United States Solid Waste and
Environmental Protection Emergency Response ERA530-R-94-016
Agency . (5305) November 1994
v>EPA Re-engineering RCRA
For Recycling
Report and Recommendations
Of the Definition of Solid
Waste Task Force
Recycled/Recyclable
Printed on recycled paper that contains at
least 50% post-consumer recycled fiber
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REENGINEERING RCRA FOR RECYCLING
DEFINITION OF SOLID WASTE TASK FORCE:
REPORT AND RECOMMENDATIONS
U.S. Environmental Protection Agency
Office of Solid Waste
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ACKNOWLEDGMENTS
: This report was prepared by the Definition of Solid Waste Task Force, an internal
Agency group with the following members:
James R. Berlow, Director
James J. O'Leary
> Marilyn Goode
' . , ' ' . k' - ':.' -. . , '
Although we received advice from many different individuals and groups from
both inside and outside the Agency, these recommendations are our opinions and not
necessarily those of EPA management or other staff. To reach our conclusions and
recommendations, we worked very closely with the Association oiF State and Territorial
Solid Waste Management Officials (ASTSWMO) .and its Definition of Solid Waste
Workgroup. We wish to thank everyone who helped us in this effort, but especially the
ASTSWMO members. We are also grateful for the assistance of Ms. Nancy Bacon
Brown, a former Task Force member.
Special thanks are also due to members of the Definition of Solid Waste
Roundtable, who devoted many hours and much enlightenment to this initiative;
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EXECUTIVE SUMMARY
THE DEFINITION OF SOLID WASTE TASK FORCE
; This report presents the recommendations of the Definition of Solid Waste Task
Force. The Task Force was established in October 1992 by the Elirector of the Office of
Solid Waste to address concerns about the current solid waste definition and how it
affects waste recycling.
; The Environmental Protection Agency (EPA) has promulgated regulations under
the Resource Conservation and Recovery Act (RCRA) that set forth extensive
responsibilities for managing certain wastes. To be subject to theike responsibilities, a
material must generally be defined as both .a solid and a hazardous waste (hazardous
wastes are a subset of solid wastes). Whether a material is a solid waste, therefore, has
enormous implications for the person who generates and handles it. In turn, recycling a
material can affect whether it is defined as a solid waste under the RCRA regulations.
; RCRA has two principal goals: (1) protecting human health and the environment
and (2) reducing waste and conserving energy and natural resources. EPA's highest
priprity for conservation is the reduction of pollutants at their source. However, source
reduction is not always technically possible or economically practical. In such cases,
EPA recommends recycling waste, including hazardous waste. Many businesses,find that
recycling their waste makes good economic as well as environmenltal sense. It can
.conserve our virgin resources, and save time and money as well.
-' . i
| At the same time, unsafe recycling of hazardous waste has sometimes harmed
public health and the environment. Problems with unsafe recycling have created a public
derhand for oversight of this activity. In particular, the environmental community
believes that EPA's hazardous waste recycling regulations create loopholes that increase
the likelihood of unsafe or illegitimate recycling.
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; Many people in industry, on the other hand, believe that EPA's hazardous waste
regulations discourage the safe recycling of hazardous waste, and increase the likelihood
that waste will be disposed of instead of beneficially reused. They argue that the
regulations impose costs that can make recycling less profitable than disposal.
Other interested parties, such as State regulatory agencies,
have asserted that
EPA's hazardous waste recycling regulations are too difficult to understand, enforce, and
implement. In addition, many people have pointed out that the regulations seem to be
"all, or nothing" - that is, recyclers are generally subject to most RCRA responsibilities, or
to virtually none. They argue that a more reasonable approach would tailor
management requirements to the risks involved in different types of recycling.
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The Definition of Solid Waste Task Force was formed to recommend solutions to
these concerns. The Task Force has three principal goals:
o Eliminate disincentives for the safe recycling of hazardous waste;
o Eliminate regulatory .loopholes for recycling that create risks to human health and
the environment;
o Clarify and, if possible, simplify the definition of solid waste.
Through the Association of State and Territorial Solid Waste Management
Officials, the Task Force asked State representatives to help us develop a workable plan
to deal with hazardous waste recycling. We established a core group of State .personnel
whom we consulted at all stages in developing our recommendations.
We also conducted extensive meetings with individuals from industry and the
environmental community. To get the best technical comments available, we formed .a
Definition of Solid Waste Roundtable, consisting of sixteen experts in the field of
hazardous waste management and recycling. The Roundtable members provided the
Task Force and the States with invaluable expertise in evaluating new options for
change.
' We realize that all of our recommended changes may not be achievable under the
current statute. We will evaluate whether our suggested revisions can be implemented
under current law, or whether legislative changes would be needed. We also emphasize
that the recommendations in this report represent only the opinions of the Task Force
members and are not necessarily shared by other EPA personnel. The purpose of this
report is to provide specific recommendations for the consideration of senior EPA
management.
TASK FORCE RECOMMENDATIONS
The principal recommendation in this report is a proposed new recycling system
that recognizes both the public's need for protection of human health and the
environment and industry's need for a system in which recycling can compete fairly in the
marketplace. The proposed new system is based upon the following principles:
Use of equipment designed to prevent releases to the environment, especially
groundwater.
Quick and effective response to releases that occur despite preventive measures.
Sufficient knowledge by government regulators about recycling facilities to enforce
compliance with the management standards.
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Safe transportation and tracking of recyclable materials.
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Waste-derived products that pose no more threat to human health and the
environment than the-virgin products they replace or compete with.
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Notification of the surrounding community if the recycler v/ill be recycling
, hazardous waste generated at another facility. . .
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Under the current regulations, recycling facilities are generally subject either to
very few controls or to the full panoply of hazardous waste management requirements.
Our proposal would replace this scheme with different levels of control for different
types of facilities. Our scheme has three broad classes of recycling. The first class is
RGRA Recycling (covered by our proposed tailored controls). The second class is
recycling which would remain or become exempt from RCRA regulation (RCRA-
Exempt/Excluded). The third, class is recycling which would remain subject to full
Subtitle C requirements (RCRA Hazardous Waste Recycling). These three classes are
described in order below. !
RGRA RECYCLING
New Classification Scheme
Our recommended new system divides RCRA recycling inip the following
categories based on the source of the recyclable materials and the recycling location:
Category A: Direct reuse off-site of spent materials and recovery
of precious metals.
Category B: On-site recycling. Recycling secondary materials at the manufacturing
facility that generated the materials. ,
Category C: Captive (intracompany) recycling and product stewardship. "Captive
recycling" means recycling secondary materials at a facility owned by the
same company that generated the materials, but at a different location.
i "Product stewardship" means recycling used products returned to
manufacturers by their customers.
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Category D: Commercial recycling (off-site): Recycling secondary materials by a facility
unrelated to the generating facility and located at a different site. No
; product stewardship relation exists.
RCRA Recycling Requirements
I Recyclers within each category must comply with waste management requirements
tailored to address the differences among the categories. Some requirements apply to all
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of the categories, arid many apply to three of the four categories. Except for the
notification and reporting requirement, which is new only for Category A, the
requirements resemble those currently existing for all four categories. Some
requirements are less stringent than the existing standards,'some are more stringent.
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Our suggested management requirements respond to important industry, State,
and environmental concerns about the current regulation of recycling. Hie concern most
frequently voiced by industry is the nature of the RCRA permitting process. Industry
representatives reported that the delays and uncertainties involved in obtaining a RCRA
permit significantly discourage hazardous waste recycling. Responding quickly to changes
in demand and other market conditions is complicated by uncertainty about the timing,
extent, and costs of the regulatory controls that are eventually determined to be
applicable. We believe that our clarified requirements address industry's concerns
without sacrificing sound environmental management.
Key Recommendations for AU Recycling Categories
o Recommendation #1: Speculative accumulation is prohibited.
Currently, RCRA allows accumulation for 12 to 24 months (depending on the
calendar month accumulation begins) at any facility storing exempt materials. RCRA
also generally requires a permit for any off-site storage of regulated wastes and for on-
site storage that exceeds 90 days. The Task Force recommends allowing secondary
materials to be accumulated for 18 months on-site and 12 months off-site before a
hazardous waste storage permit is required. We recommend 18 months accumulation for
on-site recyclers to allow them more time to reuse their secondary materials in the most
compatible product.
o Recommendation #2: State/EPA notification and biennial reporting is required.
The recycler would file a one-time notice, giving the location of the recycling
facility and the type and quantity of wastes recycled. The reporting requirements for
hazardous waste generated (currently applicable to Categories B-D) would be extended
to Category A. .
o Recommendation #3: Land storage is prohibited.
We recommend expanding the current prohibition against use constituting.
disposal to include storage before recycling in surface impoundments or waste piles. In
our proposed new system, the materials must be stored in tanks, containers, or
containment buildings. This change is a logical extension of the Agency's concerns about
the potential environmental risks of land placement.
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o Recommendation #4: Recyclable materials manifest is required for off-site
; shipments.
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' A new manifest for RCRA recyclable materials would accompany off-site
shipments. It would resemble the current hazardous waste manifest for these materials,
but could result in the elimination of stringent State requirements attached to use of that
manifest. The new manifest would respond to industry concerns about the transportation
costs associated with the current manifest, and about the stigma associated with
transporting hazardous recyclables, even when the environmental risk is minimal.
o Recommendation #5: No "toxics along for the ride" are allowed.
I This requirement responds to concerns of the environmental community that EPA
does not regulate most hazardous waste-derived products. We recommend that most
recycling meet objective criteria that establish the recycling as legitimate. Recyclers
would certify compliance, but States or EPA Regions could request more specific data if
they believed that the products in question introduced significant new risks into the
marketplace. A method for determining legitimacy could be the [comparison of recycled
products to their virgin material counterparts to ascertain whether they contain ,
significantly higher levels of hazardous constituents ("toxics along
test). Variances would be available under certain circumstances.
for the ride," or "TAR"
When objective '
criteria are developed, they will clarify existing policy. We are considering several
options to reduce the overall cost of complying with this requirement.
Key Recommendations for RCRA Recycling Categories B, C, and D
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The following management requirements are recommended for recycling units in
Categories B, C, and D. Most of these are already required for recycling facilities that
must obtain a storage permit, but the recycling unit itself is currently exempt. Under our
plan, recycling units would be regulated as described below.
o Recommendation #6: Eliminate requirement for a full RCRA permit.
! We recommend that full RCRA permits be replaced by certain management
standards, discussed in the remainder of these recommendations. In lieu of applying for
arid obtaining a permit, facilities would certify compliance with all applicable conditions.
o Recommendation #7: Tank, container,, and containment building management
standards. -
This requirement would emphasize secondary containment by requiring RCRA
management standards for tanks, containers, and containment buildings.
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o Recommendation #8: Clean Air Act requirements in lieu of RCRA air emission
requirements.
In an effort to reduce- regulatory redundancy, we recommend that Clean Air Act
(CAA) requirements be adopted for regulating air emissions. RCRA air emission
requirements would apply only if Clean Air Act standards did not apply or if the CAA
standards were less stringent.
o Recommendation #9: Unit release response rather than facility-wide corrective
action.
We recommend adopting for recycling units the RCRA requirements for
responding to releases from tank systems. Other effective Federal and State cleanup
authorities would address existing releases beyond the unit boundary. Existing facilities
already subject to corrective action would remain subject to those obligations.
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o Recommendation #10: Facility modifications to be reported in the Biennial
Report.
Except for major modifications at Category D facilities, no facility modification
wotild need prior approval; they would be transmitted in the Biennial Report.
o Recommendation #11: Closure and financial assurance for closure.
The Task Force recommends that facilities submit a financial assurance estimate
for clean closing their recycling management units. The estimate would be submitted at
the time of the compliance certification. Closure plans would be submitted at the time
of closure. We also recommend that EPA develop guidance for closure based on the
historical cost of closing different kinds of facilities. ,
o Recommendation #12: Public notice for large Category C facilities.
We recommend that Category C facilities recycling more than 12,000 kilograms
per year give 30 days public notice of hazardous waste shipments received from off-site.
Citizens would be free to review nonproprietary material.
o Recommendation ,#13: Operations plan.
We recommend that facilities submit an operations plan consisting of a waste
analysis plan and a description of how they intend to handle and manage secondary
materials.
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Key Recommendation for Category D Only
For Category D (off-site commercial recycling) all of the above requirements
apply, with one additional requirement. This is:
o
Recommendation #14: Prior government approval.
We recommend that Category D facilities obtain government approval (with full
public participation) for their operations plan, secondary containment, financial
assurance estimates, and major modifications. This approval would be required before
recycling operations could begin. Prior approval of TAR tests would also be required if
the State or EPA requested it
RCRA EXEMPT/EXCLUDED
This is the second broad class of recycling activities. Below are our recommended
changes to the existing exemptions and exclusions. We believe that these suggested
changes will protect human health and the environment while encouraging greater reuse
of materials and energy.
New Exemptions
- We recommend three new exemptions involving fuel use.
considering another exemption for incidental processing.
We are also
o Recommendation #1: Allow direct reuse of secondary materials containing
hydrocarbons in thermal processes at petroleum refineries or petrochemical
plants.
o Recommendation #2: Allow direct reuse of secondary materials containing
hydrocarbons when returned for blending into commercial-grade gasoline at a
petroleum re.finery. ,
; The current direct-reuse exemption does not allow recycled materials to be used
as! fuels. However, adding secondary materials to standard commercial fuel production
processes or gasoline-blending operations at petroleum refineries more closely parallels
chemical production than blending hazardous wastes for direct combustion at other
industrial facilities. This is because the secondary hydrocarbon-tjearing materials are
compatible with petroleum refining and blending processes designed to produce high-
specification fuels.
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o Recommendation #3: Allow recovery of energy from "clean" waste-derived fuels
(e.g., ethanol, methanol, hexane). '
This exemption responds to suggestions that materials that burn "cleanly" because
of low levels of hazardous constituents should not be regulated as hazardous wastes, even
if burned as fuels. We plan to define fuels that are "clean" in the future; an example
would be any fuel that is low in toxic metals and halogens, and that is hazardous only
because of ignitability.
o Recommendation #4; Allow recycling that involves only simple, low-risk
processes (incidental processing).
Current EPA regulations do not allow most exempt materials to be reclaimed
before reuse. Industry believes that the current definition of "reclamation" (processing to
recover a usable product, or regeneration) is too broad. The term encompasses such
activities as simple filtering, screening, sorting, and grinding, which industry believes are
incidental to most normal manufacturing processes, rather than being confined to
recycling. Therefore, we recommend exempting recycling that involves only simple, low-
risk processes, if other management requirements are met (e.g., use of RCRA tanks or
containment buildings).
Exemptions Eliminated
We recommend regulating two currently unregulated activities:
o Recommendation #5: Regulate direct reuse (without reclamation) of spent
materials sent off-site.
Some States expressed concern about lack of regulatory control over spent
material transported off-site due to tracking and spill problems. Including direct reuse of
spent materials off-site in the "RCRA Recycling" class (Category A) will address the
current lack of controls on the transportation of these materials. Because this activity so
closely resembles manufacturing, we are not recommending the management standards
we recommend for other types of recycling.
o Recommendation #6: Regulate characteristic sludges (emissions control
residues). -'..'
Current regulations exempt characteristic sludges (those which exhibit a hazardous
waste characteristic) if they are reclaimed. The Agency exempted them because of the
difficulty of developing a standard for distinguishing between reclamation of product-like
sludges and reclamation of waste-like sludges. Environmental groups and some States
have expressed concern about this exemption, believing that there is no reason these
materials should not be treated as solid wastes.
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The Task Force and the States believe that most sludges should be classified as
wastes rather than products, since they are a result of treatment processes and normally
resemble other waste-like materials. They also are defined as "solid waste" in the
statutory definition. We recommend defining some kinds of emission-control residues as
intermediate products in the primary metals industry if they have a sufficiently high
metals content to make them consistently valuable as commodities.
New Criteria for Exemption .
Following are suggested criteria for most RCRA Exempt/Excluded activities. The
Task Force believes that the modifications suggested below will prevent the activities
from becoming part of the waste disposal problem. .
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o Recommendation #7: Facilities must determine their status under RCRA.
Currently, EPA does not require a status determination for exempt facilities,
except in the context of an enforcement action. The Task Force
recommends requiring
an/exempt recycler to keep on file a.brief document that states the grounds for the
claimed exemption or exclusion. The document would be available for inspection if
questions arose about the regulatory status of the facility under RCRA.
o Recommendation #8: Facilities must notify EPA or the State.
Because States do not currently receive information about many recycling
facilities, they are unable to ascertain whether a facility's claimed exemption is justified.
We recommend that most exempt categories of recyclers be required to notify the State
or EPA of those currently exempt recycling activities (including storage) and the grounds
for the claimed exemption.
o Recommendation #9: Speculative accumulation is prohit ited.
This is the same as the criterion for the RCRA Recycling class, described above in
Recommendation #1. i
o Recommendation #10: No land storage.
This requirement is the same as that described above for RCRA j Recycling in
Recommendation #3.
RCRA HAZARDOUS WASTE RECYCLING: FULL SUBTITLE
C
The final class of recycling is subject to full Subtitle C hazardous waste
requirements. This class includes: j
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Recycling of used oil (current rules unchanged).
* Recycling of inherently waste-like materials (dioxins and certain materials fed to
halogen-acid furnaces-).
Waste-derived products containing TARs (or secondary materials containing
, TARs if the recycler prefers to measure toxics in ingredients).
Storage for recycling in excess of the speculative accumulation limits.
Recycling that involves landfilling, land storage, or burning for destruction.
The Task Force and the States believe that these .activities and materials should
be subject to full Subtitle C controls because they pose a significant potential for harm to
human health and the environment. Furthermore, those regulatory controls give
generators an appropriate economic incentive for considering alternative practices more
consistent with the goals of RCRA.. For used oil recycling, we believe the Agency has
already established an alternative regulatory program consistent with those goals.
STATE IMPLEMENTATION
The Task Force recommends that States should have maximum flexibility and
latitude to implement the new recycling program. They should have the opportunity to
develop requirements that are different from federal rules if, on balance, the same
degree of environmental protection is attained.
To bring about this flexibility, we believe that any necessary State authorization
applications should be evaluated by EPA to ascertain whether the entire recycling:
program achieves environmental results similar to the EPA program, rather than-
comparing each component of the State program to its federal counterpart.
We also believe that States should have the flexibility to demonstrate that
alternative State requirements are as environmentally protective as EPA requirements.
For example, a State may choose to work with a facility to identify less burdensome ways
to prevent groundwater contamination, such as alternative frequencies of inspections or
groundwater monitoring. In return, the State could choose to require more stringent
design or operating procedures in other areas. We believe that EPA should work with
the States to identify potential "trade-off requirements.
States also should be able to make the final decision about which recycling
category a facility is in, or whether a facility is exempt. This flexibility is particularly
useful in situations where it is hard to distinguish continuous manufacturing from waste
recycling. We believe that this will speed State decisionmaking, since States currently
must be concerned about issues that may be raised by EPA.
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Finally, States should be able to take into account the ease or difficulty of
retrofitting existing facilities or units (such as recycling units) thai were previously
exempt under the RCRA regulations but that would be regulatedr under our proposed
scheme. The Agency can work with the States to identify alternative requirements that
ensure protection of human health and the environment.
POTENTIAL IMPACT OF OUR NEW RECYCLING SCHEME
Available data suggest that significant opportunities exist for recycling additional
amounts of hazardous waste. In 1991,. industry reported recycling only 2 percent of the
wastes they generated (exempt wastes and RCRA wastes). It is tjrue that many
wastestreams are not amenable to recycling. However, when the wastestreams most
frequently recycled are examined, it is apparent that almost 10,000 generators are not
recycling an estimated 113 million tons of hazardous waste most amenable to recycling.
Only 5 percent of the most commonly reported recyclable wastestreams are actually
being recycled. |
; Similarly, available data suggest that two clusters of hazardous waste generators
exist - a small number of very large generators and a large number of small to medium
size firms. The smaller the generator, the higher the probability that the waste will not
be handled on-site, and that it will be sent off-site for treatment ,and disposal. We . .
believe that addditional opportunities exist for the smaller generators to conduct either
on-site or off-site recycling.
The proposed new recycling system will eliminate disincentives for the safe
recycling of hazardous waste that is today treated and disposed of. We have
recommended reducing some regulatory requirements because we believe they over-
regulate recycling. For example, permits would no longer be required for RCRA
recycling units, the uniform hazardous waste manifest would no ibnger be required for
shipping recyclable materials, and most facility modifications would no longer need prior
approval.
We also believe that the loopholes closed by this approach are just as important
as; the disincentives removed. We have recommended tighter requirements in some
areas where we believe safe recycling could be jeopardized. Examples are notification to
States of exempt activities, prohibition of land storage before recycling, and elimination
of; the recycling unit exemption. If the limited increases in oversight that we have
recommended would disqualify much recycling that currently takes place, we would be
forced to doubt the benefits of such recycling.
; On balance, we believe that our system will increase both the quantity of waste
recycled and the number of recyclers, particularly if the States are allowed flexibility and
latitude to implement the program. The new approach could also encourage firms to
incorporate recyclability into their process and product designs, since under product
stewardship more of their spent or used products could be returned for reprocessing.
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In the final analysis, the new recycling system will require us to manage change
effectively. Although the recommended plan is not without its critics, we believe that
our scheme is the right starting point for triggering reform of the regulations governing
hazardous waste recycling. Interacting with interested parties in refining the system
should produce further gains in effectiveness. We hope to work with these parties to test
and validate all parts of our system, and to provide industry and the States with guidance
and user-friendly implementation tools. This cooperation is essential to avoid confusion
and disruption.
If our plan encourages more safe recycling, we can improve the environment and
save resources at the same time. In the end, what could be more important?
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CHAPTER 1
WHY REENGINEER RCRA?
Surveys consistently show that Americans are troubled about hazardous waste,
especially in landfills.1 If hazardous materials and energy can be used again in
manufacturing instead of disposed of as waste, they are less likely to pollute the
environment or harm public health. Reuse also conserves virgin materials and can save
time and money. However, unsafe recycling practices have sometimes brought about
significant environmental harm, as documented by the Environmental Protection Agency
(EPA). This report recommends ways for EPA to encourage recycling, while still
protecting our environment.2
HOW RCRA WAS BORN
1 The American public was not seriously worried about the environment until
several notorious incidents of air and water pollution occurred in the 1960s. For
example, in December 1962, the "Killer Smog" engulfed London, killing at least 340
people; 200 deaths were attributed to a similar incident in New York City in November
1963. Major water pollution accidents also occurred - the Cuyahoga River in Ohio once
caught fire from a toxic spill. In 1970, Congress passed legislation creating the U.S.
Environmental Protection Agency. At first, resources were concentrated on improving
air and water quality. By the end of the 1970s, the air in our major cities had improved
significantly, and many rivers and lakes began to show new signs
of life.
i Compared with these acute air and water quality problems, the dangers of
hazardous waste and its effects on soil and groundwater were not readily apparent.
Although Congress originally enacted the Solid Waste Disposal Act (SWDA) in 1965,
that statute only addressed the problems of municipal solid wastes (garbage). It
emphasized nonhazardous rather than hazardous wastes, and also focused on planning
rather than on resolving environmental problems from land .disposal. Congress amended
the SWDA in 1976 with the Resource Conservation and Recovery Act (RCRA) to
regulate hazardous waste generators, transporters, and management facilities. Even with
the amendments, however, the statute still emphasized the regulation of municipal
(norihazardous) wastes.
; As Congress and EPA strengthened air and water laws, land disposal, which was
largely unregulated, appeared to be an inexpensive .alternative. Pollution steadily shifted
from air and surface water to soil and groundwater. Well-publicized catastrophes like
j-S. EPA, Tlie Nation's Hazardous Waste Management Program at a Crossrpads: Hie RCRA
Implementation Study ("RIS"), at 5 (July 1990). See also, Roper Reports, 90-1, 59, 90-2, 2-27; 90-8, 30-33; 92-
4, 36-39; 92-9,20-20-21.
', 2 50 Fed. Reg. 614, 659 (Appendix A) (January 4, 1985) and U.S. EPA, RCRA Implementation Study
Update: Tlie Definition of Solid Waste ("RIS Update"), Appendix C (July 1992).
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Valley of the Drums and Love Canal finally brought attention to the dangers of.
hazardous waste land disposal. As harmful health effects from soil and groundwater
contamination appeared, Congress viewed hazardous waste as the "last big loophole in
environmental law." This public and political awareness provided the impetus for new
laws to clean up abandoned waste sites and to prevent further uncontrolled dumping of
industrial waste.
First, Congress created Superfund3 to clean up old contaminated sites. Because
Superfund did not include preventive measures, however, Congress amended RCRA with
the Hazardous and Solid Waste Amendments of 1984 (HSWA). HSWA prohibited the
land disposal of hazardous waste without pretreatment and mandated cleanup as a
RCRA permit requirement. Thus, RCRA became a "cradle-to-grave" system for
managing hazardous waste from generation to disposal and cleanup. This program,
contained in Subtitle C of RCRA, is generally called the "Subtitle C program" (for
hazardous waste) to distinguish it from the "Subtitle D program" (for nonhazardous
waste). This report concerns only the Subtitle C program.
WHY IS RCRA SO DIFFICULT?
'Since their enactment in 1965, SDWA and RCRA have ranked among the most
complex and expensive regulatory programs in the United States. In 1993, industry,
states, and EPA spent $10.4 billion implementing RCRA Subtitle C requirements.4 This
included a universe of approximately 24,000 large-quantity generators and 175,000 small-
quantity generators. Up 'to one-third of the 130,000 calls received each year by the
RCRA Hotline concern the definitions of solid or hazardous waste.5
Several factors contribute to RCRA's current complexity. One factor is competing
objectives within the statute itself. RCRA's primary goals are: (1) to protect human
health and the environment, and (2) to reduce waste and conserve energy and natural
resources. There is an inevitable tension between these goals, because "the most effective
measures for protecting human health and the environment are likely to be expensive
and do not automatically foster resource conservation. Some parties believe that any
activity involving hazardous wastes should be subjected to the same strict controls that
apply to landfill disposal. Strict controls may cause hazardous waste recycling to be as
expensive as disposal. Manufacturers using secondary materials then find it difficult to
Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§
9601 etseq. (1980). ,
4Based on figures in U.S. EPA, Environmental Investments: Tlie Cost of a Clean Environment, Table 5-
3A (November 1990), adjusted to 1993 dollars.
5A11 Hotline statistics based on Monthly Hotline Reports for 1991 through 1993 and 1991 and 1992
annual reports.
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compete with facilities using virgin materials, which are not as strictly regulated. They
therefore choose instead to dispose of the material. j
The nature, of EPA's jurisdiction over hazardous waste alsc> contributes to the
program's complexity. The statute authorizes EPA to regulate hazardous waste as a
subset of .solid waste. A waste must first be a solid waste before it can be defined and
regulated as a hazardous waste. The statute defines "solid waste"', as "any garbage, refuse,
sludge ... and other discarded material. . . resulting from commercial, mining, and
agricultural operations, and from community activities,. .'." (42 UJS.C. § 1004(27)).
Congress used very general terms ("discarded material") in the statute and did not
specifically mention recycling. Therefore, instead of basing decisions on whether a
material poses a risk to human health and the environment, EPA must also try to
determine whether a material is "discarded." This makes it difficult to set regulatory
priorities and to draft regulatory language. As a result, RCRA has evolved into a
regulatory scheme that is difficult to understand and that sometimes under-regulates or
over-regulates different types of recycling. Debate continues oveij EPA's authority to
regulate some kinds of hazardous waste recycling.
THE DEFINITION OF SOLID WASTE TASK FORCE
Because so many questions about RCRA concern recycling, even small
improvements to the .recycling regulations could clarify these issues for everybody
concerned. In October 1992, EPA's Definition of Solid Waste Task Force was, formed as
part of the effort to improve EPA's recycling program. The Task Force was so named
because recycling a material may affect whether it is defined as a
regulated under RCRA.
solid waste and
The Task Force is a small internal Agency group reporting; to the Director of the
Office of Solid Waste. The Director charged the Task Force witli three primary goals
consistent with the statutory mandate to protect human health an^l the environment.
These goals are:
waste;
Eliminate disincentives for the safe recycling of hazardous
Correct under-regulation of recycling in the current regulations to ensure
protection of human health and the environment; \_..
Clarify and, if possible, simplify the applicable regulations.
The Task Force is charged with finding the best ways to carry out these goals,
even if its recommendations are not achievable under the current
practical, protective, and economically feasible recycling system is
statute. If the most
not consistent with the
statute, then the Agency must consider asking Congress to enact legislation to implement
the system. .
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To develop recommendations responding to the concerns, of all affected parties,
the Task Force met with industry groups, the environmental community, and State
associations. We visited manufacturing, recycling, and waste management facilities, and
solicited written comments and suggestions. We also held a large public forum where
constituents could discuss broad options for change.
The Task Force then convened a dialogue group ("the Roundtable") to solicit
opinions from experts in hazardous waste management. We met with a core group of
State personnel acting through the Association of State and Territorial Solid Waste
Management Officials (ASTSWMO) to develop a straw proposal designed to spark
discussion among the Roundtable members. Because any successful recommendations
must have the support of most States, they have participated at all stages of this initiative
as co-regulators.
This report describes the Task Force's conclusions and recommendations. These
recommendations come from our evaluation of. the ideas received from everyone we met
or spoke with, or from whom we received written comments.6 We recognize that all the
changes may not be achievable under the current statute, and we are interested in
comments about whether our suggested revisions can be implemented under current law,
or whether legislative changes would be needed. Our recommendations do not alter.
current Agency policy,.although we are advising EPA's management to use the
recommendations as a starting point to develop a new regulation. We hope that this
report stimulates further discussion of the issues and elicits suggestions for improving our
recommended system.
6Any written information, including Task Force/State proposals, discussion documents, and public
comments, have been placed in the EPA RCRA docket.
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CHAPTER 2
THE CURRENT SYSTEM
DEFINITION OF "SOLID WASTE"
Subtitle C of RCRA states that solid wastes are "discarded" materials. EPA's
regulations specify that materials may be considered "discarded" if they are "abandoned,"
"recycled," or "inherently waste-like." Some materials are expressly excluded from the
definition of "solid waste" and, therefore, are not subject to RCRA Subtitle C
requirements. Examples (which appear in 40 C.F.R. § 261.4(a)), include:
Domestic sewage and mixtures of domestic sewage and other wastes
discharged to a publicly owned treatment works; :
Discharges regulated under the National Pollution IDischarge Elimination
System;
« "Closed-loop" recycling in a totally enclosed system
RECYCLING SOLID WASTE: WHEN IS IT REGULATED?
wi
with piping and tanks.
Materials that are potentially solid and hazardous wastes are usually referred to
collectively as "secondary materials," although the term does not appear in the statute or
regulations. EPA currently regulates the recycling of four kinds of secondary materials:
A spent material is a material that has been used sind, as a result of
contamination, can no longer serve the purpose for! which it was produced
; without processing. ' .
A sludge is any solid, semi-solid, or liquid waste generated from a
1 municipal, commercial, or industrial wastewater treatment plant, water
; supply treatment plant, or air pollution control facility (exclusive of treated
effluent from a wastewater treatment plant).
! A by-product is a material that is not one of the primary products of a
j production process and is not solely or separately produced by the
production process.
Commercial chemical products are chemicals manufactured or formulated
for commercial or manufacturing use. EPA lists thktn as "P" and "U"
wastes and regulates their recycling only under certain circumstances.
Whether EPA regulates recycling depends on the nature 6f the material and how
it is recycled. Generally, EPA regulates materials and processes that resemble hazardous
wastes and their management more closely than they resemble products and
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manufacturing. Consistent with this philosophy, EPA almost always defines materials as
. solid wastes if they are:
Burned for energy recovery or used to produce a fuel;
Used in a manner constituting disposal (placing recycled material directly
on the land, even after it is incorporated with other materials);
Accumulated speculatively (accumulating otherwise exempt secondary
materials longer than allowed by the regulations).
A fourth kind of recycling - reclamation - is regulated under some circumstances
and not others. Reclamation is the processing of a secondary material to recover a
usable product or to regenerate the material. Spent materials, listed sludges and by-
products, and scrap metal are usually considered solid wastes if they are reclaimed, while
sludges that exhibit a hazardous characteristic, by-products, and commercial chemical
products are not.
Materials recycled in ways that resemble ongoing manufacturing are not solid
wastes, even if the recycled materials are spent materials, listed sludges or by-products,
or scrap metal. A material is generally not a solid waste if it is:
Used or reused (without reclamation) as an ingredient in an industrial
process to make a product.
Used or reused as an effective substitute for a commercial product.
Returned to the original process from which it was generated (without
reclamation) as a substitute for raw material feedstock. The original
process must use raw materials, as its principal feedstock. This exclusion is
sometimes referred to as "closed-loop" recycling (not to be confused with .
the next exclusion, also known as "closed-loop"). An example is returning
solvent carriers from organic chemical production to the beginning of the
process that generated them. '
Returned to the original production process from which it was generated
with prior reclamation (also referred, to as the "closed-loop exclusion").
The materials must be stored only in tanks for no more than a year before
being reclaimed, with the entire process enclosed through pipes or,other
conveyances. Materials recycled in this way are usually liquids (frequently
organic chemicals).
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DEFINITION OF "HAZARDOUS WASTE"
i The statute generally defines hazardous wastes as solid wastes that pose a threat
to human health or the environment if "mismanaged." Solid wastes become hazardous
wastes in, one of two ways - through EPA listings or by their characteristics. EPA has
listed many solid wastes as hazardous in 40 C.F.R. §§ 261.31, 261.32, and 261.33. Solid
wastes are also hazardous if they exhibit one or more of the following four hazardous
characteristics: ignitability, corrosivity, reactivity, and toxicity. , ;
EPA exempts certain solid wastes from the definition of hazardous wastes in 40
C.F.R. § 261.4(b). Other hazardous wastes are defined as "recyclable materials" (in 40
C.F.R. § 261.6) and are subject to alternative regulatory requirements (in 40 C.F.R. Part
266) tailored to the particular material and process.
.Once the RCRA regulations define a material as a hazardous waste, EPA
regulates almost everyone who handles it - generators, transporters, and treatment,
storage or disposal facilities. The requirements that apply to each appear in 40 C.F.R.
Parts 262 through 265. A more detailed discussion of these requirements may be found
in Appendix B of this report. .-. .
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CHAPTERS
IMPROVING SUBTITLE C FOR RECYCLING
BACKGROUND
As part of the Agency's efforts to evaluate the RCRA program, EPA reexamined
the definitions of "solid waste" and "hazardous waste" in the RCRA Implementation
Study (RIS) published in July 1990. The RIS concluded that the definitions are difficult
to iunderstand and implement. Their complexity hampers permitting and enforcement of
RCRA requirements. The RIS recommended ways for the Agen'''..
In response to the RIS recommendations, EPA held several public forums in late
1990 to solicit information from industry, Congressional staff, State personnel, the
environmental community, federal facilities, and EPA regions. The public forums
generally validated the findings of the RIS. They confirmed that the regulations are
difficult to understand and apply, and that the rules do not regulate recycling
consistently. Most affected groups observed that these and other shortcomings create
impediments to hazardous waste recycling and competitive advantages for products made
from virgin materials.
1 T? ' -'!".
i Forum participants recommended convening a group to help develop options that,
would make the RCRA recycling regulations address environmental risks in a more
rational manner while reducing barriers to recycling. After analysing the information
collected at the public forums, EPA published a summary of its findings in the RCRA
Implementation Study Update: The, Definition of Solid Waste (July 1992) (RIS Update).
To follow up on the RIS Update, in October 1992 EPA's Office of Solid Waste
created the Definition of Solid Waste Task Force, an internal EPA group charged with
recommending solutions to the problems identified in the RIS Upjdate. As a first step,
the Task Force spent several months meeting with various State agency personnel,
industry representatives, and the environmental community. The Task Force also'visited
several different kinds of recycling operations. These discussions and site visits
confirmed for the Task Force the validity of the information previously gathered about
regulatory problems. If anything, our sense was reinforced that EPA should make
changes to clarify the system and encourage safe hazardous waste recycling.
WHAT WE HEARD
I - L
Each group-industry, States, and the environmental community-expressed
somewhat different concerns, as summarized below.
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Industry's concerns include: ;
The definitions of solid and hazardous waste are difficult to interpret and
apply consistently; ,
The RCRA Subtitle C permitting process is costly, time-consuming, and
uncertain;
Recyclable materials and their products cost more to produce;
« The label "hazardous waste" stigmatizes hazardous waste recyclables;
» States often interpret regulations inconsistently;
The system for permit modifications is too burdensome and sometimes
irrelevant to the risks of the proposed modifications.
According to industry, these problems seriously affect manufacturing facilities
because:
Businesses are reluctant to invest in recycling facilities without knowing
whether they will need a permit or can obtain one if they do;
Recycling facilities are generally unable to compete with manufacturers
using virgin materials;
Waste-derived products are perceived as less valuable than those made
from virgin materials;
Consumer costs are raised, natural resources are wasted, and the creation
of new jobs and new technology are stifled; and
Enforcement often emphasizes paperwork violations because they are
easier to enforce.
The States' concerns include:
The definitions of solid and hazardous waste' are too complex;
Legitimate recycling is difficult to distinguish from treatment;
Wastes are sometimes difficult to distinguish from products of raw
materials;
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: .The exemption for characteristic wastes sent for reclamation is an .
unjustified regulatory loophole; and
Since some recycling is entirely exempt, States cannot track the materials
i involved or inspect the facilities.
; These concerns interfere with the States' ability to implement and enforce the
RCRA program because:
They result in high administrative costs;
, Exempt hazardous wastes may be mismanaged;
Legitimate recycling or manufacturing may be overregulated;
States are sometimes reluctant to approve or perrnij: recyclers;
i
States are unable to advise the regulated community with any certainty
before an enforcement action; , .
1 Enforcement is impaired if the regulators are not aware of the universe of
facilities of potential concern.
The environmental community's concerns include:
The significant number of recycling sites on the Suj>erfund National
Priorities List; .
I , ' . .
Since some recycling is entirely exempt, regulators cannot oversee the
! activities;
t No oversight, regulation, or product specifications elxist for exempt waste-
derived products. .'-'
The environmental community believes these factors endanger the environment
because:
"Bad recycling is worse than good treatment and disposal";
i ' . - ' - '''-' i'"
Enforcement is impaired if regulators are not notified of recycling;
Undetected releases are more likely in unregulated
operations;
Waste-derived products may hide the risks of hazardous waste
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In April 1993, the Office of Solid Waste held a public forum in Washington, D.C.,
attended by approximately 350 people. The Task Force presented several options for
revising the regulations that define solid waste. The first option was a federal system
with requirements tailored to different recycling categories. The categories could be
based on industry, type of waste, risk, or the recycling proces's involved. The second
option gave States that were authorized to implement the RCRA program broad
discretion in determining their own requirements for recycling facilities or categories.
EPA would develop minimum criteria for management requirements, upon which, the
States would base their programs. The third option limited any revisions to improving
other parts of the RCRA program that are perceived as troublesome, such as certain
permitting requirements or lack of assistance to States for interpretation and
implementation!
Participants at the forum generally favored the first approach (national
requirements tailored to categories of recycling). They believed that State-generated
requirements would lead to greater inconsistency in interpreting and applying.the,
regulations, possibly causing competitive disadvantages for recyclers in certain locations.
Participants also believed that revising individual parts of the RCRA regulations not
specifically related to recycling would make it harder to tailor controls to particular
recycling situations. This approach might not address the concern that recycling
regulations are insufficiently based on environmental risks differing according to process.
After the public forum, the Definition of .Solid Waste Task Force met in June
1993 with State representatives from the Association of State and Territorial Waste
Management Officials (ASTSWMO). Since EPA has authorized most States to
administer the RCRA program, they have primary responsibility for implementing and
enforcing its requirements. State approval of any changes to the recycling regulations is
crucial to the success of the program. , .
The State/EPA group then developed more detailed regulatory options for a
tailored, categorical recycling system. First, the group developed the appropriate
categories into which hazardous waste recycling could feasibly be divided, so that the
same or very similar controls could be applied to all facilities within a category.' The
group tentatively divided recycling into four categories (Categories A, B, C, and D),
based on the materials recycled and whether the recycling took place at the facility which
generated the materials.
The Task Force, after consultation with the States, also concluded that EPA's
Subtitle C management system needs a third tier between "excluded" and "permitted" for
hazardous waste recycling. Precedents already exist in the Subtitle C regulations for
imposing management requirements without a RCRA permit. Manufacturers may
recycle secondary materials in a "closed-loop" process without a permit, but they must
meet certain management criteria to be exempt (see 40 C.F.R. §261.4(a)(8)). Generators
may accumulate, recycle, or treat hazardous waste for as long as 90 days without a
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permit, but they are subject to many of the Subtitle C management standards for tanks,
containers, and containment buildings (see 40 C.F.R. § 262.34). Part 266, Subpart G,
requires a permit for recycling lead-acid batteries, but exempts tliose who generated,
transport, or collect the batteries without reclaiming them. The special collection or
universal wastes rule proposed on February 11, 1993 (58 Fed. Reg. 8102) similarly would
regulate many aspects of recycling of nickel-cadmium batteries and mercury without
requiring a permit. |
i ' , '
Based on these considerations, the Task Force and the States developed
preliminary management requirements for each of the four recycling categories. The
group's suggestions were described in a staff-level "straw proposal" to address hazardous
waste recycling. In the meantime, EPA established a Definition of Solid Waste
Rbundtable to provide the Agency with technical comments on the straw proposal and
on alternative regulatory options. i
; Twenty individuals participated in the Roundtable. Eleven were from various
industries involved in recycling or treatment (such as chemical, steel, and automotive
manufacturing, mining, metals recycling, petroleum refining, hazardous waste treatment,
manufacturing with waste-derived fuels, and small businesses). Three were from
environmental advocacy groups or consulting firms, and three were from State hazardous
waste regulatory authorities (Oregon, Minnesota, and Oklahoma). In addition, there
were three representatives from EPA Regions II, VII, and IX (for a complete list of
Roundtable participants, see Appendix C).
EPA held a total of six Roundtable meetings, beginning in July 1993 and
concluding in November 1993. As the meetings continued, the Task Force obtained
invaluable technical comments from the participants on the definition of solid waste and
hazardous waste recycling. With these comments, and with additional assistance from
ASTSWMO, the Task Force further refined the straw proposal. A modified State/EPA
plan for hazardous waste recycling was presented to the Roundtable and discussed in
October 1993, and is the basis for the present report. i
i i
; The system recommended by the Task Force classifies secondary materials by how
they are managed, and then applies appropriate management standards. Under our
scheme, there are three broad tiers of recycling:
o
o
o
Recycling that is exempt or excluded from most RCRA regulation (discussed in
Chapter 4); . i
four
Recycling that must meet tailored standards for each of
recycling categories (the "RCRA Recycling" system, discussed
Recycling that must meet full hazardous waste requiremen
permit (discussed in Chapter 5).
recommended
in Chapter 5);
s, including a RCRA
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CHAPTER 4 "|
' I ' " -
* ' I '
RCRA EXEMPT/EXCLUDED RECYCLING
* " I
- - '
: EPA's jurisdiction over recycling practices has been very controversial. Industry
asserts that the Agency has interpreted the applicable court decisions too broadly - that
EPA regulates activities that are actually ongoing manufacturing processes. The Task
Force disagrees with this assertion. We believe that the Agency's interpretation is
consistent with the language of RCRA and with case law. We also believe that it
furthers Congress' intent to prevent future Superfund sites by regulating activities that
contribute to the waste disposal problem. >
s . - '' w I i
, The Task Force recommends continuing EPA's current interpretation of its
RCRA jurisdiction, while exercising jurisdiction differently in some areas. This includes
defining exempt processes and materials more specifically to prevent them from
becoming part of the waste disposal problem. Managing a secondary material before
and during recycling in a manner that prevents its becoming part of the waste disposal
problem can indicate that a material and recycling process are more like manufacturing
than waste management.
' ! ' '
The Task Force believes that this exercise of EPA's jurisdiction is necessary to
fulfill the goals of RCRA. Without jurisdiction over recycling of secondary materials,
EPA could regulate only landfills and incinerators (based on a strict interpretation of
"discard"). In addition, the Agency could not address mismanagement of recycling until
after a release had occurred, and could not distinguish sham from legitimate recycling in
order to exercise appropriate oversight. I
The RCRA Exempt/Excluded class proposed by the Task Force includes
materials and processes that (1) are statutorily excluded, (2) may'not be clearly excluded
by the statute but resemble normal manufacturing, or (3) appear io present little
incremental risk of harm to human health and the environment. It should be noted that
products and co-products made from virgin materials are always excluded from EPA's
RCRA jurisdiction. Our recommendations do not concern or affect those processes.
GENERAL CRITERIA FOR EXEMPTION
In addition to materials that the statute excludes, the new system exempts or
excludes recycling that does not resemble disposal or treatment (consistent with current
EPA policy and regulations). Below are the criteria that must be (met for an activity to
be exempt or excluded.
1. The secondary material may not be:
Placed on the land;
Burned;,
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Used to produce a fuel; or
Accumulated speculatively.
2. Most exempt recyclers must prepare and keep on file a status determination,
stating the grounds on which they claim an exemption.
All criteria for exemption are explained in this section, along with our principal
recommended modifications.
Recommendation #1: Exempt Secondary Materials May Not Be Placed on the Land
The Task Force recommends prohibiting land placement of secondary materials
for most recycling in the RCRA Exempt/Excluded class. This prohibition is broader
than the current requirement, which generally provides that using otherwise exempt
secondary materials in a manner constituting disposal (applied to or placed on the land)
disqualifies one for an exemption. However, current regulations do not prohibit storing
exempt materials directly on the ground before or during recycling. Accordingly, certain
practices that are currently allowed for RCRA-exempt facilities would, under our
recommended approach, make them subject to the full set of RCRA hazardous waste,
management requirements. These practices include storing materials to be recycled in
surface impoundments or waste, piles. We recommend requiring that secondary
materials be stored in tanks, containers, and containment buildings before and during
recycling (although these structures would not be required to meet RCRA hazardous
waste unit standards).
This requirement continues EPA's longstanding policy of prohibiting placement of
hazardous wastes on the land. Mismanagement of hazardous wastes through improper
land placement has led to significant contamination of groundwater. We believe that
even more environmental damage could occur during land storage before recycling, since
the secondary materials often contain higher concentrations of toxic constituents before
they are processed into products.
The current regulations generally prohibit "use constituting disposal," i.e, land
application of waste-derived products. There has been confusion over what type and
duration of contact with the land constitutes land application. To clarify this
requirement, we are recommending that products from exempt recycling processes may
be applied to the land, unless EPA specifically restricts such application. Under our
proposal, EPA would promulgate a list of uses of waste-derived products (such as road
bed materials or fertilizer) that are most likely to involve extensive or prolonged land
contact. This list would draw a clear distinction between products that are actually
applied to the land, or incorporated into the soil (e.g., soil conditioners, fertilizers, and
dust suppressants) and products whose contact with the land is incidental to their use
(e.g., concrete).
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Land application of a product not on the list would be allowed. Products on the
list could be applied to the land, but the recycler would lose its exemption and would
become subject to RCRA. The product would then have to meet applicable land
disposal, treatment standards-or pass a test that demonstrated acceptable levels of
hazardous constituents. For a discussion of this test, see the following section on the
"toxics along for the ride" test (TAR) in "RCRA Recycling." '
This approach will require that EPA continuously update ills regulatory list,
including new waste-derived products as they are developed. We will continue to
evaluate whether this approach presents an unacceptable risk of failing to anticipate and
prevent new and harmful uses of waste-derived materials on the land.
Recommendation #2: Three New Exemptions for Certain Secondary Materials Burned
As iFuels or Used To Produce a Fuel
Like the prohibition against land placement, our recommendations generally
continue EPA's longstanding policy that burning secondary materials for energy recovery
or using them to produce a fuel should not be exempt activities. We do, however,
recommend three new exemptions for activities that resemble normal fuel production or
that pose no incremental risk over burning traditional fuels. These exemptions are for
"clean fuels," and two of them are for directly reusing hydrocarbons at a petroleum
refinery. We would also retain the petroleum exemptions in the current regulations.
Burning of "Clean" Fuels
The first new exemption is the burning of "clean" fuels for
energy recovery (i.e,
fuels that contain levels of hazardous constituents that may be lower than those found in
many common fossil fuels). These materials (to be specifically identified later) burn
"cleanly" because they have low levels of toxic metals, contain negligible halogen
concentrations to aid in formation of dioxins and furans, are not complex mixtures of
organic compounds, and exhibit no hazardous characteristic except ignitability. They are,
therefore, more likely to contain predictable and relatively safe products of incomplete
combustion (PICs).
Thermal Processing of Certain Secondary Materials
The second new exemption is for thermal processing of certain secondary
materials containing hydrocarbons at a petroleum refinery or a petrochemical plant.
This proposed exemption is broader than the current regulatory exemptions for oil-
bearing wastes at 40 C.F.R. § 261.6(a)(3)(v)-(viii)), and also includes secondary materials
sent off-site for recycling (unlike the current exemptions).
Our goal is to allow direct reuse.of these materials in commercial fuel production.
The current direct reuse exemption (40 C.F.R. § 261.2(e)(i)) does not allow reused
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materials to be used in fuels. That limitation is intended to prevent unregulated
blending of secondary materials into fuels for boilers and industrial furnaces (BIFs), not
to prevent the production of standard commercial grade fuels by petroleum refineries.
Producing fuels through thermal refining operations more closely parallels chemical
production than mixing hazardous wastes for combustion in a BIF, since the
hydrocarbon-bearing secondary materials introduced are compatible with petroleum
refining processes designed to segregate and convert amorphous crude oils into finished
high-specification fuels. We believe that this type of recycling should be considered
direct reuse for materials recovery. .
However, we are limiting this exemption to secondary materials processed at a
refinery under the same ownership as the facility that generated the materials.
Operators of these refineries have thorough knowledge of the incoming secondary
materials, which increases the likelihood that the materials will be processed safely and
effectively. .
Blending of Certain Secondary Materials
The third new exemption is for blending secondary materials containing
hydrocarbons directly (without thermal processing) into commercial grade gasoline at a
petroleum refinery. An example is blending certain spent materials (such as xylene) into
gasoline to use as an octane enhancer. Since commercial grade gasoline must conform
to fairly strict product specifications, we believe that this type of bfending would take
place under conditions that would present little incremental harm to human health and
the environment. .
However, this exemption does not include secondary materials blended into diesel
or other fuels since these fuels do not have the same strict product specifications as
gasoline. It also does not include blending these materials at terminals or blending
facilities, because it is too difficult to ensure that only compatible waste-derived
materials are blended at these widely scattered facilities. We believe the risks of
improper blending warrant the restriction of this activity to a relatively small number of
locations that are most likely to have the technical expertise to ensure that safe products
are produced (such as refineries).
For these new exemptions, we recommend requiring the recycler to submit to the
State or EPA a brief one-time statement that exempt recycling is performed at the site,
the recycling location, and the grounds for any exemptions or exclusions claimed.
We believe -that the potential risk to the public of inserting incompatible materials into
commercial fuels justifies such notifications. ,
Recommendation #3: Allow Incidental Processing
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Under the current regulations, reclaiming, a material (defined as recovery or
regeneration) may disqualify a facility from an exemption under RCRA. Some industry
observers have pointed out that certain types of reclamation are an intrinsic part of the
manufacturing process and should therefore be considered exempt. These activities are
usually physical in nature and include filtering, screening, sorting, and grinding.
Sometimes they are conducted in portable (or "mobile") waste treatment units that are
widely used to pretreat wastes and, that present minimal risk of releases to the
environment.
The State of California has conditionally exempted from its hazardous waste
regulations certain treatment technologies used in recycling non-RCRA wastes.. Exempt
technologies include filtering, screening, sorting, sieving, grinding, physical or gravity
separation without adding external heat or chemicals, pH adjustmlent, and viscosity
adjustment. As a condition for this exemption, certain management requirements must
be met, such as labelling and storing. i
,l- . ' '
1 The Task Force agrees with this general approach, and recbmmends conditionally
exempting simple, low-risk processes, if all applicable Subtitle C requirements are met
for tanks, containers, and containment buildings. Exempt processes would include simple
multiple filtration steps in sequence, and crushing, grinding, and sizing (when part of a
single size reduction). Under our approach, an extended series of unrelated processing
steps would not be considered incidental processing. We believe
with the States to determine which activities constitute incidental
that EPA should work
processing.
The Task Force also believes that variances from the containment requirements
should be allowed if the facility can demonstrate that its unit do&s not pose a significant
risk and that compliance with the requirements would be technically or economically
infeasible, especially if retrofitting an existing unit were necessary,
t . . ' ,
Recommendation #4: Allow Longer Accumulation Time for Exempt Secondary
Materials Recycled On-site
t The recommendation would modify the prohibition againsl speculative
accumulation. This prohibition currently exists for most hazardous waste recyclers, but
we propose modifying it to specify that secondary materials may lie accumulated for 18
months on-site and 12 months off-site (the current limitation varies according to when
the accumulation commences during a calendar year). The requirements are more
stringent for off-site recycling, because we. believe that recyclers s!
store secondary materials unless they plan to recycle them within
recycling (much of which is closed loop.or direct reuse recycling),
lould not accept and
one year. For on-site
we have extended the
accumulation period to 18 months. Production runs up to 18 months apart are not
uncommon, and the recycler may need to store material until the production run that is
best suited for its reuse. We believe that this extension will not lead to speculative
accumulation or endanger human health and the environment.
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In addition, we recommend that material to be recycled must have a 100 percent
turnover within the specified period. For a more complete description of this new
requirement, see the discussion of speculative accumulation in Chapter 5 pf this report.
We also recommend requiring the recycler to notify the State or EPA if secondary
materials are stored on-site for more than 90 days. We believe that recycling facilities
reclaiming secondary materials or storing them for extended periods have a greater
potential for misclassifying treatment or disposal operations as recycling. Notification
will allow regulatory agencies to quickly evaluate the need for more detailed follow-up at
these facilities.
We realize that such a notification may pose difficulties for recyelers of
characteristic by-products, since these materials are often difficult to distinguish from
products and co-products. We will therefore evaluate whether,to recommend
notification for these facilities.
Recommendation #5: Facilities Exempt or Excluded From RCRA Regulation Must
Perform and Keep on File a Status Determination.
We recommend requiring that any facility managing secondary materials
determine whether it is subject to the RCRA regulations, including the new recycling
system. If the facility determines that its activity is exempt or. excluded from RCRA
regulation, it must document its grounds for claiming any exemption or exclusion and
keep this "status determination" on file. The facility will not be required to send the
document to the State or EPA unless specifically requested to do so, but the document
must be available for inspection if questions arise about the,facility's status under RCRA.
The status determination need not include the documentation required in responding to
enforcement inquiries pursuant to 40 C.F.R. § 261.2(f). At the time of inspection,
facilities would need to produce only a brief statement of the statutory or regulatory
grounds for the claimed exemption or exclusion. Support for the determination could
include a visual inspection of the units or processes claimed to be exempt.
Under our recommended approach, all exempt recyelers would be required to
document the grounds for their claimed exemption, except those recycling unused
products or scrap metal.7 We recognize, that this may result in increased administrative
costs for some facilities, especially large complex ones. We intend to explore whether
this requirement can be implemented in a way that is manageable for such facilities, or
whether the status determination requirement should be retained for all exempt facilities.
LIST OF SPECIFIC EXEMPTIONS
ff
The Agency has determined that unused products or recycling scrap metal should not be subject to
Subtitle C requirements, and we have no information suggesting that these requirements should be changed.
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i For easy reference, we have developed the following list of the specific
exemptions or exclusions for processes and materials, and a table that lists the criteria
that apply to each.
* '
\ Specific exemptions are:
i Unused products returned for reprocessing8
Scrap metal8
i .
> - Processing of statutorily excluded materials (Bevill wastes9; i.e., specified wastes
i from the combustion of coal or other fossil fuels, certain cire and mineral mining
S wastes, and cement kiln dust).
i-
" . . " ' . r
i Secondary materials directly reused on-site as an ingredient in a production
1 process or as an effective substitute for a commercial chemical product (current
40 C.F.R. § 261.2(e)(l)(i) and (ii), modified).
Recycling of characteristic by-products, commercial chemitpal products, and
container and spill residues of commercial chemical products. Commercial
chemical products may be listed or characteristic; products may be technically
"used," but no potential for contamination may exist throujgh their use (e.g.,
encapsulated mercury and freon gases).
Materials returned, without first being reclaimed, to any unit operation of the'
original process in which they were generated and used asi a substitute for raw
material feedstock (current 40 C.F.R. § 261.2(e)(l)(iii), modified). Original
process may use raw or secondary materials as feedstock, isince this kind of
recycling resembles normal manufacturing more than waste management.
Secondary materials reclaimed and returned to any unit operation of the original
process from which they were generated, "closed-loop" (current 261.4(a)(8),
modified). Recycling process must be enclosed in pipes or other closed
conveyance systems, tanks, or containment buildings.
Recovery of energy from "clean" waste-derived fuels (e.g.,
hexane) (recommended new exemption).
ethanol, methanol,
^Excluded from all RCRA regulation.
0 ' '
The Bevill amendment to HSWA deferred regulation of these wastes until EPA studied them and
determined whether they should be regulated as hazardous wastes. 42 U.S.C. 3001(b)(3)(A).
4-7
-------
Direct reuse of secondary materials containing hydrocarbons in thermal processes
at a petroleum refinery or a petrochemical plant. Includes reuse of secondary
materials at petrochemical plants in processes that produce feedstocks sent to
refineries for commercial fuel production (recommended new exemption).
Direct reuse of secondary materials containing hydrocarbons when returned for
blending into a commercial grade gasoline at a petroleum refinery only
(recommended new exemption)
Exemptions for petroleum refining oil recovery exemptions, as currently codified
at 40 CF.R-. § 261.6(a)(3)(v-viii).
RESIDUES FROM EXEMPT/EXCLUDED RECYCLING
The products or recycled materials from exempt/excluded processes are also
exempt. However, we recommend that any materials or residues that are disposed of or
incinerated be defined and regulated as solid and potentially hazardous wastes. If the
waste exhibits one of the current characteristics of hazardous waste10 or any new
characteristic (e.g., a characteristic codified by the pending Hazardous Waste
Identification Rule), it would be considered hazardous.
We also recommend applying or continuing the applicability of the mixture and
derived-from rules (as modified by the Hazardous Waste Identification Rule) to recycling
residues that are disposed of or incinerated. This will ensure that residues from
recycling a listed hazardous waste will also be hazardous. If the hazardous residues are
mixed with a nonhazardous solid waste, the mixture would also be considered hazardous.
We recognize the potential legal difficulties in applying listings to residues from
exempt materials. However, many common recycling residues are listed in their own
right, such as stillbottoms from the distillation of spent solvents listed as F001 - F005. If
our rationale cannot be legally sustained, we believe the Agency should develop a new
listing rule to capture the residues of concern within the hazardous waste program.
See Appendix B for a discussion of current characteristics and listings and of the mixture and derived-
from rules. '
4-8
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CRITERIA FOR SOLID-WASTE. EXEMPTION/EXCLUSION
reprocessing
Scrap Metal
Bcvill Wastes
substitute
BT." -- - --' "
Ifgory
n originnl manufacturer for
:
ly reused on site «s an
process or as an effective
. commercial chemical
s! spill residues from
uric
Criteria for Exemption/Exclusion
N" l-aml
Storage Before
or During
.Reprocessing
X
X
No
Speculative
Accumulation
X
X4
Products
May Not Be
Applied to
Land1
x
X
State/EPA
Notification
x'
Status
Determination1
, _
X
X .
X
Cannot
Be Used
in Fuel'
.' '
X
i
X
II
No
Reclamition
1
I
X
ll|IHHIl. I -* t till** »,m !»»»»»* »-.. |- -
commercial chemical products
Materials returned to any unit operation of the original
process in which they were generated, and used as raw
material feedstock
Secondary materials reclaimed and relumed to any unit
operation of the original process from which they were
nrngrated (clogedjoopr '
Clean wasle^erived fuels
Secondary materials containing hydrocarbons directly
reused in thermal processes at a petroleum refinery or at
a petrochemical plant7 ____
Secondary materials containing hydrocarbons directly
reused for blending into commercial grade gas at a
petroleum refinery
-------
2 Rt-«;vili-r MUM keep
-------
CHAPTER 5
REGULATED RECYCLING
* '
NEW CLASSIFICATION SCHEME FOR RCR4 RECYCLING
i The Task Force recommends dividing recycling into four categories, with facilities
in each category being subject to the same management requirements. The categories
and the controls for each category are described in this chapter. In general, recycling
operations in all categories would, be regulated unless specifically excluded.
We considered several objectives in choosing these categories. First, we needed
to differentiate among the types of recycling and recyclers to address the over- and
under-regulation of the current regulations. At the same time, we| wanted to be sure that
regulators and the regulated community could understand and implement the system.
Four categories seem to be a manageable number, while still addressing the variety
within the system. Finally, the system had to answer health and environmental concerns
that RCRA is designed to address.
i i ' ' " -. -
i To accomplish these objectives, we recommend dividing re
-------
Category A: Direct reuse off-site of a spent material
Precious metals recovery
Category B: Qn-site recycling
Category C: Captive (intracompany) recycling
Product stewardship
Category D: Off-site commercial recycling
These categories are explained below, with a brief description of the management
requirements for each.
Category A
This category includes spent materials directly reused off-site and the recovery of
precious metals. The requirements consist of notification, biennial reporting,
transportation according to Department of Transportation (DOT) hazardous materials
regulations using a "recyclable materials manifest." In addition, facilities in this category
must demonstrate compliance with the "toxics along for the ride" test described later in
this section.
Under current Subtitle C regulations, EPA does not regulate the direct,reuse of
off-site secondary materials. For example, an electronics manufacturer uses a high-grade
solvent in its production process, then sends the used solvent to another company. The
receiving company uses the solvent, without reclaiming or reprocessing it, to clean
automobile parts, a use that does not require the same purity as manufacturing
electronic components. The used solvent is hot defined as a solid waste and is exempt
from all regulatory requirements. State regulators view this exemption as a regulatory
loophole that should be closed. They want to know who generates and reuses these
materials, and they want assurance that the materials actually arrive at their intended
destination. We recommend notification., tracking, and reporting to accomplish this goal.
The Task Force recommends redefining a "spent material" as a material that has
been used and is no longer usable at the site of generation or is used on site following
reclamation or other processing. Characteristic by-products and off-specification
commercial chemical products sent off-site for direct reuse would remain excluded,
assuming that the product is not routinely applied to the land, stored on the land before
or during production, or used as a fuel.
In the new system, the same requirements apply to the recovery of precious
metals. Currently, precious metals recovery is regulated in 40 C.F.R. Part 266,
Subpart F, which requires notification, recordkeeping, and shipping via a hazardous
5-2 . . ' .
-------
waste hauler with a hazardous waste manifest. In the new systemj, these materials would
bejshipped with a recyclable materials manifest and according to DOT regulations.
Notification, recordkeeping, and biennial reporting requirements are the same as for
direct reuse. All other requirements (including generator requirements, if applicable)
would remain the same. We believe this slight relaxation of the current regulations for
precious metals eliminates a significant impediment to recycling. |
! , - '
Precious metal recyclers are subject to any applicable requirements for burning in
boilers and industrial furnaces (BIFs) under 40 C.F.R. § 266, Subpart H. The BIF rule
currently exempts precious metal recycling from most significant requirements. However,
EPA recently agreed to reexamine that exemption and consider issuing rules to control
air emissions under RCRA or the Clean Air Act. The Task Force would adopt any
pertinent changes in its proposed system.
Category B
! . . ':- \ ' ' ^ .
[ Recycling secondary materials at a manufacturing facility (on-site recycling) is
regulated as Category B in our recommended system.11 Category B requirements
would apply only to facilities generating more than 1000 kilograms of hazardous waste in
any one month of a calendar year (i.e., large quantity generators). Generators of less
than 1000 kilograms'of hazardous waste in any one month (i.e., snail quantity
generators) would be subject to no new requirements under our proposed scheme.
We created this category for several reasons. First, we believe that manufacturers
would increase their recycling of secondary materials if certain impediments were
eliminated, especially the requirement to obtain a permit when regulated materials are
stored for more than 90 days. To encourage increased recycling, l[he new system would
not require manufacturers in Category B to obtain prior approval or to provide notice to
the public before recycling On site. Similarly, any modifications tci the recycling
processes would be included in biennial reporting. The recycling of wastes already
present on-site, subject to safe management standards established by EPA and the States,
is generally of less .concern to the public than recycling of wastes generated and shipped
to another community. The risks of recycling performed entirely at the site of
generation, therefore, do not justify the time, cost, and reduced flexibility caused by prior
approval and public notice.
! - \ ..-..
Certification by manufacturers that they are complying with the required
management standards enables EPA and the States to enforce compliance. As discussed
in more detail below, we are emphasizing prevention .of risks by applying many
hazardous waste management standards to hazardous waste recycling units. These
management standards have been in general use for at least five years, and we believe
^Closed-loop recycling or directly using or reusing secondary materials on-silte continues to be exempt
from RCRA, assuming the criteria described earlier in this chapter (page 2) are met.
'' .' '.5-3 '
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that the States and the regulated community have found the requirements to be generally
clear, affordable, and consistent with good engineering practices.
In our earlier discussion of jurisdiction (see Chapter 2 and Appendix A), we
explained the difficulty of, distinguishing manufacturing from recycling. This is a major
question for Category B, especially when the recycled material is returned to the
manufacturing process after reclamation. In the new system, a unit will be regulated as
recycling only if recycled material is the sole ingredient processed by the unit. If any
virgin materials are co-processed, the unit will be considered a manufacturing unit; the
co-processing will not be considered reclamation. Any tanks storing both virgin and
recycled materials prior to co-processing would likewise be defined as part of the
manufacturing unit. In developing regulatory language to implement this approach, we
will explore definitions that prevent de minimis additions of virgin materials intended to
circumvent designation of a unit as a recycling unit.
Several industry parties have discussed situations in which secondary materials are
reused on-site, but do not qualify for one of the current exemptions. For example,
secondary materials are often reused in an on-site manufacturing process that is not the
original process, thereby making the materials ineligible for the closed loop exemption.
In addition, secondary materials from an otherwise closed loop process may be diverted
for ancillary purposes, such as cleaning or quality assurance. Frequently, mobile closed
containers or transportable tanks are used. Sometimes a secondary material may be the
sole feedstock to another process producing a final product. However, distillation may
be needed before final processing, making the materials ineligible for the direct reuse
exemption because distillation has usually been considered a form of reclamation.
Industry believes that these and most other kinds of on-site recycling constitute
ongoing manufacturing rather than waste management, and that EPA should have no
RCRA jurisdiction in these situations. The Task Force agrees that many of these
situations closely resemble continuous manufacturing processes. For example, if very
small amounts of secondary materials (one percent or less) are diverted from a closed
loop operation for ancillary purposes, this should not disqualify the operation from the
closed loop exemption. -Nor should the use of mobile closed containers or transportable
tanks be disqualified, as long as they meet standards equivalent to those of 40 CFR 265,
Subpart I.
We are also aware that reuse of secondary materials involving distillation or
recycling in a second manufacturing unit can often resemble ongoing manufacturing
more than waste management. We want to encourage beneficial reuse of these
materials, rather than present, unnecessary impediments to their recycling. However, we
are currently reluctant to suggest the Agency cede broad jurisdiction over all on-site
recycling, because of the potential for activities taking place that are clearly waste
management or mismanagement.
5-4,
-------
To address this concern, the Task Force recommends developing (in conjunction
with the States) additional criteria to distinguish on-site manufacturing involving reuse of
secondary materials from waste management. These criteria might include engineering
design criteria or a sham recycling test involving economics or tomes along for the ride.
Category C
| This category regulates captive (intracompany) recycling and product stewardship.
Captive recycling includes facilities that recycle materials generated by other facilities
under the same parent corporation. An ink manufacturer, for example, may send spent
solvents used to wash equipment to another facility that is owned by the same
corporation and that produces paint thinner. The second facility distills the solvents as
part of its production process. If recycling the spent solvent in this way required a
RCRA permit, the manufacturer might not recycle it, because of Administrative costs.
Under product stewardship or product return, customers return used or spent
products to an original manufacturer of the product. The manufacturer then recycles,
rebuilds, remanufactures, or reuses all or part of the returned product. Many
manufacturers would like to offer product stewardship as a service to their commercial
customers and to reduce the costs of raw material. For example, a photographic
processing company returns its spent fixative to the original manufacturer, who then
reclaims and resells it. Since these materials are often hazardous waste if disposed of or
treated, the manufacturer and the customer are able to avoid disposal costs and possible
Superfund liability. We believe that our program will help build readability into
products and foster increased use of existing capacity.
; We recommend the same requirements for Category C and Category B facilities,
with one exception. If a facility receives more than 12,000 kilograrns of secondary
materials annually from off-site, it must notify the public and must allow access to
nonconfidential materials.12 No public meetings or prior approval would be required. "'
, In their experiences with siting, permitting, and public meetings, States and EPA
Regions have found that the public is most concerned about hazardous materials and
wastes that come from other localities. We believe this concern results from increased ,
truck traffic and the likelihood of accidents involving toxic materials, and the prevalent
NIMBY (not in my back yard) attitude about activities involving hazardous wastes.
Because of these concerns, the public should be notified that these materials will be
transported to their community.
12,000 kg/yr is used to parallel the current definition of a large quantity generator (1000 kg/month) in
the hazardous waste regulatory system. We have chosen to annualize the amouni: so that batch processors or
r
-------
We will seek comments on ways-to classify facilities in unusual situations. For
example, Company X ostensibly sets up a product stewardship program. From the
materials returned to it, however, it makes a product that is outside the plant's primary
manufacturing function. Should Company X be classified in Category C, or as a
commercial recycler in the next category,, Category D? (Does it matter if the new
product is made by recycling significantly more of the original products than Company X
has manufactured?)
Another example is Company Y, which receives materials from several facilities
within its parent corporation. No one facility generates enough of these materials for
on-site recycling to be economically feasible, but the materials can be consolidated and
recycled into a usable product. Company Y makes these products primarily from
secondary materials and does not have any other manufacturing at its site. Should
Company Y be classified as a captive recycling facility in Category C or as a commercial
recycling facility in Category D?
Category D
Category D consists of commercial recycling facilities. These facilities purchase
recyclable materials from generators or receive payment from generators to recycle their
secondary materials; Generally, these facilities receive different hazardous wastes from
various kinds of customers. Their products are made primarily from secondary materials
instead of virgin materials.
Under our recommended system, all the requirements of Category C would apply.
In addition, commercial facilities also must obtain prior approval for some of their
operations (in lieu of a Part B, permit) before they can begin recycling operations. Items
requiring prior approval include a facility operations plan (with a waste analysis plan),
financial assurance for closure, and major modifications to recycling units (involving
significant changes in capacity, use of new secondary materials, or changes in the process
chemistry.)
Both EPA and the States .have found that local communities are reluctant to
accept the presence of commercial recycling facilities whose design and operation have
not been approved by the appropriate regulatory agency. Unlike facilities in Category C,
commercial facilities use secondary materials and hazardous wastes for most or all of
their raw materials. We believe an approval process with full public participation can
address most of the public's concerns. In general, Americans believe that government
supervision of hazardous waste management is justified.13 Our approach will focus
review by the regulatory agency on the most significant operations involving hazardous
Roper Reports 93-3, 8-11; 92-9, 20-21;
,5-6
-------
s . I
waste. By allowing the facility to certify compliance with the remaining requirements, we
believe that we can reduce the costs associated with obtaining government approval.
TWO CURRENTLY EXEMPT ACTIVITIES THAT WOULD BE REGULATED UNDER
RCRA RECYCLING
The Task Force recommends placing two currently exempt activities in the
"RCRA Recycling" class, which would be subject to modified requirements under Subtitle
C. Controls can then be targeted to those parts of the activities that pose a significant
risk of potential releases. The activities that would be reclassified are:
! '
' " . .
Direct Reuse of Spent Materials Transported Off-site j
1 Recycling of spent materials transported off-site for direct reuse (without
reclamation) was explained earlier in the discussion of Category A. We believe that
these materials should be minimally regulated so that appropriate controls can be placed
on the likely transportation of these materials.
Recycling of Characteristic Sludges
' Characteristic sludges (emission control residues) are not now considered solid
wastes when reclaimed, because of the difficulty in distinguishing between reclamation of
product-like sludges and reclamation of waste-like sludges. However, the Task Force
arid the States believe that most sludges should be classified as wastes rather than
products, since they are expressly included in the statute's solid waste definition and
because they typically are produced through pollution control or waste management
activities.
It is true that certain kinds of emission control residues (e.g., baghouse dusts with
high metal content collected from primary metal smelting) can bb more product-like
because they are very valuable and represent continuous extraction of metal values from
ore. Within the primary metals industry* baghouse dust is routinely recycled rather than
disposed of. We recommend exempting these materials as eithbr co-products or
exempt sludges if we can develop an appropriate definition that distinguishes them from
residues without a high metal content. Operations outside the primary metals industry
would not normally be considered "continuous" manufacturing of ore-derived materials.
MANAGEMENT REQUIREMENTS FOR RCRA RECYCLING
In selecting management requirements for each category, [the Task Force relied
on several key principles for recycling under RCRA jurisdiction:
Safe recycling operations must use equipment designed to prevent releases of
hazardous constituents to the environment, especially groiindwater.
I _, . i . r
Recyclers must quickly and effectively respond to releases of hazardous
constituents that occur despite these preventive measures.j >
' ' ' 5-7.
-------
Government regulators must know the identity of recycling facilities and must
have sufficient information to enforce compliance with the appropriate
management standards.
/
* An effective regulatory system must ensure safe transportation and tracking of
secondary materials from "cradle to grave."
Waste-derived products must pose no more threat to human health and the
environment than the virgin products they replace or compete with.
The community surrounding a recycling facility should be notified if the facility
will receive and recycle hazardous waste generated at another facility.
Most of the requirements we recommend are self-implementing. Where prior
approval must be obtained, we will explore ways to encourage government reviewers to
respond to applications promptly. We have also eliminated redundancy with other laws
and regulations wherever possible. Our recommended recycling system recognizes the
needs of the public and the environment and the needs of industry. To .compete
successfully in an international market, industry must be able to make quick, accurate
investment and operating decisions based on a predictable system of regulatory
requirements. Many of our recommendations for improvements also may be appropriate
for Subtitle C hazardous waste regulations. If these measures are successful for
recycling, we will recommend that EPA consider applying some of them to hazardous
waste management.
Table 1 compares the requirements for Categories A-D. Category A facilities are
subject to^minimal requirements necessary for regulators to track these materials.
Facilities in Categories B, C, and D have almost identical management requirements. A
final set of requirements for public notice or prior approval will apply only to Category C
and Category D facilities..
Below is a detailed description of each management requirement.
No Land Storage
RCRA places a very high value on our groundwater. Congress believed so
strongly in restricting land disposal that it added "hammers" to the 1984 amendments to
RCRA. If EPA did not promulgate land disposal restrictions and treatment standards,
the "hammer" would drop, and Congress' standards would go into effect automatically.
As a result, EPA restricts the placement of untreated wastes on land, and treatment
residues must be placed in landfills with stringent Subtitle C controls.
EPA's hazardous waste regulations generally prohibit placing secondary materials
on the land. The Task Force recommends applying this prohibition more consistently in
our new recycling system. Because of the potential for releases to the environment, EPA
views land placement as a general indication that a material is'"part of the waste disposal
5-8
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. TABLE,!
Comparison of Category A-D Requirements
Requirement
No land storage
NoTARs .
Recyclable materials manifest
State/EPA notification
Biennial reporting
Operating Plan
Certification
Management and administrative requirements
Release response, closure, and financial assurance
Public notice
Prior approval
Prior approval of modifications
A
X
X
X
X
X
'E
. X
X
X
X
X
: ' X;
X
X
c
X
X
X
X
x
X
X
x
X
X
D
X
X
X ,
X
X
X
X
x
X
X
X
x
problem."14 We recommend prohibiting land placement as a condition of exemption
from the recycling system, and as a management condition of all four recycling
categories.
; We recommend that the regulatory definition of "land disposal" apply to land
storage before or during recycling. We intend to limit storage be'fore or during recycling
to tanks, containers, and containment buildings. Storage in surface impoundments or
waste piles would not be allowed, and storage units would have to meet the tank design,
installation, and operation standards in 40 C.F.R. Parts 262, 264, [or 265.
\ ' "' ' '
i Some situations exist where the recyclable material is a product meant to be
applied to the land (i.e., slag used as road, bed material). These materials may be
exempt from the new recycling system if: (1) good management practices by the facility
prevent releases to the environment before actual use; or (2) the material can be
14C
See, American Petroleum Institute v. United States Environmental Protection
729 (D.C. Cir. 1990), and American Mining Congress v. United States Environmental Protection
II"), 907 F.2d 1179 (D.C. Cir. 1990). See also Appendix A.
1 : . " ' . 5-9 -".
Agency ("API"), 906 F.2d
Agency ("AMC
-------
delisted or shown to no longer exhibit the characteristic for which it was listed; or (3) the
material is a commercial chemicalproduct listed in 40 CFR 261.33 that is applied to the
land and that is its ordinary manner of use.
Recycling Must Be Legitimate
One of the dangers of relaxing requirements for recycling is the increased
incentive to engage in "sham" recycling. Sham recycling is managing hazardous waste in
a way that actually constitutes disposal instead of legitimate recycling. Any system we
develop must deter sham recycling and enable enforcement personnel to identify the
process as sharn and successfully prosecute the violator.
EPA has often discussed criteria to determine whether an activity is sham
recycling.15 Because the criteria are not binding rules, State and EPA enforcement staff
have been concerned about how to apply the criteria with consistency. Some members
of the regulated community were not aware of any Agency "sham policy." Others find
application of the policy to be very time-consuming and expensive, with little certainty of
outcome.
One criterion in EPA's policy is that a legitimate product should not contain
toxics along for the ride (TARs). TARs are hazardous constituents not necessary for the
product to perform as was intended. These hazardous constituents may also be present
in significantly higher levels than in comparable products made from virgin materials.
States and EPA regions are concerned that industry may not test its recyclable products
for unacceptable TARs. Of particular concern are products used by the general public
or products applied to the land.
The Task Force recommends prohibiting TARs as a condition within each of the
four recycling categories. Although the Toxics Substances Control Act, the Consumer
Products Safety Act, and the Food and Drug Act have some jurisdiction over this issue,
the large number of products potentially affected by an increase in recycling of waste-
derived products makes reliance on these regulatory authorities impractical. Over three-
fourths of Americans do not believe that industry will make products that are safe,
environmentally or otherwise, unless the government makes sure that it does.16 This
lack of faith in product safety without government oversight has changed little over the
past decade.17 We believe that recyclers should continue to have a duty under RCRA
"See, e.g., 50 Fed. Reg. at 638 (April 4, 1985); 53 Fed. Reg. at 522 (January 8, 1988); 53 Fed. Reg. at
17606 (May 11, 1988); and 56 Fed. Reg. at 7185 (February 21, 1991).
l6
Roper Reports, 90-4 at 104.
5-10
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to demonstrate, if asked, that their waste-derived products will ncit create significant new
risks to the users of those products.
We also recommend allowing RCRA recyclers to substitute the TAR test for
applicable land disposal restrictions standards (LDRs) for uses of! waste-derived products
meeting our new definition of use constituting disposal. The hazardous constituent levels
required by the LDR standards can be significantly more stringent than the levels in
products made from virgin materials. The TAR test will ensure that waste-derived
products do not create new risks in the marketplace. ,
The Task Force has proposed a test-for TAR which consists of three parts:
products made from secondary materials would have to pass only one of the three tests.
The first test is a self-implementing analytic method. The second and third tests require
government review and approval - a case-by-case evaluation of the legitimacy of the
product or process. For the first test, a product would have to pass a statistical test
chosen by EPA that compares it to a similar product made from virgin materials. The
concentration and amount of Appendix VIII hazardous constituents in the recycled
product could not be significantly higher than present in a comparable product made
from virgin materials. Alternatively, a recycler could compare the concentrations of
hazardous constituents in the recyclable material to those present in the virgin materials
that would otherwise be used to make the product.
This evaluation is designed to prevent a manufacturer from replacing a
commercially available virgin raw material with a recyclable-material containing
significantly higher concentrations of toxics. We want to avoid the presence of
additional toxics not significantly present in the analogous virgin |material. The goal of
the analysis is not to ensure that recycled products are absolutely without risk, or to
create new standards of product safety. Instead, we will ensure that recycled products
are at least .as safe as their virgin material counterparts. We believe that other laws,
such as the Toxic. Substances Control Act, the Consumer Product Safety Act, and the
Occupational Safety and Health Act are better designed to evaluate the effect of
products and processes on consumers.
In some instances, a recycler introduces a toxic ingredient
to enhance the
performance of a product. For these situations, we recommend a second test, allowing
art individual manufacturer or industry to apply for a variance from the TAR threshold.
The manufacturer must show that the higher toxic levels are necessary for the product to
function as intended, or that an industry specification otherwise justifies higher
concentrations of toxics.
V "' ; I', ' ' '
j Finally, a manufacturer may obtain a variance from the TAR threshold based on
a life cycle analysis of the product. If a manufacturer can show that the product presents
no significant increase in risk to human health or the environment over its life (including
the most likely disposal scenarios), a variance will be granted, despite the presence of
5-11
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higher toxic constituent concentratipns. -An example is a product with toxics that are not
likely to be released because strong chemical bonds exist between the toxics and other
ingredients. In this case, recyclers also would need to show that the product would be
used in industrial applications that would not normally result in-disposal in a municipal
waste combustor, if breaking those chemical bonds during incineration would increase
the toxics present in the combustor's ash or air emissions.
Any materials failing all three tests would be classified as wastes rather than
products, and the subsequent transportation, storage, and use would be subject to full
Subtitle C regulation. If a waste-derived product passed the TAR test, its status would
not be affected if another material produced from the same recycling process failed to
pass TAR.
We initially suggested in our straw proposal that any product from. Category A
could not contain "toxics along for the ride." Some parties have suggested that the costs
of applying TAR to this category outweigh the environmental benefits. However, after
examining the results of reviewing proposed off-site uses of waste-derived materials, we
have concluded that TAR is an important tool in preventing these facilities from
avoiding RCRA requirements. Both EPA and the States have rejected a significant
number of proposals for direct reuse of wastes (as ingredients or effective substitutes for
commercial chemical products), after finding that the activity more closely resembled
waste treatment or disposal. ''.".
\
In order to minimize the costs of this requirement, we recommend that recyclers
be allowed to certify compliance based on process knowledge and existing data.
However, EPA and State agencies should retain the authority to require that recyclers
generate more specific data to demonstrate TAR compliance when those agencies
believe that the waste-derived products may introduce significant new risks into the
marketplace.
Many useful options have been suggested to improve our recommended TAR test,
which we are actively considering. These include: .
o Presuming the legitimacy of products that pass TAR Test 1 above, but allowing
the State or EPA to prove that it is otherwise sham or unsafe based on factors
other than TAR. .
o Determining legitimacy by the economics of the recycling (e.g., the minimum
percentage of profit derived from sale of products).
o Applying TAR tests or other legitimacy tests only to consumer products or land-
applied products.
5-12
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I ' !
o Codifying more than one criterion for the legitimacy determination, such as an
economics test and a TAR test.
Notification and Reporting
; Several types of notification and reporting are currently required under EPA's
hazardous waste rules. These rules require generators, transporters, and treatment,
storage or disposal facilities (including recyclers) to file an initial
notification with EPA
or !a State. Recyclers who .believe that they are managing secondary materials excluded
from the definition of solid waste are not required to notify. The; notification provides
basic information about the notifying facility (e.g., name, address, contact person) and
information about the type of activity occurring at the facility (e.g., generator,
transporter) and the particular EPA waste codes managed. The notification form does
not require facilities to specifically identify any recycling activities.
Every two years, EPA also requires large-quantity generators (producing more
than 1000 kilograms of hazardous waste per month) and treatment, storage, and disposal
facilities (TSDFs) to file a "Biennial Report" on the volume and type of wastes they
generated, how they managed the waste (e.g., recycling, treatment, disposal), and
whether it was managed on- or off-site. A recycler who is. not a large-quantity generator
or TSDF does not file a Biennial Report. Neither the EPA Notification Form nor the
Biennial Report currently requires information on modifications to recycling units or
facilities.
Because some recyclers are exempt from biennial reporting, and others incorrectly
believe they are recycling exempt materials, the States and EPA do not have adequate
information about the true effect of recycling. Without this information, enforcement
personnel cannot monitor recycling activities to ensure compliance with applicable
regulations. The State and EPA enforcement staffs believe that this state of affairs has
led to inadequate control and subsequent mismanagement, as evidenced by the many
closed recycling facilities that are now Superfund sites on the National Priority List.
E / .
; The Task Force recommends that all RCRA recyclers in Categories A-D notify
the State or EPA of their activities. This is a new requirement only for Category A
(direct reuse off-site) and facilities that do not store before recycling. In addition, we
recommend that the existing notification form be revised to require a specific-
identification as a Category A, B; C, or D recycling facility and the type and quantity of
wastes recycled. This form could also be used to facilities claiming certain exemptions,
such as facilities recycling a characteristic by-product or those storing materials for more
than 90 days prior to recycling. This information will allow the States and EPA to target
compliance inspections. -
The Task Force also recommends that biennial reporting
Categories A-D (again, a new requirement only for Category A
5-13
be required for
and facilities that do not
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store before recycling). We suggest that the Biennial Report be expanded to report all
modifications to Category B and C recycling operations and minor modifications to
Category D operations.
*
Transportation and Manifesting
Under current RCRA rules, hazardous waste shipped off-site for recycling
requires a hazardous waste manifest and must adhere to RCRA pre-transport and
shipment requirements. EPA and the States use the manifest for tracking off-site
shipments to ensure "cradle-tq-grave" management of the material and to hold the
generator, transporter, and TSDF accountable for these shipments.
The manifest is a document completed by a hazardous waste generator describing
the amounts and types of hazardous waste being transported. The document is
comparable to a bill of lading used by industry in transporting materials. As part of this
document, an individual knowledgeable about the hazardous waste must be identified in
case of an accident or release to assist local authorities in spill response activities.
RCRA regulations reference DOT pre-transport regulatory requirements for
packaging, labeling, marking and placarding (49 C.F.R. Parts 172, 173, 178, and 179).
DOT has nine categories of materials with varying requirements for labelling, placarding,
packaging, and marking. If a recyclable material does not .fall under one of the first eight
categories, it would automatically fall into Class 9, which is the current DOT category for
RCRA hazardous waste. .
The DOT Class 9 requirements are virtually identical to the EPA standards for
hazardous waste transporters in 40 C.F.R. Part 263. Some States have added extra
requirements for transporters of materials requiring a RCRA hazardous waste manifest.
These requirements include special training or equipment, more liability insurance, local
taxes or fees, and additional reporting. Generators and recyclers have claimed that these
additional State requirements substantially increase the cost of transporting RCRA
hazardous manifested materials directly by increasing operating costs of transporters, and
indirectly by reducing competition because only relatively few transporters are willing to
invest in compliance with the State rules.
As an example, the costs of transporting a load of lead-bearing materials between
Columbus, Georgia, and Indianapolis, Indiana, was $1,400 by a hazardous waste hauler
and only $630 by a hazardous materials carrier (DOT). Similarly, the costs of
transporting the same materials from Muncie, Indiana, to Indianapolis was $533 by a
hazardous waste hauler and $160 by a hazardous materials hauler.18
18From a 1994 survey conducted by RSR Corporation, sent to the Task Force. This information is
included in the RCRA docket.
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The Task Force recommends using a new "recyclable materials" manifest for all
Category A, C, and D secondary materials shipped off-site. This tiew manifest could be
identical to the current hazardous waste manifest, except for its name. The effect of
making this change would be to eliminate the "stigma" associated with transportation of
hazardous wastes and also, to the extent possible, to eliminate the more stringent State
requirements that automatically attach to shipment of materials requiring a: Uniform
Hazardous Waste Manifest. The recyclables manifest would still provide identical
information for States that rely on automated tracking of manifest data for their
hazardous waste enforcement programs. .
" - i
Because many States cannot inspect manifest data immediately upon receipt, we
recommend allowing States to require monthly or .quarterly submission of manifest
information for recyclable secondary materials. Exception Reports describing shipments
that did not reach their destination within 45 days would continue to be filed
immediately.
: To eliminate redundancy between DOT and EPA transportation rules, the Task
Force recommends that the Agency seek changes to the DOT rules to incorporate
RCRA recycling materials regulated under Categories A, C, and D. If the DOT
transportation safety rules apply, there will be no need to establish separate
requirements under RCRA (other than manifest procedures) that apply to transportation
of these secondary materials.
FACILITY AND RECYCLING UNIT MANAGEMENT STANDARDS
General Facility Standards
Under the current hazardous waste regulations, generators: and TSDFs (including
recyclers) must comply with general management standards to minimize any threats
posed by the facility to human health and the environment. These standards are found
at Subparts B, C,and D of 40 C.F.R. Parts 265 (for interim status facilities) and 264 (for
permitted facilities). The standards for generators are found at 40 C.F.R. Part 262,
Subpart C. , j
I Under the standards for TSDFs, the facility must obtain an EPA ID number,
perform a general waste analysis, maintain security measures aimed at public access,
inspect the plant, train personnel for managing hazardous waste, comply with location
standards, and provide construction quality assurance programs. The standards also
include general requirements for ignitable, reactive, or incompatible wastes.
Preparedness and prevention standards for TSDFs include
design and operation
standards; required equipment such as alarms; testing and maintenance of equipment;
access-to alarm systems; required aisle space; and arrangements with local authorities
(such as police and fire departments).
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Contingency plan and emergency procedures standards for TSDFs include a
contingency plan for fires, explosions, or unplanned releases of hazardous waste;
procedures for amending the plan; appointment of an emergency coordinator;, and steps
that the coordinator must follow in case of an emergency, including assessment,
containment, and cleanup.
Pretransport requirements for generators include requirements for pretransport
labeling, marking, and placarding. This provision also states that large-quantity
generators are subject to Subparts C and D of Parts 264 and 265, and the personnel
training requirements for hazardous waste handling of Subpart B. Small-quantity
generators are subject to Subpart C of Part 265. In addition, small-quantity generators
must follow requirements'for responding to emergencies (see 40 C.F.R. Part 262(d)(5))
that are similar to those for TSDFs, but somewhat simplified.
The Task Force recommends adopting the requirements in Parts 264 and 265,
Subparts B, C and D, for all recycling categories, except Category A (direct reuse of
spent materials sent off-site). Since the primary goal of exercising RCRA jurisdiction
over Category A recyclers is to ensure that the materials are handled safely when sent
off-site, general facility standards are unnecessary.
In the case of the other recycling categories, we believe that these requirements
will ensure that facilities are managed in a way that will prevent releases of hazardous
wastes and facilitate prompt response measures if releases do occur. However, we
realize that most of the requirements in Subpart B of Parts 264 and 265 (for TSDFs) do
not currently apply to generators, and we were unable to evaluate whether all of these
requirements are necessary for our recycling categories B, C, and D. For example, the
full security requirements of Subpart B or the location standards may not be necessary
for many or most recycling operations. Therefore, we are considering simplifying these
requirements so that some or all facilities would comply only with the generator
standards.
Certain employee protection requirements under the Occupational Health and
Safety Act (OSHA) are tied to facilities that are permitted TSDFs under RCRA. These
requirements are set forth in 40 C.F.R. 1910.120(p) for TSDFs and 40 C.F.R.
1910.120(b)-(o) for facilities involved in RCRA corrective action cleanups. The
requirements include written safety and health programs for employees, health measures,
material handling requirements, personnel training, and extensive procedures for
emergency responses. Since the facilities in the Task Force's proposed recycling scheme
would not be required to obtain RCRA permits, these OSHA requirements would no
longer apply. We will continue to examine these requirements and determine whether
including the provisions is consistent with ongoing recycling rather than treatment,
storage, and disposal operations.
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i Facilities (including recyclers) that may release hazardous substances as defined
by; CERCLA have alternative emergency response requirements under OSHA, with
which they would still be required to comply (see 40 C.F.R. 1910,120(q)).
Containers and Container Storage Areas
1 Hazardous waste containers and container storage areas are currently subject to
40 C.F.R. Part 265, Subpart I (for generators and interim status TSDFs) and Part 264,
Subpart I (for permitted TSDFs). These standards are performance standards (rather
than specific design standards) and are intended to prevent releases of hazardous
constituents from containers to groundwater. They require primajy containment (e.g., by
replacement of worn-out containers and requiring container construction that is
compatible with the materials stored). Also required are inspection procedures for unit
closure. TSDFs must install secondary containment to capture any releases from
container storage areas.
1 " *
The Task Force recommends adopting the TSDF standards (40 C.F.R. Part 264,
Subpart I) for managing recyclable materials in containers and containment areas at all
Category B-D facilities. Hazardous waste container storage areas have been subject to
these regulations for more than five years, and we believe that the rules have provided
good protection of groundwater without overly burdening the regulated community.
Tanks and Tank Systems
Tanks and tank systems19 must comply with standards in 4JO C.F.R. Part 265,
Subpart J (for generators and interim status TSDFs) or Part 264, Subpart J (for
permitted TSDFs). These standards are meant to prevent releases of hazardous
constituents to groundwater. They,require an initial assessment of the integrity of the
tank system; containment and detection of releases; minimum design and installation
specifications; general operating practices; proper inspection; response to leaks and
spills; and closure and post-closure care. , ,
i Although the RCRA regulations address most aspects of 1:ank systems, the
emphasis is on secondary containment and leak detection (40 C.F.R. §§ 264.193 and
265.193). In a secondary containment system, two impermeable barriers are situated
between the wastes and the external environment. The first barrier is the wall of the
treatment or storage tank. The secondary barrier may be a second tank wall, a concrete
vault, a liner (such as a synthetic membrane liner), or another device approved by the
permitting authority.
19Tank systems include tanks and any associated equipment, such as pipes,
: 5-17.
pumps, flanges, and valves.
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Secondary containment must capture 100 percent of the volume of the largest
tank within the containment system. The ancillary equipment of the tank system must
satisfy technical requirements for material compatibility, tank system strength, system
foundation, leak detection, and liquid removal.
If a leak occurs in the primary tank wall, the secondary containment barrier
prevents the release of wastes into the environment. The secondary containment system
also provides an enclosed space in which leaks from the primary tank system can be
easily detected and removed.
Spill prevention controls must prevent the release of material during tank filling,
content transfer, and emptying. Facilities using hazardous waste tanks must provide
design and/or operating features to prevent spills and overflows.
All ancillary equipment must also have appropriate secondary containment, as
required in 40 C.F.R. § 264.193 (f) and 265.193(f). Certain ancillary equipment is
exempted (for example, above- ground and readily accessible piping that can be
inspected daily). In general, tank systems must satisfy the technical requirements for:
Material compatibility. Both primary and secondary containment structures must
be made of or lined with a material that will not be weakened or degraded by the
waste placed in the system.
* Tank system strength. The system must be strong and thick enough to withstand
any foreseeable forces to which it may be subjected (for example, the pressures
exerted by groundwater, frost heave, or vehicular traffic over or around the tank
system).
System foundation. The foundation or base of the system must be capable of
preventing system failure due to settlement, compression, or uplift.
Leak detection. A leak detection system must be installed that is capable of
detecting the failure of the primary containment structure. The system must be
capable of detecting and collecting releases and accumulated liquids until the
collected material is removed.
Liquid removal. The secondary containment system must be sloped or otherwise
designed and operated so that all liquids entering the system can be efficiently
collected and removed.
A tank owner or operator may petition the EPA Region or authorized State to
obtain either a technology- or risk-based variance from the secondary containment
requirements.
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Integrity Assessments. The tank regulations allow facilities to add secondary
containment to an existing (primary containment) tank system any time until it is 15
years old. Under 40 C.F.R. §§ 264.191 and 265.191, owners or operators of existing tank
systems without adequate secondary containment were required to have an independent,
qualified, registered professional engineer perform an integrity assessment by January 12,
1988. The integrity assessment determined if the tank system was leaking or unfit for
service. ,
Design and Installation. Sections 264.192 and 265.192 provide standards for designing
and installing new hazardous waste storage and treatment tank systems or components.
The principal design requirement is that new systems or, components must be provided
with secondary containment. This requirement applies not only to new tank systems, but
also to:
;. any tank, piping, or other equipment installed as an expansion or replacement to
an existing tank system;
: existing equipment moved or reinstalled to replace components of existing
hazardous waste tank systems;
f " ' ' ' -
, any existing tank systems or components not historically used for hazardous waste
treatment or storage, but, into which hazardous waste has bjeen or will be
; introduced after July 14, 1986.
'" . .,['.-.
As part of these requirements, all new tank system design features and installation
procedures must be assessed and certified by an independent, qualified, registered
professional engineer.
1 ' " . -[ ' - '
General Operating Requirements. Sections 264.194 and 265.194 address the day-to-day
operation of hazardous waste treatment and storage tanks. These; requirements govern
the nature of materials that may be introduced into the tank and the use of spill and
overflow prevention controls. More specifically, no hazardous wastes or treatment
reagents may be introduced into a tank system that may jeopardize the integrity of the
tank.
Similarly, tank system operators must provide design and/or operating features to
protect against spills and overflows. Spill prevention controls should prevent the release
of material during tank rilling, content transfer, and emptying. j
Requirements for Tank System Inspections. Facilities must inspect the following
components of hazardous waste treatment and storage tanks and tank systems: overfill
controls, data from operating equipment, release detection equipment, above-ground
tank system components, and corrosion protection devices (40 C.F.R. §§ 264.195 and
265.195).
5-19.
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The design specifications also require secondary containment. The secondary
barrier can be a second tank wall, a concrete vault, a liner (such as a synthetic
membrane liner), or another device approved by the State.
4
All new tank system designs and installation procedures must be assessed by an .
independent, qualified, registered professional engineer.
The Task Force recommends adopting 40 C.F.R. Part 265, Subpart J requirements
for the management of Category B-D recyclable materials in tanks. Like EPA's
container regulations, the hazardous waste tank rules are time-tested, provide the
necessary protection of groundwater, and are affordable. We believe that existing tanks
that will be subject to these standards should be granted the same amount of time to
achieve compliance that was provided to existing hazardous waste tanks when the
requirements were promulgated (up to 15 years, depending on the age and condition of
the tank). We also recommend that States should have the flexibility to evaluate
alternative compliance measures that achieve the same objectives as the RCRA tank
rules.
In addition, the Task Force recommends that variances be allowed from these
rules for existing recycling units, if the facility can demonstrate that retrofit of those
devices is either technically or economically infeasible. Any variance should include a
demonstration that the unit, as installed, presents no significant risk of releasing
hazardous constituents to groundwater.
Containment Buildings
Standards for managing hazardous wastes in containment buildings (storage units
where a building with roof, walls, and floor can provide containment of waste) are found
in 40 C.F.R. Parts 264 and 265, Sub'part DD. Containment buildings are a relatively new
management practice designed to address the problem that arose out of the Third-Third
Land Disposal Restrictions rule prohibiting the placement of certain dry bulk hazardous
wastes on the land prior to' treatment. This prohibition had the inadvertent effect of
limiting storage practices for materials destined for recycling. The inconsistency arose
because EPA regulations allow the storage of liquids in tanks or containers prior to
treatment or recycling..
To address this issue, EPA promulgated containment building standards. These
standards consist of four parts: standards that must be met for a containment building to
be excluded from the definition of land disposal; design and operating standards; closure
requirements; and operating standards that apply only to storage less than 90 days in a
containment building at a generating facility. . ,.
The main emphasis of the regulations, however, is on prescribed performance
standards. These'standards include a building structure that is completely enclosed with
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a floor, walls, and a roof to prevent exposure to the elements; ensuring incompatible
wastes are not placed in the unit; installing a primary barrier capable of withstanding the
movement of personnel, waste, and equipment during the lifetime of the unit; good
housekeeping practices to keep the primary barrier free of significant cracks, gaps, or
corrosion; certification of the building by a qualified, registered professional engineer;
release detection and removal procedures; and unit inspections, i ,
I For units managing free liquids, the building must have both primary and
secondary containment. The primary barrier must be designed to prevent the migration
of wastes into the barrier, and it must be sloped to drain liquids into a liquid collection
and removal system. The secondary containment system must include a secondary barrier
designed and constructed to prevent migration into the barrier anp a leak detection
system capable of detecting failure of the primary barrier and collecting accumulated
liquids at the earliest practicable time, j
The Task Force recommends adopting 40 C.F.R. Part 265, Subpart DD standards
for managing recyclable materials in containment buildings. These standards were
developed' after extensive technical consultation with the regulated community, and
represent an economically achievable way to prevent contamination of groundwater. We
also recommend that containment buildings be considered adequate secondary,
containment for furnaces recycling secondary materials. | .
Air Emissions ,
EPA presently regulates process vent air emissions of volatile organic compounds
(VOCs) from all hazardous waste management units at TSDFs under Subparts AA of
Parts 264 and 265 and equipment leaks of VOCs from hazardous waste management
process units under Subparts BB in Parts 264 and 265. EPA also has proposed
regulations (Subparts CC under Parts 264 and 265) to extend its air emissions standards
to surface impoundments, tanks, containers, and miscellaneous hazardous waste units not
covered by the Subpart AA and BB standards. As part of this proposed rule, EPA also
proposed extending the applicability of Subparts AA and BB of 40 C.F.R. Part 265 to
hazardous waste generators accumulating waste on-site for 90 days or less.
! The Agency has promulgated regulations under the Clean Air Act (CAA) and its
amendments that can apply to the same facilities and constituents as RCRA. The
requirements generally affect total emissions from the facility (from both RCRA
permitted units and other units), while the hazardous waste program rules generally
affect only RCRA permitted units.
1 The CAA requires EPA to identify and designate compounds as hazardous air
; pollutants (HAPs), then develop standards to protect the public with an ample margin of
safety. The Agency has designated, among other constituents, arsenic, asbestos, benzene,
beryllium, and mercury as HAPs.
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A second CAA program designed to assist the States in achieving National
Ambient Air Quality Standards (NAAQS) for ozone niay limit the same air emissions as
the RCRA Subpart AA and-BB rules. Under the authority of the CAA, EPA has
developed a series of Control Technical Guidelines Documents (CTGs) describing
emissions controls for existing emissions and recommending standards for incorporation
into State Implementation Plans (SIPs). CTGs were specifically limited to VOC
emissions. Because of the RCRA TSDF air rules, EPA decided not to issue a CTG for
facilities affected by these rules. Instead, EPA advised the States of the existence of the
RCRA rule and suggested that they include it in their overall planning for VOC
reduction. In some cases, States may have elected to write specific air rules for these
sources; or some of them may be affected by air rules not specifically focused on
hazardous waste units.
Another CAA program potentially limiting VOC emissions at TSDFs is the
Prevention of Significant Deterioration (PSD)/New Source Review (NSR) permitting
program. This program is intended to attain and maintain the NAAQS. Although PSD
and NSR differ significantly, each requires stringent controls on emissions from new,
modified, or reconstructed emission sources.
The CAA amendments continue the CAA programs, but amend two of the
programs potentially affecting TSDF VOC emissions, and adds a new permitting
program. The most significant change is in the National.Emission Standards for
Hazardous Air Pollutants (NESHAPs) program. A key feature requires the Agency to
regulate 189 compounds and compound groups identified by Congress as HAPs. Under
the first phase of this program, facilities must meet Maximum Achievable Control
Technology standards to control excess toxic air emissions, or HAPs, from specified
industries. Several years later, EPA is required to evaluate the residual health effects
based on these standards, and to develop more standards as needed.
The CAA amendments also provide for new programs and regulations to attain
the NAAQS, in particular the ozone NAAQS. EPA must develop new CTGs for the
States to implement as part of their SIPs. The most dramatic changes require EPA to
impose sanctions on States failing to meet the NAAQS or certain mandatory milestones
and allow the States increased flexibility to administer their air programs. To avoid the
sanctions, States must reduce VOC emissions in ozone nonattainment areas. States have
been encouraged to ensure implementation of the RCRA air rules to address VOC
emissions from these sources. In addition, they may have generic VOC rules that
coincidentally apply to TSDF recycling units.
The CAA amendments also added an operating permit program similar to the1
NPDES permitting system under the Clean Water Act. All States must develop and
implement permit programs; permits will include alfCAA amendment provisions
relevant to the facility (e.g., NESHAPs), but will not necessarily include provisions
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mandating the same controls as RCRA-air,regulations. This is because: (1) hazardous
waste facilities may not be large enough sources of air emissions to trigger CAA
requirements; (2) facility-wide limits may encourage companies to focus on controlling
bigger sources of emissions within the facility;. (3) industry-specific rules may not be
completed for several years; or (4) States are relying on the RCFLA air rules for the
emission reduction.
The Task Force recommends relying on CAA amendment requirements for
Categories B-D, rather than RCRA TSDF air emission regulations for units involved in
the recycling process (storage containers, tanks, and reclamation units). This
recommendation would only apply to situations where it is clear that CAA standards will
limit air emissions from the recycling process and storage units.
There is a strong possibility that both the CAA amendments and RCRA will
regulate the air emissions from recycling processes in the near future. The Task Force
recommends eliminating this potential redundancy by relying on CAA standards and
regulations whenever possible in order to benefit from the priorilization of air emission
sources that is possible under that program.
Operations Plan
Detailed operations plans are currently required as part of the Part B permit
process (see 40 CFR §§ 270.14-26). These plans describe very specifically how the
secondary material will be managed from receipt through storage, treatment, and
disposal. Information provided includes: a general description of the facility; chemical
and physical analyses of hazardous waste in order to manage the! material in accordance
with Part 264 management requirements; a copy of the waste analysis plan; and a
description of procedures, structures, or equipment used at the facility to prevent hazards
in unloading operations, or prevent runoff from hazardous waste handling areas to other
areas of the facility or environment. ' I
The Task Force recommends that facilities in Categories B, C, and D provide the
State with a more simplified operations plan as a condition of co;mpliance. This
operations plan would consist of two parts. The first part would be a waste analysis plan
that would describe the chemical and physical processes used to measure and identify
chemical parameters in the secondary materials, the frequency of measurement, quality
assurance and control procedures, and how the facility decides to
accept or reject
materials destined for recycling. The second part of the plan would describe facility
operations, including how recyclable materials are handled and processed from receipt
through recycling. .
Speculative. Accumulation
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The limits on accumulating hazardous waste for speculative purposes are found in
40 C.F.R. § 261.1. The purpose of these rules is to prevent the storage of large
inventories of hazardous secondary materials otherwise exempted from the hazardous
waste management system. Because RCRA does not regulate these materials as
hazardous wastes, accumulating large quantities for an extended time could significantly
threaten human health or the environment. If leakage from improper storage
contaminates the soil or groundwater, removal could also impose significant financial
burdens on taxpayers if the responsible company is unable to pay the costs.
EPA's hazardous waste regulations define otherwise exempt or excluded
secondary materials as solid wastes if they are "accumulated speculatively." A secondary
material is not accumulated speculatively if the person accumulating the material can
show that the material is potentially recyclable and that there is a feasible means for
recycling it. To avoid triggering the speculative accumulation rule, facilities also must be
able to show that, during the calendar year (commencing every January 1) the amount of
material that is recycled, or transferred to a different site for recycling, equals at least 75
percent by weight or volume of the amount of material accumulated at the beginning of
that period. If those conditions are not met, EPA defines the material as solid and
potentially hazardous waste, subject to all applicable RCRA requirements.
The Task Force recommends modifying the speculative accumulation provisions to
allow accumulation of exempt/excluded secondary materials at Category B (on-site)
facilities for 18 months and at Category C and D (off-site) facilities for 12 months. The
12 or 18 month limit on storage without a permit begins on the first day of storage.
However, we do not believe that a facility should be required to empty its storage units
every 12 or 18 months. Instead, during each period of 18 months or less, the amount of
material accumulated on-site at the end of the period must be equal to or less than the
amount of material accumulated on-site at the start of the period.
Facilities would not be required to compute "rolling averages." Rather, they
would be required to compute operating log entries of when the storage began and to
show through accounting, procedures (e.g., first in, first out) that materials recycled
equaled the material received.
In effect, the Task Force is proposing to shift from a "snap shot" approach to a
mass balance or flow process approach. The facility would be required to provide the
necessary documentation that an amount equal to 100 percent of the secondary materials
stored in the previous 12 or 18 months was removed from storage. However, we
continue to seek suggestions on alternative procedures which would accomplish our goal.
The Task Force believes that the new system provides sufficient controls to
prevent mismanagement of materials accumulated within the recommended time limits.
In general, our recommended approach requires that storage in Categories B-D meet the
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same management standards applicable to storage by generators jor TSDFs in the current
system. .
As part of this new system, Category B-D recyclers must notify EPA or the State
that they intend tp accumulate recyclable materials for more than 90 days and document
in their operating logs the amounts and types of materials stored. All storage is subject
to the standards for tanks or containment buildings described earlier in this section;
recyclers would be required to maintain proper operating and labelling records
describing the date accumulation began.
i f -
i We have recommended a longer allowable accumulation period for on-site
facilities because some specialty chemical and pharmaceutical manufacturers use batch
(rather than continuous) processes. Representatives of these firms told us that their
normal production cycles may run as long as 18 months between batches of the same
product. They believe that the current 12-month speculative accumulation limit
discourages recycling of off-specification materials.
: It is not clear how much safe recycling is affected by the i.2 month limit for on-
site accumulation of exempt or excluded materials without a permit. We intend to
investigate this issue, and to consider other options such as a rebuttable automatic 6-
month extension of the 12-month limit for Category B facilities. '
,. . ' i
: We do not believe that facilities recycling materials generated off-site should be
allowed to accumulate the materials without a permit for longer than 12 months. These
re!cyclers should not accept shipment of materials to their facilities if they cannot recycle
thie materials within 12 months.20 In previous years, excessive accumulation by off-site
recyclers (especially commercial recyclers) resulted in the contaniination of several large
sites, requiring remediation by the Superfund program. We believe that the speculative
accumulation limit of 12 months for off-site facilities will help prevent a repetition of
such contamination.
Although RCRA requires permits for treatment or storage of hazardous wastes,
generators may accumulate or treat hazardous wastes on-site in tanks, containers, and
containment buildings for up to 90 days without a permit. EPA believed this would
reduce the volume of wastes sent offrsite for treatment or disposal and avoid the need to
develop permits for hundreds of thousands of generators. The wastes that generators
accumulate or treat are subject' to certain management requirements for tanks,
containers, or containment buildings, including secondary contaiinlment and release
response.
20 /
Actually, the current rules can allow up to 24 months. Because the rules only apply to materials
present on January 1 of each year, materials received on January 2 will not be counted until the following
January 1. At that point, 75% of the materials need not be recycled or disposeifl of for another 12 months.
.! . ' 5-25
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The Task Force recommends allowing recyclers to accumulate all recyclable
materials (including hazardous wastes) for 18 months on-site and 12 months off-site
without having to obtain a RCRA permit. However, the accumulation of hazardous
wastes must take place in RCRA tanks, containers, or containment buildings. Since we
have recommended that RCRA recyclers who store regulated wastes for more than 90
days be required to notify the State or EPA of their intent to recycle, the regulatory
agency will be aware of the potential accumulation and can conduct inspections as
appropriate. The tank, container, and containment building standards will provide
adequate protection against releases.
}
Recycling Unit Standards
Recycling units (not storage units) processing secondary materials are currently
exempt from most hazardous waste regulations. In the past, EPA has been reluctant to
subject recycling units to all the requirements of the hazardous waste program, out of
concern that these requirements would inhibit recycling. As a result, the Agency has
deferred some decisions on the appropriate regulatory requirements to apply to these
units.
We believe that the tailored regulatory approach described in this report balances
the need to protect human health and the environment with the need to remove
significant economic impediments to safe recycling. Therefore, the Task Force
recommends that all recycling units at Category B-D facilities should be subject to the
same management standards as accumulation units (40 CFR Part 265, Subpart J). Units
(not otherwise exempt) that produce only "clean fuels" or commercial chemical products
that are used in fuels (and that is their normal manner of use) should be classified as
manufacturing units rather than recycling units. . .
We do not believe that the Agency should specify design or operating procedures
for specific recycling processes; rather, it should ensure only that unsafe materials will
not be released to the environment. Recyclers should be afforded the same flexibility to
improve their production processes as manufacturers of virgin products. Otherwise, it is
unlikely that these facilities will be able to compete, successfully in a marketplace that
demands continuous improvements in efficiency and flexibility to adapt to changes in
market or regulatory demands.
Modifications
To successfully adapt to changing demands, facilities currently subject to RCRA
permits must continually make changes to their operations. Because these changes often
affect their RCRA permit, EPA established the permit modification process. The
process differs, depending on whether the modification was initiated by the permitting
authority or by the permitted facility. If the permitting authority initiates the
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modification, it must follow administrative and public involvement requirements
comparable to the full permitting process. '
'. ' i
If the permitted TSDF initiates the modification, requirements vary, depending on
how substantially the modification changes the conditions of the original permit. Three
classes of permit modifications exist for changes initiated by the permitted facility. These
are:
I
Glass 1: Routine modifications and correction of errors, such as changing typographical
errors, upgrading plans and records maintained by the facility, or replacing equipment.
'f L '--,-.'
Class 1 modifications involve only simple administrative procedures.. The
permittee may make the changes without the approval of the authorized permitting
agency. However, the permittee must notify the authorized permitting agency by certified
mail or other means within 7 calendar days after the change is put into effect. This
notice must specify the changes being made to permit conditions or supporting
documents referenced by the permit and must explain why the changes are necessary.
Within 90 days of implementing a change, a facility making a Class 1 modification
also must notify all parties on its mailing list of the change. Any member of the public
may ask the permitting agency to review the modification request. The permitting agency
may deny the request.
Class 2: Common or frequently occurring modifications needed to maintain a facility's
capability to manage wastes safely or conform to new requirements.
; Before making Class 2 modifications, the permittee must submit a request for
approval of the change to the permitting agency. The request must describe the change,
explain why it is needed, and provide information showing that trie change complies with
EPA's or the State's technical standards for the facility. Unless the permitting agency
specifically requests a delay, a facility may begin construction 60 iBays after submitting
the Class 2 notice.
\ As part of the Class 2 modification process, the permittee must notify everyone on
the facility mailing list of the proposed change by letter and publish a notice in a. major
newspaper. The notice must appear within 7 days before or after the facility submits the
request to the permitting agency. The newspaper notice marks the beginning of a 60-day
public comment period and announces the time and place of an informal public meeting.
Class 2 modifications require additional steps in the reviev/ process not required
for Class 1 modifications. After the permitting agency receives written comments, it can
review the modification request and extend the review period by an additional 30 days. If
the permitting agency does not deny or approve the proposed modification during the
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extended 30-day review, the facility may begin operating under the modified conditions
for 180 days. Within that 180-day period, however, the permitting authority still has the
option of approving or denying the modification. If the permitting authority has not
denied the proposed Class 2'modification 250 days after it was submitted, the public
must be notified that the modification will become permanently authorized unless a
decision to deny it is made within 300 days.
Class 3: Major modifications that substantially alter the facility or its operations, such as
management of different wastes that require different designs or management practices.
Modifications under this class are subject to initial public notice and meeting
requirements as well as permit issuance procedures.
For Class 3 permit modifications, the process resembles that for a new Part B
permit. There is a 60-day public comment period on the application, followed by
preparation of any conditions on the permit modification by the permitting agency,
notification to the public of the permitting agency's draft decision, a second public
comment period, a public hearing (if requested), and a formal announcement of approval
or denial of the application for the modification.
EPA developed these classes of permit modifications to tailor the degree of
regulatory oversight and public participation to the potential risk of the change. Because
of the requirements for permitting agency review and public involvement, modifying
permits is time-consuming for all except Class 1 modifications.
The Task Force recommends a simpler administrative process for facilities
planning to modify their recycling operations. We believe that most types of recycling
facilities should notify their EPA Region or State of modifications in their Biennial
Report. Only Category D (commercial) recycling facilities undergoing a major21
modification would be required to obtain prior regulatory agency approval, unless the
change would cause the facility to be defined as a Category D facility for the first time.
In these cases, the facility would follow the prior approval procedures established for
new Category D facilities.
The Task Force believes that most facility modifications of recycling operations
can be addressed effectively by using the EPA/State biennial reporting process. Once
identified, EPA or State personnel can target a facility for inspection to verify the
successful modification. States with annual rather than biennial reporting requirements
can choose to be notified more frequently of any modifications.
Our discussions with industry revealed that the current modification procedures
are among the biggest impediments to hazardous waste recycling. They view the current
21Major changes would significantly increase capacity, add new secondary materials to those previously
approved, or alter the recycling process .chemistry.
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process as so slow and uncertain that companies cannot plan and operate effectively. In
particular, companies cited the necessity of installing new equipment (pumps, tanks, or
processing equipment) to improve efficiency, respond to market demands, or simply to
replace old equipment. In most cases, this equipment does not alter the capacity, basic
prbcess chemistry, or raw materials used. We believe that ou,r rebommended approach
will increase operational flexibility without reducing the States' oi[ EPA's ability to review
modifications that could significantly increase risk to the public.
Closure Procedures and Financial Assurance for Closure
i EPA's hazardous waste regulations include requirements for closing hazardous
waste facilities, and caring for the facilities after they are closed. "Closure" is the process
during which hazardous waste is removed, if possible, from a hazardous waste
management unit or facility, and any contamination to the equipment, facility, or to soil
or ground water is addressed. Closure may be partial or final: one unit or the whole
facility may be involved, the facility may be ceasing business entirely, or it may be only
ceasing its hazardous waste management activity. RCRA requires closure activities to
ensure that previous management of hazardous waste does not endanger human health
or the environment.
Two kinds of closure are may be performed, depending on the type of waste unit
and facility status. A unit may be "clean closed" if the TSDF or generator can remove
all hazardous wastes from the unit and decontaminate it. Units that are clean closed
haye no requirement for post-closure care. For some units, such as tank systems or drip
pads, clean closure must be attempted; for others, it is an optional alternative to closure
with post-closure care. Landfill closure or "closure as a landfill" involves leaving the
waste in place and installing an engineered final cover to minimize the generation and
release of leachate during the post-closure care period. "Post-closure" is generally a 30-
year period following the completion of closure activities during -which TSDFs or
generators must monitor and maintain units with wastes left in place to prevent releases
of hazardous constituents.
The closure requirements have three main parts:
Subpart G closure performance standard (explained belov/). The performance
standard is the most important part of ,the closure requirements and applies to all
closure activities.
Procedural requirements. Subpart G establishes the timing of closure and post-
closure and the requirements to develop and obtain approyal for closure and post-
closure plans.22
e plans are closely linked to requirements for financial assurance iindipr 40 CFR Parts 264 and 265,
Subpart H (see background paper on financial responsibility).
' ' ' - .' ' . ' .. 5-29.' '
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Technical and design standards. Parts 264 and 265, Subparts I through O, W, X,
and DD, provide closure requirements that apply to specific RCRA hazardous
waste management units.
Neither the general standards nor the technical standards supersede the other; facilities
must meet both. TSDFs and generators may need to go beyond the technical standards
in some cases to meet the general performance standard.
Closure requirements apply to all TSDFs, while post-closure requirements apply
to TSDFs with land disposal units (including landfills and some types of waste piles and
surface impoundments) and tanks, drip pads, or containment buildings that cannot clean
close. Technical standards for specific units include both closure and post-closure for
some units, closure alone for some, and an option of clean closure or post-closure care
for others.
Requirements for closure and post-closure of permitted and interim status TSDFs
are described in 40 C.F.R. Parts 264 and 265, Subpart G, respectively. Closure and/or
post-closure requirements for specific waste management systems, such as containers,
tank systems, landfills, and incinerators, appear in Subparts I through O, W, X and DD
of Part 264 and Subparts J through Q, W, and DD of Part 265. Part 266, Subpart H,
incorporates by reference the Part 264 closure and post-closure requirements applicable
to boilers and industrial furnaces (BIFs) burning hazardous waste.
Subpart G requirements for both Parts 264 arid 265 include requirements to
prepare closure and post-closure plans that describe in detail all activities to be .
performed during the closure and post-closure periods. The plan estimates the cost of
closing the facility if a third party performs closure! A facility must provide financial
assurance in this amount - through a surety, letter of credit, corporate guarantee, etc.
Closure and post-closure plans must be approved by the regulatory agency; this
often requires a significant investment of resources for both TSDFs and the
environmental agencies as the plan is reviewed and revised. Permitted facilities must
obtain this approval as part of the permit process, while interim status facilities submit
plans for approval during the closure notification process.
Generators generally may accumulate hazardous wastes in containers, tanks, and
drip pads without a storage permit. Unless these generators accumulate less than 100
kg of hazardous waste on site per month, however, they must comply with the two most
important closure requirements: the closure performance standard (40 C.F.R. § 265.111)
and disposal or decontamination requirements (40 C.F.R. § 265.114). They also must
comply with most Part 265 closure standards for tanks and drip pads. Unlike TSDFs,
these generators need not develop detailed closure plans and obtain approval for them.
However, generators who accumulate hazardous waste on site for longer periods than
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specified by the RCRA regulations are considered storage facilities. They must .meet all
clpsure and post-closure requirements of Parts 264 and 265. i '
: In our discussions, we have found relatively broad support (including industry
representatives) for requiring clean closure for recycling units. Efecause the new system
prohibits land storage, .emphasizes prevention, and requires secondary containment for
tanks and container storage areas, most of the generators we consulted did not believe
clean closure would be difficult.
i . . i .
i However, industry considers preparing and submitting closure plans to be costly
arid inefficient. A facility initially submits a closure plan primarily to provide the
regulatory agency with a cost estimate for closure. Few first versions- of closure plans
could be used by a third party to close the unit or facility. Instead, the agency and the
facility review and revise numerous versions before the plan is approved. When the
facility decides to close the unit or facility years later, the plan usually must be revised
before initiating closure. Although a facility must regularly update the plan to adjust the
cost estimate, many technical aspects must be revised when the plan is implemented.
To remedy this problem, all participants in our Roundtable discussions favored
dispensing with the plan until the time for closure. This was the only item on which
there was uniform agreement. They also suggested adopting a "cookbook" approach to
closure cost estimates. We agree with this approach. The Task Force recommends that
the Agency develop a guidance document of conservative cost estimates based on the
historical cost of closing particular units. Instead of a closure plan, the facility would
submit a work sheet calculating the closure cost estimate, tailoring it to the units and
characteristics of the specific facility.
Spill Response and Corrective Action
When Congress amended RCRA with the Hazardous and Solid Waste
Amendments of 1984 (HSWA), it expanded EPA's corrective action authority and
responsibilities. The RCRA corrective action program addresses releases of hazardous
wastes and hazardous constituents from any solid waste management unit at a TSDF.
Section 3004(u) of RCRA now requires that any permit issued tci. a TSDF after
November 8, 1984, address corrective action for releases of hazardous wastes or
hazardous constituents to any medium from any solid waste management unit at the
facility. The corrective action responsibility applies to facilities subject to the RCRA
permitting requirements, including operating permits for new and existing facilities and
post-closure permits for land disposal facilities. In addition, Section 3004(u) requires
that permits include assurances of financial responsibility for complying with corrective
action. Section 3004(v) of HSWA authorizes EPA to require corrective action beyond
the facility boundary where appropriate. Section 3008(h) authorizes EPA to require
corrective action or other necessary measures when there is or has been a release of
hazardous wastes from an interim status TSDF.
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EPA has codified certain statutory terms, the interim status corrective action
authority of § 3008(h), and EPA's authority beyond the facility boundary of § 3004(v). In
July 1990, EPA proposed 40 C.F.R. Part 264, Subpart S, a comprehensive regulatory
framework for implementing corrective actions at RCRA facilities. Subpart S contains a
detailed set of technical requirements and procedures for investigating and responding to
environmental releases at RCRA facilities. Two parts of the proposal affecting the
regulatory status of remediation wastes have been finalized. States and EPA regional
offices use the rest of Subpart S as guidance in making site-specific decisions, although it
is not a final rule.
Subpart S regulations organize corrective action into four stages: the RCRA
Facility Assessment; the RCRA Facility Investigation; the Corrective Measures Study;
and the Corrective Measures Implementation. Each stage acts as a screen, either
allowing facilities to leave the process or sending them to the next stage for more
detailed review by the State or EPA.
A RCRA Facility Assessment is the first step in corrective action. The purpose of
the assessment is to identify actual or potential releases from all solid waste management
units. It includes (1) a file review of available information on the site; (2) a visual site
inspection; and (3) in some cases, a sampling visit. This assessment determines whether
sufficient evidence of a release exists to require the permitted or interim status TSDF to
undertake more detailed investigations. If, after completion of the assessment, it appears
likely that a release exists, the Agency either compels corrective action by developing a
schedule of compliance in the RCRA permit, or issues an order pursuant to Section
3008(h).
The second stage of the corrective action process is the RGRA Facility'
Investigation. Its purpose is to characterize the nature, extent, and rate of releases to
the air, soil, or water. Investigations may include characterization of the environmental
setting at the facility, characterization of solid waste management units from which
releases have been or may be occurring, and descriptions of potential human and
environmental receptors. While the permitted or interim status TSDF is responsible for
conducting the investigation, EPA oversees the work through review and approval of
work plans, reports, and site inspections. Once the investigation is completed, the Agency
evaluates the results and.determines whether corrective measures are needed.
If cleanup is required, the TSDF must conduct a Corrective Measures Study. The
purpose of the study is to identify a remedy or several alternative remedies for the
contamination at the facility. A study will most likely be required if concentrations of
hazardous constituents in the groundwater, surface water, soil, or air exceed "action
levels," or triggers, for the given environmental medium.
Using the cleanup remedies identified in the study, the State or EPA ultimately
selects the remedy that best addresses the contamination at the facility. Five factors are
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considered when selecting a remedy: long-term reliability and effectiveness; reduction in
toxicity, mobility, or volume of wastes; short-term effectiveness; ease 'of implementation;
arid cost. Once the regulatory authority selects the remedy, it either issues a 3008(h)
order or modifies the facility's permit to incorporate the remedy. Because selecting a
remedy is a major decision in corrective action, the public is provided an opportunity to
review and comment on EPA's preliminary decision or appropriate remedial activities at
the facility.
I The final step in corrective action is implementation of the remedy by the
permitted or interim status TSDF with regulatory agency oversight. During this stage,
TSDFs are required to design, construct, operate, maintain, and monitor the selected
remedies. The remedy is considered complete when the State or EPA determines that
(1) all media cleanup standards have been met; (2) the actions required to control the
source(s) of contamination have been taken; and (3) all procedures for.removal,
decontamination, closure, or post-closure care of units have been complied with.
The Task Force recommends no facility-wide corrective action for any recycling
facility in Categories A through D. However, we believe facilities currently subject to
corrective action requirements should remain subject to those requirements. Facilities
with existing part B permits might be allowed into the new recycling system if the State
certified that they had completed all necessary cleanup requirements, or if the State
found no releases during the .RCRA facility assessment/investigation phase.
\ ' , .
In our recommended system, recyclers must report and clelan up spills from
recycling units (including accumulation areas), but need not conduct a facility-wide
investigation (unless required by the State). We believe that the spill response ,
requirements can be modeled after those established for tanks at hazardous waste
generator facilities. These spill response requirements (see 40 C.F.R. § 264.196) have six
major components: .
(1) Unit shut-down to immediately stop the flow of a recyclable material into the tank
or secondary containment system, and inspection of the system to determine the
cause of the release;
(2) Removal of the material from the tank system or secondaiy containment system
j within 24 hours after detection of the release, or in as timely a manner as possible
to prevent harm to human health and the environment;
(3) Containment of visible releases to the environment, by conducting a visual
inspection of the release and, based upon that inspection, preventing further
migration of the leak or spill to soils or surface water, and
disposal of any visible contamination of the soil or surface
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removal and proper
water;
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(4) Reporting to EPA or the State any release to the environment within 24 hours,
and submitting a report to EPA or the State within 30 days of detection of the
release. The report must describe the extent of the release, its impact to
surrounding soil, geology, hydrogeology; the results of any monitoring and ,
sampling; proximity to downgradient drinking water; and a description of
response actions;
(5) Installation of secondary containment, repair or closure. Unless the recycler
satisfies specific requirements described in the rules, the tank system must be .
closed;
(6) Certification of'major repairs by an independent, qualified, registered professional
engineer.
Response procedures are self-implementing, but the facility is still held
accountable for clean-up, including further spill clean-up that may be necessary if the
regulatory authority believes previous actions were unsatisfactory.
States believe that adequate state or federal cleanup authorities exist to address
major preexisting releases without requiring corrective action at recycling facilities.
Superfund, RCRA § 7003 actions, State hazardous waste or hazardous substance laws,
and property transfer laws currently enable most States to remedy existing contamination
problems at RCRA facilities, including recycling facilities. Some States have authority
broad enough to require facility-wide cleanup similar to corrective action at
manufacturing facilities with no hazardous waste activity.
Our recommended system reduces the potential for releases to the environment
through prevention and banning land storage. Eliminating corrective action increases the
incentive to recycle at manufacturing facilities that currently do not require treatment,
storage, or disposal permits. Furthermore, we cannot reasonably expect additional
benefits from requiring .facility-wide corrective action at recycling facilities. Facilities
with previous releases will not apply for a permit that would subject them to facility-wide
corrective action. Since only clean facilities would seek a permit, States would still have
to rely on authorities other than RCRA corrective action to address the contaminated
sites. .
Public Notice and Prior Approval
The current hazardous waste regulations prohibit building a new facility for the
sole purposes of treating, storing, or disposing of hazardous waste without first submitting
and obtaining a RCRA Part B permit from the EPA or State permitting authority. The
RCRA permitting process is designed to allow detailed scrutiny of TSDFs by both the
permitting authority and the public. Obtaining a permit involves (1) submittal of a Part
A and Part B permit application by the applicant; (2) review of the permit application by
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the permitting authority; (3) preparation of a draft permit decision to issue or deny the
permit; (4) public notice and comment; and (5) issuance of a finsll permit decision.
The Part B permit application is a detailed description of which hazardous wastes
the facility intends to manage and how it intends to manage them from their entry to the
facility to their treatment and disposal. More specifically, the permit applicant must
describe in detail how it will meet the administrative and nontechnical facility standards
of Subparts B through E of Part 264 (and described above under the General Facility
Standards), as well as the general technical standards to prevent releases during
operation and after closure (Subparts F through H), and the specific technical standards
applicable to each waste management method (Subparts I through W, AA, BB, CC,
DD). Many of these requirements and standards are discussed in1 this section.' '
As part of this process, the permitting authority usually conducts a review for
completeness and accuracy, followed by a more detailed technical: review of the
application. This detailed review of the TSDF operations is time-consuming and
expensive for the facility and the permitting agency. Often the applicant and the
regulatory agency exchange information many times before the agency completes its
review. Following the technical review, the permitting authority decides whether to
prepare a draft permit or deny the application. Preparing the permit is another lengthy
process, which requires developing both unit- and facility-specific Conditions. The permit
also may include a schedule of compliance for corrective action.
The federal hazardous waste rules require public involvement during permitting.
.The involvement is tied to various events in the permitting process. Upon receipt of a
permit application, the permitting authority is required to develop a mailing list of
interested parties: When the permitting authority issues the draft permit or notice to
deny the application, it must also issue a fact sheet on the permit, and a public notice of
the. action. The permitting authority also must provide a public comment period and, if
requested, conduct a public hearing. The public comment period and hearing give
members of the public a chance to voice approval or disapproval of the permit decision
(including any special conditions such as corrective action compliance schedules) and to
offer ideas for alternatives to the permit decision.
The permitting authority considers all comments and issues a final permitting
decision, either tp approve or to deny the permit, based on the facility's ability to meet
RCRA regulations. Final permits may be issued for an entire facility or for specific units
at a TSDF. When the permitting authority issues the final permit decision, it must also
issue a response to comments that specifies which provisions of the draft permit decision,
if any, have been changed in the final .decision and the reasons forj the change. The
response to comments must also describe and respond to all significant comments on the
draft permit decision raised during the public comment period or during the hearing.
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The Task Force recommends a departure from the current RCRA prior approval
requirements. Under our recommended approach, no permit would be required for any
Category B-D facility not already having (or required to have) a RCRA permit. Only
Category D (commercial) facilities would require any prior government approval before
beginning operation of a recycling operation. Instead, as part of its notification the
recycling facility would have to certify to the State or EPA, before operations commence,
that it is in compliance with the applicable standards. This certification of compliance
ensures enforceabiliry of all designated requirements for Category B-D facilities.
Even for commercial recyclers, prior approval would not involve reviewing all of
the activities usually included in the Part B permit approval process. Four major
elements would require prior approval by EPA or the State: (1) a recycling operations
plan describing how the facility will recycle the secondary materials and the key
operating parameters that will determine how materials will be processed; (2)
demonstration of financial assurance for closure; (3) demonstration of compliance with
design requirements for tanks, containment buildings, or container storage areas; and (4)
demonstration of no "toxics along for the ride." For all other requirements established
by EPA*s rules, a certification of compliance will be deemed adequate.
The Task Force recommends that public participation be required before
operations commence at large Category C (captive/product stewardship) and all
Category D (commercial) recycling facilities. Large (more than 12,000 kg/yr of secondary
materials received) Category C recyclers would be required to notify the surrounding
communities of an intent to receive and recycle secondary materials generated off-site.
The community should have at least 30 days to request and inspect documentation of the
types of materials to be recycled and the recycling processes to be used. This
information would be obtained directly from the recycler, but recyclers would not be
required to share confidential business information with the public.
If the members of the public later believe that the recycler has failed to meet the
requirements for Category C, they may seek an enforcement action by the State or EPA,
or file a citizen suit, as authorized by Section 7002 of RCRA. We believe that this level
of public involvement ensures that the community will understand any .new potential risks
that may come about as a result of the transportation of secondary materials through the
community.
Commercial recyclers would be required to obtain prior government approval for
their recycling operations plan, financial assurance estimate, secondary containment, and
major modifications. They would be required to obtain prior approval for the TAR test
only if requested by the State or EPA. Included in the formal approval process will be a
his operating plan will include a chemical analysis plan showing which chemical parameters will be
measured in the secondary materials and recycling processes and the frequency of measurement. 'Quality
assurance and quality control procedures for chemical analysis also will be required.
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comment period and opportunity: for a hearing on a regulatory agency's draft
determination to grant or deny a request for approval of commercial recycling
operations. All public comments would require response in the final agency decision.
i We believe that the formal approval process recommended for commercial
recyelers reflects the greater level of public concern about the possible risks from ,
recycling when the materials to be recycled may be generated fai| away and are
transported to the community from a distance.
State Implementation
. ;, The Task Force recommends that States should have maximum flexibility and
latitude to implement the new recycling program. They should h^ve the opportunity to
develop requirements that are different from federal rules if, on balance, the same
degree of environmental protection is attained. .
To bring about this flexibility, we believe that any necessaiy State authorization
applications should be evaluated by EPA to ascertain whether the entire recycling
program achieves environmental results similar to the EPA program, rather than
comparing each component of the State program to its federal counterpart.
| We also believe that States should have the flexibility to demonstrate that
alternative State requirements are as environmentally protective as the EPA
requirements. For example, a State may choose to work with a facility to identify less
burdensome ways to prevent groundwater contamination, such as alternative frequencies
of inspections or groundwater monitoring. In return, the State ccluld choose to require
more stringent design or operating procedures in other areas. We believe that EPA
should work with the States to identify potential "trade-off requirements.
States should also be able to make the final decision about which recycling
category a facility is in, or whether a facility is exempt. This flexibility is particularly
useful in situations where it is hard to distinguish continuous manufacturing from waste
recycling. We believe that this will speed State decisionmaking, since States currently
must be concerned about issues that may be raised by EPA. |
_-!_
Finally, States should be able to take into account the ease or difficulty of
retrofitting existing facilities or units (such as recycling units) that! were previously
exempt under the RCRA regulations but that would be regulated under our proposed
scheme. The Agency can work with the States to identify alternative requirements that
ensure protection of human health and the environment.
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RCRA HAZARDOUS WASTE RECYCLING: FULL SUBTITLE C
Under our proposed system, some recycling activities and materials would still be
subject to full Subtitle C regulation. We believe that these activities and materials merit
the full panoply of Subtitle C controls because of greater potential harm to human
health and the environment. This class includes:
Recycling of used oil (current rules allowing special management unchanged).
Recycling of "inherently wastelike" materials:
* Dioxins (40 C.F.R. § 261.2(d)(l)) and
> Certain secondary materials fed to halogen acid furnaces
(40 C.F.R. § 261.2(d)(2)).
Waste-derived products containing "toxics along for the ride" ("TARs") or
secondary materials containing TARs.
Recycling consisting of:
* Landfilling or land storage and
> Burning for destruction.
Other materials and activities identified by EPA in the future.
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CHAPTER 6
INDUSTRY-SPECIFIC AND BASEL CONVENTION ISSUES
PETROLEUM REFINING
i The Task Force has recommended exempting from RCRA hydrocarbon-bearing
materials thermally processed at petroleum refineries. This exemption would be limited
to intracompany transfers - i.e, the material to be processed would have to be generated
at; a facility owned by the same company that owned the refinery!
I
. In addition, the exemption would not apply to materials uised as direct feed to an
asphalt plant, since normal industry practice does not include feeding materials to
asphalt operations. This practice would entail higher potential for releases of any metals
to igroundwater through direct contact with the ground.
Some members of the petroleum industry have stated that
the proposed
i "" * "*~ ^v.iiv»iwuj_ii jujxiuau^ imvc MCUCU uiai me proposed
exemption should be broadened to include intercompany transfers, as long-as this
exemption was limited to wastes from facilities in specific SIC coi:ies that routinely
generate and manage hydrocarbon-bearing materials. Examples bf such facilities are:
oil and gas extraction facilities
production of industrial organic chemicals
petroleum refineries
crude oil and refined petroleum pipelines
transmitters and distributors of natural gas
* operators of independent pipelines
: petroleum product bulk stations and terminals
i ..
" ' ' "".., !
The Task Force agrees that the exemption should be limited to the sources of
secondary materials identified by the petroleum industry. However, we continue to
believe that the proposed exemption for these wastes should be lirnited to intracompany
recycling. The fact that a waste is generated by a facility from within a limited group of
blC codes does not necessarily ensure that enough information arJout the waste will be
available to the receiving refinery to enable it to process the waste easily and safely We
believe that a thorough knowledge of incoming materials can be guaranteed only when
the recycling refinery is part of the same company that generated the materials.
: On July 28, 1994 [59 Fed. Reg. 38536, July 28, 1994], EPA promulgated a rule
stating that recovered oil from petroleum refinery wastewaters ami other sources is
excluded from the regulatory definition of solid waste if it is subsequently inserted into
the,petroleum refining process before crude distillation or catalytic cracking The rule
was .intended to respond to the decision in AMC I that ongoing manufacturing processes
are:not under RCRA jurisdiction. * ^
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This exemption includes recovered oil from off-site sources owned by a different
company (examples are oil from other petroleum refineries, or from oil and gas drilling
operations). However, in the preamble of the July 28, 1994 final rule [50 Fed. Reg.
38536, July 28, 1994], the Agency specifically pointed out that the proposed rule would
not have exempted off-site materials, because the proposal covered a much broader
category (all oil-bearing secondary materials, rather than just recovered oil). EPA
allowed the exemption for recovered oil generated off-site because this material is
essentially the same (in terms of physical composition and potential risk) as recovered oil
generated on-site. ,
The Task Force's suggested exemption for secondary hydrocarbon-bearing
materials, on the other hand, includes substances that can vary widely in physical
.composition and range of sources. The recycler may not be fully aware of the nature of
his incoming material, unless it was generated by the same company. Although we will
continue to evaluate this issue, we believe that limiting our exemption to intracompany
transfers is the most prudent course, and is most consistent with current Agency policy.
Some industry representatives have suggested that our proposed exemptions
should include secondary hydrocarbon-bearing materials fed into a coker plant. They
argue that the current exemption for petroleum coke produced from oily hazardous
wastes is revoked if the coke exhibits a hazardous waste characteristic, and that this
qualification is sufficient to avoid contamination of the coke by heavy metals.
Environmental groups, on the other hand, believe that the existing exemption for
petroleum coke does'not protect against mere dilution of metal wastes in the coking
operation, or increased metal air emissions when the coke is burned as fuel.
In the final rule for recycled recovered oil published on July 28, 1994 [59 Fed.
Reg. 38536, July 28, 1994], EPA did not exclude recovered oil put into a petroleum coker
from the definition of solid waste. The Agency deferred this exclusion because it lacked
data on the amount of hazardous constituents (especially heavy metals) from petroleum
refinery wastes (including recovered oil) that actually ended up in the coke product.
Specifically, EPA lacks sufficient data to show whether oil recovered from refinery
wastewater treatment systems contains toxic metals that are not present in the normal
feed to a coker. Such metals could end up in the coke product. ' ' .
Since the Task Force also lacks data at this time about the possible effect of
feeding secondary hydrocarbon-bearing materials to petroleum cokers, we do not
recommend adding an exemption for these materials. Under our recommendations,
therefore, these materials would remain regulated under RCRA when they are
generated, transported, and stored before recycling into a coker.
It should also be noted that EPA has expanded the current exemption for
petroleum coke produced from oil-bearing hazardous waste generated on-site (40 CFR §
261.6 (a)(3)(vii)). The current exemption states that such coke is subject to regulation
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only if it exhibits a characteristic of hazardous waste. The purpose of the exemption
(based on section 3004(q)(2)(A) of RCRA)) is to allow petroleum companies to recycle
oily refinery waste to their petroleum coker, without automatically subjecting the coke
output to the rules for hazardous waste fuels. I
The final rule, published on July 28, 1994 [59 Fed. Reg. 38|S36], would expand this
exemption to include petroleum coke produced from oily hazardous waste generated by
an off-site facility, as long as that facility is owned by the same ehtity that owns the
coker. EPA expanded the exemption because there is no difference in the composition
of coke produced partially from on-site and off-site hazardous walstes, when the coke is
produced by the same entity.
The Task Force has also proposed to exempt the blending' of secondary materials
containing hydrocarbons into commercial-grade gasoline at a petroleum refinery.
Petroleum refiners have.suggested that this exemption be extended to include blending at
petroleum distribution facilities, since these facilities routinely bkind secondary
hydrocarbon-bearing materials. We believe, however, that determining when potentially
improper fuel blending is occurring would be very difficult at a distribution center, since
these facilities are not typically inspected as part of the RGRA compliance program. It
would be administratively difficult to begin proper inspection at the many locations
.where blending of gasoline takes place. We believe the risks of improper, blending
require that the regulatory agencies restrict this activity to a relatively small number of
locations, and that those locations (refineries) be the sites most likely to have the
technical expertise to ensure that safe products are produced. Therefore, we will
continue to recommend that this exemption be limited to blending conducted at
petroleum refineries.
Environmental groups have also suggested that the exemption be limited to
particular waste streams effective as octane enhancers, which is normally the stated
reason for such blending. They believe that commercial specifications for gasoline do
not cover the potential contaminants to which the public might bei exposed. Petroleum
refiners argue that current industry specifications for gasoline are
enough to ensure that
the blended gasoline does not contain significant amounts of toxics. We agree that
refiners are unlikely to accept materials that will contaminate the ultimate product or
significantly increase air or water emissions. Therefore, we are recommending that the
exemption be limited to octane enhancers.
USED ANTIFREEZE
Used antifreeze is generated by auto service centers and qiiick-change oil outlets
when coolant is drained and flushed from automotive radiators, if is collected and
recycled to recover ethylene glycol, which is sold, for production ol; automotive antifreeze.
Because used antifreeze can fail the toxicity characteristic leaching procedure for lead, it
may need to be managed as a hazardous waste. Therefore, if used antifreeze is
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hazardous, it must be transported under a manifest to a permitted storage facility (unless
it is generated in amounts less than 100 kilograms per month). This increases, the costs
of recycling and makes the recycled antifreeze more costly than new antifreeze.
Producers of antifreeze and the radiator service industry support more tailored
management standards for recycled antifreeze than the current requirements of Subtitle
C. They believe that management standards tailored to the,specific risks of antifreeze
would facilitate recycling of this valuable material rather than disposal. Ethylene glycol
recovered from used antifreeze can be used in place of virgin ethylene glycol in making
new antifreeze. In addition, recycling would discourage disposal of this material into
publicly owned treatment works.
EPA has proposed streamlined requirements under Subtitle C for the collection
and handling of certain "universal wastes," such as hazardous waste batteries and certain
recalled pesticides. The Agency has also solicited comment on whether these
streamlined requirements are appropriate for used antifreeze.
The industry plans to supply the Agency with data stating why the RCRA
recycling requirements recommended by the Task Force would continue to discourage
antifreeze recycling, along with life-cycle analyses ,and cost-benefit data on increased
recycling in the absence of the current RCRA regulations. Until we have evaluated
these data, we will not make specific recommendations with respect to special
management standards for antifreeze recycling facilities.
SOLDER MATERIALS
Industry frequently uses the term "dross" to refer to oxide skimmings that form on
the surface of molten metal, regardless of whether the metal is a virgin metal being
reshaped into a different form, or is a metal in use (such as solder). Solder dross often
contains high concentrations of tin and lead. It is recycled to extract tin or lead for
resale, as well as to produce commercial products. Recyclers have expressed substantial
confusion about the regulatory status of solder dross and related reclaimed materials.
Some drosses are by-products under federal rules (and thus are not solid or
hazardous wastes when reclaimed). However, the circumstances of a material's use,
including whether the material becomes contaminated, determine whether it is classified
as a by-product or a spent material. EPA has stated that drosses generated from
soldering printed circuit boards are treated as by-products rather than spent materials,
and do not have to be managed under RCRA regulations when they are reclaimed. The
Task Force has not reevaluated these specific determinations for the purpose of this
report.
Some generators cannot easily determine whether their materials are a by-product
or a spent material under RCRA. Others question why these materials should be
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regulated differently froin virgin materials when they are managed the same way, and
may contain almost the same concentrations of hazardous constituents. Some potential
solder recyclers are particularly concerned about hazardous waste transportation costs
They believe that compliance with DOT rules on shipment of hazardous materials is
sufficient to ensure environmental safety. The Task Force and the States agree that
these and many other recyclable materials may safely be shipped under these rules
through use of a recyclables manifest, and have recommended this approach as
discussed in Chapter 5 of this report. Therefore, it appears the issue raised may not be a
serious problem if our recommended approach is promulgated. Even if the materials
are classified as spent materials, we believe the requirements are reasonable and
acceptable to the industry.
LAUNDERED RAGS AND DISPOSABLE WIPES
Because of the mixture and derived-from rules and at times the TCLP toxicity
characteristic, reusable rags and disposable wipers are defined orl occasion as solid and
hazardous wastes and are subject to full Subtitle C regulation. Industry has asserted that,
when these materials are managed or disposed of in accordance with management
practices established by the industry, the actual risk of harm is minimal, '
Manufacturers of disposable wipers state that they contain only de minimis
amounts of hazardous waste when managed properly. Additionally, launderers of
reusable rags state that any hazardous constituents in the rags are subject to regulation
under the Clean Water Act. States and EPA regions differ greatly in applicable
definitions and implementation of requirements.
; Manufacturers of disposable wipers and launderers of usable rags have supported
a conditional exemption from the regulations for their products when they are managed
safely. Appropriate management standards supported by industry include ensuring that
containers of rags or wipers are covered (during accumulation) and do not include free
liquids, compliance with Clean Water Act pretreatment requirements during the.
laundering (recycling) of rags, and thorough cleansing of the reusable textiles before they
are discarded. j
The environmental community believes that any relief for disposable wipers
should be based upon the concentration of hazardous constituents' in the wipers. They
do inot believe that this is a recycling issue, and they suggest that these materials should
be evaluated in the context of EPA's efforts to set concentration-leased "exit" limits for
hazardous wastes. With respect to reusable rags, they suggest exempting the rags from
Subtitle C requirements only if any laundering process could be demonstrated to remove
or destroy the hazardous contaminants effectively before reuse. They believe that before
such treatment, the rags containing listed wastes or failing a toxicity characteristic should
be managed as hazardous wastes.
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The Task Force and States are aware that there are significant implementation
difficulties associated with applying'hazardous waste regulations to these materials
(particularly in the case of small businesses). We also are aware that special recycling
rules for reusable rags only may create a market advantage for these materials, which we
could not currently justify; we do not have data to indicate that placing disposable
wipers in secure landfills is necessarily riskier than discharging materials from laundered
rags into sewers, even with Clean Water Act controls. We believe that rags and wipers
managed in accordance with current industry "guidance will probably present minimal
risk, at least if they are contaminated with F001-F005 spent solvents (the most common
listed waste found in the rags and wipers). We are not aware of any case of ,
environmental damage resulting from the mismanagement of contaminated rags or
wipers, despite the fact that these materials are not normally managed as hazardous
wastes today. Therefore, we recommend clarifying that rags and wipes containing listed
spent solvents are exempt from Subtitle C if the specific management standards
described above are met. ' '
WOOD PRESERVATIVE WASTEWATERS
At wood preserving facilities, wood is chemically treated and removed from a
pressurized cylinder. Excess preservative, which is a listed hazardous waste, drips on a
drip track or drip pad near the cylinder. The drip pad (a bermed, free-draining device)
contains and collects the spent formulation, along with wastewaters (wash water,
rainwater, snow) that may accumulate on the pad. Design standards and integrity
assessment procedures for the drip pads are established as part of the hazardous waste
program (40 C.F.R. Part 264 Subpart W).
In many facilities, these wastewaters are reclaimed and returned through a sump
and piping for use in making a new preservative. This process recycles the wastewaters
without any identified threat to the environment. The wood preserving industry has
stated that classifying reclaimed and reused wastewaters (especially rainwater) as
hazardous waste is inappropriate and results in the perception that large amounts of
hazardous waste are generated. Several States tax the waste according to the total
volume generated, rather than by the amount of new preservative reaching the drip pad.
The industry believes that these recycling practices are actually the functional
equivalent of "closed-loop" recycling, which would be exempt under
40 C.F.R. § 261.2(e)(l)(iii) if the materials were not reclaimed. They argue that the
"reclamation" taking place is merely minimal solids screening to remove dirt and debris
that are incompatible with the manufacturing process. The environmental community,
on the other hand, is concerned about the use of .land-based units (such as drip pads) for
this industry.
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; The Task Force is evaluating whether the term "reclamation" should include such
practices as solids screening, settling, and simple filtration. Many industry observers have
argued that these practices are incidental to most normal manufacturing processes. They
believe that these measures should not automatically subject an otherwise exempt
recycling operation to RCRA. As described earlier in this chapter, we are considering
whether to adopt this recommendation. . ,
- - ' - .' i .
If the Agency ultimately chooses to exempt "incidental processing" from the
definition of reclamation, we will also consider altering the new no land storage
condition recommended for "closed-loop" recycling. This change would allow wood
preservers in compliance with Subpart W design standards to qualify as closed-loop
recyclers of wastewater that is captured on the pad and .returned-to the process. This
approach would require a determination that the concrete channeSls used to convey the
water from the drip pad meet the definition of no land storage. We believe that these
channels will meet the definition of a tank in 40-CFR §260.10.
I ; '
BASEL CONVENTION
The Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal was signed by the United States in March 1990. It is the first
treaty exclusively devoted to the export and import of hazardous wastes. The
Convention also covers municipal solid waste and municipal incinerator ash.
The Basel Convention was designed to ensure that environmental problems are
not transferred from one country to another. The Convention helps to ensure this by
reducing the generation and the transboundary movement of the wastes mentioned
above (covered wastes) and by establishing environmentally sound' management as the
universal standard for those waste exports and imports that do occur
--''" v . ' j
; Although the United States is a signatory to Basel, it will not be a party to Basel
until we actually ratify the Convention. For the United States to ratify, Congress must
enact legislation granting the authority to implement Basel's terms!. In February 1994,
the Administration issued its statement of principles for Basel legislation which, if
enacted into law, would allow the United States to ratify the Contention.
By emphasizing waste minimization and limiting waste expcirts, the principles aim
to make the United States even more self-sufficient in managing tlie waste it generates.
The Administration has asked Congress to help achieve this goal tiy legislating an
immediate ban on exports beyond North America (with a 5 year grace period for
countries in the Organization for Economic Cooperation and Development, and with
exceptions made only in very limited circumstances).
i - - . . . . . .-'
; This ban would include the following wastes covered under the Basel Convention:
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o Hazardous waste that is identified or listed under section
3001 of the Solid Waste Disposal Act;
o Additional wastes covered under the Convention:
Municipal solid waste;
Municipal incinerator ash;
Waste provided special status domestically under sections 3001(b)(2)-(3) of
RCRA, if such waste exhibits a characteristic of hazardous waste identified
under section 3001; and
Any waste identified in regulations promulgated by the President as
necessary to implement the Basel Convention and any amendments
thereto.
It should be noted that transboundary movements from the United States of
certain commodity-like secondary materials for recycling (specifically scrap metal, paper,
textiles and glass, when separated and exported for recycling) would not be covered by
this legislation. In addition, the Administration has asked Congress to include in its
implementing legislation a mechanism for the Executive Branch to identify other
commodity-like recyclables that would be placed outside the scope of this legislation.
The principles of the Administration also call for a ban on the export and import
of covered wastes to facilities where the United States government has reason to believe
they will not be managed in an environmentally sound manner. In addition, the
principles include strong enforcement authority that would allow the return of illegally
exported or mismanaged covered waste to the United States and the prosecution of those
who violate United States law.
Many recommendations made by the Task Force involve special management
conditions for recycled hazardous waste (we are recommending no changes in the current
exemption for scrap metal). We are still evaluating legal mechanisms to implement this
concept. One mechanism might be,conditional exemptions for recycled materials, under
which an otherwise hazardous material would not be considered hazardous waste if it ,
were managed under the specific conditions.
If the contingent management approach is adopted, it may be reasonable to
include domestic management of the waste as one of these specific conditions. These
materials would not be regulated as hazardous waste domestically but would be
considered hazardous wastes when exported. Some likely candidates for this status
would be hazardous wastes from small quantity generators, hazardous wastes from lab
samples, and lead acid batteries.
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: In viewing our domestic program in the context of the Basel Convention, it is also
important to realize that whatever we decide to do domestically, our waste exemptions
do not necessarily apply when the hazardous material is exported. Should we exempt a
hazardous material from regulation domestically and from export regulation under
special conditions relating to how the material is managed (e.g., krap metal), it is still
possible that an importing country may control the material as a Basel waste under its
domestic legislation. In such cases, the importing facility or country may require various
safeguards and documentation that the United States may consider unnecessary. The
United States exporter is nevertheless obligated .to comply with alny such requirements.
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APPENDIX A
JURISDICTION
Congress' "overriding concern" in enacting RCRA was a national system to ensure
the safe management of hazardous waste. However, the scope of EPA's Subtitle C
authority has always been controversial. From the beginning, the regulated community
questioned EPA's RCRA jurisdiction over any recycling activities!, Some argued that
recyclable materials cannot be wastes under RCRA.1 Others argued that, even if
recyclable materials could be defined as wastes, Congress did not intend to give EPA -
jurisdiction to regulate hazardous waste recycling. The controversy prompted EPA to
explain its legal rationale for asserting its authority in the next major proposed definition
of isolid waste, published April 4, 1983.2 Citing statutory provision, legislative history,
and court interpretations, EPA concluded that recycled materials can be hazardous
wastes under RCRA, and that recycled hazardous wastes can be regulated under Subtitle
C regulations. j
This conclusion is fully in accord with the statutory language and the
legislative history. It is also in accord with the paramount policy objective
of the statute to control management of hazardous waste from point of
generation to point of final disposition. The Agency's reading also has
substantial support in judicial precedent. We thus conclude that we possess
jurisdiction to regulate recycling of hazardous waste under
the implementing regulations.3
Subtitle C and
In the legislative history of HSWA, the House Committee on Energy and
Commerce affirmed EPA's existing authority over the use, reuse, recycling, and
reclamation of hazardous wastes and clarified that materials managed in those ways "can
indeed be solid and hazardous wastes ..." H.R. Rep. No. 198, 98th Cong., 2d Sess 46
-(1984), reprinted in U.S.C.C.A.N. 5605.
' i
Although everyone now recognizes EPA's RCRA jurisdiction over hazardous
waste recycling, the debate continues over its scope. Delineating that authority has been
difficult because EPA must balance the two sometimes conflicting goals of RCRA -
conserving valuable material and energy resources and protecting human health and the
environment. EPA's most comprehensive attempt to balance these goals is the
See comments in response to the first set of regulations implementing the Resource Conservation and
Recovery Act of 1976 (and the first rule to address hazardous waste recycling). Hazardous Waste and
Consolidated Permit Regulations, 45 Fed. Reg. 33066 (May 19, 1980). ,
See Hazardous Waste Management System; Proposed Rule, Appendix A, 48 Fed. Reg. 14472, 14502
(April 4, 1983).
348 Fed. Reg. at 14505 (April 4, 1983).
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regulatory definition of solid waste promulgated January 4, 1985.4 Representatives of
the petroleum and mining industries challenged on this regulatory definition in AMC I.
Although the rule exempted many solid wastes generated from smelting and refining ores
and minerals, the rule still regulated certain recycling practices of these industries.
The petroleum refining process generally starts by distilling crude oil into various
hydrocarbon "fractions," which are then blended or combined to make different products.
Any fractions not usable in their present form are returned to some previous stage in the
refining process. Materials that escape from the refining process are also captured and
returned to a previous stage. The petroleum industry challenged EPA's regulation of the
materials returned to the refining process. Similarly, in the mining industry and in
primary metals production, various metals are extracted from the mineral ore in a series
of processing steps. Materials are often returned to earlier stages of the processing to
extract as much metal as possible. The mining industry challenged EPA's regulation of
the reprocessed ore and the metal derived from it.
Generally, the courts give substantial deference to an agency's interpretation of its
statutory authority and responsibilities.5 They apply a two-part test to measure the
validity of an agency's statutory interpretation - first, whether Congress' intent is clear,
and second, whether the agency's interpretation is reasonable.6 Applying the Chevron
test, the AMC I court first asked whether Congress' intent to assert RCRA jurisdiction
over certain materials is clear. Relying on the dictionary, the statute, and legislative
history, the court decided that Congress used "discarded" in its ordinary sense - "disposed
of or "abandoned" - which does not include materials destined for immediate reuse in
another phase of the industry's ongoing production process. AMC I also recognized
RCRA's dual purposes but concluded that, to fulfill these purposes, EPA need not
regulate "spent" materials that a facility recycles and reuses in an ongoing manufacturing
or industrial process.7 Because the court found "clear Congressional intent to extend
EPA's authority only to materials that are truly discarded, disposed of, thrown away, or
abandoned," it did not apply the second prong of the Chevron test.
Although in 1987 (AMC I) a plurality of the D.C. Circuit found "RCRA's statutory
language unambiguous,"8 different panels of the same court later reached a different
450 Fed. Reg. 614 (January 4,1985).
5lnAMCI, however, the court observed that EPA's interpretation of the scope of its authority has been
"unclear and unsteady." Under "settled doctrine," the court gave the Agency's interpretation "considerably
less deference" than it would otherwise be entitled. 824 F.2d at 1182.
6See Chevron U.SA., Inc. v. Natural Resources Defense Council, 467 United States 837 (1984).
7824 F.2d at 1186.
8824 F.2d at 1190.
A-2.
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conclusion.9 In API and AMCII, the court unanimously agreed ^hat the term
"discarded" in RCRA's definition of "solid waste" is "marked by the kind of ambiguity
demanding resolution by the agency's delegated lawmaking powers."10 . '.
\ In API, environmental groups and the treatment industry challenged EPA's "First-
Third Rule" prohibiting land disposal of and establishing treatment standards for "First-
Third" scheduled wastes. EPA promulgated separate treatment standards ("best
developed available treatment" (BDAT)) for high-zinc K061 (at least 15% zinc) and low-
zinc K061 (less than 15% zinc). The Agency determined that high temperature metal
recovery was the BDAT for high-zinc K061. Based on its reading of AMC I, however,
EPA believed it lacked authority to establish treatment standards for the slag residues
from the metals recovery process. Because the furnaces used for reclaiming metals are
also part of production, the Agency believed the activity was beyond its RCRA authority
to regulate waste management.11 The challengers claimed that EPA unlawfully
exempted the slag residues from the land disposal restrictions. .
The court agreed with the challengers,, concluding that EPA had construed AMC I
more broadly than it should have. "Unlike the materials in question in AMC, K061 is
indisputably 'discarded' before being subject to metals reclamation. Consequently, it has
'become part of the waste disposal problem'; that is why EPA has the power to require
that K061 be subject to mandatory metals reclamation."12 Also, llhe court concluded,
nothing in AMC I requires EPA to cease defining K061 as "solid waste" once it reaches
the reclamation facility. Since the K061 is sent for recovery as piart of a mandatory
waste treatment plan, it is not delivered to the plant as part of an "ongoing
manufacturing or industrial process" within "the generating indusl'ry." Instead, the K061
remains within the scope of the agency's authority as "sludge from a waste treatment
plant." j
, In a subsequent case, AMC II, the petitioners challenged EPA's relisting of six
wastes generated from metal smelting operations as "hazardous," j Primary smelters that
generate these wastes produce large volumes of wastewater that must be treated before
discharge. Often the smelters collect, treat, and dispose of the wastewater in surface
impoundments, from which sludges precipitate. Relying on AMC I, the Petitioners
I American Petroleum Institute v. United States Environmental Protection Age/icy ("API"), 906 F.2d~729
(D:C. Cir. 1990), and American Mining Congress v. United States Environmental Protection Aeencv ("AMCII")
907 F.2d 1179 (DIG Cir. 1990).
;,10906 F.2d at 740-41; 907 F.2d at 1186.
I n53 Fed. Reg. 11,753 (1988).
112906 F.2d at 729.
13Id.
.A-3
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argued that these sludges were not "solid wastes" because they are not "discarded," but
are instead "beneficially reused in mineral processing operations."14 The court agreed
with EPA's "expert judgment," however, that these materials are "discarded" because they
are "the product of wastewater and are stored in surface impoundments that threaten
harm to the health and environs of those living nearby."15 :
API and AMCII both conclude that EPA has RCRA jurisdiction over recycling
practices that are "part of the waste disposal problem." Most people agree that a
continuum exists from "ongoing manufacturing and industrial processes" to "recycling" to
"treatment or disposal." Most also concede that EPA has no RCRA authority over
activities at the manufacturing end and full Subtitle C authority over activities at the
treatment and disposal end of that continuum. Disputes arise over the many activities
that are often difficult to characterize wholly as manufacturing, recycling, or treatment or
disposal. ,
14907 F.2d at 1185.
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APPENDIX B
CURRENT RCRA DEFINITION
DEFINITHON OF "SOLID WASTE"
In 1983, EPA proposed several ways to determine whether a material is a solid or
a hazardous waste. The Agency finalized the rule in 1985, and it remains largely
unchanged today. In determining whether a material is a solid waste, the Agency
considers both the nature of the material and how it is managed.
"Solid waste" is currently defined in three parts:
Materials are abandoned by being disposed of, burned, of
incinerated (or
accumulated, stored or treated before one of these activities) are always solid
wastes. 40 C.F.R. § 261.2(a)(2)(i).
Certain inherently waste-like materials are always solid wastes, even when they
_. i i ~t s* <*.* *.. ._.__' * .
to halogen acid
are 'recycled (i.e., listed dioxins or secondary materials fed
furnaces). 40 C.F.R. § 261.2(a)(2)(iii) and (d).
Materials that are recycled may or may not be solid wastes, depending on the
.nature of the material and the recycling process. 40 C.F.R. § 261.2(a)(2)(ii) and
(c).
Some materials have been expressly excluded from the definition of solid waste
These exclusions
and therefore, are not subject to RCRA Subtitle C requirements.
appear in 40 C.F.R. § 261.4(a) and include:
(a)(l) Domestic sewage and mixtures of domestic sewage and other wastes that
pass through a sewer system to a publicly-owned treatment works (POTW)
; for treatment.
(a)(2) Discharges regulated under the National Pollution Discharge Elimination
System (NPDES).
(a)(5) Materials subjected to in-situ mining techniques which are not removed
; from the ground as part of the extraction process.
(a)(6) Certain reclaimed black pulping liquors.
(a)(7) Spent sulfuric acid used to produce virgin sulfuric acid,, unless it is
accumulated speculatively.
(a)(8) "Closed-loop" recycling in a totally enclosed system with piping and tanks.
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(a)(9) Certain spent and reused wood preserving solutions, and wastewaters from
the wood preserving process.
(a)(10) -K087, and certain wastes from coke-by-products processes. The exclusion
is conditioned on no land disposal of the wastes from the point of
generation to the point of recycling.
Materials that are potentially solid and hazardous wastes are usually referred to
collectively as "secondary materials," although the term does not appear in the
regulations. EPA currently regulates four kinds of secondary materials:
A spent material is a material that has been used and, as a result of
contamination, can no longer serve the purpose for which it was produced without
processing (40 C.F.R. § 261.1(c)(l)). A common example is a solvent used to
clean automobile parts, if it becomes so contaminated with dirt and grease that it
can no longer be used for cleaning without processing.
A sludge is any solid, semi-solid, or liquid waste generated from a municipal,
commercial, or industrial wastewater treatment plant, water supply treatment
plant, or air pollution control facility (exclusive of treated effluent from a
wastewater treatment plant) (40 C.F.R. § 260.10)). Examples are sludge from a
wastewater treatment process and baghouse dust from a primary metal smelter.
A by-product is a material that is not one of the primary products of a production
process and is not solely or separately produced by the production process
(40 C.F.R. § 261.1(c)(3)). An example is slag, which is formed when metals are
heated during smelting. Chemicals, such as lime, are added to heated metal to
aid in separating pure metal from impurities. The metals sink to the bottom of
the bath and are removed. The impure residue is cooled and forms the rock-like
"slag," which may be disposed of or used as aggregate in roadbeds.
The term "by-product" does not include "co-product" that is produced for the
general public's use and is ordinarily used in the form it is produced from the
process (40 C.F.R. § 261.1(c)(3)). Cadmium, for example, is often present in
lead or zinc ore. Primary zinc smelters design their processes to extract the zinc
and the cadmium. Ores are selected for their high cadmium content to extract
this valuable co-product.
Commercial chemical products are chemicals manufactured or formulated for
commercial or manufacturing use. They consist of the pure or technical grade of
the chemical or of a formulation in which the chemical is the sole active
ingredient. Commercial chemical products are listed in 40 C.F.R. § 261.33. An
example is formaldehyde. Commercial chemical products are only considered
secondary materials if they are recycled in ways that differ from their normal use.
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Otherwise they are products and- are outside the scope of RCRA jurisdiction.
: However, if they are abandoned, they are characterized as! solid and potentially
hazardous waste.
Generally, EPA regulates materials and processes that resjemble hazardous waste
management. It does not regulate materials and activities that are more like products
and ongoing manufacturing processes. Some recycling activities (such as immediately
reusing secondary materials in the process that produced them) closely resemble normal
production -and are exempt. Other activities (such as burning hazardous waste fuels in a
boiler or industrial furnace) are more like waste management and are fully regulated,
with the recycled materials defined as solid and hazardous wastes. EPA's logic is
demonstrated by its regulatory treatment of recycling activities. Materials recycled in'
ways that resemble ongoing manufacturing are not solid wastes, eiven if the recycled
materials are spent materials, listed sludges or by-products, or scrap metal. A material is
generally not a solid waste if it is: .,
Used or reused (without reclamation) as an ingredient in an industrial process to
, make a product (40 C.F.R. § 261.2(e)(l)(i)). An example is using distillation
bottoms from carbon tetrachloride production as a feedstock to make
tetrachloroethylene. A material will not satisfy this condition if distinct
I components of the material are recovered as separate end products (as when
I metals are recovered from secondary metal-containing materials
(40 C.F.R. § 261.1(c)(5)(i)).
Used or reused (without reclamation) as an effective substitute for a commercial
product (40 C.F.R. § 261.2(e)(l)(ii)). Examples are using [spent pickle liquor as a
; wastewater conditioner or using spent solvent from electronics manufacturing as a
degreaser for automotive parts without first processing the solvent.
Returned to the original process from which it was genera ted (without
reclamation) (40 G.RR. § 261.2(e)(l)(iii)). The material must be returned as a
, substitute for raw material feedstock, and the process musl| use raw materials as
! principal feedstocks. An example is returning solvent carriers from organic
chemical production to the beginning of the process that generated them. This
i exemption is sometimes referred to as "closed-loop" recycling (not to be confused
with the next exemption, also known as "closed-loop").
Returned to the original production process from which it was generated, with
prior reclamation (40 C.F.R. § 261.4(a)(8)). This is often "referred to as the
"closed loop exemption. Materials recycled in this way are
usually liquids
(frequently organic chemicals). To qualify for this exemption, the materials must
be stored 'only in tanks and for not more than one year before being reclaimed.
The entire process through reclamation must be enclosed through pipes or other
conveyances.
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Secondary materials recycled in ways that more closely resemble waste management are
almost always regulated as (or similarly to) solid wastes. Performing any of the following
activities usually means that the material is a solid waste, even if it is used, reused, or
returned to the original process as described above.
Burned for energy recovery, or used to produce a fuel.
Most hazardous secondary materials are solid and hazardous wastes when
burned directly as a fuel, or when processed or blended, to produce a fuel
(40 C.F.R. § 261.2(c)(2)). The only exceptions are commercial chemical products
intended for use as fuels (including off-specification fuels) and certain used oils.
Although the Agency likens these activities to waste management, it distinguishes
burning for energy recovery from burning simply to destroy the material.
Used in a manner constituting disposal.
Placing recycled material directly on the land, even after it is incorporated
with other materials, is considered waste management; the recycled materials are
solid wastes (40 C.F.R. § 261.2(c)(l)). Examples of this kind of reuse are:
In fertilizers, pesticides, or to alter the physical structure Of soils;
To build marine habitats, such as coral reefs;
As anti-skid material or for suppressing dust on road surfaces;
As landfill cover material; or
As construction material (e.g., 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, levees, and berms).
Speculative accumulation.
Accumulating otherwise exempt secondary materials before recycling is
considered waste management if the materials are stored for more than 12
months before they are recycled (40 C.F.R. § 261.2(c)(4)).
Note: Commercial chemical products recycled in any of the above ways are not solid
wastes if the activity is the product's normal use. All other secondary materials are solid
wastes when recycled in these ways. .
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Reclamation.
A fourth kind of recycling is considered waste management under certain
circumstances. "Reclamation" is processing a secondary material-to recover a
usable product, or to regenerate the material.1 Reclamation is considered waste
management only when certain types of secondary materials are reclaimed. Spent
materials, listed sludges and by-products, and scrap metal are usually considered
solid wastes if they are being reclaimed, while characteristic sludges and by--
products, and commercial chemical products are not (40 C.F.R. § 261.2(c)(3)).
DEFINITION OF "HAZARDOUS WASTE"
Hazardous waste is a subset of solid waste. EPA defines solid wastes as
hazardous wastes in one of two ways: through listings or by characteristics.
'i ', ' ' '
: Congress required EPA to list specific hazardous wastes b1 ased on "toxicity,
persistence, and degradability in nature, potential for accumulation in tissue, and other
related factors such as flammability, corrosiveness, and other .hazardous characteristics."2
EPA promulgated two different lists of hazardous wastes: those from, non-specific
sources, called "F wastes/1 listed in 40 C.F.R. § 261.31; and those from specific sources,
called "K wastes," listed in 40 C.F.R. § 261.32. F001 through F005, for example, are
different spent solvents and residues from their distillation. The
distinguish among the generating industries. K wastes, however,
F listings do not
are from specific
industry processes, such as K016 (distillation residues from the production of carbon
tetrachloride) or K107 (column.bottoms from product separation from the production of
1,1-dimethylhydrazine (UDMH) from carboxylic acid hydrazines).
Once a secondary material is listed as a hazardous waste it remains a hazardous
waste unless it is delisted by the Agency. Any mixture of a solid waste and a listed
hazardous waste is itself a listed hazardous waste.3 Any residue from the treatment of
listed waste is also a listed waste. These rales, known as the "mixture" and "derived-
frpm" rules, have been the subject of recent litigation. EPA has convened a federal
advisory committee to address the issue. The Hazardous Waste Identification Rule
("HWIR"), currently under development, would provide an "exit" from Subtitle C for
certain low-risk materials. Wastes, residues, mixtures, and media-containing hazardous
constituents below established concentration levels would no longer be defined or
regulated as hazardous wastes. - Many recyclable wastes may contain constituents above
.these levels, yet pose little threat to human health or the environment when properly
X40 C.F.R. § 26Ll(c)(4).
242 U.S.C. § 6921(a) and (b).
340 C.F.R. § 261.3(a)(2)(iv).
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recycled. Other initiatives, such as the-one described in this report, will address these
materials.
EPA has not listed as hazardous all secondary materials that are a threat to
human health or the environment., If a solid waste is not listed, it may be hazardous
because it exhibits a characteristic of hazardous waste. To date EPA has promulgated
four characteristics, with wastes exhibiting these characteristics known as "D wastes":
Ignitability (D001 - 40 C.F.R. § 261.21) - A solid waste is a hazardous waste
"exhibiting the characteristic" of ignitability if its flash point is less than 140°F.
Corrosivity (D002 - 40 C.F.R. § 261.22) - A solid waste is corrosive if its pH is ,
less than or equal to 2 or greater than or equal to 12.5.
Reactivity (D003 - 40 C.F.R. § 261.23) - Generally, a solid waste is reactive if it is
explosive or reacts violently with water.
Toxicity (D004 through D043 - 40 C.F.R. § 261. 24) -. A solid waste exhibits the
toxicity characteristic ("TC") if, using the Toxicity Characteristic Leaching
Procedure (TCLP), it contains one or more of the identified constituents at a
level equal to or greater than the regulatory level.
The RCRA regulations exempt certain solid wastes from the definition of
hazardous waste in 40 C.F.R. § 261.4(b). This means that EPA retains RCRA
jurisdiction over these materials, but does not define or regulate them as hazardous
wastes. Examples are: certain statutorily-exempt special wastes, known as "Bevill
wastes", (wastes from the combustion of coal or other fossil fuels, mining wastes, and
cement kiln dust); certain chromium wastes from the leather tanning industry; and
chlorofluorocarbon refrigerants (CFCs) that are reclaimed.
JURISDICTION OVER HAZARDOUS WASTE HANDLERS 7
EPA regulates almost everyone who handles hazardous waste - generators, >
transporters, and treatment, storage, or disposal facilities. The requirements that apply
to each are found in 40 C.F.R. Parts 262 through 265. A more detailed discussion of
these requirements may be found in Chapter 5.
A generator is the person who first creates a hazardous waste or who first makes
a waste subject to Subtitle C requirements. Any person who generates a solid waste
must determine if that waste is a hazardous waste. If the waste is not excluded or listed,
a generator may determine whether it is characteristic by either (1) testing or (2)
applying knowledge of the characteristic in light of the materials or the generating
process.
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i Generators are subject to varying requirements depending on the volume .of
hazardous waste they generate within a calendar month. The volumes are not averaged.
Exceeding the prescribed amount subjects the generator to a clasis with more stringent
requirements.
j Large Quantity Generator (LQG) - a person who generates more than 1000
kilograms of hazardous waste in any calendar month. LQGs must comply with
full generator requirements, such as obtaining an EPA ID [number, recordkeeping,
and manifesting. The volume they generate is not limited! but they may only
j accumulate the waste for 90 days without being required tp obtain a RCRA
i permit.
Small Quantity Generator (SQG) - a person who generates more than 100
! kilograms but less than 1000 kilograms of hazardous wastes each month. A SQG
; may not accumulate more than 6000 kilograms at any one time. SQGs are
: generally subject to the same requirements as LQGs, but Ifhey may accumulate
i waste for 180 days.
Conditionally Exempt Small Quantity Generator (CESQQ) - a person who
generates less than 100 kilograms of hazardous waste each' month. CESQGs are
! exempt from'most RCRA Subtitle C requirements. }
j, '' "' : - , ' ' '' i"
; RCRA fully regulates treatment, storage, and disposal facilities (TSDFs). Every
TSDF must have a permit, although facilities that were managing hazardous waste before
1980 can obtain "interim status." Interim status facilities may conltinue operating under
specified conditions and requirements until a final permitting decision is made.
Ultimately, all interim status facilities must obtain a permit or close. Because Congress
was so concerned about contamination from hazardous waste disposal, it added a
requirement for "corrective action" in the HSWA amendments. RCRA now requires that
any permit issued to a TSDF after November 8, 1984, must address corrective action for
releases .of hazardous wastes or hazardous constituents from any Solid waste management
-unit at the facility . (42 U.S.C. § 6924(u)).,
; Facilities must manage hazardous waste under very rigorous and comprehensive
requirements. Part 264 (for permitted facilities) and Part 265 (for interim status
facilities) cover almost every aspect of hazardous waste management. The regulations
include general facility standards, emergency preparedness, unit-specific design
requirements, closure and financial responsibility. Details of thesis requirements are
discussed in Chapter 5 of this report.
i " ' ,'.,-'._'
j Other RCRA regulations exempt certain recycled hazardous wastes from many of
the Subtitle C requirements, although EPA retains RCRA SubtitLb C jurisdiction over
these hazardous wastes. These materials are called "recyclable materials" and are subject
to varying levels of control, depending on the material and how it is recycled. The
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hazardous wastes that are eligible for these alternate requirements are listed in .
40 C.F.R. § 261.6. The specific requirements for each material appear in 40 C.F.R. Part
266. For example, recyclable materials applied to or placed on the land must comply
with Subpart C of Part 266, and recycled lead-acid batteries must comply with the
requirements of Subpart G of Part 266.
Subtitle C regulation of waste management is generally "all or nothing." Rarely
do the regulations provide an intermediate level of control on materials or management
activities, although the risks of different materials and processes can vary greatly. EPA
has promulgated a few exceptions to that rule, most notably the requirements in 40
C.F.R. § 261.6 and Part 266 for recyclable materials. Some of these rules, especially the
alternative requirements for recycling lead-acid batteries, involve detailed management
conditions. A facility meeting these conditions need not obtain a RCRA hazardous
waste permit. Specific management requirements for recyclers and other hazardous
waste handlers are discussed in more detail elsewhere in this report.
B-8.
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APPENDIX C
ROUNDTABLE PARTICIPANTS
HARVEY ALTER
U. S. Chamber of Commerce
ANDYBELLINA
U.S. EPA Region II
ROYBROWER
Oregon Dept. of Environmental Quality
WILLIAM COLLINSON
General Motors Corporation
GERALD DUMAS ,
RSR Corporation
KAREN FLORINI
Environmental Defense Fund
JOHN FOGNANI
Gibson, Dunn & Crutcher
RICHARD FORTUNA
Hazardous Waste Treatment Council
KEVIN IGLI
Chemical Waste Management, Inc.
JON J. JEWETT, III
GREG FRANKLIN (alternate)
Solite Corporation
DOROTHY KELLY
Ciba-Geigy Corporation
DAVID LENNE'IT
Private Attorney
PAT MATUSESKI
Minnesota Pollution Control Agency
JOHN McGLENNON
ERM - New Engjand, Inc.
Facilitator
JEFFREY REAMY
Phillips Petroleurri Co.
MICHAEL J. SANDERSON
U.S. EPA Region! VII
.!"-'
CATHERINE SFJARP
Oklahoma Department of Health
RICHARD VAILLE
U.S. EPA Region
IX
ROBERT WESCOTT
Wescb Parts Cleaners
JOHN WITTENBORN
Collier, Shannon, Rill & Scott
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APPENDIX D
THE WORLD OF HAZARDOUS WASTE RECYCLING
Recycling operations vary depending on the industry performing the recycling.
Recycling operations are usually tailored to specific plans to maximize production or
minimize costs. Companies recycle either to recover a valuable material or to recover
energy. Examples of material recovery include reclaiming precious metals from plating
sludge or lead from spent lead-acid batteries. Energy recovery includes burning spent
solvents in a boiler to produce steam and electricity.
i ' . * i
Almost all recycling falls into four categories: secondary riaterials generated and
recycled at a manufacturing facility; captive recycling; product stewardship; and
commercial recycling.
i - .
On-Site Recycling
i " , , - !.' .
I . 'I -
Most industrial hazardous waste is recycled at the generating facility.1 On-site
recycling includes many different types of activities. Some examples are described below:
: ' - - 'h
A material is used to manufacture a product that, bbcause'of
contamination or depletion, can no longer be used without further
' reprocessing. An example is using solvent to wash parts as they are
manufactured, then distilling the dirty solvent to regenerate clean solvent
for the manufacturing process.
A manufacturer produces an assembled part that does not meet the
company's specifications when it is inspected during quality control. The
part is disassembled, and some pieces are used directly in ah earlier state
I of manufacture. Other parts must be processed befpre^they can be used,
such as thermal metal recovery. ,
| A manufacturer forms a metal part by casting, rolling, extrusion, and/or
; sampling. As the parts leave the production line, excess metal is returned
: to the beginning of the process to be remelted and reused.
. . Electric arc furnace dust from primary zinc smelting is used as an
; ingredient to make fertilizer.
As explained in Chapter 2, some of these recycling processes are exempt from
current RCRA regulation, while others are not. Generally, EPA yiews an operation as
outside RCRA jurisdiction when it more closely resembles ordinary production or
ordinary use of commercial products than waste management. Eyen processes that are
See page 4-3.
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otherwise exempt are generally regulated if the products are placed on the land, burned,
or accumulated for long periods.
Captive Recycling and Product Stewardship
Many manufacturers find that they can reduce costs and increase profits with
intracompany or "captive" recycling; i.e., generating secondary materials at one location,
then recycling them at another facility owned by the same company. Sometimes one site
generates an insufficient volume of a material to justify the capital investment in a
recycling process. Consolidating the material from all locations enables the company to
invest in one recycling location: These recycling activities often resemble the examples
given for on-site recycling above.
Increasingly, manufacturers wish to take back their products (or similar products
from other manufacturers) for recycling as part of "product stewardship" programs.,
Examples include accepting used or off-specification products and rebuilding, reusing, or
otherwise reprocessing them into the same or different products. For example, a
manufacturer accepts spent thermal transfer fluids, which it originally produced, from
heat exchangers to manufacture into new transfer fluids.
Commercial Recycling
It may be more economical for a manufacturer to send secondary materials to an
unrelated plant for recycling. Typically, this "commercial" or "off-site" recycling facility
relies on secondary materials, rather than virgin materials, for its production. However,
some manufacturers using virgin materials are also commercial recyclers, such as lead-
acid battery manufacturers who operate on-site secondary lead smelters. Sometimes the
generator pays the commercial recycler to take its recyclable materials; sometimes the
recycler pays the generator for its materials. Materials frequently recycled commercially
include solvents, electric arc furnace dust from steel manufacturing, and nickel-cadmium
and lead-acid batteries.
Hazardous Waste Recycling: A Statistical Summary
One of the Task Force's goals is to obtain better information about hazardous
waste recycling in the United States. Neither EPA or the States currently gather
complete data on recycling activities because many of the recyclers or practices are
exempt from reporting requirements. We have attempted to gather and summarize data
that are available, and we continue to solicit new information from the States and
industry. Following is a summary of hazardous waste recycling activities conducted in
1989. Unless otherwise noted, the exhibits below are from the latest available national
D-2
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survey of hazardous waste handlers, the-1993 Biennial Report.2 RCRA requires certain
hazardous waste handlers to report on their activities every two years. The Biennial
Report summarizes and analyzes data on hazardous waste generation and management
activities obtained through the Biennial Reporting System.
Exhibit 1
Hazardous Waste Recycling
Number of Generators
. .{20217)
in 1989
Amount Generated
(197 Million Tons)
7.143 CiMMteo Who lUcycfe
1.5* Recycled
i In 1989, over
19,000 large quantity
generators produced 197
million tons of
hazardous waste
managed under RCRA
(See Exhibit 1). About
one third of these
generators recycle
approximately 3 million
tons of hazardous waste,
or 1.5% of the total
hazardous waste
generated. While many generators recycled their waste, they did not. recycle very much
of the total waste generated. One explanation may be that as mulch a 95% of hazardous
waste is generated as wastewater, which is not easily recycled. Another reason may be
that a significant portion of hazardous waste recycling is not reported.3
; These factors may also account for discrepancies in our information about on-site
recycling. The Biennial Report shows that 43% of the recycling in 1989 occurred on-site.
Since much of the recycling occurring on-site is exempt from regulation, on-site recycling
is less likely to be included in our data. Considering CMA's data that 5 million tons of
hazardous waste were generated in the chemical industry alone, we assume that the
amount of recycling performed on-site accounts for much more than 43% of the total.
i Interestingly, sixty-three percent (63%) of all first-time reqkding occurred off-site.
Many factors influence a company's decision whether to recycle and, if so, whether to
keep the material or send it off-site. When asked whether any factors delayed or
prevented a company from recycling, two-thirds of the respondent reported specific
limiting factors. As seen in Exhibit 2, a generator's decision to rebycle off-site is
influenced by factors such as economic feasibility, the generator's technical expertise,
availability of a market, and permitting burdens. '
2U.S. EPA, National Biennial RCRA Hazardous Waste Report (Based on 198!) Data) (February 1993).
3For example, the Chemical Manufacturers Association conducted a survey in 1977 of 582 plants which
revealed that approximately 5 million tons of hazardous waste was recycle. This [substantially exceeds the 2.8
million tons reported in the 1989 Biennial Report from approximately 20,000 generators.
D-3
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Exhibit 2
Factors Delaying or Preventing Implementation
of Recycling Opportunities, 1988 or 1989
All Generators
Some Ftetor Limiting
66.0%
Limiting Factors
14.9V,
164%
9.6%
6.1%
iffMfcll
t^\] Uekofuchiuemliafc
m CoAocn (hat product qu*lity'm*y d«diM
f- j CuMc to xkiofy rautau for ncyclifet* ouuiul
RJH T"*r-*"""Jt*~-'"/r*~*^**~ f """' uiiiMta*
bnffidraiapitii
TeduueallimiuacMofpndu
I praotwn UhMi ihipara! att-mt
| I RequiiccK
As shown in Exhibit 3, facilities generating less than one percent (1%) of the
nation's total hazardous waste recycle most of their own waste, while 93% of the
facilities reporting each generate less than 1,000 tons per year. Totaled, this amounts to
less than one percent (1%) of the total amount of hazardous waste generated. However,
ninety percent (90%) of all recyclers are in this group. They recycled approximately
fourteen percent (14%) of all reported recycled hazardous waste, or approximately
twenty percent (20%) of the hazardous waste they generate. The great majority of the
total waste generated, ninety-nine percent (99%), was generated by 1,290 generators, or
7% of total generators. However, they recycled only 2.4 million tons, or one and two-
tenths percent (1.2%), of the 196 million tons they generated.
D-4
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Exhibita
Percent of Waste Generated and Recycled
by Size Category-'of Generators
Generator Size (Tons)
Pereeat of Total Percent Recycled of Wane
Waste Generated Geaeratcd by Size Categoqr
Almost all of the waste recycled conies from the one hundred (100) largest
reeyclers (See Exhibit 4). Over ninety percent (90%) of the metals recovery, energy
recovery, and other forms of recovery is accomplished by these one hundred firms.
Solvents, on the other .hand, are recovered by more recyclers - the top 100 firms perform
only sixty-one percent (61%) of the solvent recovery.
Recycling is also the predominant method of management
for many waste
streams. For instance, over ninety percent (90%) of the K024, U155, K030, P085, K023,
U141, U201, U191, U173, U124 and U059 waste streams were recycle in 1989. Similarly,
twenty-five waste streams were recycled at the rate of fifty percent (50%) or more,4
while twenty-three wastes streams were recycled at the rate of ten (10%) to fifty percent
(50%). I
| thirteen of these wastes, K087, U161, U123, U196, K019, U210, U211, K024, K030, U201, U191, U173,
and U214 were recycle in quantities exceeding one thousand (1,OQO) tons.
" '..'' D-5.. - .
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Exhibit .4
Percent of Materials Recycled
by Largest Recyclers
Mculi Recovery -Solvents Recovery Energy Recovery
Recycling System
1 Largest Recycier £\^ 10 Largest Recyclers
Other Recovery
100 Largest Recyckn
Thirteen waste streams also had 50,000 tons or more recycled. These included:
ignitable wastes (D001), spent solvents (F001, F002, F003, and F004), chromium wastes
(D007), electric arc furnace dust from steel production (K061), corrosive wastes (D002),
spent pickle liquor from steel production (K062), lead wastes (D008), wastewater
treatment sludges from electroplating (F006), heavy distillation ends from ethylene
dichloride production (K019), and wastewater treatment skimmings from petroleum
refining (K048).
Recycling -By Industry
The industrial organic chemicals industry (SIC 2869) recycled the most waste in
1989 (over 732,787 tons) followed by blast furnaces and steel mills (SIC 3312) at 226,860
tons, the business service industry (SIC 7389) at 173>459 tons, and the industrial gases
industry (SIC 2813) at 165,094 tons. .
Most industrial sectors reported generators who recycled, some in large numbers.
Recyclers were found in quite diverse industries - iron ore mining and stenographic
D-6
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services, transportation-related facilities, optical instruments and lens manufacturers,
footwear manufacturers and electrbnics manufacturers.
Recycling-By Category
Exhibits
Recycling by Category.
n*
12*
13*
Wute Generators d»t Recycled
10*
'»*
I
Wine Strewn* Recycled
JS»
. Exhibit 5 -
summarizes the amount of
hazardous waste recycled
through metals recovery,
solvent recovery, energy
recovery and other
recovery. Most hazardous
waste recycled (60%) is
through metals recovery
and energy recovery.
However, the majority of
recycling facilities (64%)
are solvent recyclers.
They represent 64% of all
hazardous waste recyclers,
but only 16% of
hazardous waste recycled.
Metals Recovery
i Metals recovery
represents 35% of the
total amount of hazardous waste recycled in 1989. This amount was recycled by 1,065
generators, or 15% of the total number of generators recycling their hazardous waste.
Many involved recycling of the following wastes:
Hi*
Quantity of Waste* Recycled
(Ton*)
" Ciiaumi mtftmiftta»mom torn sum
Electroplating wastes (F006, F007, F009)
Ignitable, corrosive, and reactive wastes (DOOl,
Wastes characteristically toxic for metals (D006, DI
Iron and steel wastes (K061, K062)
D002)
, D003)
007, D008, D009)
Ten wastestreams were recycled using metals recovery by more than ten percent (10%)
of the facilities that generate them: P094, D011, F009, F006, Ulisi, U177, F007, K069,
K061, and U155.
Energy Recovery
I ' - , . .
Of the hazardous waste recycled, thirty-four percent (34%l) is through energy
recovery (1,308 facilities or eighteen percent (18%) of the recyclers). However,
D-7
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considerably more hazardous wastestreams are involved in energy recovery than mejals
recovery 3,059 facilities or sixty-four percent (64%) more than metals recovery. Five
wastestreams accounted for over fifty percent (50%) of the total amount of hazardous
waste recycled through energy recovery. These were: F001, F002, F003, F005, and
D001.
Solvent Recovery
Although only sixteen percent (16%) of hazardous waste recycled is through
solvent recovery solvent recyclers constitute the majority of facilities (sixty-four percent
(64%)) who recycle. Similarly, many more wastestreams (86,830 can potentially be
recycled through solvent recovery than any other type of recycling. Wastestreams
recycled through solvent recovery include F001, P011, U328, P014, D001, U359, P023,
U080, U213, P018, and U227. Among these wastes, 1,728 generators use FOQ1 and 2,317
generators use D001 for solvent recovery. Similarly, ten wastestreams were recycled
using solvents recovery by more than ten percent (10%) of the facilities that generate
them. These were: U112,' P069, U226, F001-F005, D001, and K027.
Other Forms of Recovery
This category includes such operations as acid regeneration, waste oil recovery
and nonsolvent organics recovery. Approximately 423,513 tons of waste from this
category were recycled by 1,882 generators. Over 4,800 waste streams were involved in
this recycling. Over twenty-five percent (25%) of the total amount recycled, was
accounted for by twelve waste streams. These included F001, F002, F003, F005, D001,
D002, D008, K022, K019, K048, K061, and K062. On average, 7.7 percent of the
generators of these wastes (or 4.1 percent of the total amount of waste generated)
recycled their waste.
Conclusions
Although we lack current, detailed data on recycling quantities and practices, we
can draw some preliminary conclusions from the information available. We believe that
our suggested system can positively affect many of the factors that generators say
discourage or limit their recycling. By encouraging on-site recycling and making it easier
to accumulate materials to recycle, we believe that smaller generators will be more likely
to reuse their materials. By eliminating many costly impediments such as facility-wide
corrective action and financial assurance, our proposed system should also make
recycling more attractive to larger generators.
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APPENDIX E
PRIMARY MINERAL PROCESSING OPERATIONS
INTRODUCTION
" The following discussion contains the tentative conclusions of the Definition of Solid
'Waste Task Force on issues identified by the primary mineral processing industry. Final .
conclusions and any regulatory decisions will require further discussions with other parts of
the Agency and the States if rulemaking activities are initiated by EPA. This document is :
also not intended to change any current guidance or rulemaking. i
'''-. '' . .: i " --.;.'''.
' / For the last few months the Definition of Solid Waste Task Force, with support from
the Mining Waste Section in the Office of Solid Waste, has been examining the operations of
the primary mineral processing industry to address issues and concerns raised by the industry
with our suggested recommendations. This industry illustrates an essential question in
redefining solid waste: are their recycling operations an inherent part of their manufacturing
processes or more like waste management?
I ' ' - . ',' ' -
As part of this examination, a member of the Task Force and a member of the
Mining Waste Section visited two primary copper processing facilities to better understand
their operations. A copy of their trip report can be found in the docket.
are:
The primary mineral processing industry currently has six principal concerns, which
The regulatory status of emission control flue dust1
Reclamation or incidental processing of other materials generated during mineral
processing operations
Prohibition 'of land placement
Conditions for meeting our proposed "toxics along for the ride" (TAR) test
intra-industry shipments "-';.
inter-industry shipments
j l"Flue dust" is a generic term used to describe recoverable metal-containing dusts that
a!re collected in various types of process equipment (which may alsio be part of the air
pollution control effort at primary facilities) and that are placed back into the production
process. .
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CONCLUSIONS
Our tentative conclusions for the primary mineral processing industry are based on the
following premises. First, all virgin materials are managed on the land - this is the
common industry practice when extracting and processing ore grade material. Re-processed
residuals derived from mineral processing operations are managed and processed no
. differently from virgin materials. Second, all economically recoverable in-process materials
"are directly reused, returning either to a beneficiation or mineral processing unit receiving.
primarily virgin materials. ... . :
Third, the reprocessing of residuals derived from mineral processing operations is an
inherent part of the industry's extraction operations. A large amount of resources is
dedicated to mining, extracting and processing ore grade material that contains less than one
percent primary metal. Therefore, the industry will seek to reprocess residuals derived .from
" their mineral processing operations that contain more than one percent copper to Tnaxiiniw
maximize their revenues from the extraction of that ore. Except for non-economical, or low-
value recoverable slags generated by some firms, many of the residuals generated during
beneficiation and mineral processing operations contain higher concentrations than the virgin
ore extracted from the mine.
I) Some Flue Dusts2 From the Primary Mineral Processing Industry Should Be
Classified Either as a Co-Product or Exempt Emission Control Residue.
Flue dust should be classified in this manner only when it is generated and recovered
in a primary production process with a metal content that is at least comparable to the normal
range of virgin feedstock. Normal range is a term to describe .the variance of metal(s)
content that is economically recoverable through a smelter or other processing operation and
the upper metallurgical tolerance'of undesirable contaminants (i.e., arsenic). In other words,
the co-product or exempt emission control residue should have roughly the same metal and
contaminant range as is found in the feedstock materials entering the same process. For
example, flue dust with high.metal concentration would .probably be reprocessed directly into
the smelter while low metal concentration could be reprocessed with virgin ore- at the
crushing/grinding.circuit; By establishing this exemption, we afford the primary mineral'
processing facility the flexibility to reprocess their flue dust where appropriate, while still
avoiding situations where-materials are recycled only to avoid potential disposal costs.
The results from the site visit and discussions with mining officials clearly suggest
that recovering high concentration flue dust from air pollution control equipment within the
'Presently, emission control dust may be a characteristic sludge exempt from
regulation. Under the Task Force recommendations, characteristic sludges would no longer
be exempt.
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primary mineral processing industry could be viewed as an integnil part of primary copper
production. In many instances, the recoverable copper content of flue dust can be comparable
to concentrate feedstock (approximately 30 percent) entering the smelter and much higher
than "run-of-the mine" ore.
Modern primary copper smelters are designed and operated! to collect and re-introduce
flue dust back into the process. Economics generally control the process location where the
flue dust should be reintroduced. At one facility visited, copper Was shown to be
recovered economically from flue dust in both the pyrometallurgical process (smelting) and
the hydrometailurgical process (the new acid leach plant). If the flue dust were classified as
a co-product or exempt emission control residue, the no land placement prohibition for these*.
materials would not apply. .''.*..'
2) High Concentration In-Process Materials Returned to the Primary Production
Process Also Should Be Classified as Co-Products or Intermediates.
: Materials of concern include reverts, molten slag and refractory bricks from smelting,
operations generated at primary mineral processing facilities. While these materials, may
require the interim step of being placed on the land for short periods of time before '
reintroduction into the processing operations, the metal and contaminant concentrations of
these materials are within the normal range of the virgin ore feedstock (which is placed on
the land as pan of normal industry practices). That is, these matenals hold recoverable
concentrations of the metal generally equal to but most likely greater than the concentration
of the ore grade material removed from the ground. These materials are processed to extract
their metal value, not to avoid disposal costs or to engage in sham
Reverts
recycling.
; Reverts are molten matte and copper spilled in the process of being transferred to
ladles from one pan of the smelting process to another in the converter aisle (from flash
furnace to convener to anode vessel)* This spilled material contains significant amounts of
cppper that .is collected periodically from .the aisles, sent to a storage area for cooling and
then reintroduced into the smelter for reprocessing. These materials should be considered in-
process materials exempt from the definition- of solid waste.
| Slags generated during smelting operations also can hold considerable concentrations
of ore greater than the concentration of the ore grade material removed from the ground. In
these situations, they are recycled to extract their metal value rather than being land
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disposed.3 Depending upon facility operations, these slags are reprocessed directly back
into the smelter or, in some cases, transported to storage and cooling areas for a short period
of time (24 to 48 hours) before reintroduction into normal reprocessing operations (e.g.,
crushing, grinding, and froth flotation). The residuals from this type of reprocessing are
disposed of with the ore tailings. However, most facilities dispose of slag in slag piles.
Slags irom the primary mineral processing industry are exempt (Bevffl exemption under 40
CFR 261.4(b)(7)) because of their high-volume/low-toxicity characteristics, and would
continue to be exempt under our proposal. "
. . The industry also has stated that technical and economic infeasibilky prevents them
' from placing the 1500 degree molten slag anywhere except the ground. Placing the slag on a
concrete pad would either break the pad or cause adhesion preventing further reprocessing.
Industry also has stated that the material is highly immobile and therefore not subject to
migration.
Refractory Bricks .
Periodically, furnaces at a smelter must be shut down to perform maintenance,
including replacing furnace bricks that have outlived their usefulness. These materials are
transported to storage areas where they are placed on the ground, screened and the valuable
material (the bricks laced with approximately 7 percent copper on average) reintrpduced into
the crushing/grinding or smelting circuit for reprocessing. At issue is whether these bricks
are spent materials or in-process materials. The Task Force believes these bricks are no
different from other residuals being reprocessed; they are in-process materials that should be
exempt from the definition of solid waste.
3) The No Land Storage Prohibition May Still Be Applicable To Certain Primary
Mineral Processing Operations. .
A major pan of the Task Force recommendations is that secondary materials cannot
be stored on the ground before or during recycling operations. -By tentatively concluding that
the materials discussed'above arc'in-process materials exempt from federal regulation, the
Task-Force is not rejecting the potential need for additional management requirements. Site-
specific factors may justify additional controls. .
%
*
The States have addressed the concern of placing materials on the ground by requiring
facilities to meet individual site air pollution control and groiindwater protection
requirements. These requirements apply to all materials handled by the facilities. Since the
Task Force has strongly recommended State flexibility hi applying oui requirements, any
concerns States may have can be addressed through these site-specific additional controls.
3Slags used for other purposes; e.g., road base, could be subject to to the
requirements for use constituting disposal.
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I
>.
should P0** out <** Par* of the primary mineral jLcessing industry
ma?agement controls "a Practices a* could be used to avoidI pla
the land of their in-process materials. We urge that these practices be adopted
4) "ToxicsiAlong For ITie Ride" Requiremenits Should Be Met By Producing
Commercial Grade Products. «««w«g
Industry has expressed serious concerns about our proposed
Ar>+ *Pl%** *TS»1.. t « . - - _. *
"toxics along for the
ride" to*t T-KO T i, c i ----- Fivi/uscu loxics aiong ror tne
ride test The Task Force wishes to ensure that recycling of wastes in production processes
n°m levels of tadc
thMK, o c con
than would be the case if ordinary raw materials or feedstocks were utilized in noductio*
We expect the primary mineral processing industry to be able to realdily pass this test by
manufacturing products, such as .copper cathodes, copper rod and siUfiiic acid that meet
existing mternational commodity specifications for those products, kore specifically we
eh' nVC / Pn?-^ miDe? PrOCeSSing facmty« or eve^ ** entire P^aryTdu^ were
at S ?t / 1SSUC' CX1Sting flUality ^^^^ assurancie prSedures estab^hed
the
K *?* * ^ ^^ soil ^PP^ents >nd sulfuric acid used in
of phosphate fertilizer, also should be able to pass a TAR test if quality
- ? C°mply Wlth 6XiSting ^^^ P^uct specifications are -
about comPO«tion and impurities contained in these
fie.
5) Materials, Such as Anode Slimes', Should Be Classified as Co-Products
(Intra-Industry) Facilities for
These materials would not be solid wastes. Copper concentrate is treated as a
commoduy that is traded between primary copper producers. Copper concentrate (like any
lead, zinc concentrate, etc.) also contains naturally occurring minerals or metals, including .
^ n^? /£" CVibe *?*?** " *"*" Primary product' m mtermediate product or
a co-product. (These minerals o? metals, including precious metals, lire residuals when
copper anodes are electrolyticly refined to produce copper cathodes.) Some primary metal
facilities have invested in process equipment to economically extract precious metals from
4 II
Lead anode sludges" are comparable and would be classified the same way.
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exhausted electrolyte solutions generated by captive and off-site producers of Conner
concentrate. *^~
On a per unit weight basis, these precious metals have greater economic value than
the primary metal being produced. Business arrangements have been developed under which
these materials are shipped off-site to another primary mineral facility for further processing
. or to a precious metals producer. Payment for these materials is made in the form of cash,
precious metals credits applied towards processing costs, tolling agreements, or toll
concentrate shipments between buyer and seller.
6) Inter-Industry Shipment of Secondary Materials For Uste as Supplemental Feedstock
In the Primary Mineral Processing Industry Should Be Classified as Category A5 When
Certain Conditions Are Met.
Specific conditions for operating under this category would include: (1) no storage
prior to recovery; (2) the supplemental feedstock is in the normal range of smelter feed
materials being recycled; (3) no more than 50 percent of the feedstock was received from
secondary, off-site sources, and (4) the secondary materials are listed hazardous wastes
only.6 'Of particular concern is the "normal range" of smelter feed materials. The Task
Force believes that supplemental feedstock for a smelter should be in the same metal range as
the virgin feedstock material. As previously discussed, the normal range is a term to
describe the variance of metal(s) content that is economically recoverable through a smelter
or other primary production operation and the upper metallurgical tolerance of undesirable
contaminants (e.g., arsenic).
Without this cut-off value, the primary mineral processing industry could recycle
materials from off-site that contained very low concentrations of the mineral they wanted to
extract. This would raise questions about whether the processing was occurring in order to
recover metal or avoid disposal costs.
5 Category A requirements are minimal and include State notificationi biennial
reporting, and use of a recyclable materials manifest in transporting the secpndary material to
the primary mineral processing facility. The primary mineral processing facility also would
be -subject to a call-in by the State or EPA to address any concerns they might have with
toxics along for the ride (TAR). Again, we believe industry will meet TAR requirements by
producing products that meet international metal standards.
Characteristic wastes will be addressed in any subsequent analysis on this subject.
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