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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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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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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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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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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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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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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#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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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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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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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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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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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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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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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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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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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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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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42
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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43
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
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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
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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
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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:
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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
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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.
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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 • :
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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.
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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.
-------
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
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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.
-------
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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
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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.
13
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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.
14
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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.
15
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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
16
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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.
17
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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.
18
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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.
19
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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
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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.
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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."
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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. ,
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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
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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.
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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.
-------
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
-------
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
-------
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)
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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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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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(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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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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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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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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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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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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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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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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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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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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(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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