a waste.  By expanding the  jurisdictional
scope of RCRA to include secondary materials, we  are narrowing
the scope of what is called a waste back  to what  is  actually
discarded.
(1)
                      Secondary
                      Materials
                Waste
More materials would be subject to control under this scheme;
however less material will be considcastea-vftsto.  Group members
agreed that this system is more tailored than the current system,

A second scheme would label all secondary materials waste and
have two types of permits; one for TSDs and one for recyclers.
The requirements for each of the permits could be tailored in a
similar fashion and the difference may be only semantic.
(2)
                      Everything is Waste
                    R&S Permit
            TSD Permit
A third model limits waste to what has been discarded.  All other
materials, both virgin and secondary, are covered in a materials
safety/storage subtitle.  A new statute would need to be
developed to implement this scheme.  A participant suggested that
industry has never agreed with this model because it goes further
up the production process than any of the other alternatives.
(3)
                                    Waste
            Virgin
Secondary
Materials
Several group members were uncomfortable with the third scheme.
One participant commented that he thought the scheme was unwise
because it built directly upon SARA Title III and expanded the
regulatory regime into every area of society.  Another
participant questioned how materials would be distinguished in
such a system.  An EPA representative suggested that they would
be distinguished as they are under Subtitle C.   Another
participant suggested that he had brought this approach up not
necessarily because he advocates it but because some states are
going in this direction.
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The group then discussed how residues and products from a
recycling/reclamation facility would be dealt with.   One
participant presented an example.  Under model  l a metal finisher
generates a cyanide metal plating bath listed because of the
cyanide.  The plating bath goes to a reclaimer  who decants the
cyanide bath and is left with a sludge that is  processed to
remove valuable metals.  The decanted cyanide solution is then
sent to a TSD.  The participant questioned what difference it
meant to the protection of human health and the environment, at
that stage, whether this solution was characteristic or listed.
Several group members noted that if it was not  listed it might
not be caught by the regulatory program.  Several participants
suggested that this residue would have to be listed again
(because the plating bath was designated a secondary material
rather than a waste) so that recyclers are not  converting listed
hazardous wastes into Subtitle D wastes.  The group generally
agreed that the residues should be listed based on their own
characteristics.

On the product side, the group felt that the derived from rule is
keeping many materials in the system that should be out.  An EPA
representative asked whether a problem arises in the absence of a
de minimus rule for products.  The group agreed that it does.
However, a participant noted that although the  de minimus rule is
great in theory, it may not result in many materials getting out.

In examining the first scheme, in which a waste going to a
recycler/reclaimer loses its listing, the group questioned what
the Agency would want the status of post-recycled material to be.
An EPA representative explained that there could be two points of
view.  From an implementation/enforcement point of view, the
post-recycled materials should assume their pre-secondary
material listing.  From an environmentalist point of view there
is concern that some residues will be missed such as cyanide
waste, unless relisted, because they will not be picked up by the
characteristics.

A participant noted that if any of the schemes  suggested today
were implemented, there would have to be an increased effort on
the Agency's part.  Another participant noted that the second
scheme would not be as intensive an effort as creating a new
category for secondary materials because the material entering
and exiting the recycling process would still retain its initial
listing.  The derived-from rule problems would then be solved
separately.  The first participant argued that  this does not
address the issue of the perception of the material as a waste
rather than a secondary material.  The participant expressed
concern that unless one makes a clean cut in the regulatory
scheme there will be no clear distinction between wastes and
secondary materials.
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A.participant noted that the model where a hazardous  waste
listing determination carries through to the recycling process
would be an appealing approach to the Agency.  This model would
deal with the perceived loop holes of the first scheme  (where
generators may claim that all of their wastes are going to a
recycler to avoid the Subtitle C regulations) because it is based
on the theory that all listed wastes are necessarily  hazardous,
and therefore all residues derived from processing or recycling
the waste are hazardous.

A participant noted that if we are going to carry the listing
through, the derived-from rule must be solved. If we  do not solve
the derived-from rule issue, we will be impacting the listing
program.  The group discussed the potential burden of
recharacterizing and relisting all materials from all
rbuyeling/reclaiming processes.  The facilitator asked the group
whether there is enough homogeneity in the recycling  industry to
be able to easily examine these residue streams; or is there so
much variation that reevaluation of these materials is an
impossibility.  Another participant suggested that many of the
residues would be similar to those from the manufacturing process
and would therefore take less effort to classify.   The
participant suggested that perhaps the universe of technologies
in the recycling/reelaiming industry is not as large  as many
perceive it to be.

The group concluded that designing a way to reach the Agency's
goals is very difficult.                                    ,

The group presented the major topics of Thursday afternoon's
discussion to the full group.


FRIDAY A.M.
Fifth Small Group Session - Discussion of Solutions

The facilitator asked the group to make suggestions for solutions
to the current regulatory program.   The group began the session
by discussing what their recommendation would be for the
treatment of materials going to a recycler/reclaimer.   Several
participants agreed that a different subtitle needed to be
established.  The group suggested that an administrative package
be prepared for Congress calling for a new subtitle for
recycling.  The subtitle would be created with input from
industry, environmental groups and the states.

The discussion returned to the viability of  conducting risk
evaluations of all recycling processes.   A participant questioned
what the perceived risks were in recycling.   One participant
responded that a determination of risks is difficult because of
the diversity in the recycling industry.   Two participants
disagreed.  One of the participants added that the  myth  of

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complexity in the recycling industry must be dispelled.  The  same
participant suggested that there are probably twenty general
types of processes and that evaluating these for risk will  not be
a daunting task.  The group agreed that some sort of information-
gathering effort should be undertaken to measure current
recycling processes.

Following the morning break, the group decided to move on to
discussing solutions.  The group developed a list of 13
recommendations.  These are briefly summarized below.

     •    Ensure that risk assessment of recycling processes  is
          included in the development of further regulations.

     •    Implement a manifesting system for recycling.

     •    Develop storage standards for recycling.  Increase
          speculative accumulation time period for recycling
          facilities.

     •    Develop a series of standards focused on risk.  This
          risk could be based on a product's characteristics.

     •    Eliminate the derived from rule for products and
          residuals of recycling.

     •    Modify Subtitle C financial insurance for recycling
          facilities.

     •    Implement a strong enforcement program for public
          assurance and to eliminate sham recycling.  Mechanisms
          could include administrative,  civil and criminal
          penalties as well as a shift to Subtitle C regulation
          for sham recyclers.

     •    Treat on-site and off-site recycling equally.

     •    Do not use closed loop recycling in distinguishing
          between recycling and disposal.

     •    Implement a distinction for manufactured products which
          are not physically changed until they reach the
          reclamation facility: (a)  during the collection and
          transportation process and (b)  subject to regulations
          that ensure tracking and no improper disposal.

     •    Allow demonstrable market value to exclude materials
          from regulation.

     •    Regulate transportation under DOT standards.   Preempt
          states on the transportation of secondary materials.
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          Exempt secondary materials from interstate
          transportation prohibitions.

The group summarized their specific recommendations to the large
group.
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        Meeting Summary for the Definition of Solid Waste

               Meeting III:   Public Interest Groups

                             GROUP P
WEDNESDAY P.M.
First Small Group Session - Discussion of Issues

The facilitator started the session by reviewing the meeting
process and schedule.  Introductions were given, and the
facilitator presented the first question, which was, "Given your
expertise, what are the primary issues that need to be addressed
in the current regulatory framework?"  The first concern raised
by a participant was that regulation of a listed waste that is
recycled is currently too burdensome.  An example of K061
electric arc furnace (EAF) dust that is sent to a recycler was
given.  The recycler is able to use the materials from the dust;
therefore, the EAF dust is a valuable by-product.  The
manufacturer of the dust should not have to manage the dust as
hazardous waste, and the derived-from rule should not apply in
cases such as this.  There is a problem getting hazardous
recyclable material from the 'generator to the recycler.  The
question of "how closed is closed loop" was raised.
                         \
One participant was concerned that the same laws which apply to
virgin materials do not apply to comparable recyclable materials.
This differentiation creates a solid waste "stigma" that inhibits
recycling.  As an example, coal ash is a large volume,  inert
material that is becoming harder to recycle because of the
differentiation.  The coal ash cannot compete in the markets
because of the stigma.  There should not be a distinction between
manufacturing and recycling.  As an example of a problem, coal
ash is recommended for use at Superfund sites as a stabilizing
material; however, some view this as a disposal mechanism for the
ash, rather than as a use.  This raises liability questions as
well.

Another participant stated that the derived-from and mixture
rules inhibit recycling; waste should be judged on its own
merits.  As an example, smelter slags pass the TCLP test, but are
deemed hazardous because they are derived from hazardous waste.
The industry should not rely on delisting as a mechanism to get
out of the Subtitle C system, because the program does not work
efficiently.  The member refuted the EPA examples of NPL sites
that were once recycling sites and suggested that historically
these sites were probably used as disposal sites as well.

A participant proposed that recycling processes should be
regulated to protect human health and the environment.   Recyclers
should be regulated as manufacturers are.  Materials that harm

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human health and the environment should be  regulated,  regardless
of whether they are recyclables or by-products.  Recycling should
not allow a regulatory loophole for disposal.  Several other
members agreed, but added that currently manufacturers and
recyclers are not treated equally, because  manufacturers  can use
hazardous virgin materials that are not regulated, while
hazardous recyclable materials are regulated.  These members
wanted to see more equity in the marketplace.  A pickle liquor
example was given to show inequity.  A firm in Milwaukee  uses
pickle liquors for cleaning boilers, but will not buy  by-product
pickle liquor from metal processing plants.  Instead,  the company
pays to make the pickle liquor, because the utility commission
does not want to accept the liability for using what was  deemed a
Subtitle C waste.  Another participant commented that  the
regulations should encourage recycling.  For example,  recycling
car batteries is much better than open dumping.  One participant
agreed but •££••<•.•&£.•& that the process of recycling msy alro  create
waste which should be regulated.

Another issue raised by a participant was that definitions  for
recycling are unclear, such as for reclamation (passive
filtering) and in process.  He provided an  example for a  closed-
system wood cell injection of pesticides to replace water and air
in wood.  The replacement produces a material that should be
regulated.  However, this material is not discarded.   The
material goes to a sump, the excess pesticide is filtered,  and
the filtered material is pumped back into the system.   The
process involves on-site recycling, but involves a reclamation by
passive filtering; therefore, the material  is defined  as  a
hazardous waste.  The member raised the questions, "should
passive filtering and settling be considered closed loop?11, and
"when does a material become a waste?".  An EPA representative
posed a question regarding the design standards of the  sump and
how long material stays in the sump prior to filtering.   The
participant answered that the sumps could probably meet RCRA  tank
standards and could be cleaned out as often as EPA wanted them
cleaned out.  The accumulation is only temporary as opposed to
speculative.

A participant raised the inequity issue,  and stated that  .
secondary materials that are recycled are considered waste while
primary materials are not.  Lead plates from car batteries are
considered wastes.  The percentage of lead  in those plates is at
least as high as the raw material which is mined.  However,
because the lead is from battery plates,  it is considered a
secondary material and is regulated as a hazardous waste.   EPA
pointed out secondary materials that are recycled are not always
considered wastes.  "Secondary material"  was identified as a term
that required a clearer definition.  Many in the group agreed
that the risks associated with primary manufacturing and
recycling are often the same, and the two should be regulated
equally.

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The next issued raised by a participant was  that  risk assessment
has little or no bearing on the  level of regulation  for
recycling, and there should be a continuum of  regulation  for
recycling.  The current RCRA program is a disposal program rather
than a recycling/reuse program.

Another issued raised was that more flexible storage  regulations
are needed for hazardous wastes  that are not amenable to  tank or
container storage prior to recycling.  The member suggested  that
performance requirements, rather than minimum  technology
requirements, are needed for large volume materials that  are
stored in surface impoundments prior to recycling.  The materials
are not land disposed, but rather only temporarily stored until
they can be recycled.  He suggested that a 90-day storage
requirement could be implemented for storage other than in
tanks/containers.

A participant commented that the regulations are too  complex and
too hard to understand and enforce.  Simplifying the  regulations
and removing the "legalese" should improve the understanding and
compliance.

A participant again raised the issue of determining when
materials become wastes.  For example,  the Federal agency has
many materials that are no longer used,  and  is required by law to
determine if the materials can be recycled/reused.  This
determination process is difficult when materials are identified
as wastes too early in the process.

The issue of liability was again raised.   A participant proposed
that there was a lack of recognition of product and environmental
liability for wastes as opposed  to primary materials.  He stated
that people do not want to use waste-derived materials.  An
example was provided by the participant that bought batteries and
scrap metal from a scrap processor.  The smelting facility was
later named as a NPL site,  and the scrap processor was named as  a
Potentially Responsible Party (PRP),  because the processor
provided a hazardous substance to the smelting facility.
However, a facility that supplied ore to the smelting facility
was not named as a PRP.  The presumption under CERCLA is that if
a material is a waste under RCRA and is  sold to a facility, the
act constitutes disposal.  Another example of product liability
was provided by the participant for bottom ash as a base for
roads.  The ash presently can be used under roads; however, if in
the future the ash is deemed a hazardous  waste, the ash provider
will be responsible for digging up the  road and removing the ash.
There is no incentive for the ash provider to sell ash for this
purpose.

Another issue raised was that corrective  action at integrated
facilities for non-hazardous units is burdensome.
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A participant suggested that the variance process  is burdensome
to the Agency and to petitioners.  Some members suggested that a
self-implementing variance process would be helpful.  Perhaps the
Agency could look at an industry variance, where the Agency
approves a variance except for site-specific waste management
options.  This process could speed up the variance petition-
review process.  EPA indicated that the Agency generally cannot
categorically give variances; they need to be site-specific to
address all relevant factors.

One participant questioned why some recycling activities were
regulated while others were not.  Several examples were provided,
including reclamation vs. reuse, energy recovery vs. disposal,
on-site vs. off-site, listed vs. characteristic, and closed loop
vs. almost-closed loop.  EPA clarified that not all reclamation
falls within the definition of solid waste.  Another participant
stated that resource conservation and recovery should be
encouraged.  The applicability of the current regulations to
recycling is hit or miss.  Recycling should be looked at singly
and not in relation to disposal, which is the current focus of
RCRA.  One participant questioned whether the regulations and
statute were flexible enough to treat recycling and treatment and
disposal separately.  One member answered that for batteries, EPA
has the authority to regulate recycling and waste separately.
The participant suggested that the difference is implicitly
stated.  If a program regulates disposal and discourages
recycling, then the regulations are refuting the congressional
goal of resource conservation and recovery.  He stated that one
current theory proposed by those that want tighter hazardous
waste rules is that if disposal of hazardous wastes is more
expensive, there will be a higher level of environmental
protection.  Disposal facilities can pass the rate increases to
those disposing of waste.  However, recyclers do not have anyone
to pass the charge to.  Recyclables are put into an unfair
position to be in direct competition with virgin materials.   In
other words, recycling can be stifled by rate increases, but
disposal can never be stifled.   From this discussion,  a separate
issue arose.  Some participants concluded that the RCRA program
is almost entirely oriented toward disposal;  recycling is not
actively encouraged.

One participant offered that materials should not be regulated
just for regulation's sake.  The complexity/bureaucracy of the
current system hampers safe/beneficial recycling and fails to
consider environmental and cost benefits.   The member suggested
that the regulations should show a preference for a recyclable
material as opposed to one destined for disposal.   Again,  the
idea of a self-implementing variance was raised.   The member
noted that recyclers cannot show the benefit of recycled
hazardous materials, because the materials are already deemed a*
"wastes" and are caught in the maze of regulations.   An exampl*
was provided by a participant,  which explained that there are

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acid beds in Pennsylvania resulting  from mining.  Coal  ash,  which
has a pH greater than 12, could be used to  fill and  neutralize
these beds, but legally cannot be used for  this purpose, because
the ash exhibits the corrosivity characteristic.

The participant suggested that forcing recycling into a system  it
was not designed for is ineffective, and perhaps other  statutes
may or may not be better suited.

Another issue initiated by the participant  was that EPA is weak
at characterizing risk and setting appropriate management
standards.  The implementation of risk characterization is
difficult, and the TCLP is an example of this difficulty.  One
member questioned why stabilized wastes must be ground  to run the
test.

One participant stated that the statute may be too inflexible to
allow EPA to, accomplish a workable recycling program.   EPA
questioned whether case-specific decisions  could be in  the
statute; a translation from the statute to  the regulations is
needed.  Industry-specific standards are less expensive than
site-specific standards.

A participant stated the issue of an unclear line between
recycling and treatment.  Another participant added that EPA
tries to pull too much under its current recycling abilities; the
regulations should be more specific.


THURSDAY A.M.
Continuation of First Small Group Session - Discussion of
Theories

The group started this session by grouping the issues that were
similar.  The first suggested grouping encompassed six of the
stated issues.  This combined issue stated that the current
definition and regulatory requirements inhibit recycling.   The
bullets under this issue were grouped into three different
categories:  scope, implications,  and implementation.  The
"scope" bullets were for the derived-from rule,  mixture rule, and
the definitions of solid waste,  reclamation, in process, and
secondary materials.  The "implications"  bullets were for
corrective action requirements and permitting,  while
"implementation" described the complexity of the current
regulations.

A second grouping combined two issues into the statement that
secondary materials are unable to compete with virgin materials
because of the stigma of being labelled "waste"  and because of
the environmental and product liability associated with the
"waste" label.  The participant questioned the arbitrariness of
the recycling regulations,  and questioned why recycling materials

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on site was different than recycling the same materials  across
the street.  EPA should either regulate both primary  materials
and recyclable materials, or regulate neither.   One participant
stated that the residuals should be tested and  judged on their
own merits, rather than judged by where they came  from.   Non-
hazardous industrial wastes should be sent to Industrial Subtitle
D sites.

Other issues were combined, without rewriting the  issue
statements.  One of the earlier issues was amended to  say that
recycling processes should be regulated to protect human health
and the environment by considering risk.  An EPA representative
stated that the Agency currently considers risk in regulation.  A
participant questioned how EPA could possibly change its policies
to.regulate all different processes fairly while still being
protective of human health and the environment,  EPA must
regulate to avoid potential risks.  The regulatory process must
be overly protective to encompass all possible scenarios that  can
harm the environment.  Enforcement would become even more
difficult if there were different regulations for every  different
process.  One participant stated that the current EPA goal of
protection of human health and the environment is right,  but the
process to achieve the goal is wrong.  More flexibility  is needed
in the protection of human health and the environment.   A  .
participant stated that EPA should have the burden to show real
proof that their regulations protect human health and the
environment rather than just the potential for risk.          r

The group then voted for and ranked the combined list of  issues.
The top four issues were:

          1)   The current definition/regulatory requirements
               inhibit recycling
                 o  scope (definitions)
                 o  implications (permitting,  corrective  action)
                 o  implementation (complexity)

          2)   Inequity (market place competition,  stigma,
               liability)

          3)   Recycling processes should be conducted to protect
               human health and the environment

          4)   RCRA program is geared toward disposal; recycling
               is not actively encouraged and does not fit well
               into the system
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A minority  issue was  added to the list:

          5)   The  complexity of the current system hampers safe/
               beneficial  recycling (no  cost/environmental
               benefit  considerations)

A participant questioned what a  new Subtitle E  would accomplish
and noted that industries  are not going  to  escape  being
regulated.  The group agreed  that industries should be  regulated,
but more fairly.  Recyclers do not handle the same volume  or
waste that  chemical waste  management companies  do,  yet  recyclers
are subject to the  same regulations.  One participant suggested
that a tailored regulatory system for recycling is needed,  but
that it needs to be in  the proper arena.  The economic  and market
nature, as  well as the  environmental value  of recycling as
ei.^psred to disposal, should  warrant different  treatment and
regulations.  The participant suggested  taking  the Subtitle C
regulations and moving  them into  a recycling subtitle.  The group
largely disagreed with  this approach, and stated that recyclers
cannot obtain environmental liability insurance for recycling
hazardous waste.  One participant provided  California regulations
as an example.  California issues resource  recovery permits to
recyclers that are exactly the same  as hazardous waste  TSD
permits.  This distinction in permits gets  rid  of  the "not  in my
backyard" (NIMBY) syndrome, because  people  do not  mind  resource
recovery units as much  as  they mind  disposal  facilities.  A new
subtitle will not make  the problem go away,  but will  address the
stigma.
THURSDAY P.M.
Second Small Group Session - Discussion of Goals and Theories

The facilitator opened the session by asking for comments on the
issues that the other groups presented in the first plenary
session.  An EPA representative stated that discussion among some
participants and meeting facilitators during the break indicated
that minority views in some of the groups were not being
adequately represented at the plenary sessions.   Even though the
environmentalists are not well represented, the group needs to
recognize and discuss the potential environmental risks that are
involved with recycling.

The facilitator then presented EPA's current four goals:  1)
protect human health and the environment,  2)  promote
environmentally sound recycling,  3) clearly define jurisdiction,
and 4) simplify regulatory structure to improve implementation.
She asked the group to elaborate on these goals or to present
additional goals.

One participant proposed that a goal should be to regulate to the
risk, which should preclude overregulation.  Another stated that

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the risk assumptions used by EPA are too protective and are not
realistic.  For example, his organization performed an
independent analysis of the burning and blending rule for one
compound.  EPA's proposed number was calculated to be more than
395,000 times too stringent for the stated assumptions.  An EPA
representative mentioned that the Agency is currently examining
its current risk assumptions.  A participant noted that human
health and the environment should be the starting point for risk
assumptions.  After this point, materials should be regulated
according to the risk that they pose.  The Agency should remember
that disposal is definitely worse than recycling.  A participant
countered that regulating to the risk will not meet goal four.
Regulating to the risk essentially means establishing risk-based
standards.  The Clean Air Act contained an air toxics provisions
that required risk-based regulation of air toxics, until the
recent set of amendments were enacted.  In the eighteen years of
the program, only eight pollutants were regulated.  Congress
recognized the deficiency, and changed to a technology-driven
approach.  Congress realized that not all risks would be
controlled with a technology-based standard, and added an
additional residual risk-based step.  One participant stated that
regulate to the risk means a continuum of control, rather than
overregulation.  Regulate to the risk does not mean regulating on
a case-by-case basis.  The current regulations only provide
increased costs to recyclers without providing additional
protection of human health and the environment.  Another
participant countered that the combination of goals one and two
assure that there will not be any overregulation.

One participant suggested that a goal should be to maximize the
amount of materials recycled.  Another participant wondered if a
maximization goal could adversely affect small companies that
recycle  on site, and asked for a clarified definition of
"maximize".  The first participant stated that the goal is a
positive goal that encourages recycling.  In other words, this
goal is  the same as EPA goal two, but without "environmentally
qound."  If EPA goal one is met, then goal two should not need to
contain  the phrase "environmentally sound."  An EPA
representative suggested that the member was saying that because
a  recycling process is regulated, it is inherently
environmentally sound; another participant interpreted the
statement to be advocating uncontrolled land disposal.  The EPA
representative added that the recycling process must be
environmentally sound - residues must be handled in an      '
environmentally sound manner, and recyclers must insure that
products .which contain recycled materials do not contain high
levels of unwanted contaminants.  The first participant countered
that recycling should not be singled out to be environmentally
sound when there are manufacturing processes that should also be
environmentally sound.  Again, the problem is an equity issue.  A
participant stated that recycling is part of the solid waste
solution.  Recyclers need some regulation, but EPA must determine

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 the  level  of risk that they are willing to assume in order to
 promote  recycling.   Another  participant stated that her
 association supports environmentally sound recycling, and should
 be regulated in some way;   she stated that she does not
 understand the  problem with the phrase "environmentally sound "
 The  first  participant stated that the phrase makes recycling seem
 inherently unsound.   Another participant suggested that EPA
 define "environmentally sound."

 Several  members suggested  that the group was talking about two
 distinct goals  - promote recycling and promote environmentally
 sound recycling.  One of EPA's goals should be to substitute
 recycling  for disposal.  A participant disagreed  and presented an
 example.   A hazardous waste cement kiln produces  a cement  with
 contaminants that in time  leach from the cement.   Children are
 then exposed to the  contaminated leachate.   EPA should  not be
 proud of this recycling option simply because materials were not
 disposed.   EPA  wants to encourage recycling,  but  not at the
 expense  of creating  worse  problems.

 A participant suggested that EPA needs to clarify the definitions
 between  "use" and "disposal."   A participant  stated  that the
 argument is  over  a continuum of risk from sham recycling through
 legitimate recycling.   Because  there is  a continuum  of  risks,
 there should  be a continuum of  flexible  controls  for the varying
 risks.  The  system should  be more  specific  for particular  types
 of recycling, and this  could directly  oppose  EPA's fourth  goal.
 A participant questioned the problem with the  current system (the
 complexity of the paperwork, permitting  problems, air emission
 controls,  and/or  secondary containment problems).  One
 participant explained that  the  problem is a trigger that says
 yes/no, a  material is/is not a  hazardous waste.  This system is
 fine for disposers,  but not  for  recyclers who cannot compete with
 virgin materials.  One participant stated that practically all of
 the Subtitle  C provisions  cause problems  for recyclers,  including
 permitting, the derived-from rule, the mixture rule  (with respect
 to residues), corrective action, financial assurance, etc.   The
 group decided to  define options  for EPA goal two:   l) leave the
 goal as stated,  2) delete  "environmentally sound," and 3)  add a
 goal to define environmentally sound.

 One participant asked if the Senate is going to require Subtitle
 C permits  for recycling.  Another participant responded that the
 issue is still unresolved.

 A participant stated that hazard identification is currently a
 black and white issue.  The wood preserving process mentioned
 earlier is not closed loop simply because of the passive
 filtering step.   One participant stated that large volumes  of
waste get needlessly caught in the system.  The delisting process
was suggested as an answer to this problem.   The majority of th«
group thought that delisting was too rigorous, overstringent, and

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not a workable solution.  One participant provided  an  example.
EAF dust (K061) is recycled, and zinc is reclaimed  from  the  dust.
There is a remaining slag that does not resemble EAF dust  but
must be managed as such because of the derived-from rule.  An EPA
representative questioned whether these recyclable  materials
should be manifested for transportation.  The participant
responded that manifesting is not a problem.  The problem  is that
the receiving facility needs a permit to accept the hazardous
material.

One group member stated that if a material is never destined for
disposal, then it should not be called a waste regardless  of how
it is stored.  EPA responded that the court has upheld the
Agencyfs position on this subject, and questioned whether  further
examples of the problems with the derived-from rule could be
provided.  One. person stated that the residuals from recycling
pr cesses should be judged on their own merits,  one individual
questioned how recycling facilities should be regulated  (if  at
all) if only the residues are regulated.  Another answered that
the facilities should be regulated but under some system other
than RCRA.   The participant stated that recyclable material
usually is not comprised of only one contaminant; usually the
material is a "waste soup," whereas virgin materials in
manufacturing processes may have distinct,  known contaminants.  A
participant countered that sometimes recyclable materials are
homogenous and sometimes virgin materials have contaminants.   For
example, crude oil is a complex mixture with many different
contaminants.  Smelters have certain recipes that must be
followed for the processes to function.   An EPA representative
questioned whether the public could be exposed to more
contaminants simply because products are made from recycled
materials rather than virgin materials (i.e..  asphalt).  The
participant responded that if the contaminants add harm,  they
should not be used.  EPA responded that the addition of harm is
not a simple determination, because something which seems benign
now, may be harmful later.  One member proposed that product
specifications could be used that establish levels for particular
contaminants in products.

A participant stated that EPA goal four was impossible.  The
participant responded that the goal may be  difficult,  but should
always be kept in mind when developing regulations.   A
participant strongly recommended that simplification be kept  as  a
goal because it is the most tangible of EPA's stated goals.  An
EPA representative stated that clarity in the regulatory language
is important for the regulated as well as the regulating
community.   One participant suggested that  the British system
provides a good example.  Facilities are allowed to choose  either
design or performance standards,  whereas in this country,
facilities must meet both standards.   A choice between the  two
could help small companies.  A participant  stated that Congress
may not have the necessary technical expertise to identify  all  of

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the answers  for EPA,  so  the  statutes  should provide the
flexibility  to cover  the lack of  knowledge.   A participant
suggested that risk-based standards encumber Congress,  so
Congress will probably keep  using technology-based standards,
which simplify options for the Agency.

One person suggested  that a  goal  should be  to modify the
regulatory structure.  The participant agreed with EPA's  four
goals, but did not believe that the present  system meets  these
goals.

Another participant suggested that a  goal to  minimize "gaming" of
the regulations so that  facilities are not jumping in and  out of
subtitles be added.   The participant  amended  this  goal to  read
"add flexibility by adding a  new  category to  ensure  that changes
do not allow for 'gaming1  within  the  process."

The group then discussed the  final list of goals that was
generated and decided that an additional goal  should be to
promote regulatory flexibility.   The  group also decided that one
of the goals should be to  "optimize"  the amounts of materials
recycled rather than  to  "maximize."
THURSDAY P.M.
Continuation of Second Small Group Session - Discussion of Goals
and Theories

The facilitator opened this session by suggesting that the group
clarify EPA goal two.  The group did not agree to add
manufacturing to this EPA goal.  One participant stated that
everything in manufacturing is already regulated.  Other group
members disagreed and provided an example.  Corrective action is
not required for a release from a pipe from a generator.  Cleanup
could be required under Superfund, but RCRA does not allow EPA to
control processes to prevent releases.  The Clean Water Act
controls releases to surface water and the Clean Air Act controls
releases to air, but nothing controls releases to ground water.
The earlier speaker argued that EPA cannot regulate to the level
of no risk to the environment, or all industries will have to go
out of business.  The respondent clarified that he was not
suggesting overregulation; he was only noting that all aspects of
manufacturing are not regulated, as was stated earlier.

The facilitator questioned whether the group wanted to remove
"environmentally sound" from goal two.  The majority decided
against the deletion, but agreed that the discussion of the issue
should be presented at the second plenary session.

One participant spokesman noted that none of the listed goals
address the inequity issue.   The participant suggested that EPA
promote affirmative action for recycling.  One person suggested  »

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goal to promote resource conservation and recovery, and  the group
largely agreed.  Another suggested that the goals be  restructured
so that goal one was resource conservation and recovery, while
all other listed-goals were a subset of this goal.  The  group
disagreed with this concept, but agreed that "leveling the
playing field" was an important goal that should be added.  The
member who raised the point was concerned that this was  not a
legitimate goal for all recyclers, and noted, for example, that
quality scrap copper is difficult to locate.  The participant
suggested that in the case of scrap copper, there is  no  inequity.
Others suggested that there is inequity on both sides of the
issue.  There are some generator requirements under RCRA that
generators currently are not compelled to meet, such  as
manifesting, record keeping, training, and emergency  equipment
planning.  The group agreed that there were different facets of
leveling the playing field, such as virgin vs.  recyclable
materials and recyclers vs. treaters, and agreed that the
"leveling" should not be to the lowest common denominator.  An
example of this concept was provided by the participant.  If
virgin materials and recyclable materials were subject to the
same regulations,  treaters could argue that they have materials
that are similar to recyclable materials, and their materials
destined for treatment and disposal should not be regulated by
stricter regulations than those which are used for feedstock.
The group agreed.                                               .

One participant stated that "regulate to the risk" should be
listed as a goal.   The group agreed to present this goal as a
minority opinion.

The facilitator then presented the format for the discussion of
theories of recycling.  The three theories which were presented
by EPA were:  1) if it's recycled, it's not a waste,  2)  recycling
is pne type of waste management,  and 3)  some recycling is waste
management and some is not.  One group member was chosen to
support theory one in a debate,  while another was chosen to
support theory two.  (The positions that these  group members
supported do not represent their personal opinions.)   In support
of theory one, the participant stated that Congress meant that a
material is a waste only if it is disposed of or intended for
disposal.  For example, heap leach piles of low grade ore should
not be considered waste piles.  The ore is not  of high enough
quality to put directly into processes,  so the  leach piles are
used to collect gold.  Arsenic is used to leach the gold from  the
ore over a synthetic liner.  The gold concentrate is then sent to
a processor.  The ore processors do not allow the leachate to
spill or leak because of its high economic value.

He added that material that is stored for future processing
should not be considered waste,  because it is not intended for
disposal.  In some cases,  speculative accumulation resembles
disposal, and these particular situations should be regulated.

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Finally, he  noted that secondary materials are very similar to
virgin materials.   A recycled solvent is the same as a virgin
solvent,^but is  subject to secondary tank requirements.  This
distinction  puts secondary materials at an economic disadvantage.

One participant  countered that heap piles are treatment
processes.   The  material has  hazardous waste characteristics, and
should be regulated as a waste.   There is a potential for
accidental spillage during transport.   The spilled material could
potentially  leak into a public water system and cause harm.   If
there is a distinction between manufacturing and recycling,  then
there should also  be a distinction  between recycling and
treatment.   Treatment of materials  presently is regulated very
closely.  If recycling was not regulated  at all,  treatment
facilities could reduce their current  standards which would
result in increased environmental risk.

In response  to the solvents example, the  participant noted  that
recycled solvents  are partially  degraded,  and  are not as  pure  as
virgin solvents, nor do they  have the  same economic  value as
virgin solvents.   Again,  unregulated recycled  solvents  could be
handled and  treated unsoundly.   Before recycling,  spent solvents
are very waste-like in nature, and  do  not really  become valuable
until after  the  distillation  process.   The facilitator  then
called an end to the debate.
One group member commented that the heap leach example
appropriate recycling example.
was not an
He presented three different problems to the group:  1) some
people say that there is no such thing as a worn-out solvent, 2)
some people claim that the valuable ore in a heap pile is not
different from the mineralization that surrounds it, and 3)
sulfuric acid is the largest volume chemical manufactured in the
United States, yet it is handled as a virgin material.  He
elaborated on problem one, and stated that after distillation,
there is chemically no difference between virgin and distilled
solvents.  Distillation is a physical separation, and not a
chemical treatment.  Perhaps EPA could use grade specifications
to compare recycled and virgin solvents.   Another participant
commented that the process of recycling spent solvents should be
regulated, because of potential air releases, spillage, and
contamination of soil and ground water.   A participant cited an
example-.  The spray paint industry will not use recycled
solvents, because of not knowing exactly what constituents are  in
the mixture.  The exact composition is needed for paint to spray
effectively.  One participant stated that it should not matter
whether solvents are virgin or from secondary processes,  and
perhaps industries that buy solvents dp not need to know where
the solvents are from.   Another participant commented that
solvent recycling is a value-adding process that costs someone  to
take the material from a waste-like composition to a marketable
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solvent.  If the process  is not regulated,  a  company might be
tempted to accept the recyclable material  for a  fee and to
illegally dispose of the  material without  recycling it or to use
the material in an unsafe practice.  Therefore,  some sort of
regulation is necessary.

The same group member stated that he provided the  sulfuric acid
example to show that industries handle the  acid  safely every day
without being forced to by the regulations.   All of the potential
"ifs" (i.e.. might spill  the material, it might  go  into the
ground water) add to overregulation.  Others  disagreed with this
opinion, citing overwhelming documentation  of chemical accidents.
The accident prevention requirements in the Clean Air  Act  cite
numerous examples of accidental releases due  to  spills,
explosions, etc.  Therefore, the recycling  process  should  be
regulated to avoid potential and expected accidents.   The  other
member noted that there are many more success  stories  than
accidents, and that accidents are never intentional.   The
respondent countered that some companies have histories  of
routine "accidents".  The other member suggested that  these
irresponsible operators should be punished.  A participant  stated
that materials do not need to be wastes to  be controlled;
recycling can be regulated, but should not  be regulated  under
RCRA.

One participant did not feel that any one theory could be chosen
because of so many diverse situations.   He did not agree that
theory three was a well written combination of the first two
theories.  He suggested a fourth theory,  stating that material
destined for recycling is not a waste,  while material destined,
for disposal is a waste.  Additionally,  recycled materials should
be properly controlled.   One participant questioned whether this
theory statement meant EPA should regulate the recycling process.
Another participant agreed, but stated that the recyclable
material should never be called a waste.   Another participant
suggested that EPA theory one be amended by adding the caveat
that the recycling process should be regulated, but without
calling the recyclable material a waste.   Many in the group
agreed with this suggestion.   However,  the participant stated
that regulation could only mean specifying performance or design
standards.

An EPA representative questioned whether  this  scheme would remove
or add to the complexity of the present  system.  In addition, she
noted that EPA has had trouble in the past with intent-based
schemes.  A participant stated that  EPA  needs  to  make
presumptions about the material and  its handling.

A participant suggested that there should be a recycling
manifesting system.   The manifested  material should be tracked
its destination to determine if the  material was  recycled or
disposed.  For this program to work,  EPA  would need to determine

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criteria for real recycling.  He provided the example  of  a
facility which tries to make kryptonite.  This process is
speculative and is basically sham recycling.  The participant
suggested that this theory proposed a "value" test for products,
and establishing value is difficult.  Perhaps the Agency  could
look at how the facility that is accepting recyclable  materials
is making its money.  For example, profits could come  from
tipping fees, from disposing of material, or from a new product.
One group member noted that this process would not work for
smelters, because smelters charge smelting fees for virgin and
recycled material.  Others agreed that this process could be
easily cheated.  A participant noted that defined materials that
are accepted as recyclables should not cause a problem  for a
value test.  However, marginal materials are more difficult to
prove a value for.  Another participant stated that coal ash is
one of the marginal materials,  The material could have many
uses, such as filler material and building material, if it were
not labeled as a waste.

A participant questioned where using waste as a fuel would fit
into the value test.  The process is not considered recycling yet
has an economic value.  Another participant answered that this
process, in addition to land application, is a specialty case
that should be regulated differently.  The processes have merit,
but pose certain environmental hazards.

One of the group suggested three criteria for defining waste as
fuel:  1) replacement of fuel in industrial processes,  2)  boiler
processes as those which need a net energy increase,  and 3)
define the function of materials going into the process.  This
type of recycling should be specially regulated.   One way to do
this would be to limit the percentage of recyclables going into
the process.  A participant stated that this system sounds very
much like the current Subtitle C, with stringent permitting
requirements.  The person who offered the idea countered that EPA
currently regulates the burning of fuels differently.   There are
now fuels that are not pure fuels (i.e.. coal,  oil)  but are
mixtures that contain waste.  These mixtures may require special
permits.  A "reversed" inequity was described by the use of an
example.  If one company has a TSD permit and charges high fees
to destruct waste, while another company recycles the same kind
of material at a much lower cost, there is an inequity which
favors the lesser regulated facility.  The group member answered
that a burn for fuel facility will sometimes meet the four nines
criteria; sometimes there will not be a difference between the
emissions for mixtures and virgin fuels.  The difference is that
disposal units accept anything for a price,  while fuel  buyers
only buy specific materials.  The EPA representative questioned
what the fuel buyer does when the fuel has other contaminants in
it that are incidentally destroyed as part of the burning
process.  A participant stated that there are three categories of
facilities:  1) fuel buyers, 2)  destroyers,  and 3)  recovery

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facilities.  The distinction  between the categories should not be
based on the emissions, because  the  air permits should limit all
three. •«   •  -    .      .-.••.•••.-   . -   :          •.   •      •   • ->: -.

The facilitator then asked the group to vote on the proposed
theories which EPA had explained, which were:   1)  if it's
recycled,  it's not a waste, 2) recycling is  one type of waste,
management, and 3) some recycling is waste management and some is
not.  One  participant was concerned  that theory one dealt with
products,  while theories two  and  three  dealt with  processes.   One
group member suggested that theory one  be amended  to  state that
if it's recycled, it's not a  waste;  the material should be
regulated, but should not be  called  a waste.  Many of the group
agreed, and the majority chose the modified  theory one.


FRIDAY A.M.
Third Small Group session - Discussion  of Recommendations

The facilitator presented the  final  question for discussion by
the group, which was, "If you  were the  Administer  of  EPA and
could make any three changes  to the  definition  of  solid waste.
what would your priorities be?".

A participant suggested that  EPA should  review  the  existing laws
that apply to virgin materials, and  strengthen  them as
appropriate to deal with the potential problems with  recycled
materials.  He added that the  regulation  of  recycled materials
should not be within the RCRA  framework.                   •  :'

Another group member recommended that recycling residuals be
judged on their own merits,  and added that the derived-from rule
should be revoked.

One participant suggested that EPA create a separate RCRA
subtitle for hazardous substances handling,  which would include
manifests and minimum standards or permits for all storage.  The
participant did not specify whether hazardous       ,
substances/materials would be defined as under CERCLA or DOT.
The requirement for minimum standards or permits for storage
could help with peculiar problems with ordnance and munitions,  as
well as mixed waste problems.   She noted this scheme could cause
some inconsistencies for corrective action,  but was not sure what
the problems or answers would be.

One participant recommended that EPA first redefine solid waste
to deal with valueless materials that are discarded, abandoned,
or intended for discard.   He suggested that  EPA then conduct a
major study to identify/catalog all  current  recycling activities
as well as to identify all present regulations that encompass
recycling.  Third,  EPA should create a broad new pollution
prevention subtitle (or request a new statute)  to deal with

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materials management that encompasses qualifying  criteria  and
performance standards and documentation  for  resource  recovery.

A participant suggested that EPA create  a new set of
design/performance standards for storage of  material  prior to
recycling.  These standards would be used in lieu of  permitting.
This system would allow generators of secondary materials  to
manifest only to facilities that meet the specified performance
standards.  He added that the battery recyclers could agree with
the current definition of solid waste if this recommendation was
implemented.

One member suggested that the word "discarded" be deleted  from
the present definition of solid waste, and replaced with "other
secondary materials destined for djLsjaosjs,?.".  He noted that intent
of destination was an important part oi'  this revised  definition.
The participant noted that there is presently an  intent test for
by-products.  An EPA representative stated that the intent test
has always been problematic in terms of  enforcement.  Secondly,
the member recommended that there be a separate subtitle or
statute for resource recovery.  He did include "conservation" in
this title, because conservation results from resource recovery.
Under this recommendation, he stated that EPA should  define
"recycler" to clarify the "intent" problem.  A participant
questioned whether burning coal to make  steam (which  results in
coal ash) was considered a recycling process under this scheme.
The participant answered that burning coal is a production
process and that some recycling takes place without processing.
Another participant questioned how this  scheme would  affect small
companies that want to recycle on site.  The answer from the
author of the idea was that EPA will need to define "closed
loop".

A participant agreed with the previous commenter,  and added that
there should be either a separate subtitle or a new statute to
address recycling.  He suggested that the definition of solid
waste be redefined to exclude materials  in the recycling process
and to distinguish disposal from recycling.   This differentiation
should be based on objective handling criteria rather than on
intent.  He noted that there should be a RCRA regulatory scheme
to regulate materials in the recycling process with such
requirements as manifesting, storage, and record keeping.   He
also suggested that a substantial amount of recyclable material
would need to be used to make a product,  and EPA would need to
define "substantial".  For example, reclamation of a small amount
of gold from a mountain of material may be substantial,  due to
the economic value; but perhaps processes would need to reclaim
80 - 85% steel and iron from a material to be considered a
substantial amount.

A participant suggested that recyclers be allowed to prove to the
Agency that their processes are safe prior to being pushed into
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the RCRA system.  There should be a recycling program within RGRA
that allows recyclers to demonstrate that their  processes protect
human health and. the environment.

A participant suggested that EPA redefine secondary material and
incorporate these materials into a performance-based  program for
recyclable materials.  She suggested that the standards be used
for categories of materials rather than individual materials.


FRIDAY A.M.
Continuation of Third small Group Session - Discussion of
Recommendations

An EPA representative opened this session by questioning whether
a modificatio^ of the current statute is necessary to modify
permitting, financial assurance, and corrective action for
hazardous waste disposal facilities to regulate recycling
differently.  One participant suggested that the Agency could
have problems including recycling in Subtitle C because of the
human health and the environment issue.  An EPA representative
responded that different groups will have problems with recycling
regulations, no matter which subtitle they are regulated under.

A participant recommended that EPA provide an alternative process
for the delisting/variances program that allows industry-wide
decisions rather than site-by-site decisions.

One of the participants then elaborated on his earlier
recommendation.  He listed a set of criteria to define
"recycler".  l) He agreed that recycling needs a regulated
program.  2) He suggested that recyclable products need to be
returned to the economic mainstream.   This criteria should
instill public confidence in the program.   3) He suggested that
the product must be a generally recognized or commodity product.
4) He suggested that the feedstock and product must have
specifications of some sort which do not need to be ASTM
specifications.  A processor can only take defined recyclables as
feedstocks.  An EPA representative questioned the specifications
for products such as aggregate.   Aggregate specifications  do  not
normally call for hazardous materials in the feedstock,  but
recyclable hazardous materials could potentially be used for  this
purpose.  This question remained unresolved.   5)  The definition
of a recycler must address speculative accumulation.   6) There
must be a rebuttable presumption for new products vs.  disposal.
Kryptonite was again used as an example.   The production of
kryptonite should be considered a disposal  process until the
producer can prove the value of the  kryptonite.

He then presented a format for distinguishing materials and
combustibles in the recycling subtitle.   He  defined three
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categories of combustibles as boiler fuel, furnace fuel, and
pyrometallurgical materials.

Another participant questioned how this scheme addressed on-site
recycling of secondary materials.  He stated that secondary
materials must meet specifications.  However, he has not yet
addressed the closed-loop issue.  If the material is going off
site, the facility must determine and manifest where the material
is going in order to determine whether the material will be
recycled or treated and disposed.

One participant then elaborated on the scheme that he had
proposed earlier.  This scheme would be a tiered program
depending on the type of recycling.  The tiers would range from
benign, such as bottle and can recycling, to potentially harmful
to the environment, such as burning for energy recovery and use
constituting disposal.  In between these extremes, there would be
a permit program, as discussed earlier.  He basically agreed with
the other participant's proposed program, but thought that the
second criteria for defining a recycler (recyclable products need
to be returned to the economic mainstream) should be quantified.

The facilitator summarized that the group had spent most of its
time discussing a new subtitle, and questioned whether the group
wanted to present any other positions at the plenary session.  A
participant stated that his recommendation to set design and
performance standards for storage prior to recycling was within
the current subtitle and could improve the recycling dilemma for
his industry with only a minor change.  The biggest obstacle is
currently that smelters do not always have TSD permits, and
therefore cannot recycle batteries in their processes.

A participant stated that permitting issues and the idea of
"leveling the playing field" were not addressed in the
recommendations.  The same participant stated concern about
corrective action issues, and proposed that if corrective action
was not addressed in a new subtitle, everyone would try to call
their processes recycling in order to escape corrective action.
The group agreed that the report to the plenary should state that
the group had concerns about corrective action for recyclers, but
did not have time to discuss a recommendation.
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APPENDIX A: UST OF MEETING ATTENDEES

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                      Interest Group Meeting
                    Definition of Solid Waste
Harvey Alter
U.S. Chamber of Commerce
1615 H Street
Washington, DC  20062

Michele Anders
EPA/OSW
Characterization and
 Assessment Division
401 M Street, SW
Washington, D.C.  20460
(202) 475-8551

Jean M. Beaudoin
Johnson Controls, Inc.
5757 North Green Bay Ave.
P.O. Box 591
Milwaukee, WI 53201
Representing the Battery
  Council International

Lynn L. Bergeson
Weinberg, Bergeson & Neuman
1300 Eye Street, NW
Suite 600 East
Washington, DC  20005
(202) 962-8585
Representing Gates Energy
  Products, Inc.

Erast Borissoff
American Coal Ash Association
1913 I Street, NW
Suite 600
Washington, DC  20006

John C. Bullock
Environmental Counsel
Handy & Harmon
P.O. Box 120
Waterbury, CT  06720

David Bussard
EPA/OSW
Characterization and
 Assessment Division
401 M Street, SW
Washington, D.C.  20460
(202) 382-4637
 Robert M.  Cardillo
 Exxon Chemical Americas
 13501 Katy Freeway
 Houston, TX  77079
 Representing  National
  Environmental Development
  Association

 Steve Cochran
 EPA/OSW
 Characterization and
 Assessment Division
 401 M Street,  SW
 Washington, D.C.   20460
 (202)  382-4769

 Keith Cole
 House Energy  and Commerce
  Committee
 564 House Annex 2
 Washington, DC   20515
 (202)  226-3400

 Robert E. Cole
 Kaiser Aluminum
 900 17th Street, NW
 Suite 706
 Washington, DC   20006

 R.M.  Cooperman
 Counselors  for Management, Inc
 1000  16th Street, NW
 Suite 603
 Washington, DC   20036
 (202)  785-0550
 Representing Aluminum
  Recycling Association

 Lt.  Col. Ken Cornelius
 Office of Secretary of
  Defense for Environment
 206 N. Washington Street
 Suite  100
Alexandria, VA  22314
 (703)  325-2214

 Karen Cosentino
SAIC
 8400 Westpark Drive
McLean, VA  22102

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Gary Crouth
Alcoa
1501 Alcoa Building
Pittsburgh, PA  15219
(412) 553-4287

Gwen de Poix
SAIC
8400 Westpark Drive
McLean, VA  22102

Cheryl DeSiena
Subcommittee on Transportation
  and Hazardous Materials
House Annex No. II, Room 324
Washington, DC  20515

Leah Dever
Department of Energy
EH-221, Environmental
 Compliance
1000 Independence Ave., SW
Washington, DC  20585
(202) 586-6377

C.A. (Bud) Douthitt
National Association of
 Solvent Recyclers
1333 New Hampshire Avenue
Washington, DC
(202) 463-9656

David C. Durham
U.S. Dept. of Energy
Office of Environmental
  Restoration & Waste Mgt.
1000 Independence Ave., SW
Washington, DC  20585

Rod Dwyer
American Mining Congress
1920 N Street, NW
Suite 300
Washington, DC  20036
(202) 861-7530

Melvin C. Eifert, P.E.
Systech Environmental
  Corporation
245 North Valley Road
Xenia, Ohio  45385-9354
(513) 372-8077
Representing Cement Kiln
  Recycling Coalition
Karen Florini
Environmental Defense  Fund
1616 P Street, NW
Washington, DC   20036
(202) 387-3500

Richard A. Flye
McKenna & Cuneo
1575 I Street, NW
Suite 800
Washington, DC   20005
Representing Fertilizer
  Institute

John D. Fognani
Holland & Hart
555 17th Street
Denver, CO  80202
Representing American Mining
  Congress

Richard Fortuna
Hazardous Waste  Treatment
  Council
1440 New York Avenue, NW
Washington, DC   20005

Maryanne Froehlich
EPA/Office of Policy, Planning
 and Evaluation
401 M Street,  SW (PM-220)
Washington, DC 20461
(202) 382-2747

Mario Gamboa
SAIC
8400 Westpark Drive
McLean, VA  22102

Norman I. Gelman
Newmyer Associates, Inc.
1220 L Street, NW
Suite 425
Washington, DC  20005-4018
(202) 289-6300
Representing Business
  Recycling Coalition

Ken Gigliello
EPA/Office of Waste Programs
 Enforcement
401 M Street,  SW
Washington, DC 20460
(202) 475-9320

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Samuel Goldberg
Inco United States,  inc.
One New York Pla^a
New York, NY   10004
(212) 612-5710
Representing Business
  Recycling Coalition

Jack H. Goldman
The Aluminum Assoc., Inc.
900 19th Street, NW
Washington, DC 20006

Kim Gotwals
SAIC
8400 Westpark  Drive
McLean, VA  22102

Linda Greer
Natural Resources Defense
  Council
1350 New York  Avenue
Washington, DC 20005
(202)  783-7800

Bill Guerry
Collier, Shannon & Scott
3050 K Street, NW
Washington, DC 20007

Jeff Hannepel
Andrews and Kurth
1701 Pennsylvania Ave., NW
Washington, DC  20006
Representing Association of
  Battery Recyclers

Pat Hill
American Paper Institute
1250 Connecticut Ave.,  NW
Suite 210
Washington, DC  10016

J.J. Jewett,  III
McGuire, Woods, Battle
  and Soothe
One James Center
901 E.  Gary Street
Richmond,  VA  23219
(804)  775-1005
Representing Expanded Shale,
  Clay and Slate Institute
 Karl T. Johnson
 The Fertilizer Institute
 501 Second Street, NE
 Washington, DC  20002

 Robert Judy
 U.S. Chamber of Commerce
 9100 E. Mineral Circle
 Englewood,  CO  80112
 Representing Cyprus Minerals

 Mitch Kidwell
 EPA/OSW
 Characterization and
  Assessment Division
 401 M Street,  SW
 Washington,  D.C.   20460
 (202)  475-8551

 Neil J.  King
 Wilmer,  Cutler &  Pickering
 2445 M Street,  NW
 Washington,  DC  20037-1420
 Representing Business
  Recycling Coalition

 Kenneth C.  Koneval
 BASF Corporation
 Eight  Campus  Drive
 Parsippany, New Jersey  07054
 (201)  397-4559
 Representing Synthetic  Organic
  Chemical Manufacturers
  Association

 Larry  D. LeCompte
 Cyprus Miami Mining
 P.O. Box 4444
 Claypool, AZ  85532
 (602)  473-7080

Mary Legatski
Synthetic Organic Chemical
  Manufacturers Association
 1330 Connecticut Ave.,  NW
Suite 300
Washington,  DC  20036-1702

Victor Lindenheim
American Wood Preservers
  Institute
1945 Old Gallows Road
Vienna, VA  22182

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Thomas S. Llewellyn
Pillsbury, Madison & Sutro
1667 K Street, NW
Suite 1100
Washington, DC  20006
Representing American
  Petroleum Institute

Sylvia Lowrance
EPA/Office of Solid Waste
401 M Street, SW
Washington, D.C.  20460

Ray Ludwiszewski
EPA/Deputy General Counsel
Office of General Counsel
401 M Street, SW
Washington, D.C.  20460
(202) 382-4715

Doug MacMillan
National Solid Wastes
  Management Association
1730 Rhode Island Ave., NW
Suite 1000
Washington, DC  20036
(202) 659-4613

Edgar J. Marsten III
Southdown, Inc.
1200 Smith St., Suite 2400
Houston, TX 77002  •

Lucy McCrillis
Dept. of Defense, (DASD(e))
206 N. Washington Street
Suite 100
Alexandria, VA  22302

Andrew McElwaine
Institute of Scrap Recycling
 Industries
1627 K Street, NW
Washington, DC 20006
(202) 466-4050

Ed McNicholas
Division Manager
SAIC
8400 Westpark Drive
McLean, VA  22102
Fran McPoland
1740 Longworth House Office
 Bldg.
U.S. House of Representatives
Washington, DC 20515-0534

William L. Miller
Bureau of Mines
U.S. Dept. of the Interior
2401 E Street, NW
Washington, DC  20241
(202) 634-1117

John J. Nolan
National Oil Recyclers Assoc.
5240 N. 32nd Street
Arlington, VA 22207

David Norwine
Haward Corporation
29 Porete Avenue
No. Arlington, NJ  07032
Representing National
  Association of Metal
  Finishers

Andy O'Hare
American Petroleum Institute
1220 L Street, NW
Washington, DC 20005
(202) 682-8314

Bette Ojala
EPA/Office of Enforcement
401 M Street, SW
Washington, D.C.   20460
(202) 382-4326

Rick Olsen
Dow Chemical Corp.
2030 WHDC
Midland, MI 48674
Representing the Chemical
  Manufacturers Association

Kurt Olson
Weinberg, Bergeson,  and Neuman
1300 Eye Street,  NW
Suite 600
Washington, DC  20005
(202) 962-8583
Representing the Battery
  Council International

-------
Tom Ovenden
EPA/OSW
Characterization, and
Assessment Division
401 M Street, SW
Washington, D.C.  20460
(202) 382-4779

Patricia Overmeyer
Manager, Regulatory
 Development and Pollution
 Prevention Section
SAIC
8400 Westpark Drive
McLean, VA  22102

Dana Patterson
SAIC
8400 Westpark Drive
McLean, VA  22102

Jennifer Peters
SAIC
8400 Westpark Drive
McLean, VA  22102

Mike Petruska
EPA/OSW
Characterization and
 Assessment Division
Waste Identification Branch
401 M Street,  SW
Washington,  D.C.  20460
(202)457-8551

Brenda Pulley
National Association of
  Solvent Recyclers
1333 New Hampshire Ave.,  NW
Suite 1100
Washington,  DC  20003
(202)  463-6956

Walter Ramsay
International Precious Metals
  Institute
4501 Arlington Boulevard,  #324
Arlington,  VA  22203
(703)  525-1780
 Stephen P. Risotto
 Halogenated Solvents  Industry
   Alliance
 1225 19th Street, NW
 Suite 300
 Washington, DC  20036-2411
 (202) 223-5890

 Bill Ross
 Bill Ross and Associates
 Seattle Tower
 Suite 1207
 1218 Third Avenue
 Seattle,  WA  98101

 Cliff Rothenstein
 Senate Environmental
   Committee
 Washington,  DC
 Dan Ruge
 U.S.  Dept.  of Energy
 1000  Independence Ave.,
 Washington,  DC  20585
 GC-11
SW
Tim  Saylor
International  Paper Co.
6400 Poplar Avenue
Memphis, TN  38197
(901) 763-6821
Representing American  Paper
  Institute

Peter Sherman
SAIC
8400 Westpark  Drive
McLean, VA  22102

Jane Anne Shiley
Gates Energy Products, Inc.
P.O.  Box 57
Alachua, PL  32615-0057
(904) 462-4622

Ron  Shipley
Chemical Manufacturers Assoc
2501 M Street,  NW
Washington, DC 20037

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            DEFINITION OF SOLID WASTE:  STATE MEETING
                             OVERVIEW
                     ALBUQUERQUE, NEW MEXICO
                       NOVEMBER 29-30,  1990

     The meeting was organized into three sessions designed to
identify State issues and suggestions pertaining to the
definition of solid waste and its application to hazardous waste
recycling.

     David Bussard opened the meeting with introductory comments
on the purpose of the meeting, current EPA activities, and the
process the meeting would follow.  He then briefly reviewed EPA's
goals ai,d three broad theories which have been suggested for
defining solid waste.  These theories posed the ideas that:

          If a material is recycled, it is not a waste;

          Recycling is one type of waste management;

     •    Some recycling is waste management and some is not.

OSW staff then presented a brief overview of the current status
of the definition of solid waste.  This discussion included a
presentation of schematics representing several typical recycling
scenarios, including potential issues posed by each scenario.
The group then divided into three small groups for the first of
three small group discussions.  The first of these addressed
definition of solid waste issues encountered by the states.
(These small group discussions, and those conducted Thursday
afternoon and Friday morning, are summarized in detail on the
following pages.)

     After lunch, the groups continued their discussion of issues
posed by the current definition of solid waste.  Upon the
conclusion of these discussions, each group summarized key issues
identified for the full group.  Following this presentation,  the
groups discussed various approaches to regulating recycling.

     On Friday morning, the small groups presented ideas to the
full group on the theories identified the previous morning.  This
was followed by small group discussions on recommendations for
resolving problems with the current definition, and presentations
of each small group's final recommendations.

     Representatives of Headquarters closed the meeting by
reviewing some of the recurring themes, problems and issues,  and
thanking the States for their ideas.

-------
        Meeting summary for the Definition of Solid Wast*

                       Meeting II:  States

                             Group A
Thursday A.M.
First Small Group Session - Discussion of the Issues

Tha facilitator asked the group members to identify important
issues related to the definition of solid waste and the current
regulatory p^ecprara*  Group members were asked to .Identify issues
pertinent -tu U*s. overall program and to each p&i:-I-.IcipahiL!-s state
program and to provide specific examples when appropriate.

Many of the group agreed that the complexity of the current
regulations is a major problem.  Several participants felt that
the complexity of the regulations restrict the states' ability to
consistently implement and enforce them.  One participant
explained that the complexity of the regulations combined with
high staff turnover rates in state offices limit the ability of
state technical staff to recognize violations.  Furthermore,
enforcement difficulties are encountered because court judges are
having difficulty understanding the rules and, possibly as a
result are rendering unfavorable decisions.  Many state
representatives felt that the complex Federal regulations cause
"creative" interpretation by all involved parties.  Several
participants expressed concern that decisions being made at
Headquarters concerning interpretation of the regulations are not
being transferred to the states but are instead documented only
in internal memoranda or letters to industry.  They agreed that
this lack of documented interpretations is causing inconsistency
in Federal and state program implementation.

Many participants were concerned about the differences between
individual state programs and between state programs and the
Federal program.  Several participants agreed that inconsistent
regulatory definitions of solid waste between states are causing
problem* with interstate transportation of hazardous wastes.  One
participant  noted that in one state, wastes not subject to the
federal program but that are regulated in that state only are
being shipped to bordering  states.  Some of the surrounding
states have  reacted by passing  legislation stating that if a
waste is hazardous  in the exporting state, it will be considered
a hazardous  waste  in the state  accepting the waste.  This type of
hazardous waste management  leads to difficulties because of the
need to  identify the state  of origin.  Many of the group members
agreed that  there  needs to  be national consistency.

-------
One group member  noted that EPA must make it clear whether or not
the Agency  is going  to encourage states to have their own
programs.   Although  the current statute encourages states to
assume responsibility  for  the  Subtitle C program and to tailor it
to the needs of the  state,  states often must defend their
program's differences.   Several participants felt that EPA must
work in partnership  with the states  to resolve  the problems
associated  with a dual  program.

Participants agreed  that the state authorization process needs to
be streamlined so that  states  can become  authorized in a more
timely manner.  One  participant suggested that  the overall  state
program be  examined  rather  than evaluating each and every
component of the  program individually  to  decrease the  length of
time for the authorization  process.                            .--'•'

Several group members  felt  that the  current  regulatory system is
inconsistent in its  designation of solid  wastes.   One  participant
felt that broadening the definition  of  solid waste (i.e.,
eliminating the exemptions)  would  reduce  the problem.   States
have encountered  many problems  implementing  and enforcing the
current piecemeal regulations.

One participant questioned  the  legitimacy  of exempting soil
contamination from underground  storage  tanks (USTs)  (i.e.,  from
the Toxicity Characteristic  final  rule) and  at  the  same time
regulating other  surface spills  and contaminated media which  may
be less hazardous.   Several participants agreed that some wastes
that are currently listed do not pose a substantial threat to
human health or the  environment.   Participants also agreed that
some wastes are more or less hazardous than others.  Participants
consented that this puts some recyclers at a disadvantage because
all recyclers must meet the same requirements.  One participant
suggested that a de minimis rule be developed for listed wastes
and for wastes that  fall under the mixture and derived-from
rules.   This would allow waste-derived products that are below
certain concentration levels to be exempt from Subtitle C
regulation.   Several participants suggested that a risk-based
management scheme be developed.  Another participant agreed and
suggested that perhaps the entire regulatory system needs to be
revamped so that a risk-based management program can be
instituted.

One participant explained that one state has a characteristic-
based system for hazardous waste determination.    Recycling is
regulated although there are a few very specific exemptions.
Because the state found that industry was attempting to stretch
the exemptions,  the state implemented several fixes.  Exempt
facilities must now prove that their operations  are "safe and
effective" and show evidence that they qualify for the exclusion,
and generators must meet generator requirements  and show that
secondary materials have gone to a legitimate recycler.

-------
Several participants felt that much of the program's complexity
is caused by inflexibilities in the Federal system.  One
participant reasoned that the inflexibility is due to the current
mentality that all hazardous wastes are equal.  Participants
agreed that the absence of a credible Subtitle D program also
increases the pressure to categorize wastes as hazardous.  One
participant suggested that the Agency needs to look toward waste-
specific management requirements as a solution.  The participant
explained that in one state flexibility is a key component of
their solid waste management system.  A continuum of management
requirements are used, including permit-by-rule to variances,
depending on the potential hazards posed by the particular waste
and management practice to human health and the environment.

The group also discussed the economies of recycling.
Participants agreed that regulating hazardous waste recycling is
problematic because it covers a wide range of economic
situations.  One participant suggested that a less burdensome
alternative to the full Part B permit program would more
successfully deal with the wide range of economic situations of
recyclers.  There was a general consensus that the current
permitting program is too costly and discourages many potential
recyclers from operating.

Participants agreed that a better definition of legitimate
recycling is needed as well as a clearer determination of when a
recycled material is a "recycled material" as opposed to a
"waste."  The group generally agreed that some types of hazardous
waste  recycling need to be regulated, and disposal should not be
encouraged.

One participant felt that a better definition of how to manage
used oil  is necessary.  The group discussed the current
regulatory status of used oil management.  The group determined
that it is difficult to interpret the current regulatory program
for a  characteristic-only waste.

The group also discussed enforcement  issues related to the
current hazardous waste recycling regulatory system.  One
participant  felt that  one of the biggest enforcement issues  is
burden of proof.  Several participants commented that under  the
current program, the burden  of proof  often ends up on the state
rather than  on the  generator or  recycler.  States have found that
 it is  very difficult to obtain and  interpret generator/recycler
 information  and  financial  records.  This makes  it very difficult
 for states  to establish proof  and enforce against violators.

 Several participants  noted  issues that they felt should be
 considered in changing the  current  regulatory  scheme.  One
participant  mentioned  that  the  regulatory scope should not be
 broadened without  increasing the amount  of resources allocated  • :

-------
the program.  Another participant added that any improvements
must be balanced against disruption to the current regulatory
system.  The participant acknowledged that if changes were to be
made, they should be made quickly to minimize disruption.
Another participant argued that the issues surrounding the
definition are very complicated and urged EPA not to act rashly
Several participants agreed that the implications for current
state programs and state program flexibility must be considered
in making changes to the Federal program.  Participants also
agreed that possible effects on Subtitle D should be evaluated.
In addition, participants agreed a new program must create
incentives for pollution prevention to prevent inter-media
transfer of wastes and to encourage recycling.

The group then reviewed the issues they had discussed throughout
the morning and identified the five of greatest concern.  These
are:

          The differences between individual state programs and
          between state programs and the Federal program

     •    Lack of good definitions for "recycling" and "recycled
          materials"                              '    "        ..v

     •    The complexities of the Federal program

     •    The inability to apply a hierarchy of waste management
          options to the current program

     •    The lack of flexibility in the Federal program and the
          lack of a credible Subtitle D program (both force
          creative interpretation and cause implementation and
          enforcement problems).

The group presented these issues to the full  group.
Thursday P.M.
second Small Group Session - Discussion of Theories

The facilitator suggested that the group choose the three issues
that they felt were most important and discuss each one in
greater depth and then discuss the three theories presented by
OSW in the initial presentation for defining solid waste.   The
group felt that they had given enough attention to the issues in
the morning session and agreed that the three theories were based
on the existing system and therefore none of the three would
eliminate the problems they saw in the current program.   The
group elected to spend the session discussing how they would li*e
to see the program change.

-------
Discussion of Changes to Current Prograa

One participant suggested that the first step in the regulatory
program should be to identify those secondary materials that are
hazardous to human health and the environment when recycled.  The
second step should be to determine what management practices for
the identified secondary materials need to be regulated.  One
participant commented that such an approach would be advantageous
because it is risk-based rather than based on the regulatory
status of the material or the process.  Participants agreed that
this approach would then eliminate the need to make the
distinction between a waste and a product and to determine when a
material becomes a waste.  One state representative noted that
making this distinction is one of their state's biggest problems.
For example, the municipal solid waste incinerators in one state
ase mixing their fly ash with their bottom ash in a quench iiWiJ;.
to dilute the fly ash which tends to have higher levels of
metals.  These facilities can get away with this because EPA has
determined that the ash is not a waste until it reaches the
bottom -of the tank.

The group agreed to set up a system for identifying and
regulating solid waste and illustrate how the system would
eliminate the problems with which the current regulatory program
is faced.  Initially, the group agreed that the first step would
be to determine those materials that are wastes and to develop
separate requirements for solid and hazardous wastes.  One
participant argued that distinguishing wastes from products was
not a black and white issue.  The group agreed and determined
that they would identify all materials that should be regulated
rather than identify only wastes for regulation.

One participant questioned whether remediation wastes would be
separate from hazardous wastes under a new materials regulatory
program.  Several participants responded that if management
requirements were risk-based, this determination would be
unnecessary*  The group then agreed that the second step under
the new program would be to devise alternate management
approaches for categories of materials based on risk.  One
participant noted that in a risk-based system the requirements
that a facility must comply with should be determined by the
management operation and the risk that the material poses.  The
group discussed how materials that are currently regulated under
other statutes  (e.g., TSCA, FIFRA) would be treated under a new
materials-based program.

The group agreed that this scheme would eliminate RCRA and
institute a hazardous materials hierarchy.  Participants
questioned their ability to convince legislators that the
regulatory program needed to be revamped.

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The group discussed how materials would be ranked.  The group
determined that hazardous materials would be scored on several
parameters including ignitability; toxicity  (acute and chronic),
persistence in the environment, and bioaccumulation;
carcinogenicity (teratogenecity, mutagenicity); corrosivity;
reactivity; and quantity.  The total score would then define the
management requirements for a given activity.  Scores would be
grouped into hazard level categories to determine relative risk
and to set appropriate management standards.

One participant developed a sample matrix for matching hazard
levels with management requirements:
Hazard
Level
1
(High)
2
3
4
(low)
Storage
strict
criteria
and
labelling


non-
standard
container
Reporting
high-
level,
detailed


on-site
record-
keeping
only
Transpor-
tation
manifest,
licensed
hauler

shipping
papers,
commercial
vehicles
no
tracking,
common
vehicles
Land
Disposal
no land
disposal



Proces-
sing
TSD
Permit
Permit-
by- rule

Non-
permit-
ted
One group member asked whether EPA, the states, or the
generator/recycler would determine a material's score.  One
representative explained that in their state  (which has a similar
program for hazardous materials), facilities are responsible for
registering all hazardous substances.

An EPA representative asked the group if we might want to give
recycling a regulatory break.  One participant responded that
recyclers should not get a regulatory break but perhaps a tax
break.  One participant questioned the status of production
wastes in this system.  One state representative responded that
the state has regulations based on processes.

The facilitator asked the group if they saw any problems with t.-e
system and if the system would require excessive testing.  The
group responded that "knowledge of waste" could still apply and

-------
therefore testing requirements would not be overly  burdensome.
Group members agreed that this system would be  less complex  than
the current program.  For example, the need for mixture  and
derived from rules would be eliminated.  However, the group
agreed that a common set of practices probably  could not be
developed for a given material because of the large number of
processes to which the material could be subject.

The group decided that the permitting process would require  some
type of risk reduction plan.  This plan would have  to be
completed by all hazardous materials "handlers." One participant
questioned how a "handler" accepting a number of materials of
varying hazard levels would operate his facility.   Participants
suggested that the facility could institute various  levels of
protection for a given process.  For example, several levels of
storage could be implemented to accommodate high to  low risk
materials.

Group members generally agreed that this system would promote
pollution prevention.  Incentives would include reduced liability
insurance.  One participant added that this system would promote
standardization.  Group members agreed that states would have the
authority to implement more stringent requirements where
appropriate.  One participant commented that the system did not
necessarily have to solve every problem.   The participant
suggested that states will still have enforcement problems
although they would be somewhat different because the problems
caused by the current exemptions would be eliminated.

Although some group members felt that a comprehensive risk-based
management system could work,  other members remained unconvinced.
Friday A.M.
Third Small Group Session - Discussion of Solutions

The facilitator asked the group to come up with specific
recommendations to improve the definition of solid waste and the
current regulatory program.  The group developed a list of
recommendations.  Through further discussion, the group combined
many of their recommendations.  These are briefly summarized
below.

     •    Develop clear and concise criteria for state
          authorization and eliminate capability review.
          Implement automatic authorization for new programs
          after a state has received base or HSWA authorization.

     •    Remove all current exemptions applicable to recycled
          solid waste that meet the criteria of hazardous waste.
          De-emphasize exemptions and concentrate on regulating
          secondary materials.

                                8

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Develop a mechanism to allow states to adopt less
stringent regulations for recycling when justified by
low risk.

Implement a continuum of permitting approaches based
upon risk, allowing permit-by-rule where applicable.
Use risk analysis to determine use of permit-by-rule.

Replace existing RCRA system with a new national
hazardous materials management program which prescribes
different levels of regulatory control based upon
environmental risks.  Examine existing progressive
state programs as examples for improving the current
Federal program.  Promote new legislative language for
the new act.

Simplify the current regulatory structure,  (e.g., do
not distinguish between listed and characteristic
hazardous wastes) and develop regulatory language that
can be interpreted without a preamble.

Develop clearer definitions and provide guidance on
regulatory interpretations.  Clearly define when
storage begins at a recycling facility.

Establish a public education campaign to inform the
private sector of the program complexities EPA and the
states are handling.

Define legitimate recycling.   Develop procedure/program
for distinguishing between legitimate and sham  ,
recycling.

Issue guidance on how to handle differences between
state programs.

Consistently apply corrective action to contaminated
media program-wide and across programs (RCRA,  CERCLA,
etc.).

Make burden of proof proactive for those facilities
that claim they are subject to less stringent
requirements.  Require notification/certification prior
to operation.

Issue guidance for the interstate transport and
manifesting of state regulated hazardous wastes.

Develop minimum education/training requirements for
recycling facilities and on-site recyclers.

-------

-------
The group's top five recommendations included eliminating RCRA
and instituting a hazardous materials management act; removing
all exemptions from the definition of solid waste; clarifying
current statutory and regulatory language; removing the
distinction between listed and characteristic hazardous waste;
and improving the regulation of recycling by clearly defining
legitimate recycling, allowing a continuum of regulation based on
risk,, and requiring certification for operation.

The group summarized these specific recommendations to the large
group.
                                11

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        Meeting Summary for the Definition of solid Waste

                       Meeting II:  states

                             Group B
Thursday/ November 29, 1990, A.M.
First Small Group Session - Discussion of Issues

The facilitator asked the group to spend a few minutes
identifying issues they feel are important pertaining to the
definition of solid waste.  The following -issues were identified
by the grouj,-?

1)   Economic considerations raised by OMB play a significant a
     role in EPA decisions, and this may conflict with protecting
     human health and the environment.  This is true despite the
     fact that recycling is driven by economics.

2)   Cement kilns pose a significant recycling issue.  They raise
     two issues, energy recovery (clearly defined under present *
     rules) and materials recovery (not clearly defined) .  There
     is also a separate issue of ash disposal.

3)   The definition is too complex.  The present rules are
     stretched and interpreted (e.g., mixture rule, derived- from
     rule, contained-in policy) to promote beneficial recycling,
     while regulating problematic or sham recycling.  They are
     difficult to understand and enforce.

4)   The present regulations impose different requirements upon
     secondary materials depending upon their use, even though
     they contain essentially the same constituents.  For
     instance, one hazardous waste can be treated and landfilled,
     treated and delisted, sent for materials recovery,  or
     recycled as a useful commercial product.

5)   Identifying legitimate recycling is difficult.  How can
     states document legitimate recycling - an example was given
     where in the process of reclaiming a portion of a bay, lead
     oxide was being hauled off,  transferred to a broker,  and
     reclaimed.  The state had a difficult time documenting
     whether the recycling process was legitimate.  While
     concentration-based regulation offers a possible solution,
     this approach may deter legitimate recycling because it may
     subject recycling to full Subtitle C regulation.

6)   The goals of strict regulation under RCRA and pollution
     prevention are not always consistent.  RCRA regulates
     residuals such that many are not reused to the extent they
                                12

-------
     could be.  This points out a need for a waste/product
     distinction.

7)    There is a lack of comprehensive and understandable
     definitions of solid and hazardous waste.  The states cannot
     define what a waste is, or identify exactly how wastes  (or
     secondary materials) should be regulated, and therefore they
     suffer a credibility problem when they have to enforce or
     apply their rules.

8)    The lack of clear definition causes a substantial drain on
     state resources.  Training people to understand the rules
     takes 2-3 years.  Neither the regulated community nor the
     courts understand the definition, and as a result
     implementation, monitoring and enforcement take much longer
     than necessary and are less effective.

9)    An adequate level of regulation is not achieved in many
     cases.  For example, one state has had tremendous difficulty
     (5 year effort) completing an enforcement action against a
     firm that stores large amounts of waste-derived product on
     the ground.  The state does not believe the court         v
     understands why this is not legitimate recycling.  A second
     example concerned contamination from batteries, where
     ground-water at a landfill contained lead.  In addition,
     many organic wastes are not regulated at all".  The state
     believes they are in court contesting trivial issues (e.g.,
     is a particular act placement on the ground), while
     significant problems are allowed to continue.

10)  The source reduction component of pollution prevention
     should not be discouraged by relaxing the recycling
     regulations.  Waste should be defined broadly, and regulated
     according to risk.  There should be incentives for both
     recycling and source reduction.

11)  Regulations should focus on wastes and management practices
     that pose the highest risks.

12)  The complexity of the definition eliminates RCRA's
     effectiveness as a preventative statute.  The courts do not
     understand the issues presented and often cannot render
     sound decisions.  The issue of sham recycling is also
     significant, where people take anything and make anything to
     avoid the regulations.  Also, few staff fully understand the
     definition.

13)  It is difficult to explain how to identify solid or
     hazardous waste to a judge or jury.

14)  An example of the rules creating disincentives is where oil
     patch production facilities are recovering residuals.

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     Sludge from this is now hazardous under the TC; however,
     production facilities remain exempt and can dump the
     material under the Bevill exclusion.  Thus, the rules
     encourage disposal over reclamation.

15)   States are sometimes forced to regulate units under RCRA
     where they would be better regulated under other statutes.
     For example, in one state, lagoons at facilities are hot
     subject to NPDES requirements.  Where these are a problem,
     the state must enforce against these units under RCRA.  This
     focus on insignificant violations is not efficient.

16)   It is important to encourage hazardous and solid waste
     recycling in any regulatory scheme.  A lot of solid waste is
     managed at hazardous waste recycling facilities, and the
     recycling of this? waste should not be discouraged.

17)   Regional cooperation is important to promote recycling.
     Federal rules should promote consistency and regional
     cooperation.  Regulations, including procurement rules,
     affect regional marketability.

18)   There is a need to create markets for recycled materials,
     and eliminate subsidies for virgin materials.

19)   Some hazardous waste is exempt from regulation, while some
     "nonhazardous" hazardous waste is regulated.

20)   Where recycling starts and ends must be better defined.
     Storage also should be clearly defined.  The definitions are
     too complex.

21)   The present rules only address those facilities that
     voluntarily comply with the rules.  We need a system to
     check those facilities that are not aware they are subject
     to regulation and those that simply have not complied
     (although regulating the latter group is quite difficult).

22)   Sometimes the Subtitle D personnel must determine the status
     of a waste, and they are not well trained to do so.  An
     example is a soil burner that was not considered to be
     hazardous - the Subtitle D staff believed the issue should
     be addressed by the hazardous waste staff.

23)   To find out what is going on in the area of hazardous waste
     recycling a notification system should be developed.

24)   The concept of de minimis is necessary to determine when a
     waste is no longer of regulatory concern.   This would create
     a clear standard for what is, and what is not, regulated.
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25)  The definition needs more detail to clearly define complex
     situations (e.g., storage, spent materials).  An example of
     a judge ruling that a battery was not spent because it was
     not "contaminated" was cited.

26)  From an enforcement perspective, the complexity of the
     definition makes it very hard to win enforcement actions,
     and cause a substantial drain on resources when actions are
     pursued.  Large companies have the staff, know-how, and
     money to find loopholes and litigate to exploit them.  The
     courts are not in a position to help us.

27)  An example was cited of contamination from a tank followed
     by remediation.  Under the TC rule, the contamination is not
     necessarily regulated, but once remediation occurs the waste
     material is subject to Subtitle C.  There does not appear to
     be any logical basis for regulating these situations
     differently.

28)  Under the land disposal restriction program, wastes are
     regulated differently because they are characteristic.  This
     is inconsistent.

29)  Recycling is treatment that may or may not be better than
     normal treatment.  Source reduction is preferable.

30)  How to evaluate hazardous constituents in products.  At what
     point is recycling not beneficial, and how do recycled
     products compare to virgin products.

The facilitator asked the group which of these issues were the
most important.

1)   Product standards are necessary for products made from
     recycled materials, and information must be made available
     to those who use the products.  An example is waste-derived
     fertilizer.  If farmers-knew what is in the fertilizer they
     use, they might not buy it.  They want the valuable
     constituents such as zinc, but do not always know about the
     other constituents that may be present in some waste
     formulations and go "along for the ride."

2)   The regulation of cement kilns.  One state has four cement
     kilns that recycle a large amount of hazardous waste.   The
     state needs some assurance that hazardous constituents are
     not emitted in a manner where they pose a risk.

3)   The issue of what is in the system, and what is out is
     important.  This has to do with definitions, objective
     criteria, and to some extent, general complexity.
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4)   "Black box" recyclers should have to demonstrate they are
     legitimate, and not sham operations.  They should have the
     burden of proof, not the agencies.

5)   The burden of proving violations of the current definition
     bogs down the state agencies.  Only notifiers and reported
     cases are pursued.  Those who are not regulated (by their
     own determination) are not pursued.  This has to do with the
     lack of clarity and the overall complexity of the
     definition.

6)   Potentially inconsistent regulation of waste-derived cement
     from cement kilns, but not the waste (cement dust is subject
     to Bevill exclusions).

7)   Aggregate kilns and the issue of sham recycling is a
     concern.

8)   Standards for recycling processes and products take a long
     time to develop.  Although generic or group standards could
     be developed, these also require the investment of time and
     resources.

9)   Should recycling require a permit?  If so, what kind (full,
     reduced, other)  of permit?

The group discussed these issues and agreed that the concerns of
complexity, defining who is in the system,  how to regulate
products, the utility and form of permits for recycling,  and the
need for something like the de minimis rule,  were the central
issues to improving the definition.

One state pointed out that they require resource recovery
certifications from recyclers, which provides the state with
information on what the facilities are doing.

LUNCH

Thursday P.M.
Continue Small Group Discussions

Following lunch, the small group discussed some of the issues
raised in the morning session.

One participant suggested that the recent Science Advisory Board
report on the direction of EPA programs should be used as a model
to identify priorities in the area of recycling.   This
participant asked if the present definition is based on risks
posed by specific materials and recycling technologies.   A group
member responded that while it is important to consider risk,  we
do not want to kill incentives to recycle.   Another noted that s
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comprehensive rule could be developed that was  just  as  effective
as a.risk-based rule.

The issue of inter-media transfer of pollutants was  raised.   This
was viewed as a problem for case-by-case applications of  the
rules.

Someone reiterated that source reduction should be a higher
priority than recycling, although both are important.

The question was raised what is environmentally sound recycling?
What practices or technologies does this encompass?

The issue of recycling facilities competing with treatment .
facilities was posed, since each may be regulated quite
differently.  Some wastes, management, or technologies may pose
more risk than others.  It is difficult to make the  rules for
recycling consistent with those for RCRA TSDs.  Beneficial
recycling is desirable, but only where it is safe.   And to what
extent, must we be consistent with RCRA rules that are now
established to protect health and environment?

The point was made that present regulations subsidize certain
activities.  It is very difficult to consider all of the risk
associated with certain recycling activities, and thus, risk
based rules may not be the best.  It was added  that  RCRA is not
equipped to evaluate individual recycling activities, and thus
increased focus should be placed on pollution prevention.  One
response was that environmental protection is the goal, and we
need to develop specific solutions if this exercise  (e.g., the
meeting) is going to be meaningful.

One participant noted that their state charges  fees  for
generating hazardous waste, and that recycling  and pollution
prevention should be addressed separately.

Another asked where in the recycling process are problems posed?
Where should we focus regulation?

Several members noted that where waste is taxed, there is an    '..."•
incentive for commercial facilities to recycle  or source reduce.
They noted that one approach for determining legitimate recycling
is establishing specifications, such as those for energy
recovery.  Operations that do not meet specifications would be
regulated  (e.g., incineration).

Another state representative indicated they want the right to
regulate any type of recycling activity, without having to rely
on a risk assessment.  Some effects are not well understood,  such
as constituent interactions and total loadings, so the state
would like latitude to respond to perceived problems.
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The  idea of risk assessment was clarified to indicate that it
could be done generally (e.g.,  generic rules),  by identifying the
wastes  that comprise the largest volume of those recycled, or
specifically,  perhaps on a case-specific basis.  Under a general
approach,  appropriate controls  would be developed for specific
wastes,  thus specifically focusing a regulatory program on the
most problematic wastes and processes.

One  participant pointed out that the volume of  waste we are aware
of does not represent the amount of waste generated.   The main
problem this state faces is the amount  of waste generated and
possibly recycled that the state never  knows about.   In response
to this,  it was suggested that  all recyclers be required to
notify  the state of their activities.

One  member suggested regulating the-inputs to recycling processes
rather  than the products from the processes.

Three.or four state representatives indicated that they had
authority to require facilities to perform waste reduction
audits.   This  would provide information on recycling.

One  participant suggested using a class permit  based on some
objective criteria to regulate  recycling activities.   Criteria
for  sham recycling also need to be developed.

One  member stated that any regulations  should preserve the value
of secondary materials,  so that there is an economic  incentive to
manage  them well.

The  point was  raised that many  recyclers do not know what  they
are  getting for feedstock,  or what is in their  product.  An
example was given of metal-bearing sludge that  contained
chlorinated solvents.   As regulators, the group generally  agreed
'that all  types of constituents  are in the wastes that  are
recycled.

One  participant suggested that  rules could require generators to
test their waste and provide information on its contents to
recyclers.   Another added that  their state imposes a system where
once a  toxic is generated the generator must  document  the  fate of
the  waste.

The  facilitator asked the group if they wanted  to discuss
significant state problems.   The group  preferred to continue
their discussion of issues and  solutions.

Several comments were made suggesting an approach where waste
subject to regulation is clearly defined,  and requirements  are
developed to regulate these operations.
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One participant noted that the present exemption  for use as an
ingredient in a manufacturing operation is abused by sham
operations, and that in this sense the present definition  is not
adequate*

Another participant pointed out that under the present  framework
spent materials are always a waste when recycled, but that other
materials are not wastes when recycled.

The point was made that in the present system waste appears and
disappears at different points in the recycling life-cycle.  This
makes it difficult to know the regulatory status  of a material.
It was suggested that once a hazardous waste is generated, it
should remain a hazardous waste until it is recycled into  a
product.  Another group member noted that this may discourage
recycling.

One participant suggested that we use economics to define
legitimate recycling.  Any recycling operation should operate at
the same cost (or less), as a facility using virgin material. This
gets at the issue of a valid substitute material versus a
subsidized substitute material.  This should work because
generally it takes more energy to reuse a hazardous material.

Wastes that are used as substitute raw materials are a problem,
and should not be totally out of the system.   Solvents that are
directly reused should be in the system until reused.   Others
felt that since it is generally beneficial when materials are
directly reused without regulation, we should continue the
current practice and provide a disincentive to generating waste
(regulate waste/ do not regulate direct reuse).

It was suggested that some form of permit-by-rule (PBR)  could be
used to regulate recycling operations.  Under this approach we
would have to develop standards, establish jurisdiction,
determine enforceability, and deal with the issue of corrective
action.

One participant asked if we care how secondary materials are
directly reused.  Does direct reuse pose environmental problems?
Or should we focus more on the recycling processes?

Another member asked if it is direct reuse if a recycler charges
to accept the material.  They noted that the  recycler may be
legitimate, but that the generator may not be.   An example was
posed of the waste oil containing other contaminants such as
chlorinated solvents.  It was felt that this  type of improper
mixing is going to happen, and that therefore either a generator
should be required to test his or her waste,  or the material
should be regulated as a waste until it is actually recycled.
It was also noted that we do not regulate recycling processes.
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On© participant suggested that using PER would be akin to a
conditional exemption; so long as the material was managed in
compliance with certain requirements, the facility would not
require a full Part B permit.  This approach ensures
environmental protection, while exempting the recycler from the
burdensome portion of the Subtitle C system.

One participant suggested that we establish requirements for
recycling all types of materials.

Another suggested that a secondary material be considered a
product when it goes on-site of a recycler.  Up to that point it
is regulated as a solid waste.  This eliminates the disappearing
points for wastes in RCRA (e.g., RCRA glasses problem) and makes
authority to enforce clearer.  Further,- wh&tt I'ke material gets to
the recycler/ reduced regulation is an incentive to recycle.

A participant suggested that in-place, on-site reuse should
exist.  This might also include on-site reclamation in this
setting.  The other direct reuse situations addressed in the case
law would also be exempted.  An economic test could be used to
determine what is a product versus a waste, and some conditional
compliance scheme would serve to impose appropriate requirements
on regulated recycling.

It was pointed out that some recycling is beneficial, and some is
not, and the group has not identified how to distinguish between
the two.

The group discussed using performance standards to impose
requirements on recyclers.  Such standards would not be
prescriptive, yet would ensure adequate protection of health and
environment.  Group members suggested that such standards should
be as specific as possible.  It was noted that when a product is
produced it is difficult to prove jurisdiction (sham and derived-
from issues).  Also, the recycling process may require regulation
as well.  An approach such as PBR only addresses certain problems
(not product).  Certain limits also should be placed on how some
waste is recycled.

One participant suggested that we should look at listings and
characteristics, and ask if recycling particular wastes is
beneficial.

It was noted that recycling is evolving, and that at the federal
level it is best to use general performance standards.  Any
prescriptive criteria will limit the development of new recycling
technologies.  Others felt that criteria or standards must be
specific if they are to be implemented effectively.

One state representative suggested that EPA should identify those
specific recycling processes that are legitimate, and that we

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should only focus on major waste categories.  The requirements of
Part 266 are a start in this direction.  It was also suggested
that all recyclers be required to notify their state or EPA of
their activity, and that each be evaluated on a site specific
basis.  The group recognized that this imposes a significant
burden on the regulating authority.

The group discussed if wastes would ever be out of the system
(not subject to RCRA jurisdiction) or if they would only be
subject to reduced requirements.

It was noted that certain wastes, such as F006, seem to make up a
large percentage of the decisions the agencies have to make (one
estimate was 90%).  One state suggested that wastes such as these
should receive priority attention in determining what recycling
is beneficial, and what requirements should apply.  This approach
would help states relieve the most problematic cases first, and
reduce the expenditure of substantial resources.  Another
response was that it would still take EPA a long time to examine
all recycling technologies.

The facilitator asked the group to focus on plausible solutions.

One participant suggested an approach where all hazardous waste
is in the system until it is recycled into a product.  This
approach would include standards for the recycling process
itself.  The issues of sham recycling and what constitutes a
product remain problematic in this approach.

One state representative brought up an example where a process
was not sham recycling, but was incomplete recycling, such as
where material is sent off-site for completion of the recycling
process.  Sometimes this involves export overseas.  One response
was that just because a secondary material is sent to someone,
doesn't mean it is a product.  Another participant added that
according to EPA guidance F006 recycling (metals recovery) is n''.
completed until the waste is smelted.  So a situation of
partially re-processing a material (e.g., decanting,
precipitating, drying, and other preparation of the material
followed by export for final recycling) followed by export
appears to be the unregulated export of a hazardous waste.
(Editors Note:  Wastes which are partially reclaimed but which
require further reclamation are wastes unless granted a
variance.)

One state representative raised an issue of existing statutory
authority not being adequately used by EPA or the states,  and by
default a lot of issues falling within RCRA jurisdiction.   It was
suggested that recycling problems be identified, and the
appropriate statutory authority be identified and used to address
them.

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Friday Morning
Summary of Thursday Small Group Discussion

The group identified complexity as the primary problem with the
present definition.  They used the example of "RCRA glasses" »n
waste appearing  (being regulated) and disappearing  (going
unregulated) without apparent rhyme or reason.
and
The group suggested that once a waste is generated it should be
regulated as a waste until it is recycled, reused, or reclaimed.
They would use reduced requirements  (PBR) to impose the proper
amount of regulation, while maintaining as much incentive to
recycle as possible.  The question of corrective action was not
resolved, and is recognized as an issue.  The group would look at
products from the standpoint of are they legitimate (in the
process sham recycling), do they pose a risk to human health and
the environment, and would regulation eliminate beneficial
recycling (can we maintain incentives to recycle).  Product
legitimacy would be evaluated based on one of two approaches: (1)
use performance-based standards to ensure that a product is safe
and useful; or (2) use a quantitative analysis where the cost of
recycling would not be any higher than using virgin material
(assuming zero cost of feedstocks to purchaser).  Further, some
recycling processes that result in major impacts would be
specifically identified and regulated (possibly prohibited).

U and P wastes would be regulated without concern for the present
sole active ingredient requirement (now states need to know the
source of these wastes - although they cause a problem regardless
of where they came from).

One participant noted that preambles do not help states implement
the rules.  States rely on rules, not preambles.  Further,
preambles are not law, and are not useful as evidence in court.
Many states do not use preambles at all, only rules,  and
therefore the rules themselves must be complete and clear.  Also,
guidance does not give the states additional leverage if the
rules are vague and unenforceable.  In addition, guidance is not
always available to the regulated community and sometimes even
the states have problems obtaining guidance.

The definition must be simplified.  Exemptions must be
eliminated.  Waste should be regulated until it is recycled.   We
should use generic permit standards for management requirements,
waive corrective action requirements (if corrective action truly
poses a significant disincentive to recycling), and define a
product according to the existence of a market or an agreement to
purchase the product.  One group member noted that selling a
product does ensure that it is a legitimate product;  health
standards may be needed for waste-derived products.
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One member added that it is difficult to make decisions on a
case-by-case basis.  A possible solution would be to use a
general regulatory scheme, with flexibility to make case-by-case
decisions where they are needed.  Another member agreed that
case-by-case evaluation is too burdensome.

A participant observed that the need for reducing complexity and
the idea of evaluating recycling on a case-by-case basis are not
consistent.  The same participant suggested that we let the
market take care of product standards.  We could require contract
agreements to be in place and use these to ensure markets for
waste-derived products.  Where there is a contract in place, the
recycling would be allowed as legitimate.  Then use regulatory
standards to make sure the recycling process itself is safe
(produces a safe product).

Another participant reiterated that the best approach is to
develop standards for recycling high priority (based on volume,
risk, etc.) wastes.  No standards that address hazardous
constituents presently exist for concrete and fertilizer.  EPA
should specify BDAT-type standards for waste-derived products.
We should know what happens to the hazardous constituents when
they are recycled and remain in products.  One member noted that
BDAT-type standards may be too difficult to develop.

One member suggested that industrial furnaces should have to
undergo trial burns, or some demonstration to prove they are
clean.  Class permits or standards are a possibility.  Standards
should address all emissions from recycling processes.  It was
reiterated that waste-derived products may meet product standards
but still contain hazardous waste constituents (the standards
don't address hazardous constituents).  One suggestion was to use
performance standards in combination with specific BOAT
standards,  with good performance standards, we would not need to
develop quantitative standards.

One participant added that if waste fuel meets a specification
and is used for energy recovery, it should be considered
recycling.  If not, it should be considered treatment.

A participant suggested that we should be regulating emissions of
hazardous constituents.  Another member responded by asking why
then do we use Subtitle C to regulate recycling,  why not regulate
emissions of these constituents in all situations (e.g.,
production)?

It was noted that the marketplace doesn't address the disposal
cost of hazardous waste (the fact that a recycler is paid
something less than full disposal cost to take waste, and the
recycler doesn't pay for virgin feedstock).
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Th© group generally agreed that waste-derived products should
have some sort of standards  (some participants felt that this
could be addressed at other  stages in the recycling process).
This is particularly true when the buyer of the product is not in
a position to know of the content of the product.  One option is
to put the burden on the recycler to show that the product is not
dangerous.  Another suggestion was to require generators to
provide information on what  is in their waste, so the recycler is
aware, and can make the purchaser or consumer aware of the
product's content.  Providing generator information also allows
recyclers to structure their process so that the product is as
safe as possible  (e.g., better quality product).

Another approach was suggested that entails establishing a
pp.rforraanc© standard that would require all hazardous
constituents to be necessary in any waste-derived product
(prohibiting a product from  containing any hazardous constituents
that are not an essential part of the product). Or we could
examine the fate of hazardous constituents in waste-derived
products.  Perhaps this would require setting standards for
recycling processes.  It was reiterated that waste-derived
products may meet product standards but still contain hazardous
waste constituents (the standards don't address hazardous
constituents).  One suggestion was to use performance standards
in combination with specific BDAT standards.  With good
performance standards, we would not need to develop quantitative
standards.

One participant added that if waste fuel meets a specification
and is used for energy recovery, it should be considered
recycling.  If not, it should be considered treatment.  Another
participant suggested that we should be regulating emissions of
hazardous constituents.  Another member responded by asking why
then do we use Subtitle C to regulate recycling, why not regulate
emissions of these constituents in all situations (e.g.,
production)?

One suggested solution included: performance standards; fate
tracking by facility; notification by all recyclers; and
documenting the profitability of the operation.  A member said
that tracking the fate of constituents is impossible; at least
impracticable.  And that evaluating the validity of documentation
involves a substantial leap  of faith and is also quite involved.
Nominal standards  (clearly showing a material is either a solid
waste or product, and imposing storage standards) would be better
to solve the waste-derived product situation.

One participant suggested that it important in any approach to
give states flexibility to determine priorities.  They also
raised the question of how to address recycling residuals.
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One participant noted that the problem with performance  standards
is ensuring compliance, since they are generally  self-
implementing.  How much monitoring or demonstration  should  be
required where such standards are used?

It was noted that people argue .with the states over  simple
matters (e.g., what is "on the ground" - sealer,  road material on
sand, etc.).  States need clear rules and definitions to avoid
the arguments.

It was noted that recycling is sometimes done solely to  avoid
treatment regulations.  The fact that they are regulated
differently raises an issue of equity.

Hazardous waste recycling, is subsidized by the present
regulations.  An example is that cement kilns burning hazardous
waste as fuels make more money from taking waste  than from
producing cement.  The LDR rules drive waste to cement kilns.
One participant suggested that it is better to burn  than to
landfill.  Another added that the Burners and Industrial Furnaces
(BIF) rules will address cement kilns.

The group agreed that the market for recycled products is
important; both maintaining it to encourage recycling and using
it to control the quality of products.  It was noted that there
is not always a market for recycled materials, sometimes
materials are given away.

One participant noted that EPA and the Department of Energy (DOE)
are undertaking an effort to develop standards for materials or
products.  Agencies and states can help determine what standards
should be developed.

Another participant noted that PER exists for wastewater
treatment units, and it allows them to escape RCRA requirements.
They emphasized that the current PER provisions are based on
compliance with permit requirements under some other statute.
A question was raised concerning whether a regulatory program
could be structured to function like PBR for recycling facilities
(conditional compliance with self-implementing requirements)?
The present PBR Underground Injection Control (UIC)  (UIC wells,
and Publicly-Owned Treatment Works (POTWs); §270.60)  framework
imposes corrective action requirements.   This is viewed by some
as a reduced Subtitle C permit.  A question was raised about
whether applying PBR to recycling facilities would require a
statutory change.

A participant suggested that interim.status (Part A)  requirements
could be used as a form of reduced permit requirements for
recycling facilities.  It was suggested that public hearings
should be required for licensing recycling facilities.   Other
members suggested that the key is to avoid imposing Part B-lix«

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requirements on those involved with hazardous waste recycling.
EPA should develop management standards that focus on emissions
and disposal-like practices.  One member noted that any proposal
that does not require permits for certain practices relaxes the
requirements for recycling, and that he was riot comfortable with
this.  The participant thus favored the current approach with
respect to permitting.

One state noted that they required hazardous waste facilities to
submit resource recovery certifications.  They also suggested
that EPA should develop a continuum of regulation, ranging from
little regulation for certain on-site practices, to strict
regulation for practices closer to waste treatment and disposal.
EPA also should develop criteria (e.g., volume, toxicity,
carcinogenicity, etc.) foi deciding if permit requirements (or
other regulatory requirements) should apply.
The facilitator asked the group if they could fix one thing in
the current definition, what would it be?

On© participant stated that they would require more public
notice, would use PER to permit recycling facilities handling
waste not regulated now, and would permit recycling facilities
through the use of some form of a reuse permit.

Another participant indicated that the Part B requirements are
the primary problem in the current system.  The same participant
suggested that the approach set out in Part 266 (specific
requirements for recycling various materials) is a better
approach.  It was also pointed out that if we continue to require
permit requirements for storage, it can be argued that the
recycling processes have the same need for regulation.  It was
noted that the permit system needs to be streamlined, and that
perhaps recycling processes should be evaluated to determine if
they need permits.

One participant added that in some states public participation is
required to obtain a local land use permit to build a facility.
Another added that recyclers shop for states with reduced
requirements.

One participant indicated that storage permits should remain, and
that a reuse permit or PER should be developed for wastes out of
the system now.  In addition, full notification should be
required, as should corrective action, and public hearings to the
extent they do not unduly burden the process.  One participant
added that recyclers fear corrective action requirements for all
solid waste management units.
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The facilitator then asked the group to generate a  list  of
suggested changes to the present definition:

1)   Reduce the length of preambles; put the significant
     provisions in the rules.

2)   Develop management standards for different types of
     recycling (e.g., Part 266); do not require full permits  for
     recyclers.

3)   Do not exempt wastes from regulation until they are recycled
     into a product.

4)   Require notification for recycling/reuse to EPA/states.
     Regu.late generators and transporters under present  rules ;
     dervwXiup recycling performance standards; require a  viable
     market, and ensure that products are safe.

5)   Reduce the complexity of the definition so that it  is more
     defensible.   Clarify sham and legitimate recycling.  Create
     incentives to recycle.

6)   Examine using an economic value test to ensure recycling is
     legitimate.

7)   Do not impose the present system on non-hazardous wastes^

8)   Eliminate U and P waste limits.

9)   Identify problem wastes; develop BOAT standards for problem
     wastes; develop management practices for all recycling;
     require class permits for recyclers; issue corrective action
     permits for problem SWMUs.

10)  Regulate all waste; do not exempt waste that is recycled.

11)  Develop product specifications for waste-derived products.

12)  Regulate hazardous constituents regardless of source;  define
     when a by-product is generated and when it becomes a new
     product.

13)  Clarify all definitions.

14)  Use and reuse should remain unregulated.
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        Meeting Summary for th« Definition of Solid Wast*

                       Heating II:  States

                             Group C
Thursday A.M.
First small Group Session - Discussion of Issues

The facilitator asked each participant to list the most
important, specific issues/problems that surround the current
definition of solid'waste.  While the answers were being written,
one participant asked where EPA was going with the definition,
and what the ne;;t steps would be.  An EPA representative answered
that one issue is in the process of being settled, and that is
the K061 issue.  EPA will be issuing a regulation pertaining to
that topic.  The EPA representative mentioned that there was a
lot of flux in the Agency at this point, and that the EPA is
dealing with a lot of issues.  The participant asked about plans
for the next 6 months.  The EPA representative responded that the
RIS represents an Agency commitment to do something with the
definition.  One objective is simplification, but there are other
objectives.

In response to the facilitator's first request to list the most
important issues needing to be resolved, the participants came up
with many issues.

Several participants mentioned that Subtitle C permits were a
disincentive to recycling.  Two participants suggested that
recycling facilities need TSD-like standards without the permits.
The "new" standards would include some design standards,
recordkeeping, manifests, training and closure requirements.  One
participant suggested permit-by-rule procedures.  Another
mentioned that new recycling standards should be implemented on
the basis of risk posed by the particular recycling process.

One participant mentioned that some companies are discouraged
from recycling because of the permit issue.  These companies have
new technologies for recycling of certain materials, but are
discouraged from accepting the materials for recycling because a
storage permit is needed.  This participant recommended a "take-
back" exemption from the regulations for manufacturers who sell
products/chemicals and then are willing to take the materials
back and  recycle them.

One participant mentioned that the stigma of being called a
"hazardous waste" sometimes discourages recycling.  The hurdle =f
getting a permit  (for storage) or the hurdle of attempting to qet
the variances  listed  in Section 260.30 was too much for the
recyclers/waste exchanges.  One participant mentioned that

                                28

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regulated used oil, for example, would discourage  the  recvclina
process.                                                  J     ^

Two participants believed, however, that permits for recyclers
are needed.  They believe that a permit is good for the  public
image of the facility.

Participants mentioned that the regulations were too broad, too
vague, and provided lots of loopholes.  In addition, the
regulations are too complicated.  One example of a loophole is
the domestic sewage exclusion, which is viewed by some people  as
a provision to dump almost anything down the sewer.

Several participants thought that the definitions related to the
definition of solid waste were much too vague,  in addition, some
participants felt that the terms? phould be re-examined to
determine if they are still appropriate and are still needed at
this point in time.  The definition of spent material received
considerable attention.  One participant stated that it is not
clear under the current definition of "spent material" whether,
when a material is spent for one purpose (but still can be used
as is for another purpose), it may be used for another purpose
without being subject to RCRA regulation.

For example, when a spent solvent is returned to a manufacturer
for use as an ingredient in primer, is this a hazardous waste or
still a useful material?  Participants also agreed that the
definition of "recycling" should be changed.   For example, define
"legitimate" recycling in the regulations.   Include a requirement
that states what percentage of the waste should be recycled in
order for the recycling to be considered legitimate.

Other terms that participants requested to have re-defined are
"closed-loop recycling," "by-product," and "co-product."

One participant mentioned that the variances  in Section 260.30
were too involved, and too narrow.   These  should be broadened to
allow more facilities to receive these exemptions.

One participant mentioned that siting facilities that require a
permit is a problem due to the cost and time  involved in  the
current permitting process.

Another participant stated that there is an unfair  discrepancy
between the regulation of wastes and the regulation of  virgin
materials.  The recyclers of wastes are at a  disadvantage due to
the regulatory burden.  This participant saw  many  spills  of
virgin materials on the roadway that caused environmental damage,
and felt that something like a manifest for virgin  "hazardous
materials" might help the transporters operate more responsibly.
                               29

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One participant stated that hazardous waste recyclers should be
required to recycle all the hazardous constituents in the waste.
For example, some aluminum smelters produce K088.  This K088 can
be reused in the mineral wool production process where the
fluoride in the K088 is used as flux, and the waste provides heat
value.  The commenter was uncertain as to whether or not the
cyanide in the waste could be destroyed in the process of reusing
the waste.  This participant believed that the process should be
able to destroy the cyanide (hazardous constituent) for the
process to be exempt from regulation.

Another issue mentioned was the need for more information on
recycling facilities, even before the Agency decides to impose
more or less regulation on them.  For example, a notification
form for recycling facilities that would be submitted to the
states would help significantly, in improving accountability and
documentation of each facility's activities.

Another participant stated that the value of recyclable materials
needs to be considered in the regulations.  Many people in the
regulated community have difficulty understanding why something
is considered a waste if another person pays the generator for
that material.

The group facilitator then asked the participants to vote for
their three priority issues.   (Four top issues were finally
chosen).  The most important issues were:

      •    Improved definitions are needed.

      •    Unfair differential between regulations for wastes and
          regulations for virgin materials, when risk involved in
          managing both is virtually the same.

      •    Subtitle C permit is a disincentive to recycling of
          hazardous wastes.

      •    Value of a "waste" is not considered in the current
          recycling regulations.
 Thursday P.M.
 Continue First Small  Group  session  - Discussion of Issues

 After lunch, the group continued  the discussion of issues related
 to the current definition.   Basically, the group "fleshed out"
 the top four issues.

 The first issue regarding definitions was further discussed.
 Members of the group  brought up the term "transfer facility,"
 remarking that it should be more  clearly defined.  In addition,
 and related to that definition was  the term  "storage."

                                30

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Participants stated  that  the  definition of storage was very
unclear, especially  regarding the  amount of time involved.   For
example, trucks hauling waste pull up  to a TSD and either off-
load right away or remain unloaded for periods ranging from 12 to
48 hours.  As of this time, EPA HQ has not made a lonlistent
policy on the subject.  Any regulatory change  in the  definition
of storage, to settle the time issue,  would be more favored than
a policy statement.                                          w"Bi\

One participant interjected a comment  on the issue of policy
statements.  The participant  commented that it is impossible for
states to regulate and more importantly enforce,  based on policy
The commenter requested that  important definitional changes be
placed in the regulations.

Additional definitions! that the group  suggested should be altered
included "commercial chemical  product."   The discussion then went
into the frustration at the lack of regulatory power  over
indefinitely stored chemical  products.   For example,  if a
facility has a warehouse  storing unused  chemicals,  stored in
drums which are leaking,  RCRA  still has  no  jurisdiction over
those.  Perhaps a storage time limit should be  imposed.
Participants disagreed on the  imposition of a  time  limit  for
storage of products, since some chemicals may be  of value to a
recycler in a year to two, based on fluctuating markets.  This
led to another discussion of a "materials"  regulatory  scheme,
rather than a separate waste/product regulatory scheme.

The next definitions discussed were "use/reuse" and "recycling "
One participant stated that some of the  regulated community
believes that even if only some of the hazardous constituents in
a secondary material are reused,  the material is not a waste
while others believe that all of the hazardous constituents  in a
secondary  material must be reused for that material not to be
identified as a waste.   This concept involves both the definition
of use/reuse and recycling.

When asked by an EPA representative if the regulated community
should be allowed to recycle a material where only some of the
constituents are reused,  one participant responded with a "yes."
The participant stated that reuse of only some constituents can
be legitimate recycling.   The other constituents that  weren't
recycled should be "accounted for"  by the recycler.  For example,
if the recycler could separate the  other hazardous constituents
that werenjt recycled during the  recycling process, then make a
determination as to whether these residuals were hazardous waste
or not, and then manage them appropriately, the facility should
not be a sham recycler.   Sham recycling would be the addition of
constituents to products where the  constituents do not provide a
necessary ingredient^, _t.   	   ,
                               31

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Another participant stated that there are sham situations, for
example, where wastewater was used as a substitute for water, and
where contaminated water and soil was used in the production of
bricks.  The same participant remarked that many of these
facilities do a small amount of legitimate recycling and an
extensive amount of sham recycling.  Another person added that
some people in the regulated community call stoddard solvents a
type of "used oil."  This participant stated that if the
definitions of "recycling" and of "used oil" were improved, these
difficult (sham) situations would not arise.

The discussion then revolved around other definitions needing
improvement, such as "satellite accumulation" and "by-product,"
This turned into a discussion about what waste to count, as a
generator.  It was brought up that as soon as a hazardous waste
was generated, no matter how you store it, it should be included
in the monthly count.  One person commented that the definition
of by-product should be clarified.  In addition, the commenters
wondered why characteristic by-products that are recycled are
exempt from being a solid waste. , An EPA representative explained
(EPA's historical reasoning) that they were exempt because the
process of recycling them may be too similar to a production
process, and therefore, EPA felt they did not have the
jurisdiction to regulate them absent a case-by-case analysis such
as the listing process.

The discussion proceeded to the second most important issue
chosen by the group.  This issue was the differential between the
regulations for wastes and the regulations for virgin materials.
One participant had seen instances where product .chemicals were
stored  in warehouses and were leaking.  The same participant
advocated regulation of these chemicals.  Another participant
knew of a plant that sent waste sulfuric acid off-site for
recycling.  This plant was a generator under the auspices of
RCRA,  and presented few, if any, problems.  On the other hand,
there was another  facility sending virgin hazardous materials
 (sulfuric acid  and caustics) to a paper mill.  There have been
many problems stemming  from the transportation of these virgin
materials.  There  is less  incentive  for the transporter of the
hazardous chemicals to  be  cautious than for the transporter of
hazardous waste.   The transporter of hazardous chemicals/
materials has no  fee  (the  state requires that transporters of
hazardous waste pay a  fee), no manifest to complete, but they
pose  the  same risk as the  waste and  should be regulated as the
waste transporter is regulated.  These virgin materials are
 regulated by  other laws, but  not to  the same extent.  The
 participant summed up by asking how  a  "level playing field" could
 be created, between wastes and materials regulation, in the
 context of  Subtitle  C.

 One state representative mentioned  that there was an abandoned
 asphalt plant in the state that  left 4,500 drums of chemicals

                                32

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 (ingredients  in  asphalt)  in storage.   The drums were leaking.
 jit was not clear from the participant's comments whether the
 drums were located outside the buildings or not?)   The
 participant agreed that abandoned chemicals should be regulated
 in some way,  especially if causing environmental harm.

 Two participants  mentioned that there  are regulations in their
   •if® that require corrective action  when virgin chemicals are
 spilled, and  cause environmental damage,  specifically, ground-
 water contamination.   One  state has an amendment to its statute
 which states, "Waste  is not deemed to  be recycled (i.e.,  a
 product) until it has been sold."   This is interpreted to mean
 that after hazardous  waste has been recycled into a product, that
 product's storage will  be  regulated until  it is  soldT or,
 basically, taken  off-site.   The recycler of that product  will
 2aT? to follow the tank or container storage standards that are
 followed for  hazardous  waste management.

 The discussion then proceeded  to the third most  important issue
 that a Subtitle c permit created a  disincentive  to  recycling
 The group, almost unanimously,  thought  that a system of
 regulation, slightly  less  than full Subtitle C was  preferred   for
 hazardous waste recycling.   One participant mentioned that  it  was
 important to  continue to impose management standards  on recyclers
 of hazardous waste, but not  to impose a permit.  This  participant
 mentioned that a  lot of problems stem from used  oil  recyclers
 (i.e., spills).    The same  participant suggested  a system  for
 recycling facilities that  involved no permit, but compliance with
 the following:  waste analysis, notification, manifest, record-
 keeping, personnel training, contingency plans,  emergency
 procedures and tank standards.  Another group member commented
 that recyclers may terminate their businesses because a state may
 impose a permit on them.

Another participant commented  that a state had a 4-tiered
 approach for recyclers of  solid waste.   This approach involved a
permit program,  a modified permit program, conditionally exempt
 facilities, and exempt facilities  (such as tire recappers,
asphalt recapping plants and paper boxboard manufacturers).  A
different participant mentioned that another state issues a
permit in 90 days for "special waste"  recyclers, which includes
recyclers of industrial waste and some hazardous waste.
Recycling facilities in the state consist mostly of oil
 recyclers, solvent recyclers, and etchant recyclers.  Yet another
participant commented that his/her state had a 3-tiered approach;
a permit-by-rule, a registered permit-by-rule, and performance
standards (for air emissions, water contamination and access
control).   One group member mentioned  that his/her state cannot
be more stringent than the Federal regulations,  by order of state
statute.  One participant stated that  some states can adopt
regulation by reference, but some cannot.
                               33

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The group then moved on to the fourth most important  issue, which
was the economic value of waste.  The group members disagreed on
the importance of the "value" of a material.  Some participants
believed that the value of waste should be considered in the
determination of whether or not a secondary material  is a waste.
One person claimed that the January 4, 1985 rule talked around
the issue of the value of a secondary material, so it's something
EPA should consider.  One group member commented that if a
historical market was present for a particular secondary
material, EPA could determine that the risk of a sham recycling
situation is low, since there would be an established technology
in place.  These types of recyclers could go without  permits.
Another participant commented that if the regulatory  agency makes
it easy to recycle, then people will recycle.  Others in the
gj*.-.up had opposing opinions.  Some felt that the economic value
is not something that should be an issue in the regulatory
structure, because the values of secondary materials  are
constantly changing.  In addition, others felt that the materials
that are recycled the most  (have the most value) are  the
materials that are spilled the most.  Materials will  be spilled
whether or not they have value.

One member mentioned that their state had a program that requires
establishments that sell oil to take it back, after it is used.

The group then went on to discuss their goals for the definition
of solid waste.  The goal of "protecting human health and the
environment" was agreed upon as one of the most important goals
of EPA and the states.  Subsequently, the group discussed the
goals of "pollution prevention" and "recycling" simultaneously.
 (Pollution prevention was a goal that the group added and which
did not appear on EPA's list of goals.)  The members  were
wrestling with prioritizing the two goals and they hypothesized
about whether the two goals could co-exist.  One person commented
that the goal of pollution  prevention does not have much to do
with the definition of solid waste.  Another participant
responded that the regulations  for the definition of  solid waste
will affect  whether or not  people are encouraged to reduce their
waste streams.  We should make  it easier to recycle for those
recycling processes that pose  less risk.  We can still promote
pollution prevention  for other  wastes.  One participant responded
that  if  recycling  is  encouraged by making it a less expensive
 endeavor than waste disposal, pollution prevention will no longer
be the priority.

The discussion  then turned  toward  financial incentives for
 encouraging (the  goal of)  "recycling."  It was pointed out that
 some  states have  policies  or  regulations that create  financial
 disincentives  to  dispose  of waste  (i.e., taxes) or financial
 incentives  to  encourage  recycling.  One person asked  if the state
 and Federal agencies  should encourage the recycling of lead in
 batteries  or encourage the  manufacturers not to use lead in the

                                34

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production of batteries.  Another group member responded that
both pollution prevention and recycling could be encouraged  by
"front-end" techniques  (maybe a tax) and "back-end" techniques
(fees for disposal).  However, it is important to remove the
economic and regulatory barriers to recycling that preclude  some
businesses^from initiating hazardous waste recycling, as well as
implement incentives for recycling.  One participant commented
that disincentives to recycling are:  l) the upfront capital
needed to start a facility, 2) the uncertainty caused by changing
regulations, and 3) the unwillingness to put the virgin materials
people out of business.

The next goal discussed was "clearly define jurisdiction."   One
group member stated that it would be much appreciated if the
regulations were more clearly stated, not necessarily simpler.

The next goal discussed was brought up by a group member, and was
in addition to the EPA goals already set.   One member suggested
that "promoting the economy" (consistent with all the other  goals
mentioned) should be a goal of the definition of solid waste
regulations.  One participant responded with a slightly different
viewpoint, that companies that recycle will succeed anyway,
because of a good public image; it may not be necessary for  the
EPA to actively promote businesses,  others in the group
generally agreed that the goal of promoting the economy was
important, however, it should be reworded to say:   "EPA should
try not to hamper business."  Most of the group felt it was not
EPA's job to directly promote the economy.   A modified approach
(that EPA should encourage industries if it is entirely
consistent with their goals) was more acceptable to the group.
For example, one person commented that if  an industry is made
smaller because we're recycling more, that is fine.   Another
commenter said that EPA should favor certain industries (such as
those that reuse secondary materials) over others.

The final goal mentioned was also an addition to EPA's list.
This goal was "preservation of natural resources."   Most of the
group agreed that this is important.

The next discussion dealt with the three theories  on the
definition of solid waste.   The facilitator asked  three members
of the group to represent (role play) each of the  three theories,
whether they actually believed in the theory or not.   Actual
discussion of the theories among all the participants  ensued.
Role Play;

Theory 1:
I believe that certain secondary materials that are
recycled should never enter the realm of "hazardous
wastes."  Look at closed-loop recycling.  There is no
health risk posed.  Look at the reuse of certain
materials where they are viable substitutes for

                      35

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          products.  Look at the RCRA statute which tells EPA to
          encourage recycling.

Theory 2: Recycling is only one step in the whole waste
          management system.  There's always some residual waste
          that poses some risk.

Theory 1: Aren't you sending a conflicting message by regulating
          recycling and creating a disincentive to recycling?

Theory 2: No, it's not a conflicting message and it's not
          ambiguous.

Theory 1: Why regulate waste management as a separate entity?
          Why not as a commercial product?

Theory 2: Products and wastes do pose some of the same risks.
          That's why when a product is recycled, it should be
          called waste management.  It would be clear-cut,
          everything would be a waste whether recycled or
          disposed.

Theory 3: Some is, some isn't.  The government can create
          different regulatory schemes or levels for different
          types of waste management.  The burden should still be
          on the. generator to determine if what he/she has is a
          waste.

At this  point in time, the entire group joined in the discussion.
One person pointed out the economic incentives/disincentives
problem.  Since the economic incentives sometimes fail, there may
need to  be regulatory incentives  (such as the lack of
regulation).  For example, it may be cheaper to recycle hazardous
waste as an  ingredient in a product than to dispose of the waste.
However,  the recycling of the waste into the production process
may be more  expensive than using a virgin material  (feedstock).

Another  advocate for decreased regulatory control over recyclers
stated that  if the recyclers get away with little if any
regulation,  then there would be 90% "good" recyclers and 10%
"bad" actors.  If recyclers are regulated, you'll end up with
much more waste  disposed,  i.e., close to 100% of the waste may be
disposed.  Yet another advocate for decreased regulatory control
over recyclers said that  recycling  in itself is a good practice.
Let's  focus on the  fraction of the waste that is not recycled,
but disposed.

A voice  of  opposition came  from the group, stating that all wast*
sent off-site  for  recycling should  be manifested.  In addition,
90% of the  time, a  generator  has  to pay a waste handler to tak«
the waste to be  recycled,  i.e., the generator is not paid for t!-.«
waste/commodity.

                                36

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Friday A.M.
Third Small Group session - Developing Solutions

The facilitator asked the group to take a few minutes to pretend
that they were the Administrator of EPA and develop specific
changes they would make to the current definition of solid waste
in an attempt to improve it.  Changes could be of a regulatory,
policy, or statutory nature.
The group came up with 25 changes.
into three different categories.

Statutory Changes;
Afterwards, they were grouped
          Eliminate "waste" and go toward "materials" controls.

          Use "materials" controls, but have graduations of
          regulations based on risk posed by the material.

          Establish a tiered permit approach based on the risk
          presented by the recycling process.

          Establish a National Materials Policy related to
          natural resources preservation and protection of human
          health and the environment.

          Create regulations that make it easier to recycle on-
          site.  Create a separate set of regulations for off-
          site recyclers, with no permit requirement.

          Have the Federal government create a minimum regulatory
          framework, and allow states to create the remainder of
          the program.

          Identify the worst hazardous constituents that are
          being used as ingredients in products and attempt to
          find less hazardous substitutes for those constituents
          (Toxics Reduction).

          Consider placing most hazardous waste recycling under
          Subtitle D rather than Subtitle C.

          Require facilities to create Risk Reduction Plans.
          These would be standards for the best management
          practices for each material.

          Exempt all materials to be recycled from the definition
          of solid waste if all materials are accounted for
          (i.e.> recycled or caught in a residue to b@ handled
          properly, according to current regulations).  Require
          recordkeeping and reporting.
                                37

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Regulatory Changes;

          Require permits for all off-site recycling  facilities.

     •    Redefine "recycling" to include only reclamation where
          there is no release of hazardous constituents  in the
          accumulation, recycling, or end use of the  product.
          Materials recycled in this manner would not be
          considered wastes.

          Eliminate the "sole active ingredient" qualification
          for P and U-listed wastes.

          Re-examine the exclusions from the definition  of solid
          waste.

     •    Target certain wastestreams and encourage recycling for
          those.  Base priorities for recycling on risk  presented
          by the recycling process  (i.e., low risk process would
          be encouraged).

     •    Call everything that will be recycled or discarded a
          solid waste.

     •    Redefine most terms currently used in the definition of
          solid waste regulations.

     •    Eliminate the definition of spent material.

     •    Create regulations with a strong incentive  for
          recycling.

     •    Expand the criteria for defining a characteristic
          hazardous waste to include the new characteristics of
          chronic toxicity, carcinogenicity, and persistence in
          the environment.

     •    Amend  (clarify) the definition of speculative
          accumulation.

 Policy  Changes:

          If making policy, issue it in the Federal Register
          where  it is available  for all.

      •    Conduct a major public education campaign to alert the
          public and the regulated  community regarding recycling
          of hazardous wastes  (in order to encourage  more
          recycling).

      •    Review and study  the European approach to waste
          management.

                                38

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          Reaffirm the need to protect the environment.

The facilitator then placed the above recommendations  into  four
groups:

     1)   Definitions

     2)   Permit Reform

     3)   Regulatory Framework - Materials Management vs. Waste
          Management, a Risk-Based Approach

     4)   Other Recommendations

The participants then split into four "subgroups" and refined the
suggestions.  They produced a summary of suggested changes to the
definition of solid waste, for each category.

Summarized Suggestions for Change;

1)   Definitions;

          Change the definition of "recycling" to "a material
          that is used, reused, or reclaimed in a process that
          does not allow unpermitted releases of hazardous
          constituents into the environment during accumulation,
          the recycling process itself,  or its end use as a
          product."  (Any material meeting this criteria would
          not be deemed a "waste.")

          Eliminate the definition of "spent material."

          When counting waste, a generator need not include
          materials that are recycled as in the new definition of
          "recycling."                ,
2)
          "Discarded" should not include materials that are
          recycled.
Permit Reform;
          Off-site recycling facilities should be regulated in
          the same manner that TSD's are regulated.

          With regard to on-site recycling, there should be no
          regulation of intermediate product (by-product)
          handling, where the by-product is reintroduced into the
          production process.  In addition, there should be no
          regulation of materials returned to the manufacturer
          for reprocessing ("takebacks").
                                39

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3)
-    The level of regulation for off-site recycling
     facilities should correspond to the level of risk posed
     by the recycling process.  The facility itself would be
     required to prove that the risks that are posed by the
     facility are either high, medium or low, for example.
     Perhaps an expedited permit process or less stringent
     regulations could be imposed, based on risk.

     Permit-by-rule was considered.

Regulatory Framework - Waste Management vs. Materials
Management, a Risk-Based Aproach;
4)
     A basic overriding principle must be established, which
     is:  a National Materials Policy that provides for
     natural resource protection and protection of human
     health and the environment (a multi-media approach) .

-    Materials and wastes should be managed equivalent ly,
     based on risk and hazard.

-    Set priorities for those materials that need to be
     regulated.

-    Create categories for the regulation of materials and
     wastes based on the degree of hazard and risk.

     Decrease the level of regulatory control as the risk
     and hazard is reduced.

     Require the regulated community to develop facility
     plans on how to reduce the risk from products and
     wastes.  Include source reduction in the plans.

Other Recommendations ;

I.   Outreach-

     Educate the regulated community through unbiased
     personnel.  Assure confidentiality.

     States and EPA should create public education units,
     including a youth movement for education on hazardous
     waste recycling.

     Encourage the public to encourage companies to source
     reduce/ recycle .

     Take a PROACTIVE  stance.
                           40

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II.  Policy-
     Place policy changes in the Federal Register where they
     are available to all.

     Implement policy through permits and enforcement, and
     ultimately through state and Federal rules (through the
     omnibus authority for permits).
III. Study-
     Send a contingent of state and Federal personnel to
     overseas points (Europe, Japan, etc.) to observe and
     generate ideas about waste management (look at foreign
     successes and failures).

     Research; keep an open mind, research innovative
     technologies, remove some barriers to recycling.

     Research the regulations and preamble to clarify the
     Agency's basis and purpose for the regulations.
                           41

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                          State Meeting
                    Definition of Solid Waste
Hichele Anders
Review Section
Characterization and
 Assessment, OSW
U.S. EPA (OS-332)
401 M Street, S.W.
Washington, DC 20460
(202) 475-8551

Carl Anderson
Wyoming Dept. of Environmental
 Quality
Solid Waste/Hazardous Waste
 Management
Region I Solid Waste
  Supervisor
Herschler Building
122 W. 25th Street
Cheyenne, WY 82002
(307) 777-7752

Kate Anderson
Office of Waste Programs
 Enforcement
RCRA Enforcement Division
U.S. EPA
401 M Street, SW (OS-520)
Washington, DC 20460

Dave Berrey
Indiana Dept. of Environmental
 Management
105 South Meridian Street
P.O. Box 6015
Indianapolis, IN 46206-6015

Nina Bonnelycke
U.S. Environmental Protection
 Agency
Office of Policy, Planning,
 & Evaluation
401 M Street, S.W. (PM-220)
Washington, DC 20460
David Bussard
Characterization and
 Assessment Division, OSW
U.S. EPA  (OS-330)
401 M Street, S.W.
Washington, DC 20460
(202) 382-4637

Gary Calaba
Oregon Dept. of Environmental
 Quality
Hazardous & Solid Waste Div.
811 S.W. 6th Avenue
Portland, OR 97204

William Golden
New York State Dept. of
 Environmental Conservation
Bureau of Waste Reduction &
 Recycling
50 Wolf Road
Albany, NY 12233-4015
(518) 457-7337

Karen Cosentino
SAIC
8400 Westpark Drive
McLean, VA 22102

David B. Davies
Washington Dept. of Ecology
Solid and Hazardous Waste
 Program
M.S. PV-ll
Olympia, WA 98504-8711
(206) 438-7194

Nicholas A. Dipasguale
Director
Waste Management Program
Missouri Dept. of Natural
 Resources
P.O. Box 176
-Jefferson City,  MO 65102
(314) 751-2747
                                42

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Fred Dowsett
Hazardous Materials & Waste
 Management
Colorado Dept. of Health
4210 E. llth Avenue
Denver, CO 80220

Melody Drnach
SAIC
8400 Westpark Drive
McLean, VA 22102

Thomas A. Epstein
Rhode Island Dept. of
 Environmental Management
Division of Air & Hazardous
 Materials
291 Promenade Street
Providence, RI 02908-5767
(401) 277-2797

Rick A. Folmsbee
DE Dept. of Natural Resources
 and Environmental Control
Solid Waste Manager
DNREC/DAWM/Solid Waste
P.O. Box 1401
89 Kings Highway
Dover, DE 19903

Dennis Green
Arkansas Dept. of Pollution
 Control & Ecology
Hazardous Waste Division
P.O. BOX 8913
Little Rock, AR 72219-8913
(501) 570-2895

Wladimir Guleyich, Ph.D., P.E,
Director, Division of
 Technical Services
VA Dept. of Waste Management
Eleventh Floor Monroe Bldg.
101 North 14th Street
Richmond, VA 23219
(804) 225-2975
David Hagan
Alabama Dept. of Environmental
 Management
South Unit Chief-RCRA
 Compliance
1751 Dickinson Drive
Montgomery, AL 36130

George P. Hartmann, P.E.
Hazardous and Solid Waste
 Permits Section
Texas Water Commission
P.O. Box 13087
Austin, TX 78711-3087
(512) 463-8174

Hannah Helm
Kentucky Div. of Waste Mgmt.
18 Reilly Road
Frankfort, KY 40601
(502) 564-6716

Carrie Jacobson
South Dakota Dept. of Water
 and Natural Resources
523 E. Capitol Avenue
Pierre, SD 57501
(605) 773-3153

Jennifer Kaduck
GA Environmental Protection
 Division
Hazardous Waste Program
205 Butler Street
Room 1154
Atlanta, GA 30334
(404) 656-7802

6. Mitch Kidwell
Characteristics and Assessment
Division, OSW
U.S. EPA
401 M Street S.W.
Washington, D.C.  20460
(202) 382-4805
                                43

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Edward K. Lynch/ P.E.
Wisconsin Department of
 Natural Respurces
Bureau of Solid Waste Mgmt.
101 S. Webster Street
Box 7921
Madison, WI 53707-7921
(608) 266-3084 •

David Mafrici
NY State Dept. Environmental
 Conservation
Associate Director, Div.
 Hazardous Substance Reg.
50 Wolf Road, Room 231
Albany, NY 12233

Doug McArthur
Texas Department of Health
Bureau Solid Waste Management
1100 W. 49th Street
Austin, TX 78756

Edward R. Meyer
Minnesota Pollution Control
 Agency
Hazardous Waste Division
520 Lafayette Road
St. Paul, MN 55155
 (612) 643-3496

David A. Nash, Director
Waste Engineering and
 Enforcement Division
Connecticut Dept. of
 Environmental Protection
165 Capitol Avenue
Hartford, CT 06106
 (203) 566-8843, 5406

Mike Nechvatal
Illinois EPA
2200 Churchill Road
Sprinfield, IL 62706
 (217) 785-8604
Gini Nelson
New Mexico Health & Environ.
 Dept.
Office of General Counsel
Harold Runnels Bldg.
1190 St. Francis Drive
Santa Fe, NM 87501
(505) 827-2854

Tom Ovenden
OSWER, U.S. EPA
401 M Street S.W.
Washington, D.C.  20460
(202) 245-4052

Patricia Overmeyer
SAIC
8400 Westpark Drive
McLean, VA 22102

Dale Ozier
Division of Solid Waste Mgrnt*
4th Floor, Customs House
701 Broadway
Nashville, TN 37247-3530

Rick Page
Utah Bureau of Solid &
 Hazardous Waste
P.O. BOX 16690
Salt Lake City, UT 84116-0690

Mike Petruska
U.S. EPA
401 M Street, SW
Washington, DC 20460
(202) 475-8551

Phillip G. Retallick
Delaware Dept. of Natural
 Resources
Division of Air & Waste
  Management
89 Kings Highway
Dover, DE 19901

Jerry Rhodes
North Carolina DEHNR
Hazardous Waste Section
P.O. Box 27687
Raleigh, NC 27611-7687
                                44

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Santos Rohena,, Jr.
Chairman, Puerto Rico
 Environmental Quality Board
Box 11488
San Selso, Puerto Rico 00926
(809) 767-8056

Bill Ross
Ross & Associates
Seattle Tower
Suite 1207
1218 Third Avenue
Seattle, WA 98101

Shirlee Schiffman, Chief
New Jersey Dept. of
 Environmental Protection
Division of Hazardous Waste
 Management
Bureau of Hazardous Waste
 Planning and Classification
Trenton, NJ 08625
(609) 292-8341

Catherine Sharp
Oklahoma Department of Health
1000 NE 10th Street, Room 803
Oklahoma City, OK 73152

Peter Sherman
SAIC
8400 Westpark Drive
McLean, VA 22102

'Richard W. Smith
District of Columbia Dept.
 of Public Works
Solid Waste Management
2nd & N. Place
Washington, DC 20003
(202) 727-4821

Mary Stevens
SAIC
8400 Westpark Drive
McLean, VA 22102
Jack Sukovaty
Nebraska NDEC
Land Quality Division Chief
301 Centennial Mall
State House Station
Lincoln, NE 68509

Bruce Swanton
State RCRA Supervisor
E.I.D./HazRad Waste
1190 St. Francis Drive
Santa Fe, NM 87503

Caren Trgoveich
Technical Advisor to Chief
 Exec. Officer
CA Integrated Waste Management
 Board
1020 9th St., Suite 300
Sacramento, CA 95814

Chris R. Varga
Oklahoma State Dept. of Health
Hazardous Waste Mgmt. Service
1000 NE 10th Street
Oklahoma City, OK 73152

Don Vidrine
Montana Dept. Health, Solid &
 Hazardous Waste
Cogswell Bldg.
Helena, MT 59620

Neil Weber
New Mexico Environmental ,
 Improvement Division
Solid Waste Bureau
1190 St. Francis Drive
Santa Fe, NM 87503

Philip Weinberg
Massachusetts DEP Solid Waste
One Winter Street
Boston, MA 02108

Sheila Wlegman
American Samoa EPA
Office of the Governor
Pago Pago, America Samoa 9 6 7 "> v
                                45

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Norman Willard
Northeast Waste Management
 Officals Assoc.  (NEWMOA)
85 Merrimac Street
Boston, MA 02114
(617) 367-8558

Peter Wise
SAIC
8400 Westpark Drive
McLean, VA 22102

Caryn Woodhouse
California Toxic Substances
 Control Program
Alternative Technology
pivision
714/744 P. Street
Sacramento, CA 95814
                               46

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                    Definition of solid Wasto

        Meeting with Environmental  Group Representatives
                                                          \. ' ;,  -\, -r-
                        December 20, 1990


A meeting was held with several representatives of national
environmental organizations on December 20, 1990.  The meeting
was conducted as a follow-up to the Interest Group meeting held
in Richmond on December 5-7 to address concerns expressed by many
participants at the Richmond meeting that environmental groups
were under-represented at that meeting.

The group was asked to discuss its views on regulating of waste-
derived products.  A representative of an environmental group
asked if the Agency would be looking at waste-derived products
beyond those that are applied to the land.  An EPA'representative
answered that it is an open issue right now and that the Agency
had not yet made such a determination.  Another EPA official
asked whether the person who posed the question was concerned
with sham recycling issues.  The environmental group
representative responded that although sham recycling is the
concern right now, waste-derived products must be considered more
generically so that similar problems do not arise with other
"products."  Another national environmental group representative
commented that, although it would not be the participant's first
priority, some sort of delisting process for waste-derived
products might be designed to remove the regulatory stigma for
"safe" products.  It was suggested that a more generic and
streamlined approach might be developed along the lines of
evaluating materials based on constituent concentration levels in
the end product.  An environmental group representative suggested
that the Agency could use the same specifications for recycled
products that they currently use for products made from virgin
materials.  Two environmental organization representatives agreed
that this process would ensure that the risks associated with
virgin and recycled products were identical.  One representative
of an environmental group mentioned that at the Richmond meeting,
one of the discussion groups generally agreed that it would be
plausible to have product specifications for reclaimed products
to guarantee that the risks associated with recycled products and
virgin products are similar.

Another environmental group representative commented that EPA
must avoid allowing waste-derived products to become merely
alternative disposal options for hazardous wastes.  The same
representative  added that the organization the participant
represented has discussed this with industry and that industry
understands that, absent any control, cement could become a s:.-•:
for large quantities of heavy metals.  Industry representatives
have indicated  to the environmental organization that they war-
to assist in eliminating such practices.

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An EPA representative commented that it seemed that one of the
biggest issues associated with waste-derived products is the
stigma issue, where waste-derived products are labeled hazardous
wastes.  One attendee suggested that, under the proposed
regulatory alternative, once a material met product
specifications, it would not have to be labeled a waste-derived
product any longer.  The same participant added that the tricky
part would be determining what constituents need to be addressed
in-the product specifications.

An EPA representative asked whether there was reason to believe
that we need to regulate everything right now, from aluminum cans
to cement.  An environmental group representative said that the
organization the participant represented does not expect aluminum
cans to have hazardous constituents and that there are already
industry standards for aluminum.

An EPA official stated that it is one thing to have an industry-
recommended specification and another to have an EPA
specification that is enforceable within a regulatory program.
One attendee suggested that an easy start could be to examine
those commonly recycled products where what is being recycled is
essentially the same as the virgin material.  No other
constituents are used beyond those used in the production of the
virgin-material product.  Then the next step could be where
feedstock or ingredient substitutes that have been contaminated
by other constituents are examined.  The same participant added
that, alternatively, if industry is concerned with stigma,  the
Agency could put the burden on industry to show that their
"products" should not be considered hazardous wastes.   Stigma may
be a small price to pay to ensure a material is safe.

An EPA representative questioned if adequate product standards
currently exist for virgin products, would it be okay to compare
recycled materials against virgin materials.  One meeting
attendee suggested that for some materials,  such as used aluminum
beverage cans, an industry-wide standard is in place and is
probably adequate.  However, problems come in developing product
specifications for materials that may encompass a wide variety  of
formulations, such as aggregates.   Furthermore,  EPA must guard
against someone bringing in the world's dirtiest virgin aggregate
to get a low standard set for recycled aggregates.   The same
participant suggested that a percentile standard could be set
which would say that overall, waste-derived products are no less
safe than virgin products.

Another EPA representative commented that most materials do not
have product specifications, and it will be very rare that  there
will be enough data available to do a percent analysis for  all
waste-derived products.  An environmental group representative
asked if the Agency has a sense of how many different waste-
derived products exist and would it be possible to develop

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genera! categories for waste-derived products.  The  EPA
representative replied that there are not too many products
applied to the land, but there are well-established  secondary
materials industries, including the secondary smelting industry,
secondary aluminum industry, and solvent reclaimers.

Another participant reiterated that the stigma problem did not
seem that real.  An EPA official reminded the group  that a
convincing argument can be made that the stigma of the proposed
listing of used oil had a significant impact on the  rerefining
industry.  Further, another EPA official suggested that if
certain sectors of industry are using a hazardous waste and
others are not, the virgin-material users may use the hazardous
waste label against their competitors.  While some sympathy was
expressed about the stigma issue, one .environmental  group
representative who initially raised tile; issue mentioned that when
the discussion group the participant was in at the Richmond
meeting discussed the stigma issue, in some cases, it came down
to industry not wanting Subtitle C permitting and corrective
action.  The stigma issue may be used by industry in some cases
to say "I do not want to be regulated under Subtitle C."  Several
agreed that stigma cannot stand alone as a reason for relief from
regulation.

An EPA official asked the group if they had any reactions to the
suggestion that a separate subtitle for hazardous waste recycling
and secondary materials and/or some sort of permitting or
corrective action relief be established.  One environmental group
representative commented that the group in which the
representative had participated in Richmond had probably gone the
furthest in suggesting that RCRA jurisdiction be extended to
include all secondary materials, and the participant felt that
this was a step in the right direction.  A primary concern
regarding this approach was the length of time it would take to
address the hazardous waste recycling issues with a separate
subtitle.  The participant continued that, although sympathetic
to the Agency's workload problems, it would be more practical to
have Subtitle C apply to all secondary materials and then provide
the Agency with authority to remove certain requirements for
certain secondary materials.  Another attendee agreed that
broadening the jurisdiction of Subtitle C would be more effective
than establishing a separate subtitle for secondary materials and
would give the Agency more control.  If a separate subtitle was
developed, many facilities would attempt to get out of Subtitle
C.

An environmental group representative added that some of the
things that industry wants may not be environmentally sound,  such
as relief from corrective action.  Several meeting participants
noted that what industry seemed to want was relief from facility-
wide corrective action.  An EPA representative commented that the
corrective action issue is the same issue for recyclers as it is

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for everyone else,  one attendee noted that it did not appear
that anyone at either the meeting in Richmond or the meeting in
Annapolis [Note:  a separate meeting on RCRA Reauthorization]
objected to EPA having cleanup authority.

An EPA official asked the group what they, thought about class
permitting for hazardous waste recycling facilities.  One
participant noted that while the organization the participant
represented had "sort of" supported it in the Luken RCRA
Reauthorization Bill, there may be a lot of problems with
detailing the specifics.  As a concept, two environmental group
representatives agreed that they were not opposed to it, but that
the specifics needed work.

An EPA representative asked the participants to comment on the
public involvement aspect of class permitting,  one environmental
group representative responded that there must be some type of
public involvement.  The participant added that class permitting
makes sense for more standardized facilities.  Another EPA
official asked whether the environmental groups would be
comfortable having standardized answers for standardized
questions from the public.  An EPA official asked if when
permitting is applied on a site-specific basis, whether or not
public comment would be necessary for each facility.

An EPA official suggested that for the recycler the big question
is whether recycling can begin without a permit.  Because
corrective action requirements are incorporated as conditions of
the permit, this issue is complicated.  Another EPA official
stated that the Agency must have the authority to abandon a class
permitting system for an individual permit regime if the former
is unsuccessful in protecting human health and the environment.

An EPA official explained that the 1985 used oil management
standards proposal was the only time in the RCRA program when the
Agency proposed a comprehensive permit-by-rule program and that
it was the Agency's best attempt at an enforceable permit-by-rule
system.  One environmental group representative added that in
order to have meaningful dialogue we need to begin to look at a
specific proposal and to evaluate the kinds of facilities that
would be eligible for class permitting or permit-by-rule.

An EPA ,official noted that participants seemed to be concerned
with a deviation from Subtitle c and the absence of precedents in
dealing with something new.  One participant added that if the
Agency uses the pre-existing program as a base and takes away or
modifies the negative aspects, there need not be a period of
inactivity while the Agency creates a new subtitle.

An EPA official asked the environmental group representatives to
restate their position on Subtitle C corrective action.  One
environmental group representative commented that something needs

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to be done for a lot of different segments of industry.  The
participant was sympathetic toward those facilities that want to
clean up but are waiting for a permit and have been put off
because they are not a high-priority site.  Furthermore, there
may be room to set up a structure by which some of these cleanups
can occur without a full permit.  Another participant suggested
that one solution may be to look at much more aggressive
financial assurance for corrective action.

An EPA representative presented a scenario where a steel mill
that is presently not in the Subtitle C system has the choice of
sending its waste off-site for disposal/recycling or undertaking
recycling on-site.  A second EPA representative commented that
this is a perfect example because some facilities in the steel
industry would probably be high on EPA1s permitting priority
list.  Therefore, these facilities are not goinij to recycle on-
site because they know that corrective action is linked to
permitting.        ,        .'. .  •

Another Agency official noted that the group's discussion, if
carried to the extreme, was sounding like Superfund; if it is
bad, it has to be cleaned up.  The participants agreed.   An
Agency representative asked the group members if they have
thought about how to modify the scope of Subtitle C.  One
environmental group representative suggested that everything,
except products, should be a secondary material, and all
secondary materials,  potentially, should be regulated under RCRA.
When hazardous and disposed, secondary materials should be
regulated as hazardous waste.  The participant added that a
secondary material would be any material that was not a primary
product or co-product (i.e., if the material needs to be
processed further, it is a secondary material).   An EPA
representative asked how spent pickle liquor would be treated
under this scheme.  Pickle liquor is a type of waste that gets
sold as a product.  For example, it can be used as a wastewater
conditioner.  It is a traditional secondary material,  but it goes
to another facility for further processing.

An EPA representative suggested that most chemical intermediates
and every drop of gasoline would be caught by this scenario.   The
environmental group representative who suggested the scheme
responded that not many chemical intermediates would be caught
because many chemical intermediates are considered products
because they can be used in their intermediate form.  An EPA
representative commented that it would be very difficult to
explain why certain materials fell within the definition of solid
waste and why others did not.  Another EPA official commented
that a major issue becomes:  do we set up generic rules and then
depend on a process by process evaluation for specific
requirements.

-------
An EPA representative asked how secondary materials would be
regulated under RCRA.  Another EPA official suggested that
secondary materials could be regulated as hazardous given
triggers such as storage on the land.  The EPA representative
questioned how RCRA would apply to process ingredients.

Another attendee noted that facility owners/operators would not
have to worry about whether a material is or is not a secondary
material because if the material is hazardous it will be
regulated as a hazardous waste.  An EPA representative commented
that the- big question is whether all secondary materials/products
should be regulated under RCRA.

An environmental group representative noted that the discussion
group the participant was a member of. at the Richmond meeting had
discussed setting specifications for reuse of secondary
materials.  The participant added that the Agency had already
done some of this already.  An EPA official rebutted that, in
reality/ the Agency does not have a lot of product
specifications, and the ones that they do have were very
difficult and time-consuming to develop.  Another agency official
commented that a concern is whether there are large, not-so-
diverse subsets for which generic product specifications could be
developed, and how many subcategories would be needed.

The environmental group representatives were asked to raise other
issues they wished to discuss.  One environmental group
representative suggested that a product must be defined in such a
way that it captures those materials that the AMC is currently
arguing about.  The participant stated that materials that are
stored must be monitored and questioned whether a more stringent
time limit should be applied to materials stored on the land.
The environmental group representative noted that although there
are speculative accumulation requirements, speculative
accumulation allows storage for one year, and in any event,  the
Agency should have management standards in such cases.

An Agency official commented that the group had been trying to
narrow the definition by identifying the types of materials and
management that should be regulated under RCRA.  An environmental
group representative stated that if we are talking about changing
RCRA's jurisdictional definition to encompass all secondary
materials, an argument can be made that it does not matter if you
are opposed to expansively defining secondary materials.  By
expanding the definition of secondary material, the only addition
to substantive management standards will be to subject tank
storage of secondary materials to the Subtitle C tank standards.

The participants were asked how they .felt about conditional
exclusions where if you manage a secondary material in a certain
way then it is not a waste,  one environmental group
representative questioned whether the Agency would be able to

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 exercise their inspection authorities under these cases.  The
 same participant noted that some of the participant's work has
 highlighted the fact that unless a facility is in the system
 there is no way to find out if it ought to be regulated.  An EPA
 representative commented that there is probably some way that you
 could make the hazardous waste recycling regulations as
 enforceable as the current generator rules.

 An environmental group representative suggested that this
 approach is similar to the scheme where everything is a secondary
 material.   The problem of having almost everything be a secondary
 material or derived from a secondary material,  and thus the RCRA
 universe growing exponentially was brought up.   it was suggested
 that in  such a case,  permitting would be very burdensome on EPA
 An EPA representative added that some type of conditional
 exclusion may help.   Another environmental group representative
 asked how a conditional exclusion would work.   An environmental
 group representative  asked if a material would  never be
 considered a waste if a facility stores a material in a tank and
 the  tank meets the applicable standards,  or  if  the facility
 stores the material  in a waste pile and the  waste pile meets
 applicable specifications.   Several EPA officials explained that
 conceptually,  this would be true if it met the  conditions of the
 exclusion,  such as if it occurred on-site, met  the time limits,
 and  the  material went back into the original process.   Another
 EPA  representative explained that the  benefit of  having
 conditional  exemptions for a material  versus regulating a
 material might include partially resolving the  stigma  issue,  the
 corrective action  issue,  the level  of  government  intervention,
 and  potentially, the  permitting issue.

 An EPA representative asked  the  group what their  concerns were
 with  a management-based  approach.   One environmental group
 representative responded that  if  facilities do not do what they
 say  they are  doing, and  they are  not in the system, the
 facilities may escape regulation.  Another participant commented
 that  some  concerns would be  alleviated by notification
 requirements.

 Group members  were asked to highlight any other issues or ideas
 that  the group  thought were under-represented at the Richmond
 meeting.   A representative of an environmental group noted that
 the biggest issue  for the participant is that the problem will
 not be solved  by developing a new subtitle for recycling.
Another environmental group representative felt that a system (a
 new subtitle)  could not be developed in the next five years.
 Both participants expressed concern that either such a system
would never be developed, or it would never be as detailed and
complete as Subtitle C has become.

-------
An environmental group representative noted that there is a
general sense in the environmental community that industry is
insisting that to have recycling, compromises must be made.  The
participant believes that it is possible to have recycling
without risking environmental damage.

An EPA representative asked the group if there were certain waste
streams or industries that they might want to encourage to
recycle because their primary production processes are so bad
(and therefore the risks associated with disposal of the
residuals are high).  One participant commented that the
organization the participant represented would not support a
decision not to regulate hazardous waste recycling because the
primary production process is bad.

An EPA official thanked all of the participants for attending the
meeting and the meeting was adjourned.

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                    Environmental  Group Meeting
                     Definition of Solid Waste
 Dave  Bussard
 EPA/OSW
 Characterization and
   Assessment Division
 401 M Street, S.W.
 Washington, DC  20460
 (202) 382-4637

 Karen Cosentino
 SAIC
 8400  Westpark Drive
 McLean, VA  22102
 (703) 821-4638

 Becky Cuthbertson
 EPA OSW
 Characterization and
   Assessment Division
 401 M Street, S.W.
Washington, DC  20460
 (202) 475-9715

Karen Florini
Environmental Defense Fund
 1616  P Street, N.W.
Washington, DC  20036
 (202) 387-3500

Linda Greer
Natural Resources Defense
  Council
 1350 New York Avenue
Washington, DC  20005
 (202) 783-7800

Mitch Kidwell
EPA/OSW
Characterization and
   Assessment Division
401 M Street, S.W.
Washington, DC  20460
 (202) 382-4805

Sylvia Lowrance
EPA/OSW
401 M Street, S.W.
Washington, DC  20460
Tom Ovenden
EPA/OSW
Characterization  and
   Assessment Division
401 M Street, S.W.
Washington, DC  20460
(202) 382-4779

Mike Petruska
EPA/OSW
Characterization  and
   Assessment Division
401 M Street, S.W.
Washington, DC  20460
(202) 475-8551

Steve Silverman
EPA/Office of General Counsel
401 M Street, S.W.
Washington, DC  20460
(202) 382-7703

Velma Smith
Friends of the Earth
218 D Street, S.E.
Washington, DC  20003
(202)  544-2600

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  RCRA Implementation Study Update



             Appendix C
   Environmental  Damages  Caused  By
Hazardous Waste Recycling Practices

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                             1.0 INTRODUCTION
      In 1985, EPA identified in the Final Rule for the Definition of Solid Waste 82
incidents where mismanagement at recycling operations resulted in damage to the
environment (50 FR 614 January 4, 1985). Many of the sites in the Appendix to
the notice were derived from the Superfund National Priority List (NPL).  Since that
time, additional sites have been added to the NPL and many still pose a risk to
human health and the environment today.  The purpose of this document is to
present a follow-up to the 1985  list in order to illustrate additional examples where
damage has occurred as a result of recycling practices occurring since the 1985
rule. The examples provided in this document are only intended to illustrate that
recycling practices have led to environmental damage.  It is not intended to be an
exhaustive list of such cases.  The cases selected for inclusion in this document
were selected based on type and dates of operation, and the level of damage to
the surrounding environment.  The mention of specific company names  in this
document is for informational purposes only and is not intended to represent an
indication of fault or prejudice for one company over another.
                                   - 1 -

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                     2.0 METHODOLOGY AND RESULTS
      There is no single source of information that contains a comprehensive
listing of damage cases for hazardous waste recycling facilities.  The primary
source of information used for this document was a review of Superfund data for
sites added to the NPL since 1985.  The results and methodology used to review
this information are outlined below:

      The NPL consists of 1,187 sites in the United States with documented
releases (or threats of release) of toxic chemicals to the environment warranting
remedial action (55 EB 35502 August 30, 1990).  Of the total number of sites on
the NPL today, 649 sites were added to the list since the January 4, 1985 final
rule.  For the purposes of this document, all sites added to the NPL since 1985
were reviewed to determine:  1) if they included any on-site recycling operations,
and  2) if the damage from these sites  could be attributed to mismanagement at
the recycling operations. An initial review resulted in a subset of 35 sites.

      In many cases it  is difficult to determine at what point in time environmental
damage occurs on a site.  For the purposes of this document, with the  exception
of catastrophic occurrences such as explosion, fire or flood, damage at a site was
assumed to take place over the lifetime of the operation.  Since the period of time
required for any given site to be listed on the NPL typically extends well beyond
the date of final operation, a subsequent review was performed to eliminate all
sites not in operation after the January 4, 1985 rule.  Environmental damage
resulting from each of the 14 remaining sites was reviewed and  is summarized in
tabular format in Table  1 below.
                                    -2-

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                                       Table 2:  Environmental Damage* Gained by Hazardous Waate Recycling Practices
                                                                  Since January 4, 1985
                Types of recycling operation, wastes present, damages caused, or hazards posed
             Source of information
 1. Alaaha Battery Enterprises (located in Fairbanks, Alaska) - battery parts and acid have been stored on an un-
 paved lot prior to reclamation of acid and lead.  Wash-water, spills and waste water generated on-site were
 discharged to an on-site septic tank and drain field, and battery parts were buried on-site during operations prior to
 1976. Both acid and lead have been found migrating off-site, threatening ground water supplies for 18,000 nearby
 residents. (CERCLIS ID No. AKDO04904215).

 2. Standard Steel & Metal Salvage Yard (USOOTI (located in Fairbanks, Alaska) - this site was used by different
 recyclers of PCB-contaminated electrical transformers, processing of military equipment and drums, and recycling of
 batteries. High levels of lead and PCBs have been found in ground water, and traces of tetrachloroethylene have
 also bean found potentially threatening a stand-by drinking water supply for over 121,000 people.  (CERCLIS ID No.
 AK098O978787).

 3. Interstate Lead Co. (ILCO) (located in Leeds, Alabama) - improper operating and disposal practices at a lead-acid
 battery recycling facility have resulted in lead and cadmium contamination in ground water, surface water and
 ambient air in the area. The company has entered into two partial Consent Decrees with EPA to stabilize
 contamination, and is currently under reorganization under Chapter 11 of the Federal bankruptcy code. (CERCLIS
 ID No. ALD041906173).

 4. Lorentz  Barrel & Drum Co. (located in San Jose. California) - damage resulting from spills and overflowing sumps
 at this drum reconditioning facility is believed to have contributed to levels of trichloroethane. trichloroethvlene,
 l.l-dichktroethylene, and tetrachloroethylene detected in the ground water at this site. Operations prior to 1984
included discharging.wastes directly  to sanitary sewer.  After 1984, liquid wastes were evaporated, drummed and
disposed of as hazardous waste along with incinerator ash, residual liquids and sludges. Inspection at this site
 revealed soil and ground water contamination with metals,  organics and PCBs.  Contamination at this site
 threatens the drinking water supply of over 250,000 people.  (CERCLIS ID No. CAD029295706).

 5. Peak Oil Co./Bsy Drum Co. (located in Tampa, Florida) - Peak Oil re-refined oil and disposed of wastes on-site in
 an acid sludge pond.  Bay Drum Co., operating over the same twenty-year period, recycled drums and disposed of
 wash  water in a holding pond at the site. Both surface water, ground water, sediments and sludges were found to
be contaminated with PCBs, pesticides, solvents, and heavy metals. (CERCLIS ID No. FLD004091807).

6. Kerr McOs* Chemical Corp. (Soda Springs Plant) (located in Soda Springs, Idaho) - this plant produces vanadium
pantoxide from by-product ferrous-phosphate solids generated at the neighboring Monsanto Chemical Co. plant.
The operation utilizes on-site ponds to store liquid wastes generated during the production process.  On-site ground
water monitoring has detected elevated levels of vanadium, arsenic, copper and silver that threatens the drinking
water supply of 3.000 people in the area.  (CERCLIS ID No. IDD041310707).
 Superfund National Priorities List
 (54 FR 13296 March 31, 1989)
 Superfund National Priorities List
 (55 FR 355O2 August 30. 1990)
Superfund National Priorities List
(SI FR 21054 June 10. 1986)
Superfund National Priorities List
(54 FR 41000 October 4, 1989)
Superfund National Priorities List
(51 FR 21054 June 10, 1986)
Superfund National Priorities List
(55 FR 355O2 August 30, 1990)
                                                                         - 1 -

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                                      Tab!* 2: Ehvtronmenlal Damage* C*u«ed by Hazardoue West* RecycMig Practice*
                                                                 One* January 4. 1985
                Typea of recycling operation, waetea present, damages caused, or hazard* poaad
                                                                                                                       Source of Information
7. Fort Hartford Coal Co.. Inc.. Stone Quarry (located in Olaton, Kentucky) - since 1981 this site has been used to
store secondary dross (a byproduct of aluminum recycling) from Barmot Aluminum Corn's smelter in Livia,
Kentucky. A ttate inspection of the area in 1984 detected high levels of ammonia in an unnamed stream that
originates in the waste and flow* into tha Rough River, and in 1986 an EPA inspection detected  high levels of
ammonia in the area around tha storage areas.  In 1988. EPA identified areas where the quarry roof hod collapsed
providing pathways for water to drain into the storage area.  Runoff from the site presents a potential threat to the
drinking water supply of 700 people in the area. (CERCLIS ID No. KYD980844625).

8. H. Brown Co., Inc. (located in Grand Rapids. Michigan) - this site operated as a facility for reclaiming nonferrous
metals from lead and wet-cell batteries. Approximately 457.000 gallons of sulfuric acid containing load, cadmium,
iron, and zinc were poured directly onto the soil during reclaiming operations. This site ceased recycling operations
in 1982. however the site continued  to collect wastes and sell to other recycling businesses.  (CERCLIS ID No.
MID017075138).

9. Industrial Latex Corp. (located in Borough of Wellington, New Jersey) - chemical  adhesives and natural and
synthetic rubber compounds were manufactured at this location. Process wastes were drummed and either stored
prior to disposal or buried in unlined trenches. Raw materials for the manufacture of latex adhesives and other
rubber compounds were atored in underground storage tanks and waste solvents were stored  in an aboveground
tank prior to reclamation. Chemical wastes were flushed into an on-site sanitary septic system.  Poor operational
procedures, in conjunction with on-site waste disposal practices, resulted in widespread contamination of surface
and subaurfaco soil.  Toluene, xylene, ethylbenzene, and benzene were detected in soil samples  taken during soil
removal action in .1986. (CERCLIS ID No. NJD981178411).

 10.  Cat Weat MetaJa (USSBA) (located in Lemitar. New Mexico) - during 1979 to 1981 the company processed
approximately 20,000 automobile batteries to recover lead.  During 1982 to 1984, the company conducted
research and development on various aspects of raw materials recovery and in 1985 reworked the waste piles from
the battery recycling operation to recover lead.  In an inspection in 1985, the state environmental agency found
 300 drums containing lead oxide and sulfuric acid, unrecovared piles of battery pieces, and an evaporation pond  on
•He. lead, possibly coming from the uncovered waste piles, was detected in soils up to 400 feet downwind of the
 site. (CERCLIS ID No. NMD09796O272).

 11.  Maniac*  Petrochemical Co.. Inc. (located in Glen Cove, New York) - this site received chemicals by tank truck
 for redistribution. M&M Drum Cleaning Co. also operated a  drum reconditioning operation at tha site.  A state
 inspection revealed that drum* containing volatile organic liquids were buried on-site and that  waste water
 generated by tha cleaning of drums was being discharged into subsurface leaching pools.  Levels of 1.1,1-
 trichloroethane, ethylbenzene. and xylene were detected on-site in soil and shallow ground weter.  The property
 waa seized by the state of New York in 1987. Contamination at the site poses threats to 44,000 people that
 obtain drinking water from wells within three miles of the site, and to tidal wetlands 500 feet  from the site.
 (CERCLIS ID No. NYDOO0512459).
Superfund National Priorities List
(55 £B 35502 August 30. 1990)
Superfund National Priorities List
(51 FR 21054 June 10, 1986)
Superfund National Priorities List
(54 FR 13296 March 31,1989)
Suparfund National Priorities List
(54 FR 13296 March 31, 1989)
 Superfund National Priorities List
 (54 FR 13296 March 31, 1989)
                                                                          - 2-

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                                       Table 2: Environmental Damage* Caused by Hazardous Waata Recycling Practice
                                                                  Since January 4, 190S
                Typaa of recycling operation, waataa praaant. damagea cauaed. or hazcrda poaed
             Source of information
 12.  Tri-Citiea Barrel Co. (locatod in Port Crane, New York) - this has been the site of a barrel reconditioning
 operation »irtce 1955.  The reconditioning process involves  cleaning the interior of the barrels with sodium
 hydroxide solution.  An incinerator i* used at the site for disposal of flammable solids. Until 1980, waste water
 from the reconditioning was discharged into unlined lagoons and allowed to evaporate. This process has been
 stopped and waste water is currently stored in a holding tank and hauled off-site for disposal.  Ground water on-site
 is contaminated with PCB-Arodor 1242 and chlordane, and soil samples have revealed high concentrations of
 organic compounds.  (CERCLIS ID No. NYD980509285).

 13.  MW Manufacturing (located in Valley Township, Pennsylvania) - copper is recovered from scrap wire on the
 site using both mechanical and chemical processes. Wastes stored on-site include 400,000 cubic feet of finely
 divided wire scraps, SO drums, a 6,000 gallon tank, a 6-acre surface impoundment and a landfill holding 20,000
 cubic feet of wastes.  Spent chlorinated solvents have also  been dumped on-site. Damage from the site consists of
 high levels of lead in nearby residential drinking water wells. (CERCLIS ID No. PAD980691372).

 14.  Dixie Oil Procesaore, Inc. (located in Friends wood, Texas) - this has bean the site of several recovery
 operations, including an olefin washing and copper recovery operation as well as a conversion operation for liquid
 organic wastes from refining, chemical and petrochemical facilities to creosote, fuel extenders, and other petroleum
 products. Problems on site include contamination of soil and shallow ground water from storage of copper in
barrels and six on-site lagoons, and contamination of a nearby creek from spills from the copper recovery operation.
 Elevated levels of lead, benzene, toluene, ethylbenzene, and copper have been detected in on-site wells.
Contamination from the site threatens the drinking water supply of 140 people who obtain water from shallow
public and private wells within three miles of the site.  (CERCLIS ID No. TXD089793046).
Superfund National Priorities List
(54 FR 41000 October 4, 1989)
Superfund National Priorities List
(51 FR 21054 June 10,  1986)
Superfund National Priorities List
(54 FR 41000 October 4, 1989)
                                                                          - 3 -

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  RCRA  Implementation  Study Update
             Appendix  D
Damages Listed in the January 4, 1985
              Final Rule

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658
Federal  Register / Vol.  50.  No.  3  /  Friday.  January  4,  1985  /  Rules and Regulations
requirements are now being submitted
to OMB for approval.

Lists of Subjects

4O CFR Part 26O

   Administrative practice and
procedure. Hazardous materials. Waste
treatment and disposal.
                                     40 CFR Part 26}

                                        Hazardous materials. Waste
                                     treatment and  disposal. Recycling.

                                     40 CFR Part 264

                                        Hazardous materials, Packaging and
                                     containers, Reporting requirements,
                                     Security measures,. Surety bond's. Waste
                                     treatment and  disposal.
40 CFR Part 265

   Hazardous materials. Packaging and
containers, Reporting requirements.
Security measures. Surety bonds, Waste
treatment and disposal, Water supply.

40 CFR Part 266

   Hazardous materials.

   Dated: December 20-, 1984.
AlvinL. Aim,
Acting Administrator.
                         APPENDIX A.—SUMMARY OF DAMAGE INCIDENTS RESULTING FROM- RECYCLING OF HAZARDOUS WASTES
                       Typo*, ef recycling, operation, wastes present, damages caused, or hazard* posed
                                                                                                                                    Source of'Mormtion
 1. Resolve, Inc. (locatsd » N. Dartmouth,  Masaf stared spent solvent  dhrtllattorr bottoms in unHned lagoons prior to reclamation.
  Substantial groundwater contamination has. resulted.
 2. Trie Gold Coast CM FacSty (located in- Miami? » * solvent- and paint thinner reclamation Operation. It also obtained, drum*, of other
  miscellaneous wastes containing phenols, metals and other organic compounds. Nesrty 3;030' cC mass druma have accumulated
  without their contents being recydeoX In addition. st« bottoms from the solvent reclamation operation nara> dbpewd of improperly.
  Substantial contamination of a drinking water aquifer has resulted.
 3- Sapp Battery Salvage (in Jackson County, Florida) recovered lead from spent batteries; Damage to surface and ground water was
  caused by spillage of acid from the spent battaries, leaching from severed battery casings, to* (toa- lesser degree* from runoff from
  batteries stored  prior trbeinr/ recovered!
 4. Seymour Recycling Corp. (located in Indiana) is an inactive waste recycling and incineration facility which overaccumulated inventory
  and eventually ceased operation^ leaving over 60.000. drums of one-half mNlion-gallons-of rx* wast*. Wastes- any toxic. Ignflable, and
  corrosl»e. Ground and- surface water contamination resulted, and there also-is danger of firv at cxplosiori
 S. A wast» processing company (located in .Maw Jersey) operated an oil recycling plant- which purchased waste oi  for. reclamation.
  Waste oil, some of ftPCB contaminated, was stored in unlined settling lagoons. Fitter day from the- setdtng- operation was also used
  to build a road to the s*e. The site was abandoned, leaving all waste material in place, in the  onfined lagoons. Contamination of  an
  aquifei ueetf as. a public water supply » suspected.  (Some damage  at the sit* also msofted  fronv  dsposat of wasla> from  the
  reclamation ptocesa.)
 6. The Cham-Dyne facWy (located In. Ohio) engaged in reclamation of spent  solvents and1 other organic chemical*. It also blended
  these wastas and sold tw mixture as a fuel The facility overaccumulated huge amounts of thea» materials, an* also mishandled
  materials, that were- proeeesed  Materials present include phenol, naphthalene, polyvinyl chloride distillation, waste,. paSit sludges, ink
  sludges, vanadium pentoxide.  cyanide, methylmercaptan,. silicate resins,  freorv. acetaktehyde, benzyf chloride,  cumene*. asbestos,
  epKhkxohvdrm,  arsenic, toluene diioscyanata, pentachtoronrtrobenzene,  phthalate- esters, and plastic  an* rubber industry, resins.
  dearwp- costs  are estimated at $3:5 million. The company presently is in receivership. Hazards  posed by this site include, human
  health, contamination of  air and surface  water,  fish kills, noticeable- odors,  actuar fire, explosions, spots and runoff, storm sewer
  piutiteiiis. erosion-proMams, inadequate security, and presence of incompatible wastes.
 7. Th» Briognport ttenttf and OK Service* sit" (located: in Bridgeport. Naw Jersey)  stored waste. OS to an unSnod- lagoon  prior to
  recycling it The waste oil is known to be contaminated with-benzene, vtnyf cWoribe. methylene crdorxfe.  trjchloretriylene and toluene.
  Overflow and leaching from the lagoon has been documented; groundwatec use* as * homao drinking- wafer nurca- from nearby
  wofte B-contaViMuttit.
 8. Chemical Metals Industries, (located fa Maryland) engaged in the reclamation of precious metala primarily from various electroplating
   wastes, as- well as- other spent chemical  reprocessing.  Most material*  wer» taken pursuant w (offing agreements. Wast* materials
  were accumurated Uopp*y_ resulting in spills of acid and metatbearing  wastes. Th» facility later was* abandoned; leaving over 1.500
  drums of unreclaimed-wasts*. many corroded or leaking. Over $350.000 in federal., state and municipal funds has. been, expended to
   date on dean-up.
 9. TtoChefncatcaixtMnerals Reclamation Company (located in Cleveland) acted as « wean brokers recurring flammable, organfcs,
   solvents, and resnc price to recydinf. or disposal. A massive fire resulted from unsafe accumulation at these material*. The- facility
   dosed after tha fire, leaving waste inventory (over 1,500 drums) for clean-up.
 10. The Midwest Solver* Recovery Company; a solvent reclaimer located n Gary, Indian*, stored:spent solvents improperly-In- drums.
   tanks, and  open pita. These- materials were often flammable, in many cases incompat&to (acids- anr/  cyanide*, for example), and
   were badly overaccumulated. A fire of "tremendous size" (484 F. Supp. at 140) broke out at the  reclamation sit* and burned for a
   week before it could be- extinguished. The company continued to operate for a number of years after th» fire without anr change in
   practice. Sol «nd groundwater contamination have occurred. A preliminary injunction ordering ctesn-up-was-eventually-entered in the
   government's imminent hazard action.
 11. Solvent Recovery Service (1008100" in Connecticut) obtained a variety  of chlorinated solvents for reclamation. These solvent* were
   stored improperly in fcakfcg drums, Wastes, were also disposed in a lagoon- orr the: site. Aquifer omuriiiiatlon- Has. resulted and the
   local drioking watar supply has been affected.
 1Z Andover Sites (located in Andover, Minn.) am a group of five sites which operated as waste  brokers. They accepted metatbearina
   wastes, solvents, wacap  oft*.  paints, inks, and glue*. A recycling market was found- for some, of this material- but a great deal
   overaccumulated. Seme of- Ms malarial was ultimately dumped or burned improperly. Man* drums stilt remain. Ground and. surface
   water have been contaminated by metals and organic contaminants.
 13. Fritt Industries (in Walnut Ridge. Arkansas) obtained sultate and other waste* from generators and used- them as an Ingredient in
   lertitizar production.  These  materials, along with other process ingredients, ar» stored in- larosv eapmed pHes. An enormous fire
   occurred when  the piles of wastes, ignited; runoff from water used to fight  the fire contaminated SOD and surface waters.
 14. The South Carolina necyclng'and Disposal Company was a waste broker accepting- volatile  organic- wastes antf waste oil*. These
   materials were accumuhtel improperly prior to reclamation or disposal. Among the compound* present a*  solvents; waste oils,
   acetaldehyde. methyl acetate, cyanuric acid, ethylene chlorohydrin, acetone cyanohydrin, tricMoroethylene. mixed adds. luHuric acid,
   mercuric- oxide- yettow, and other caustics and acids. Massive  ovaraccumulation. fir* fiazard- and- actual Ires, and groundwater
   contamination near (kinking water welts resurtetf
 15. (•  • •) accepts steel mill flue dust, pickle liquors,  solvents,  and soda for regeneration, and  malarial recovery^ Some, oi these
   materials also are used- ar ingredients in tertiSzars. The facility used  surface Impoundments  and pflea for storage. These  storage
   facilities were onsecura and leaked  heavy metala and chlorinated solvents. The. ItcSty- also- bum* waste oil spent solvents, and
   solvent distiH«tion bottoms as beta, creating air pollution problems. A local Air Pollution-Control Agency !>**• initiated action against
   the company to require monitoring of incoming wastes and of boiler flue gas emissions.
 18. PCB contaminated waste o* wa» stood prior to- recydng or road application. No market developed and1 me- realty operator was
   unable to olspos* at D* contaminated oik Over 24,00ft gallons are accumulated, and the State  probably win have to pay disposal
  17. The Usfckt Greenhouse- end Wast* OH Co. (located- in. Jefferson, Ohk>> accepted waste- off and spent; solvents fo» storage prior W
    use as foe* or for road o*ng;  Minion* of geflorm accumulated without being recycled.resulting In* substanttaThazard: The-boMrs in
    which tha wast* oil was. burnt were incapable, of destroyingi the contained contaminants (InduoSng PCB'st resulting- In air pollution.
    Approximately $1.7 mafcn rns already been expended; additional funds are to-b« »0ocst»d.
  18. ThistacSty pbeated- is •noisf engaged1 in petroleum- recfaraation from wast* oS. snd also reclaimed metal hydroxide, sludge*, spent
    acids and caustics, and- mtsceHanacus- sludge*. These- materials overaccumola1eo~ in pits, fegoone. and far**. PCS's, phenol, and
    PAH's are found in the waste oD. Chromium, cadmium, and lead are OSo present; as- are benzene-, totuene, and Mcnroroethytene.
    Leaching and drainag*k> surface water*has caused1 extensive damage. Over J3OO.OOC has- been spent orr dean-up to  oate:
                                                                                                  Superfund Interim Priority. Site.

                                                                                                  Superfund Interim Priority SO*



                                                                                                  Superfund. Interim Priority Sluj.
                                                                                                   Seymour. Recycling: Gorp:. (NJ> trKt) PCRA. f 7003
                                                                                                    action); Superfund Interim Priority Site.

                                                                                                   Superfund; Interim Priority* Situ (Known a* Burnt Fly
                                                                                                    Bog*
                                                                                                   U.S:  v.  Chun-Dyne.  Inn  (57003 and SuperfurKf
                                                                                                    action);  Superfund  rnterfm Priority Smir Hazardous
                                                                                                    West* Report; December 14.19»t, nc 15.
                                                                                                   Supertunet  Interim; Priority S**; US r. Bridgeport
                                                                                                   Superfund  Interior Priorrrf  SKcc Hazardouc Wast*
                                                                                                    Report. January 25,1982. p. 4.
                                                                                                   US. v.  cnamictts tnet MtMratr Padtmttion {7003
                                                                                                     •ctton); Superfuntf IntBrtm Priority Sit*.

                                                                                                   US. MOwatt Solvent  Rfcovfiy  /no. (17003 action).
                                                                                                   US. v. Solvent  Recowy Stniof of Vmr EngHmt
                                                                                                    (17003 action).

                                                                                                   Suporfund I nt* nor Priority SRVL
                                                                                                   Superfund Interim Priority Sit*.
                                                                                                   US. K South C*mHnf R*cye»ng tnd Oispoal Compt-
                                                                                                    ny (Bhiff Roads); (17003 action); Superiund- Interim
                                                                                                    Priority SH&
                                                                                                   Oinagat tnd Thrtttt Fran Htzardom Uutritl Sitf*.
                                                                                                     EPA/430/9-80/004, p. 2ST: fbtowup phon* conver-
                                                                                                     sations with reprasentatlverol Ecology and Environ-
                                                                                                     ment (EPA Supertund corm actors); Supertuntf Imer-
                                                                                                     im Priority SKe.
                                                                                                   Dmtgts tna TJntt* fmat Hmnrdou* UMtriMt SUts.
                                                                                                   US; LtiUn Gmnrtcust tnf Wut* Oi Co.  (J70O3
                                                                                                    action); Hazardous- WasW Report January 25. 1962,
                                                                                                    pp. 5-«, Superfund Interim Priority Site.

                                                                                                   U.S. K A&F MfMnisIt Ox 8 7003 action) Superfund-

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                    Federal  Register  /  Vol.  50.'No.  3  /  Friday.  January  4.  1985  /  Rules  and  Regulations
                                           659
                   APPENDIX A.—SUMMARY OF DAMAGE INCIDENTS RESULTING FROM RECYCLING OF HAZARDOUS WASTES—Continued
                        Typetol recycling operation, wastes present damages caused, or hazards posed
                                                                                                                                          Source of information
10  This tcrap metal reclaimer stored materials destined (or reclamation in leaking drums. Some ongoing disposal occurred as well.
  Paint ikjdge. 465 nwm flux and miscellaneous oily materials  were on hand, contaminating soil and possibly ground  and surface
20. The ail* (located In Tennessee} engaged in waste  salvage and  disposal operations involving improperly drummed and buried
  mueriate moil constituents thai leaked or spilled appear to be chlorinated solvents. 1,2-Dfchloropropane has also been found,
21. The Dmy-Loetfel, landfill (located in Nassau County. New YorkJ was used  in an oil reclamation and storage  operation. PCB
  contaminated oJ wu stored at the she. Ground and surface water in the vanity have been found to be contaminated with PCB.
22  (* ' * ) l» a torrent and chemical recovery and waste recycling operation. It aiso separates out and resells acids, caustics, and
  pokcra. Some on-going disposal occurs as well. Chemicals  which have been present at the site include acetone, ether, benzene.
  lutlonei, acttaldehyde. aniline,  methane!, chlorinated solvents, cyanides, HO. H,SO. formic acid, PCBs. beryllium, penthachlorc-
  phenot and camtlet. The  government's  complaint alleges that damages and hazards include overaccumulation. improper storage
  (including unula  storage  in underground bulk storage  tanks),  mislabelling. fire  hazard, soil  contamination and  possible water
  contarmtnn, A preTxrwit.-/ injunction has baen entered ordering the facility to comply with  certain of the interim status  standards
  forttorage.
23, Eloper tiorage of spent solvents by this Ohio solvent recovery operation led to contamination of ground and surface water and
  air. PCSs, tetrachkxoethene. toluene, MEK, and xytene are among the toxicants involved.
St. Thn Indiana scrap metal recovery operation accepted steel drums containing flammable toxic materials. These drums were stored
  and hsrxXed improperly. Substances present include cyanide, asbestos, and paint  residues.
25  Thb IncUna facility engages in solvent reclamation  Disposal of incoming materials and stilt bottoms also occurred. A large fire was
  caused by overaccumuladan and storage. Compounds present include arsenic, chromium, cadmium, lead, mercury, nickel, selenium.
  antimony, cyanides, dftMthyfornnob. phthalate esters, naphthalene, and solvents.
26. Dodn-contamnated waste OH was sprayed hi horse show arenas, in  Missouri, leading to poisoning of  exposed  individuals and
27. Hac
   fames and causing cyanide poisoning of firefighters. A continuing fire hazard and soil and water contamination threat remains.        •
32, Mr. ground water, and surface water contamination resulted from solvent recovery operations in Maryland (including volatilization of j
   sofeems from ditttilsSon units).                                                                                            I
33. Drinking water was contaminsled because ol Improper storage ol organic solvents at a reclamation facility ............................................... |
34. The SchuyMB Metals Company (located m  Hillsboro County,  Florida) reclaims  lead from spent batteries. Acid spillage from  the i
   barney cracking operations, acid and metal leaching from stored casings, and runoff from piled spent batteries have  contaminated '
 * ground water in the ane.
3S, The Chloride Metals Company (located In Tampa) is a secondary lead smelter reclaiming lead from spent batteries.  Ground water is
   eontemlnaled with. acid and metals from the battery cracking operation (which  recovers lead from smelting), and from runoff from
   pled casings and  spent batteries.
06. Reclamation of tetraeftyl lead sludges stored in ponds prior to reclamation. Damage is from air pollution and from fumes in transit....

37' UeW redamilion of  "waste stockpiled raw materials." Leachata from these pHes contaminated public -drinking water supplies with
   metaat. dosing • number ol wens.
38. A company reclaims  copper from "industrial wastes": these materials  are stored in cement-lined lagoons. The lagoons cracked
   contaminating the ground and surface waters,
39. The UcKin Company  (located In Gray, Maine) was used as a transfer station and processing point for contaminated waste oils prior
   to loal shipment to re-refiners. Both waste oil  from oil tpitfe and fuel still bottoms are reprocessed. Evidence exists that wastes were
   tf»»d al the processing tacttty and leached Into the underlying aquifer. Organic toxicants were eventually identified in ground water,
U.S. v. Acme Refining Co. (§ 7003 action).


U.S. v. Automated Industrial Disposal and Salvage Co.
  (f 7003 action).
Damages and Threats from Hazardous Matettl Sites.
  o. 193.
U.S. v. West ($7003 action).
U.S.  K Chemical Recovery Systems (5 7003 action).

(/£  K Ken Industries (5 7003 action).

U.S.   v.  Rsfier-Calo  Chemicals and  Solvent  Corp.
  (5 7003 action).

EPA Damage Incident Files.

Superfund  Interim Priority  Site (known as Denver
  radium site); also cited m Eckhardl Repot).
Eckhardt Report
Background Document 6 to  EPA's 1976  proposed
  regulations.
Subtitle C Environmental Impact Statement. Vol.  11. p.
  J-1.
US.  K American  Ecological Recycle Research  Corp.
  (5 7003 action).


US.  v. Spectmn, Inc. <§ 7003 action).

Minnesota State Damage File D2306,
Interviews with  officials of Hitlsboro County Environ-
  mental Protection Commission.

Interviews with  officials of Hillsboro County Environ-
  mental Protection Commission.

} 3004 damage  incidercs,  also cited in  H.R.' Rep 94-
  1481. pp. 20-21
H.R. Hep. 94-1491. p.  18.

H.R. Rep. 94-1491. p.  17.

Damage and Threats from  Hazardous  Material  Sites.
  p.  14.
   ruMenttal drinking wefts, and the public water system. The damage appears to be attributable to waste disposal as well as waste oil
   proceea'ng. SpecMc contaminants found Include trichtorethane. tricrriorethylene. acetone, xylene, dimethyl suffide. trimethylsilanol. and
   alcohol*, the state eventueJty ordered the facility closed.                                                             '        I
 40. Mercury-containing Uudges generated by a  number ot OWerent companies  were sent to a Mexican reclaimer for  metal  recovery.   U.S. v. Monochem Inc. (enforcement action).
   The w*ste* were abandoned before they reached Mexico, hi most cases, the drummed wastes were unlabelled and unmanifested.
   to thel k la ottflcuR 10 pinpoint reaponsibiLty or determine the precise nature of the drummed materials.                            I
 4) Damage resuttad from burning waste oil and solvents as fuel in boilers and  landspreading of PCB-contaminated waste oU. coupled
   win improper Unit and pond storage.
 42. The Southern Metal Processing Company (located in Alabama) a reclamation facility for acid and metal-containing wastes, allowed
   over 10,000 drums to accumulate: leakage from these drummed wastes polluted surface waters. A fire at the site injured two firemen.
 *3. Wast* oil contaminated with organic* (including carbon tetrachloride) was used as a dust suppressant. Well contamination  resulted .„
 44. Use ot cadimum-contaminatad POTW sludge as a fertilizer for farm land		»	
 41 Wade o9 storage reeults In ground water contamination from organics. Site also was used for disposal	-	—	-	
 4ft, {• • •) engage* In solvent reclamation and waste brokerage operations. Paint residues (to a lesser degree) are also redistilled at
   this plant Hazards posed by the »Be Include contamination of ground water and son. noticeable odors, risk of fire/explosion, spms/
   runoff. aewer/Morm prcibleiin. and presence of Incompatible wastes.
 47, C * 1 was paid by we*» generators to store waste OK on-Bit. Prior to reclamation operations, waste oils were carelessly stored in
   surface mpoyndrmnts or butt tanks resulting in waste oil leakage.
 4> (• * *) reclaim* botfi solvent and waste OS. Huge drum Inventory resulted with some drums being stacked up as long a* two years.
   Surface water wu contaminated when hazardous waste leached from containers with  unbroken seals. Paint solid* were stored so
   long tux redemiUon became virtually impossible (due to  thinner evaporation and rain dHution). Hazards  posed by  the site include
   cortimraSon ot wst«r supply, contamination of surface water, and son contamination from spin* and runoff.
 49, (' " *) it a reclaimed solvent Distributing plant thai packagec solvents in dtums and  sells them. If a company switches from one
   aoNerM to  another, « pipeline mutt be washed out with the new  product  The solvent mixture  wash would be drummed, tokf to
   ('  ' 1 where the solvents would be separated and redistributed. Hazards posed by the  site include worker injury contamination of
   so*, and spBs/runoff.
 50. f * *) la prtdomnantfy a solvent reclamation operation. Solvents are stored in drums and tanks prior to reclamation. ('  * *) paid
   to  Mlum refined matarjlj.to the manufacturer. The site was investigated primarily because of a spillage  problem from loading and
   untoedng drums outside. Potential hazards on the site include contamination of air, water supply, and ground water, risk of fire and
   explosion, apSK, lews, runoff and Inadequate security.
 it. f " *) la a torrent recUmatxxi operation The waste generator buys back the reclaimed waste. Pre-RCRA C  • *)  piled wastes for
   long periods of Km*  p the open on permeable so). No labels were on the drums and toxic chemicals leached.
 52, An ot rectamasion  fcm in Region V recycles 08 for large manufacturing plants. The firm  takes used oil, restores it to desired levels
   ot  purity, blend* X wMi virgin ot, and finally *eBs It back M the dealer to be  sold. Hazard  description/incident include* human health
   heard, contamination of surface water, son. and ar. noticeable odors, fire/explosion. *pHls. runoff, and erosion problems.
 M The Skeskn Chemical Corp.  (located in Massachusetts) engaged primarily m solvent reclamation, but also accumulated many other
   typn c» waste*. These materials overaccumulaied and incompatible wastes were stored kxSscrMnately.  An office  fire triggered an
   exclcittn and a apecucuUr fire. The *ite it now bankrupt and over 30.000 drums,  most  containing unknown toxicants, remain S2.9
   trSoa his been spent on cleanup to date.
Tel. comm. with state site insp. on May 4,  1981: Task
  Force Source Data Report
Damages and Threats Caused by Hazardous Material
  Sites, p. 43.
EPA.  New  Hampshire 'State Damage  FBe.  Code
  D231S.
EPA,  New York  State Damage File. Code  02317.
EPA,  New York  State Damage File. Code  02317.
Telephone  conversation with  (tale cite inspector, on
  May 5.  1981;  Task Force Source Data  Report.

Telephone conversation with state inspector on May 4.
  1981; Task Force Source Data Report
Telephone conversation with state insp*cto> on May 4.
  1981; Tusk Force Source Data Report
Task Force Source Data Report
Task Force Source Data Report.

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 660
Federal  Register  /  Vol.  5ft  No.  3 /  Friday, January 4, 1985  /  Rules  and  Regulations
                    APPENDIX A.—SUMMARY OF DAMAGE INCIDENTS RESULTING FROM RECYCLING OF HAZARDOUS WASTES—Continued
                         Types of recycling operation, wastes present, damages caused, or hazards posed  ':
                                                                                                                                           Source1 of information
 54. (• • •) a  New Jacsay facility recycling organo-ttn compounds,  presently  store* approximately 500 drums in poor  condition. A
   potential fire hazard also exists and site security is inadequate.
 55. (* * *) a New Jersey facility, operated an oil/solvent reclamation facility. Tha site was abandoned, leaving hazardous wastes for
   cleanup.
 58. (' * ') a New Jersey drum recondibonsr, went out of business leaving approximately 3000 drums on the site. There is extensive
   soi contamination and runoff, into an adjacent drainage drtch_
 57. Quanta, Inc. (looted in New Jersey) received, tainted wasta oils and spent solvents which » blended into fuels. Th» foe), was sold
   to apartment buildings for: burning.  PCS*, metals, bromoform, arxthatogenated sorverrta are present at the site and in ma fuels. Tha
   site now has been abandoned.
 58. Tne Ferguson site (located in Rock Hill, South Carotins) stored spent solvents prior to reclamation. The solvents were stored 'm
   corroded and leaking drums, and leakage from the drum* contaminated soil  and seeped into surfae* water. Toxic chemicals in-the
   waste and surrounding  soil Including toluene, bis<2-«thythexv» phthalate, xylene, ethyl chloride;  rjethyl  carbometoxy phosphate,
   alcohols, and toxic metals. The site eventually  was abandoned leaving about 2,900-5,000 dnm*. Sl4%0uftws* spent so far for sit*
   cleanup, and cleanup is not yet complete.
 58. Chromiunvtteanng wastes were ueed a» a- landfill cap-at th» Monument St. Landftf in Baltimore, Md£ The wastes began, to leech-
   toxic metals, and the runoff contaminated sol and surface water.
 60. &xnrmrctal-grada.parrtacNoraprNrali*bunrtttafual in oleset trucks.  Chlorinated phenol*, burnt it tow temperatures an* short
   residence time*, are ikery to form chlorinated dioxina and rJrbenzofurans.
 61. 8 + LOiOocated in. Newark. New Jersey) sold contaminated waste oil as- fuet The blended fuel-contained phenotkr compounds,
   vkxatHe chlorinated hydrocarbons, and aromatic hydrocarbon*. The- company antf to president both have-been, convicted- criminally, in
   the New Jersey state courts.
 82. Mtdbon Industrie* (located in DM  Bridge, New Jersey) manufactures zinc chloride: and zinc autfate from waste arc tut sper*
   acids, which tt obtains from other sources. These materials were accumulated improperly in la/ge quantities, causing damage.
 63. Hi poHutjon, anuMed from servant and wasl* oil  recovery operation* conducted  by FrincVi Industrial: Waste facility (locate* in
   Pecatonica County, m)u
 64. The Old Inger Oi Refinery (located in- Darrow, La.) operated an oil reclamation plant. Storage tanks, overflowed: into- holding- ponds
,  which, were Mar abandoned- without cleanup.
 65. York OS Co. (located In Moira, New York).lean abandoned waste oil recycling facility. Lagoons used in  the recovery of waste oil
   elscharged into adjacent wetland*. The lagoons and wetlands remain contaminated with.PCB*ontainiog.o«.
 •6. Emm-Cham, a hazardous waste recycling facility in Indiana, was investigated by State officials after an employee died in a tank of
   hazardous watte. The officials- found 21,000 barrels of hazardous- waste- at the site. Tb» fac^ha* been ordered to-close-down due
   to  failure to remove sludge and  contamiriatsd sofl from- • pit, fa&jr* to provide adequate concrete pad* for  14-.000 barrels of
   hazardous wasta  being  stored on the ground at the site, and faBJure to stem hazardous  material* in cempBanee- wrOr SJaS fire
   marshal rutoe and regulations.
 67. American Recovery, a-chernicar waste reprocessing facility (located in trie Baltimore- area) baa suffered a number of ftee- caused by
   explosions of accumulated waste*. The facility  also was fined for violation of various state regulatory requirements.
                                                                                                       EPA, Region II officials.

                                                                                                       EPA, Region H officials.

                                                                                                       EPA, Regtoo » officials.

                                                                                                       EPA, Region It officials. (This sit* wa* also the surged
                                                                                                        01 ABC» -20/20" broadcast: on- waste oil).
                                                                                                       U.S.  EPA,  AWTMoft/  Actions  ft Hazardous  Wasta
                                                                                                         SHetr Sunar tni Cost Studies, EPA «0/9-S1-05.
                                                                                                       Report of the House1 Committee- on Energy and Com-
                                                                                                         merce (May 1982):
                                                                                                       EPA, Region. VI? official*.

                                                                                                       New Jersey Hazardous Waste News, April 1982: Con-
                                                                                                         versations wflft Nm Jersey-state-officials.

                                                                                                       Transcript of state enforcement- proceedings.

                                                                                                       Documents-  from-  ItBnots  Environmentar  Protection
                                                                                                         Agency.
                                                                                                       Superfund Interim- Priority Site:

                                                                                                       Superfund Interim Priority Site.

                                                                                                       EPA, Region V officials.
                                                                                                       EPA; Region ID-officials:
      Mote.—Samoienea- of (7003 action* am based on- allegations In th» Government's verified1 complain* The court* rearing these must decide ultimately whether these allegations have
  been proven. In crbng these- allegation* we are not seeking t& prejudice the. outcome of these action*. AT trw same ttmev toes* statements reflect the results of the-Government's investigation
  of these sites,  and the Agency believes  the statements to be accurate. In many cases,  we are citing these allegations to demonstrate that there is a need for regulation in this area, not to
  ascertain the potential liability of particular facilities.
      m-eddrbbn; certain sHe* are not nemed specifically in this Appendix, because the ccmoariies irworved are tra subject of ongoing, entacernertinvaet)^^
  by (• • •) in the summary.
  whether or not toe-site*; were causing damage.
                                       APPENDIX B.—DEFINITION OF A SOLID WASTE DAMAGE INCIDENTS—ADDITIONS LIST
                                                                   Damage Incident
                                                                                                                                                             Source
  1. New Castle Steel (New Castle County. Delaware) recycles electric furnace, dust Run-off from, tha site, is contaminated' and there, is. potential tor contamination, of-
    ground water.
  2. The Arrcom Corp. (Rathdrum, Idaho) recycled waste oils containing, sofventa. prior to abandoning the- ste to- January.-1982. Remaining on-sit*, am-1* partially:
    fWed storage tanka, the conlenta of which remain largely undetermined. Chloroform has been found in a soil sample. Wastes  processed- at the- site- may nave-
    Included PCBs. EPA has collected soH samples to document leakage, on site.
  3. The Cross Brothers Pal Recycling (Pembroke Township.. IMnois) recycled p*9* and druma at the. sit* between  1381 and 1980. The operation-involved- burning-
    out pail and drum residue using hazardous waste solvents aa fuel, and then land-Wasting and painting. During tfaeee.operaliona.seit and ground water-became'
    contaminated. Investigations by the State discovered over 10.000 frgalton pails (mostly empty), 1O acrea of contaminated so); tt least 1& covaMd trenchea, of
    unknown wastes, and a plume of contaminated ground water leaving the site.
  4. Tha LaSaDe Electrical Onuses. Site (LaSaHe. Illinois) manufactured capacitors using PCBs from the late 1940* to late. 1978. The- company- reportedly used:waste:
    o*» from this process to control dust in the parking lot until 1969. More than 1.000 parta per million PC3s remain in the so) throughout the sita.
  5. The Old Inger Oi  Refinery Site (Darrow, Louisiana) reclaimed oil  from refinery wasta* in 1978. A spilt In 1978 contaminated a large- surface area. In 1981,
    Louisiana officially declared the site "abandoned.- It has nine 03 storage tanks, which have overflowed into nearby holding ponds and a swamp. Ground water
    and soi are corrtaminated by organic chemicals. Thi* is the top priority site in Louisiana.
  6. The PSC Resources SH* (Palmer. Massachusetts) formerly owned by Phillips Resource*. Inc... holds 34,000 gallons of wast*. The- inactive fadtty reclaimed
    waste off from Massachusetts, cotecfcn points. Trim products wara then heat treated and sold a»* baa*; for lubricating ok road-spray oft, and-fuet After ••
  ,  sp*T In June 1982. EPA dbcoveratf several leaking tanka and corrtamnwrt dike*, aa- wet as  saturated soil*. Surface- water*, wetlands;  and ground water am
    dkectty threatened by tha waste. Trtcntoremane and PC8s nave been  identified in an *$ac*nt swamp.
  7. York Oil Co. (Moira. New York) formtrly recycled waste ois. Before- the site was abandoned,  fc consisted of eight steer storag* tank*, two. buikSngs, sndr three
     lagoons. The barm* of the lagoon* have- feted m the past,  discharging PCB-contaminated ol into the adjacent wetland* that 
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              Federal Register /  Vol. 50. No. 3 / Friday. January 4. 1985 / Rules and Regulations  	661

                      APPENDIX B.—DEFINITION OF A SOLID WASTE DAMAGE INCIDENTS—ADDITIONS LIST—Continued
                                               Damage Incident
                                                                                                               Source
13, The NL Industrie *n* (Salem County. New Jersey) recover* lead from spent automotive baHerios «nd separates the plastic from me rubber ctsings. As a
 result o( kr*xoper ttorage o< batteries oo the tit* and other factor* relating *> the* processing, ground water, surface water, and soils are extensively
 eonUminiled with various heavy metals,
14. SOcnlrnc Cnerncal Processing. Inc. (Ctrlsladt. New Jersey) recovered and recycled various chemical wastes. As a result of a State Order, the company
 omed oportbora In I960, About 375.000 gallon* of hazardous substaroes are ttared on the site in tanks, drums, and tank trailers. Soils are extensively
 eorttarrtnalad, run-oH from Die (it* la contamnated. and ground water contamination is likely.
15, In 19*3. the Stale of Indiana Bed tat against Norman Peer, an individual who contracted w«h Inmont Corporation to purchase what he was told was paint and
 solvent. In an attempt to recycle them to produce low grade paint When Mr. Poer was unable to sen or give away the paint, he abandoned it on 8 S-acre field
 he owned in Jackson Township. Indiana. Ground water aampla* indfcate *•! the well on site contains hazardous levels of arsenic and lead. In addition, further
 teite havt kxScalKJ that itw paint waste has elevated level* of lead and chromium and That the ignitability of the waste classifies H as hazardous. The barrels
 (•main on *H«, laaliing contents onto the ground.
                                                               National Priorities List
                                                                1963
                                                                  Oo
                                                               National  Priorities
                                                                Update. July 1964
  For the reasons set out in the
preamble. Title 40 of the Code of Federal
Regulations is amended as follows:

PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL

  1. The authority citation for Part 260
reads as follows:
  Authority: Sees. 1008,2(502(a), 3001 through
3007, and 3010 of the Solid Waste Disposal
Act, as amended by the Resource
Conservation and Recovery Act of 1976. as
amended (42 U.S.C. 6905,6912(a), 6921
through 6927, and 6930],
  2. Section 261.10 is amended by
adding new definitions for "Boiler" and
"Industrial Furnace" to appear
alphabetically and by revising the
definitions of "Designated facility" and
"Incinerator."

5260.10   Definition*
 *****
   "Boiler"means an enclosed device
using controlled flame combustion and
having the following characteristics:
   (1) (i) The unit must have physical
provisions for recovering and exporting
 thermal energy in the form of steam,
heated fluids, or heated gases; and
   (ii) The unit's combustion chamber
 and primary energy recovery sections(s)
 must be of integral design. To be of
 integral design, the combustion chamber
 and the primary energy recovery
 section(s) (such as waterwalls and
 superheaters) must be physically formed
 into one manufactured or assembled
 unit. A unit in which the combustion
 chamber and the primary energy
 recovery section(s) are joined only by
 ducts or connections carrying flue gas is
 not integrally designed; however,
 secondary energy recovery equipment
 (such as economizers or air preheaters)
 need not be physically formed into the
 same unit as the combustion chamber
 and the primary energy recovery
 section. The  following units  are not
 precluded from being boilers solely
 because they are not of integral design:
 process heaters (units that transfer
 energy directly to a process  stream), and
 fluidized bed combustion units; and
  (iii) While in operation, the unit must
maintain a thermal energy recovery
efficiency of at least 60 percent
calculated in terms of the recovered
energy compared with the thermal value
of the fuel; and
  (iv) The unit must export and utilize at
least 75 percent of the recovered energy.
calculated on an annual basis. In this
calculation, .no credit shall be given for
recovered heat used internally in the
same unit. (Examples of internal use are
the preheating of fuel or combustion air,
and the driving of induced or forced
draft fans orfeedwater pumps); or
  (2) The. unit is one which the Regional
Administrator has determined, on a
case-by-case basis, to be  a boiler, after
considering the standards in § 260.32.
  "Designated facility" means a
hazardous waste treatment, storage, or
disposal facility which has received an
EPA permit (or a facility with interim
status) in accordance with the
requirements of Parts 270 and 124 of this
Chapter, a permit from a  State
authorized in accordance with Part.271
of this Chapter, or that is regulated
under § 281.6(c)(2)  or Subpart F of Part
266 of this Chapter, and that has been
designated on the manifest by the
generator pursuant to S 262.20.
*****
   "Incinerator" means any enclosed
device using controlled flame
combustion that neither meets the
criteria for classification  as a boiler nor
is listed as an industrial furnace.
   "Industrial furnace" means any of the
following enclosed devices that are
integral components of manufacturing
processes and that use controlled flame
devices to accomplish recovery of
materials or energy:
 (1) Cement kilns
 (2) Lime kilns
 (3) Aggregate kilns
 (4) Phosphate kilns
 (5) Coke ovens
 (6) Blast furnaces
 (7) Smelting, melting and refining
     furnaces (including
     pyrometallurgical devices such as
     cupolas, reverberator furnaces,
    sintering machine, roasters, and
    foundry furnaces)
(8) Titanium dioxide chloride process
    oxidation reactors
(9) Methane reforming furnaces
(10) Pulping liquor recovery furnaces
(11) Combustion devices used in the
    recovery of sulfur values from spent
    sulfuric acid
(12) Such other devices as the
    Administrator may, after notice and
    comment, add to this list on the
    basis of one or more of the
    following factors:
  (i) The design and use of the device
primarily to accomplish recovery of
material products;
  (ii) The use of the device to burn or
reduce raw materials to make a material
product;
  (iii) The use of the device to burn or
reduce secondary materials as effective
substitutes for raw materials, in
processes using raw materials  as
principal feedstocks;
  (iv) The use of the device to burn or
reduce secondary materials as
ingredients in an industrial process to
make a material product;
  (v) The use of the device in common
industrial practice to produce a material
product; and
  (vi) Other factors, as appropriate.
*    *     *     *     *    ' .

  3. In Subpart C of Part 260, add the
following § 260.30:

§ 260.30  Variance* from classification •* a
solid waste.
  In accordance with the standards and
criteria in § 260.31 and the procedures in
§ 260.33, the Regional Administrator
may determine  on a case-by-case basis
that the following recycled materials are
not solid wastes:
  (a) Materials  that are accumulated
speculatively without sufficient amounts
being recycled (as defined in
§ 261.1(c)(8)(B)  of this Chapter);
   (b) Materials that are reclaimed and
then reused within the original primary
production process in which they were
generated;

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         RCRA Implementation Study Update



                    Appendix E
    Memorandum dated April  26,  1989  from the
Director of the Office of Solid Waste to Regional
       Waste Management  Division Directors

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. O.C. 20460
                            APR 26 1989
                                                          OFFICE OF
                                                 SOLID WASTE AND EMERGENCY SESJO
MEMORANDUM



SUBJECT:  F006 Recycling

FROM:
          Sylvia K. LowrancV;
          Office of Solid Wast/e
                                  (OS-300)
TO:
          Hazardous Waste Management Division Directors
          Regions I-X
    It has come to the attention of EPA Headquarters  that  many
of the Regions and authorized States are being  requested to make
determinations on the regulatory status of various  recycling
schemes for F006 electroplating sludges.  In particular,
companies have claimed that F006 waste is being recycled by
being used as:  (1) an ingredient in the manufacture  of
aggregate, (2) an ingredient in the manufacture of  cement,  and
(3) feedstock for a metals recovery smelter.  The same company
may make such requests of more than one Region  and/or State.
Given the complexities of the regulations governing recycling
vs. treatment and the definition of solid waste, and  the
possible ramifications of determinations made in one  Region
affecting another Region's determination, it is extremely
important that such determinations are consistent and, where
possible, coordinated.

    Two issues are presented.  The first issue  is whether  these
activities are legitimate recycling, or rather  just some form  of
treata*nt«c*lled "recycling* in an attempt to evade regulation.
Second, tfSUBing the activity is not sham recycling,  the issue
is whetlMMT th« activity  is a type of recycling  that is subject
to regulation under sections 261.2 and 261.6 or is  it excluded
from our authority.

    With respect to the  issue of whether the activity is sham
recycling, this question involves assessing the intent of  the
owner or operator by evaluating circumstantial  evidence, always

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                               -2-
a difficult task.  Basically, the determination rests on whether
the secondary material is "commodity-like."  The main
environmental considerations are (1) whether the secondary
material truly has value as a raw material/product (i.e., is it
likely to be abandoned or mismanaged prior to reclamation rather
than being reclaimed?) and (2) whether the recycling process
(including ancillary storage) is likely to release hazardous
constituents (or otherwise pose risks to human health and the
environment) that are different from or greater than the
processing of an analogous raw material/product.  The attachment
to this memorandum sets out relevant factors in more detail.

    If the activity is not a sham, then the question is whether
it is regulated.  If F006 waste is used as an ingredient to
produce aggregate, then such aggregate would remain a solid
waste if used in a manner constituting disposal (e.g., road-base
material) under sections 261.2(c)(l) and 261.2(e)(2)(i) or if it
is accumulated speculatively under section 261.2(e)(2)(iii).
Likewise, the F006 "ingredient" is subject to regulation from
the point of generation to the point of recycling.  The
aggregate product is, however, entitled to the exemption under
40 CFR 266.20(b), as amended by the August 17, 1988, Land
Disposal Restrictions for First Third Scheduled Wastes final
rule (see 53 FR 31197 for further discussion).  However, if the
aggregate is not used on the land, then the materials used to
produce it would not be solid wastes at all, and therefore
neither those materials nor the aggregate would be regulated
(see section 261.2(e)(1)(i)).

    Likewise, cement manufacturing using F006 waste as an
ingredient would yield a product that remains a solid waste if
it is used in a manner constituting disposal, also subject to
section 266.20(b).  There is an additional question of whether
the cement kiln dust remains subject to the Bevill exclusion.
In order for the cement kiln dust to remain excluded from
regulation, the owner or operator must demonstrate that the use
of F006 waste has not significantly affected the character of
the cement kiln dust (e.g., demonstrate that the use of F006
waste has not significantly increased the levels of Appendix
VIII constituents in the cement kiln dust leachate).  [MUTE:
This issue will be addressed sore fully in the upconing
supplemental proposal of the Boiler and Industrial Furnace rule,
which is pending Federal Register publication.]

    For F006 waste used as a feedstock in a metals recovery
smelter, the Agency views this as a recovery process rather than
use as an ingredient in an industrial process and, therefore,
considers this to be a form of treatment that is not currently
regulated (see sections 261.2(c) and 261.6(c)(D).  Furthermore,
because this is a recovery process rather than a production
process, the F006 waste remains a hazardous waste  (and oust be

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                               -3-
managed fte such prior to introduction to the process),  and the
slag froa this process would normally be considered a "derived
from" F006 waste.  However, for primary smelters, the slag may
be considered subject to the Bevill exclusion provided that the
owner or operator can demonstrate that the use of F006 waste has
not significantly affected the hazardous constituent content of
the slag (i.e., make a demonstration similar to the one
discussed above for the cement kiln dust).  [NOTE:  In the
supplemental proposal of the Boiler and Industrial Furnace rule
noted above, the Agency will be proposing a definition of
•indigenous waste* based on a comparison of the constituents
found in the waste to the constituents found in an analogous raw
material.  Should the F006 waste meet the definition of an
"indigenous waste," the waste would cease to be a waste when
introduced to the process and the slag would not be derived from
a hazardous waste.]

    Also, you should be aware that OSW is currently reevaluating
the regulations concerning recycling activities, in conjunction
with finalizing the January 8, 1988 proposal to amend the
Definition of Solid Waste.  While any major changes may depend
on RCRA reauthorization, we are considering regulatory
amendments or changes in regulatory interpretations that will
encourage on-site recycling, while ensuring the protection of
human health and the environment.

    Headquarters is able to serve as a clearinghouse to help
coordinate determinations on whether a specific case is
"recycling" or "treatment" and will provide additional guidance
and information, as requested.  Ultimately, however, these
determinations are made by the Regions and authorized States.
Attached to this memorandum is a list of criteria that should be
considered  in evaluating the recycling scheme.  Should you
receive a request for such a determination, or should you have
questions regarding the criteria used to evaluate a specific
case, please contact Mitch Kidwell, of my staff, at FTS
475-8551.

Attachment

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     CRITERIA FOR EVALUATING WHETHER A WASTE IS BEING RECYCLED


The difference between recycling and treatment is sometimes
difficult**© distinguish.  In some cases, one is trying to
interpret Jntent from circumstantial evidence showing mixed
motivation, always a difficult proposition.  The potential for
abuse is such that great care must be used when maJcing a
determination that a particular recycling activity is to go
unregulated (i.e., it is one of those activities which is beyond
the scope of our jurisdiction).  In certain cases, there may be
few clear-cut answers to the question of whether a specific
activity is this type of excluded recycling (and, by extension,
that a secondary material is not a waste, but rather a raw
material or effective substitute); however, the following list of
criteria may be useful in focusing the consideration of a
specific activity.  Here too, there may be no clear-cut answers
but, taken as a whole, the answers to these questions should help
draw the distinction between recycling and sham recycling or
treatment.


    (1)   Is the secondary material similar to an analogous raw
         material or product?

         o  Does it contain Appendix VIII constituents not found
            in the analogous raw material/product (or at higher
            levels)?

         o  Does it exhibit hazardous characteristics that tne
            analogous raw material/product would not?

         o  Does it contain levels of recoverable material
            similar to the analogous raw material/product?

         o  Is much more of the secondary material used as
            compared with the analogous raw material/product it
            replaces?  Is only a nominal amount of it used?

         o  Is the seondary material as effective as the raw
            material or product it replaces?
    (2)  -What degree of processing is required to produce a
         £inisned product?

        .o  Can the secondary material be fed directly into
            process (i.e., direct use) or is reclamation (or
            pretreatment) required?

         o  How much value does final reclamation add?

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                              - 2 -
    (3)   £&at is the value of the secondary Material?
         o  Is it listed in industry news  letters, trade
            journals,  etc.?

         o  Does the secondary material  have  economic value
            comparable to the raw material that normally enters
            the process?

    (4)   Is there a guaranteed market for  the end product?

         o  Is there a contract in place to purchase the
            "product"  ostensibly produced  from the hazardous
            secondary  materials?

         o  If the type of recycling is  reclamation, is the
            product used by the reclaimer? The generator?  Is
            there a batch tolling agreement?   (Note that since
            reclaimers are normally TSDFs, assuming they store
            before reclaiming,  reclamation facilities present
            fewer possibilities of systemic abuse).

         o  Is the reclaimed product a recognized commodity?
            Are there  industry-recognized  quality specifications
            for the product?

    (5)   Is the secondary material handled in a Banner
         consistent with the raw material/product it replaces?

         o  is the secondary material stored  on the land?

         o  Is the secondary material stored  in a similar manner
            as the analogous raw material  (i.e., to prevent
            loss)?

         o  Are adequate records regarding the recycling
            transactions kept?

         o  Do th« companies involved have a  history of
            mismanagement of hazardous wastes?

    (6)   Other relevant factors.

         o  What are the economics of the recycling process?
            Does most of the revenue come from charging
            generators for managing their wastes  or from the
            sale of the product?

         o  Are the toxic constituents actually necessary (or of
            sufficient use) to the product or are they just
            "along for tn« ride."
These criteria are drawn from 53 FR at 522 (January 8, 19««»; 52
FR at 17013 (May 6, 1987); and 50 FR at 638 (January 4, 1985).

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   RCRA Implementation Study Update



              Appendix F
Petition from the National Association
         of Solvent Recyclers

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RE

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SfeNASR
National Association of Solvent Recyclers
 1333 New Hampshire Avenue. N.W. Suite 1100
      Washington. D.C. 20036  202/463-6956
                                            February 9, 1989
                                            BY CERTIFIED MAIL
      Honorable William Reilly
      Administrator
      U.S. Environmental Protection Agency
      401 M Street, S.W.
      Washington,  D.C.  20460
      Petition for Rulemaking:  Amendment to 40 CFR 261.6


      Dear Mr. Reilly:

           The National Association of Solvent Recyclers  (NASR)
      represents 41 large and small businesses engaged  in the recycling
      of used solvents through distillation and fuel blending programs.
      Many of our members operated recycling facilities long before the
      enactment of RCRA and the Hazardous and Solid Waste Amendments of
      1984.  In fact, a major reason these companies formed NASR was to
      foster improved operating standards within the industry and to
      cooperate with federal agencies in the development of regulations
      for the industry.

           In the late 1970s, NASR members strongly supported EPA's
      RCRA program because regulation promised to bring uniform
      standards to waste management practices.  Since then we have
      worked to promote regulatory awareness and compliance not only
      within our own industry, but in those industries  we service as
      well.  However, we have now become aware of facilities that
      recycl® solvents without meeting the standards applicable to our
      members' operations, and we hereby petition EPA to clarify its
      regulations to bring these companies into the same regulatory
      framework in which NASR members operate.

           Currently, all active NASR members have obtained RCRA
      interim or Part B permit status as storage facilities.  It has
      been reported that the companies that have circumvented the RCRA
      regulatory system have done so by pumping used solvent directly
      from transportation tanks into distillation equipment, thereby
      conforming to 40 CFR 261.6(c)(2).  Such companies need only
      comply with notification and manifesting requirements because

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under th« current definition of "storage* (40 CFR 260.10)  these
facilities allegedly do not technically store hazardous waste.
Yet these companies manage large volumes of hazardous waste and
pose the same type of risk to the environment that caused
Congress and EPA to regulate storage facilities.

     We believe that attempting to pump solvents directly from
transport equipment to distillation equipment is more unsafe to
health and the environment than pumping from stationary storage
tanks.  A recycler distilling solvent by pumping it directly from
a 6,000 gallon tank truck through a flexible hose would typically
require the tanker to be physically connected to a system exposed
to elevated temperatures for up to 24 hours.  The temperature and
length of time both introduce hazards that are not present in
normal unloading of a tank truck.  These hazards include the
danger of uncontained spills during unloading, violation of fire
codes governing direct feed of solvent to an elevated temperature
process system, and VOC excursions due to process upsets in the
distillation step.

     NASR kndws of two facilities that distill  solvents without
RCRA storage permits, and there are probably others.. We propose
that EPA amend the RCRA regulations to state that spent solvent
is deemed to be stored when  it  is sent off-site for  recycling by
distillation.  Such an amendment would eliminate the incentive
for solvent recyclers to engage  in the potentially dangerous
practice of pumping solvent  from tankers directly into distil-
lation process equipment.   It would also provide a fair and
uncomplicated resolution to  the  current  problem of determining at
what point,  if ever,  in the  hazardous waste management process
recycling begins.

     These  objectives could be  achieved  by  amending  40  CFR
261.6(c):   Requirements  for recyclable materials.  Section
261.6(c)  identifies  the  regulations  applicable to owners  and
operators of facilities  that store materials before  recycling  and
those  that  do not.   We propose adding a  new paragraph (3),
following (c)(1)  and (2),  stating the following:

      261.6(c)(3):   Owners or operators of facilities that distill
      spent  solvents are deemed to store these solvents prior  to
      recycling and are regulated under all applicable provisions
      of Subparts A through L of Parts 264 and 265,  and under
      parts 124,  266,  268,  and 270 of this Chapter and the notifi-
      cation requirements under section 3010 of RCRA, except as
      provided in paragraph (a)  of this section.  (The recycling
      process itself is exempt from regulation.)

      If EPA fails to address this issue, NASR members and other
 solvent recyclers who in good faith operate in full compliance

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with the RCRA  storage  requirements will be  at a severe competi-
tive disadvantage with respect  to operators who evade these
requirements.  Moreover,  solvent recyclers  that do not have
storage permits, and those who  undoubtedly  will follow in their
footsteps, will undermine through exploitation of a definitional
loophole the premise of comprehensive hazardous waste regulation
embodied in RCRA.

     As interim status and Part B permitted storage facilities
NASR members comply with  40 CFR Parts 264 and 265 standards.  The
costs. ol.compliance are substantial, particularly torthe small
businesaaaL.that comprise  the majority of NASR's members;—A brief
 urvey of NASS n^mh*^ conducted August 26, 1988, provided the
following information:
               "-                •      -                          '  '
Average Annual Cost of:
RCRA Prescribed Personnel Training Programs

Closure & Post-Closure Planning and
Financial Responsibility Requirements

EIL Insurance Premiums

Additional Insurance Costs  (Other than EIL
Premiums) Due to Insured's  Interim or
Permit Status

RCRA Recordkeeping Costs

Average Total Annual Costs*

Average Total Coats Per Gallon of Manifested
Hazardous Waste Received for Recycling,
Reclaiming, Fuel Blending,  Etc.
$ 1?,921.00



   6,477.78

  80,511,11




  52,070.00

  37,726.67

 192,707.33




       0.26
*This total does not necessarily reflect additional compliance
costs, such as legal fees and administrative overhead.
     We assume that solvent recyclers who do not have storage
permits may incur some costs for safety training, insurance and
record-keeping, but these costs do not approach th* costs of RCRA
compliance, which includes permitting costs (including legal and
engineering fees), environmental impairment liability insurance
costs, security costs and other overhead associated with compli-
ance obligations.  This savings not only creates a competitive

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disadvantage for NASR members, but also discourages compliance
with RCRA.

     Beyond the issue of the impact of these solvent recyclers
upon'the businesses of NASR members is the fundamental issue of
RCRA's purpose:  "to promote the protection of health and the
environment. .  .'  (RCRA Sec. 1003.)  RCRA was designed to provide
federal and state  environmental agencies with the comprehensive
system required to control environmental pollution.  If the loop-
hole that allows solvent distillation without a storage permit
remains open, the  RCRA system could return to the piece-meal
regulatory scheme  of the 1960s and 1970s.  Furthermore, the
perception among owners and operators of permitted  facilities
that regulations are easily circumvented or have beer, unfairly
applied will diminish their confidence in the fairness of the
RCRA system.

     The present situation is unjust to solvent recyclers who
have obtained storage permits, unsafe for communities surrounding
solvent recycling  facilities  operating outside of the RCRA
system, and untenable for EPA.  NASR urges you to expeditiously
take the necessary rulemaking action that would close this
loophole.  Adoption of the recommended amendment will ensure  that
all  facilities  that distill  spent solvents meet the same  require-
ments, that the public  is  fully  informed  and protected, and that
the  intent of RCRA is being  fulfilled.

     Should you have any questions or  require additional
information,  please contact  Barbara Wells,  NASR's  Executive
Director,  at  (202) 463-6956.   Thank you  for your  attention  to
this matter.

                               Very truly yours,
                                 /)   .  / /Q-/-
                                I Jfls? T/Vr  * s^f AjL^^^
                               $\^S W*^^ «*^^*\  \^r ~ T_ WW
                               David Petersen
                               President

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            RCRA Implementation Study Update
                       Appendix  G
Memorandum dated October 22, 1991 from James R. MacRae
                to  the EPA Administrator

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                  EXECUTIVE OFFICE OF THE PRESIDENT
                    OFFICE OF MANAGEMENT AND BUDGET
                          WASHINGTON. D C 20503
                           OCT 22 t99f
Honorable  William K.  Reilly
Administrator
Environmental  Protection Agency
401 M Street,  S.W.
Washington,  D.C.   20460

Dear Mr.. Reilly:

On August  5, 1991,  the Environmental Protection Agencv (EPA)
formally submitted  for the  Office  of Management and Budget (OMB)
review a draft modification of  the hazardous waste recycling
regulations.   There are  three separate  parts to the draft
proposal.

First, EPA is  proposing  that currently-exempted manufacturers of
recycled products must file a "notification" demonstrating that
the manufacturing operation and product meet certain risk and
"legitimacy" criteria.   Manufacturers that  satisfy these  criteria
will retain  their exemption from full hazardous waste regulation.
Second, EPA  is proposing to adopt  similar risk-based and
"legitimacy" criteria in determining manufacturer  eligibility for
a variety  of variances from full hazardous  waste regulation for
operations which reincorporate  secondary waste  materials  into a
production process.  Third,  EPA proposes new exemptions for
collectors and transporters of  certain  "universal  hazardous
wastes"—that  is, batteries and recalled pesticides—to encourage
the recycling  of these materials.

I am encouraged to  find  that for some parts  of  the draft proposal
—specifically in the "closed-loop"  recycling and  the  "universal
hazardous waste provisions"— EPA would adopt provisions that
could encourage efficient and environmentally beneficial
recycling practices.  However,   based on our  review of  the draft
proposal, I am concerned that the criteria for determining
"legitimacy"—for recycled  products, recycled secondary
materials,  and recycling processes—will not contribute in  any
significant way to the protection of human health and the
environment.  Instead, these proposed "legitimacy" criteria will
create an intrusive and burdensome process that will discourage
efforts to recycle or recover hazardous wastes for socially
beneficial uses.   Since there is no specific statutory mandate
for this approach, EPA has the discretion to consider other
regulatory options, including risk-based options that focus on
the risks posed by both the disposal and recycling of hazardous
wastes.   In my view, EPA should adopt such a risk-based option.
Given these concerns,  I believe the draft proposal is
inconsistent with the requirements of Sections 2(a) and 2(e) of

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                               -2-

Executive Order No. 12291.  I am therefore returning the draft
proposal for your reconsideration.

EPA's "Legitimacy" criteria

EPA's proposal would require that firm's demonstrate the
"legitimacy" of their activities in terms of recycling hazardous
waste or incorporating secondary waste materials  into the
production process.  To establish the legitimacy  of their
operations, firms must demonstrate that:

(1)  the hazardous waste has properties and specifications that
     are similar to those of the replaced "raw" material;

(2)  the hazardous constituents in the waste "legitimately"
     contribute to the production process;

(3)  the concentration of hazardous constituents  in the recycled
     products are at levels that are comparable to the levels
     found in similar products made with "virgin" materials; and

(4)  the sale of the product generates a substantial portion of.
     the firm's total revenues.                  •••..,>•

Firms that are unable to make this demonstration  must comply with
all Subtitle C  (hazardous waste) regulations and  their products
will be treated as a hazardous waste under Subtitle C regulation.

The following sections outline in greater detail  our concerns
with the two key elements of EPA's legitimacy criteria—-the
product specifications for allowable levels of hazardous
constituents and the "financial" test for sources of revenue.
In addition, they also present our concern with the absence of
a  clear, objective method for weighing these criteria and the
potential  inconsistency of adopting such "legitimacy" tests for
recycling  in the first two parts of this proposal, while avoiding
any such tests  in providing an exemption for handlers of
materials  that  EPA designates as "universal hazardous wastes" in
the third  part  of the proposal.

Commercial Product Specifications - Under the provisions of this
proposed rule,  EPA would evaluate products containing recycled
hazardous  waste to determine if the product contains higher
levels  of  any hazardous constituent than similar  products derived
from  "raw" or "virgin" materials.  In making this comparison, EPA
must  develop  "product standards" for a wide variety of basic
products that specify allowable levels of various hazardous
constituents  in the  product.  This approach will  inevitably
evaluate recycling activity  inconsistently, stifle recycling
innovation, and unnecessarily burden both the Agency and society.

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                               -3-

First, these"product standards are not risk-based; they  instead
are based on the levels of hazardous constituents in products
derived from virgin materials.  These product standards  would
apply, for example, to concrete destined for airport runways,
skyscraper supports, roof tiles, and gym floors.  However, the
potential human exposure associated with these uses varies
dramatically.  For an equal level of protection of human health
and environment, these uses may be able to accommodate very
different concentration levels of "hazardous" material.  Thus,
even if recyclers could demonstrate that any potential exposure
from the expected use of their concrete products is protective of
human health and the environment, EPA would apparently classify
these products as hazardous waste and subject them to full
Subtitle C regulation if the hazardous constituent levels in the
concrete exceeded the levels in products derived from "virgin"
materials.1

In addition, since "virgin" concrete ingredients vary with local
geologic conditions and since hazardous materials react
differently with different minerals compositions, EPA must set
either one conservative national standard or many regional
standards for "acceptable" concrete.  Setting a conservative
national standard would be inefficient because it would  eliminate
potentially safe recycled products from the market in some
regions.                                          •-•  • - -••'•'-•',•

Further, product standards would stifle the development"and
introduction of new products manufactured from recycled -materials
because products derived from recycled materials will likely
contain at least some constituents that exceed the levels in
products manufactured from virgin materials.  If EPA establishes
product standards, it will be very difficult to develop products
that meet such stringent specifications for constituents.2
     'In fact, this policy  could cause a perverse  result if EPA
designates a  recycled  product  as a hazardous waste that actually
results  in  lower  aggregate  health  risk  than an  unregulated,
"virgin" material.  Concrete again can provide an example.  Under
this rule  and the  Subtitle  C  provisions, EPA  could  ban certain
levels  of  minerals from  concrete aggregate, barring  primary or
reclaimed  production  by-products  (e.g.,  residues,  sludges,  ash)
because they  are  classified  as hazardous  waste.   However, a firm
could legally make and sell concrete aggregate from mine tailings
or other excavated material which contain the same or higher levels
of the these minerals.

     2Researchers  are  fabricating many  new products  from coal  fly
ash and municipal solid waste  incinerator ash.  Because these
ashes are  exempt  from Subtitle C regulation, these activities
would not  be  "sham" recycling under this proposed rule.  Yet,
similar products  made from listed hazardous wastes (e.g., metal-

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                               -4-
Finally, of course, the approval process will serve as a
substantial barrier to innovation.  The regulatory uncertainty
and the likely delay in regulatory approval of applications will
impose substantial burdens on innovators.  In addition,
developing these product standards and reviewing applications for
new products and/or processes will require substantial EPA
resources.  EPA explicitly pointed to this difficulty in
rejecting this approach as a part of its final definition of
solid waste on January 5, 1985.  Thus, EPA reported that:  "We
are  not sure if it is technically feasible to develop such
specifications,...and it would take years to work out this type
of approach."3

EPA'3 Financial Test:  sources. Uses, and the Flow of Funds - As
a second test, EPA would also require recyclers to demonstrate
that a substantial portion of the revenues generated by the
recycling process derives from the sale of the final product in a
legitimate market—not from accepting the hazardous waste.

To carry out this test, EPA will require broad access to the
financial records of manufacturers of recycled products to
distinguish "sham" from "legitimate" hazardous waste recycling
activity.  Recyclers must report their revenue from accepting
waste, the percentage of their income these payments comprise,
and the value of their final product.  Similarly, in providing an
exception for secondary waste recycling, manufacturing firms must
record how much a particular reclamation process adds to the
final product's value.  Finally, firms must maintain their daily
financial records in a way that would allow EPA to track the
revenues from reclamation or acceptance fees.

It is our view, however, that the nature and sources of the
revenues derived from an activity are irrelevant in determining
the "legitimacy" of an activity within an economic system.
The key question is whether there are important externalities
(i.e., risks) that are not addressed through regulation.  If
externalities are properly addressed, that should be sufficient—
bearing sludges) which contain comparable levels of hazardous
constituents may be deemed  "sham" recycled products.  Innovative
recycling efforts  include the following:  Federal procurement
guidelines which explicitly encourage the purchase of concrete
formed with fly ash  (40 CFR 249); concrete including coal fly ash
that will pave the streets  of Barcelona for the Summer Olympics
in  1991  ("Environment Today," October 1991); and a boathouse made
of  concrete blocks composed of municipal solid waste ash
 (Christian Science Monitor. September 11, 1991).

     350 FR 628

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                               -5-

the source and nature of revenues generated by the activity  are
irrelevant.                    .     ;                        :

There are important recycling activities, for example, where the
acceptance of wastes for reprocessing contribute a significant
share to total firm revenues.  In particular, firms that collect
solid wastes for recycling, such as paper and glass, are   ;
currently receiving substantial revenues from disposers of these
materials.  Application of the "legitimacy" criteria outlined in
this proposal could cripple the recycling of these materials. . •

Furthermore, the adoption of the financial test as a part of its
"legitimacy" criteria will impose substantial burdens on firms
carrying out recycling or incorporating secondary waste materials
in their production process.  In an earlier rulemaking, EPA
specifically cited this substantial burden, stating that:

     The provision would require the Agency to evaluate the
     bona fides of complicated, numerous, and diverse
     financial transactions—which may intrude significantly
     into companies' legitimate business affairs. 4         .-.••••

This intrusive regulatory approach can only serve to discourage
EPA's avowed objective of increasing environmentally beneficial
hazardous waste recycling and the incorporation of secondary
waste materials into the production process.

Finally, reviewing these financial transactions would impose a
substantial burden on the Agency.   EPA has specifically cited,
for example, the problems of enforcing such a provision in
earlier rulemaking.5

Arbitrary Decision-Making Authority - Throughout this rule,  the
EPA Administrator and Regional administrators retain substantial
discretion in weighing these several "legitimacy" criteria (that
is, the hazardous waste concentration of a product,  the financial
structure, etc.)  in determining whether an activity constitutes
recycling.  Even for any single criterion,  EPA could evaluate
products with similar environmental risks differently.   As a
result, both the recyclers and EPA may expend substantial
resources in developing and reviewing exemption applications.
Further, decisions on individual  applications may be governed
more by the specific circumstances and relationships with
individual recyclers,  than by any concern with protecting human
health and the environment.
     448  FR  14481

     S48  FR  14481

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                                -6-
 For example, the proposed rule does not specify the additional
 concentrations of a hazardous constituent, if any, EPA would
 allow in a recycled product beyond the levels found in a product
 manufactured from virgin material.  Similarly, the rule does not
 specify what percentage of income a recycler can receive from
 accepting wastes before it is labeled a "sham" operation.
            wr Performance based standards, the uncertainties
                 e re^latory process may represent a significant
                                                          using
 In  addition,  such an exemption process could threaten the
 integrity  of  EPA's regulatory process.  An exemption from the
 stringent  Subtitle C regulatory requirements confers a valuable
 economic right  to successful petitioners.   Such a system— if
 widely used— is subject to abuse if petitioners seek to influence
 the decision  through the political  process or by currying favor
 with officials  within the regulatory agency.   As a result,  this
 approach not  only is deleterious to the national interest,  but  in
 the long run  could undermine the integrity of the regulatory
 process itself.                                             *

 Inconsistency Between "Sham" and "Universal Wastes"  Proposals -
 While the  first two sections of  this draft rule would  establish
 raaDor impediments to recycling,  the last section proposes to
 relax Subtitle  C provisions  for  those firms collecting
 transporting, and storing materials that EPA  has designated
 "universal hazardous wastes."  in this  section,  EPA proposes to
 designate batteries  and  recalled pesticides as  the first two
 wastes in this  category.
    v  this section' EPA specifically rejects limiting the scope
of these exemptions to those universal hazardous wastes which
will be recycled in favor of a more comprehensive exemption.  EPA
states that:  "The standards set forth today would regulate
specific types of hazardous wastes uniformly, regardless of
whether they are destined for recycling or disposal. . .this
simplified system will also allow EPA and State agencies to focus
their resources on ensuring compliance, rather than on expanding
the rules" (pp. 108-9).  There are,  then,  no "legitimacy" (or even
"recycling") tests that handlers must contend with in  obtainina
an exemption from Subtitle C regulation.

Finally,  because of the interdependence between use, collection
and recycling in these markets,  EPA's proposed "sham"  recycling
regulations in the first two sections may interfere with its goal
of promoting "environmentally beneficial  recycling" of these
"universal hazardous wastes."

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                               -7-
Conclusion
The serious problems in this proposed rule stem from EPA's
continued reliance on an unwieldy, artificial, and counter-
productive regulatory approach to hazardous waste.  Although EPA
has included a risk-based exemption for products as the result of
our review, EPA does not present a viable risk-based alternative
to this cumbersome regulatory approach.6  As  a result,  EPA's
draft proposal may severely restrict innovation in this area and
undermine its goal of promoting environmentally beneficial
recycling of these materials.  For these reasons, I am returning
to you for your reconsideration EPA's draft modification of the
hazardous waste recycling regulations.  As always, my staff and I
are willing to discuss these issues further.

                              Sincerely,
                              James B. MacRae, Jr.
                              Acting Administrator
                                and Deputy Administrator
                              Office of Information
                                and Regulatory Affairs
c:  Richard Morgenstern
    Donald Clay
     6EPA's draft risk-based exemption for products will be of
limited practical use because  the corresponding recycling  process
must still satisfy the "legitimacy"  criteria.

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      RCRA Implementation Study Update







                 Appendix H







Proposal of the Business Recycling Coalition

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                                                                                      April 1991
                        BUSINESS RECYCLING COALITION
                            Principles for Recycling Legislation
        The following is a Statement of Principles for Recycling Legislation that has been developed by
the Business Recycling Coalition.   While the  Principles do not take the form of proposed  legislative
language, they can be adapted to serve that purpose.   A number of key terms - such as "secondary
material" and "reclamation" -- are used in the  Principles.  Proposed definitions of these key terms are
included in a section entitled "Definitions" that follows the Statement of Principles.
                                   Statement of Principles
        1. Congress and EPA  should  recognize fully the environmental benefits and the economic.
employment, trade,  and strategic  advantages  of materials recycling, and  should  confirm that such
recycling  ranks high as a preferred strategy for pollution prevention.  Pursuant to this recognition.
Congress and EPA should establish a regulatory regime that encourages,  rather than inhibits, materials
recycling, that is protective of public health and the environment, and that allows the development of new
and innovative recycling technologies.

        2. Waste  treatment and/or disposal  conducted under  the guise of recycling (so-called  "sham
recycling") should be regulated under Subtitle C or Subtitle D of RCRA, depending on whether the waste
is  "hazardous" or not.

        3. Materials recycling is not waste treatment or disposal.  It is an industrial process that should
be subject to the same environmental protection requirements as other industrial processes, e.g., Clean
Air Act and Clean Water Act emissions and discharge limitations.  Materials recycling also should be
subject to Subtitle C of RCRA to the extent that the process  generates a listed or characteristic hazardous
waste that is discarded.
                                    Busintu Rtcycling Coalition
                                    U.S. Chambtr of Commtrct
                                         (202)463-5531

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                                                  •2-'                                       Apr:! 1991

        4. Recycled materials that are currently exempt, from RCRA requirements should continue to be
exempt.  These exempt materials include scrap metal1 and other secondary materials  that are recycled
by being:

          (a) Used or reused as ingredients  in an industrial process to make a product, provided  the
        materials are not being reclaimed;

          (b) Used or reused as  effective substitutes for commercial products;

          (c) Returned to the process from which they are generated, without first being reclaimed; or

          (d) Circulated and reused within a closed-loop process, whether or not they are reclaimed within
        that process;

provided that the recycled material is not (i)  accumulated  speculatively,  or (ii)  identified  by  the
Administrator as  being inherently waste-like  in nature.

        As under current law, materials in this category should not be considered "solid wastes" and
should  not be subject to regulation under RCRA once they are identified as being destined for recycling
in one of the ways described in paragraph 4(a), (b), (c),  or (d) above.2

        5. Secondary materials  that are recycled by being "reclaimed" should be regarded as inputs to
an industrial process and should not be defined or regulated as  "solid waste"  or  "hazardous  waste."
Instead, they should be defined as "reclaimable materials" and should be subject to  special regulatory
requirements to be  established  under a  new subtitle of RCRA.3  The new subtitle would establish
    1 Scrap metal is not subject to regulation as a hazardous waste under the current RCRA regulations. See 40 C.F.R.
 § 261.6(aX3)(iv).

    : Excluding the materials described in paragraph 4 from regulation under RCRA simply codifies } 261.2(e) of the
 current RCRA regulations and makes explicit the fact that materials that are reused within a closed-loop process (including
 materials referred to in 40 C.F.R. § 261.4(a)(8) of the current regulations) are not discarded and should not be regulated
 under RCRA.

    1 A secondary material that it processed or used in a way that does not meet the conditions set forth in the definition
 of "reclamation" should be deemed to b« solid or hazardous waste, rather than a 'reclaimable material," and should be
 subject to regulation under Subtitle C or Subtitle D of RCRA, as appropriate. Intermediate and in-process materials are
 not "secondary materials" under the definitional provisions of this Statement of Principles and, therefore, would continue
 to be excluded from regulation under RCRA.

     Persons who generate,  transport, or collect spent lead-acid batteries, or who store but do hot reclaim them,  should
 not be subject to regulation under RCRA. Cf. 40 C.F.R. § 266.80(a). However, persons who reclaim such batteries
 should be subject to the requirements of the new subtitle.
                                       Busintu Rsejeuttg Coalition
                                       U.S. Chamber of CoHuntfet
                                             (202) 463-5531

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                                                -3-
                                                                                         Apni 1991
 requirements for persons who generate, transport, or process hazardous "reclaimable materials '"  The
 requirements could include the following:

          • A requirement that the generator of a reclaimable material and the processor of a reclaimable
        material provide a one time notification to EPA that, in the course of their business, they generate
        and/or reclaim a reclaimable material.  The  notification could identify the materiaifs)  involved
        and the manner in which they are being reclaimed.

          • A requirement that  if  the  reclaimable material  is  shipped to an  off-site  facility  tor
        reclamation, it be accompanied by a reclaimable materials manifest

          • A requirement that reclaimable materials be stored in accordance with standards promulgated
        by EPA.                                                                           . •  *

          • A requirement to maintain  such records as the  EPA Administrator reasonably
        determines are  necessary  to  ensure  that  the  reclaimable  material  is not  being
        "accumulated speculatively" and that the reclamation facility is in compliance with the
        requirements of the new subtitle.                                      .     ,      ,  ;

          • A  requirement to conduct such monitoring  or  other testing as the EPA  Administrator
        reasonably determines is  necessary to verify  compliance with the requirements of  the new
        subtitle.

        6. A secondary material generated in a reclamation process should be judged on its own merits.
rather  than having its "hazard" status determined by  reference to the reclaimable  material that was
processed at the reclamation facility.  The "derived from" rule of Subtitle C of RCRA should not apply.
Under the new subtitle, a secondary material produced in a reclamation process could be used as a
product applied to the  land, if it (i) does not exhibit any characteristic of hazardous waste identified  by
EPA and  (ii) is not separately listed as a hazardous waste  by EPA. If such a secondary material does
exhibit a characteristic of hazardous waste or is separately listed as a hazardous waste by EPA,  it would
have to be managed as a hazardous waste under Subtitle C.
   4 A secondary material destined for reclamation would be deemed to be a hazardous reclaimable material, if it would
have been deemed a hazardous waste if it had been discarded rather than reclaimed.  ,                .
                                     Busuiiu Kteyeling Coalition
                                     U.S. Guunbtr of Commtrct
                                          (202)463-5531

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                                               -4-
Apnl 1991
                                          Definitions


       For purposes of the foregoing Statement of Principles:

       (1) The term "secondary material" means -

               (a)     a material (other  than  a product, co-product, and  intermediate or in-process
                      material)  that is produced as  an incident to an industrial process,  including
                      recycling; and

               (b)     a product or co-product the use of which has been completed.

By-products, residues, spent materials, obsolete consumer products, and scrap are examples of secondary
materials produced as  an incident to an  industrial process.

        (2)  The term "co-product"  means a material  that is not the principal product of an industrial
process but that can be used as a product or as a feed  material for an industrial process.

        (3)  The term  "intermediate or  in-process material" means a material generated in an industrial
process that  is destined for further  processing to produce a product, co-product, or an industrial raw
material.

        (4) The term "reclaimable material" means a secondary material that is destined for reclamation.

        (5)   The term "reclamation" means the recovery from a  secondary material of product that is
returned to commerce, either as an ultimate produa or as a feed material for an industrial process, or
the regeneration of a secondary material into  a product that is returned to commerce.  To quality as
"reclamation," the activity involved must meet the following conditions:

                (a) The secondary  material that  is to be reclaimed must  meet specifications,
                established by the reclaimer,  relating to the reclamation process or to one or
                more  of the products produced in the  reclamation process.

                (b) The secondary material that is to be reclaimed must be handled in a manner
                designed to minimize loss.

                (c) Tbe operator of the reclamation facility must maintain adequate records
                relating to the receipt and processing of the secondary material and to the sale or
                on-site use of the products produced.
                                      Buantu Rtcyclixg Coalition
                                      U,S. Chambtr of Commtnt
                                            (202) 463-5531

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                                                  -5-                                         April 1991

                (d) At least one product of the reclamation process --

                        (i) must be returned to commercial use (either as an ultimate product or as a teed
                        material for  an industrial process),

                        (ii) must be  used in a way  that does not solely involve application to  the land,
                        and

                        (iii)  must meet specifications established for its use  in
                        commerce as a product or process feed material.3
   1 Where reclamation involves sequential operations, the reclamation process should be deemed to include products
of the sequential downstream processes for purposes of determining whether the conditions of paragraph (d) are met.
                                       Busintss Recycling Coalition
                                       U.S. Chamber of Commtrct
                                             (202)463-5531
                                                                 
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