April 45 1983
Part "II
Environ mental
Protection Agency
Hazardous Waste Management System;
Proposed Rule !
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14472
Federal Register / Vol. 48, No. 65 / Monday, April 4,1983 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 260,261,264,265, and
266
[SWH-RRL 2116-3]
Hazardous Waste Management
System: General; Identification and
Listing of Hazardous Waste; Standards
Applicable to Owners and Operators
of Hazardous Waste Treatment,
Storage, and Disposal Facilities;
Interim Status Standards for Owners
and Operators of Hazardous Waste
Treatment, Storage, and Disposal
Facilities; and Standards'for the
Management of Specific Wastes and
Management Standards for Specific
Types of Facilities
AGENCY; Environmental Protection
Agency,
ACTION: Proposed Rule and Request for
Comment.
SUMMARY: On May 19,1980, as part of
its final and interim final regulations
implementing Section 3001 of the
Resource Conservation and Recovery
Act of 1976 (RCRA), the U.S.
Environmental Protection Agency [EPA)
promulgated a definition of solid waste
which, among other things, specifies the
materials that are solid wastes when
recycled. "Hie Agency is today proposing
to amend this definition in response to
public comments. The proposed
amendment will target the regulations
more directly at those hazardous waste
recycling operations which the Agency
believes pose environmental and human
health concerns.
In addition, the Agency is proposing
general management standards for
persons managing recycled hazardous
waste and, in some cases, is tailoring
the management standards for specific
wastes and specific types of facilities or
activities. The effect of these changes
will be to encourage recycling of
hazardous wastes while at the same
time protecting human health and the
environment from the improper
management of recycled hazardous
wastes.
DATES: EPA will accept public
comments on this proposed amendment
until August 2,1983.
ADDRESSES: Comments on this proposal
are welcome and may be mailed to the
Docket Clerk, Office of Solid Waste
(WH-562), U.S. Environmental
Protection Agency, 401M Street, S.W.,
Washington, D.C. 20460.
Communications should identify the
regulatory docket number "Section
3001/Definition of Solid Waste."
The official record for this rule making
is located hi Room S-269C, U.S.
Environmental Protection Agency, 401M
Street, S.W., Washington, D.C. 20460
and is available for viewing from 9:00
a.m. to 4:00 p.m., Monday through
Friday, excluding holidays.
HEARINGS; Three public hearings—one
in Washington, D.C., one in Chicago,
Illinois, and one in San Francisco,
California—will be held on this
proposal. The schedule and location for
the hearings are as follows:
Jurve 16,1983—Department of Health
and Human Services, Auditorium, 230
Independence Avenue, S.W.,
Washington, D.C.
June 21,1983—The Westin Hotel,
Michigan Avenue at Delaware,
Chicago, Illinois.
June 23,1983—Golden Gate University,
Auditorium—2nd floor, 536 Mission
Street, San Francisco, California.
The hearings will be held hi each
location between 9:00 a.m. and 4:00 p.m.
unless concluded earlier, with
registration at 8:30 a.m. Anyone wishing
to make an oral statement at the hearing
should notify, in writing: Mrs. Geraldine
Wyer, Office of Solid Waste (WH-562),
U.S. EPA, 401 M Street, S.W.,
Washington, D.C, 20460.
Please indicate at which hearing
[location) you wish to make your oral
statement. You must restrict your oral
statement to ten minutes and should
have written copies of your complete
comments for inclusion in the official
record. You may also submit your
written comments at the public hearings.
FOR FURTHER INFORMATION CONTACT:
RCRA Hotline, toll free, at (800) 424-
9346 or at (202) 382-3000. For technical,,
information, contact Matthew A. Straus,
Office of Solid Waste (WH-565B), U.S.
Environmental Protection Agency, 401 M
Street, S.W., Washington, D.C. 20460, .
(202) 382-4770.
SUPPLEMENTARY INFORMATION:
Outline
Part I:. Determining Which Materials Are
Hazardous Wastes When Recycled
I. EPA has authority under RCRA to regulate
hazardous wastes that are recycled
H. The Agency's strategy in exercising its
authority over hazardous wastes that are
recycled
in. The Agency's existing definition of solid
waste
IV. The proposed amendment to the
definition of solid waste
A. Changes in Overall Approach Between
the Proposed and the Existing Definitions
^ B.. An Overview of the Proposed Definition
1. Materials That Are Solid Wastes
2. Materials That Are Not Solid Wastes
3. Exemptions for Certain Recycling
Activities
C. The Agency's Decision to Reject a
Standard Based on the Value of the
Recycled Material
D. Materials Burned to Recover Energy
V. New definitions relating to burning of
hazardous waste
VI. Discussion of specific provisions of the
revised definition of solid waste
A. Proposed § 261.1(b): Purpose and Scope
B. Proposed § 261.2(a)(l)
C. Proposed § 2B1.2(a)(2)(i): Wastes That
Are Used in a 'Manner Constitution
Disposal _ '
D. Proposed §§ 261.2(a)(2)(ii) and
261.6(b)Cl)(v): Wastes That Are Burned
to Recover Energy, Are Used to Produce
Fuels, or Are Contained in Fuels
E. Proposed § § 261.2(a)(2)(iii), 261.2(c)(l), •
and 261.6(b)(l) (i) and (ii): Wastes That
Are Reclaimed
1. The Proposed Provisions
2. The Meaning of "Reclamation"
3. The Distinction Between "Use" and
"Reclamation"
4. Exception for Materials Reclaimed at
the Plant Site and Returned to the
Original Manufacturing Process
5. The Status of Reclaimed Products
F. Proposed §§ 261.2(a)(2)[iv) and
261.2(c)(2); Wastes That Are
Accumulated Speculatively -
G. Proposed §§ 261.2(a)(2)(v) and
261.2(c)(3): Materials That Accumulate
Without Sufficient Amounts Being Used,
Reused, or Reclaimed '
H. Proposed §261.2(a){3)^Spent Materials,
Sludges, and By-products To Be Listed as
Solid Wastes "
I. Proposed §261.2(d): Record-keeping
Provisions
Part II: Standards for Managing Hazardous
Wastes That Are Recycled
I. The Agency's existing standards for
managing hazardous wastes that are
recycled and the Agency's rationale for
the proposed revisions
II. An overview of the proposed regulations
in. Discussion of specific provisions of the
proposed regulation
A. Proposed §261.2(a): Regulated
Recyclable Materials
B. Proposed §261.6(b): Exemptions
1. Proposed §§261.6(b)(l) (i) and (ii), and
261.6(b)(2), and 261.6(g): Exemption of
Hazardous Wastes Reclaimed by the
Person Who Generates Them, or
Reclaimed by a Person Other Than the
Generator for That Person's Subsequent
Use •-•.'•
2. Proposed §261.6[b)(l)(iii): Exemption
of Regulated Recyclable Materials Used
for Precious Metal Recovery
3. Proposed §261.6(b)(l)(iv): Exemption of
Regulated Recyclable Materials Being
Reclaimed Under Batch-Tolling
Agreements . .
4. Proposed §261.6(b)(l)(v): Temporary
Exemption of Regulated Recyclable
Materials Being Burned as Fuels, Being
Used to Produce Fuels, or That Are
Contained in Fuels
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Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposeid Rules
14473
5. Proposed |261.6(b)(l)(vi): Temporary
Exemption of Recycled Used Oil
6. Proposed §261.6(b](l)(yii): Exemption
of Used Batteries Returned to a-Battery
Manuracturer for Regeneration
C. Proposed § § 261.6 (c) and fdj: Specific .
Management Standards for Generators,
Transporters, and Storers of Hazardous
Wastes That Are Recycled
D. Proposed §261.6{e): Management
Standards for Hazardous Wastes Used in
! a MannerThat Constitutes Disposal'
E. Proposed §261.6(f): and Subparts G and
D of Part 266
^Proposed § §261.6(f)(l) and 266.20:
Regulated Recyclable Materials
Reclaimed Under Nonbatch-Tolling
Agreements
2. Proposed §§261.6(5(2) and 266,30:
Management Standards for Spent Lead-
Acid Batteries Being Reclaimed
IV. Standards applicable to the various
activities constituting waste management
under the proposed definition of solid
waste ^. -,•'
'V. Possible inclusion of a variance provision
VI. Eligibility of owners or operators of
recycling facilities for interim status
Part III: Miscellaneous
I. Regulatory impact \
II. Regulatory Flexibility Act
•III. Paperwork Reduction Act
IV. List of Subjects in 40 CFR Parts 260, 261,
264, 265, and 266
In implementing the hazardous waste . '
management subtitle of RCRA, the
Agency has found that "recycled"
hazardous wastes pose a special
problem. (Throughout this preamble,
"recylcing" refers generally to using,
reusing, or reclaiming a'waste. This term
: is not used in the proposed regulation
itself.
We describe later on the differences
between "use", "reuse", and
"reclamation." On one hand, through
RCRA, Congress authorized the Agency
to regulate hazardous wastes that are
being recycled. When improperly
managed, such wastes have caused-
many damage incidents. On .the other,
RCRA is intended to encourage resource
conservation and recovery, and any
regulatory regime should take this goal
into account to the extent that adequate
control of hazardous waste management
is not jeopardized. The interim final
rules published on May 19,1980, • ,
attempted to meet both of these often
conflicting objectives (see 40 CFR 261.2
and 261.6). However, the Agency now
believes that this attempt was not
completely satisfactory, and accordingly
is proposing the revision described in
this preamble. .,
Parti: •;.:'-._/,. _,;-"... . ' -' " ^ .'
• Summarizes the Agency's legal .
authority to regulate recycled materials
as hazardous, wastes under Subtitle C;
• Explains why we are exercising this
authority; " - • ,,
• Discusses the existing regulation
and the reasons for amending it; and •
• Describes the proposed definition,
first generally, and then provision by
provision. ,The new definition defines
which materials are hazardous wastes
when recycled—and the types of
recycling activities deemed to constitute
hazardous waste management. This part
of the preamble also explains which
hazardous1 waste recycling activities are
subject to regulation, and which are
exempt. •
PartH:
• Explains the reorganized and
revised management standards for : •
persons .managing recycled hazardous
wastes. •' . -
Partlll:
.f Discusses the proposal's projected -.-
regulatory impact; .
• Explains why the proposal does not
constitute a major rule under Executive
Order 12291; and
• Explains oiir compliance with the
Regulatory Flexibility Act and the
Paperwork Reduction Act.
Part I: Determining Which Materials Are
- Hazardous Wastes When Recycled
I. EPA Has Authority Under RCRA To
Regulate Hazardous Wastes That Are
Recycled
Because no material can be a
"hazardous waste" without first being a
"solid waste" (Section 1004(5)), a
definition of solid waste is the
necessary starting point for the
hazardous waste management system.
Solid waste is defined in Section
-1004(27) of RCRA as:
any garbage, refuse, sludge from a waste
treatment plant, water supply treatment,
plant, or air pollution control facility and
other discarded material, including solid,
liquid, semisolid, or contained gaseous
material, resulting from industrial,.
commercial, mining, and agricultural
operations, and from community
activities * * *
This definition does not explicitly
state that a material being recycled (or
destined for recycling) is a solid waste
'and, if hazardous, a hazardous waste.
However, reading the definition in••• •
conjunction with other parts of the
statute and with the legislative history
(as well as with subsequent expressions
of congressional intent) makes it clear
that Congress indeed intended that
materials being recycled or held for
recycling can be wastes and, if
hazardous, hazardous Wastes.
In this regard, the many statutory
definitions dealing with resource .
recovery are particularly significant.
These indicate unequivocally that
recycling involves reclaiming material or
energy from '"solid waste", .
demonstrating that a material being
recycled can be a solid waste within, the
meaning of Seiction 1004(27); In addition
to this express statutory language, there
is already a body of judicial precedent
that upholds RCRA hazardous waste
jurisdiction over persons engaged in
recycling actridties (including seventeen
cases to date'where courts have
exercised jurisdiction in actions
instituted under Section 7003 of RCRA
against recycling,facilities). '•-•-'
Not only can materials destined for.
recycling or being recycled be solid and
, hazardous wastes,.but the Agency - •
clearly has the authority to regulate
recycling activities as hazardous
. management. EPA possesses the
authority to regulate under Subtitle C
the storage, treatment, and disposal^of
hazardous waste. Hazardous waste
recycling and .ancillary activities are •
within the statutory meanings of these
terms. RCRA'ii legislative history
likewise shows that Congress •
specifically intended Subtitle C
regulations to control unsafe recycling of
hazardous waste. In any case, it would
make little semse to allow that recycled
materials can be hazardous wastes ;
under RCRA (us shown in the paragraph
above) but then to deny that Congress
intended these wastes to be regulated
under the Subtitle C regulations.
, These points are developed jfully in
Appendix A to this preamble. We have
concluded that recycled materials can
be hazardous wastes under RCRA and
can be regulated under the Subtitle C
regulations. Tiiis conclusion fully agrees
with the statute's paramount policy
objective; to control the management of
hazardous waste from its generation to
-its final disposition. '
II. The Agency's Strategy in Exercising
its Authority Over Hazardous Wastes
.That are Recycled
To determine that recycled materials
can be solid arid hazardous wastes does
not answer the question of. precisely
which materials are Wastes. Sections
IV., V., and VL; of the preamble explain
'pur views as to the extent of our
authority. Nor does it answer how we
are to exercise our authority. We
explain in this section the general
considerationsvthat shaped our thinking
on this question. We also go on to refute ,
the argument that hazardous wastes that:
are recycled do not require any •
regulation becEiuse they are inherently / '
valuable and do not pose significant
environmental risks. . - '
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Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
The Agency is convinced that there is
a compelling need to exercise the
authority granted by Congress. The
paramount policy objective of RCRA is
to control the management of hazardous
. waste fromm point of generation to
point of final disposition. Further,
wastes destined for recycling can
present the same potential for harm as
wastes destined for treatment and
disposal (see the preamble to Part 261,
45 FR at 33091, May 19,1980). That is, in
many cases, the risk associated with
transporting and storing wastes is
unlikely to vary whether the waste
ultimately is recycled, treated, or
disposed of. Similarly, using or reusing
wastes by placing them directly on the
land or by burning them for energy
recovery may present the same sorts of
hazards as actually incinerating or
disposing of them.
This is not to say that hazardous
waste recycling always must be
regulated in the same way as other '
types of hazardous wastes management.
There are certain types of hazardous.
waste recycling that pose diminished
environmental risks, for example, where
recycled wastes—because they are
valuable—are dealt with much like raw
materials.
The Agency also acknowledges the
strong statutory policy to encourage
recycling, and believes this policy
applies even when hazardous wastes
are involved. This is especially true
when a recycling activity provides a
reduced potential for harm. In these
situations, the Agency is proposing not
to regulate particular recycling
activities, but to conditionally exempt
those recycling activities where existing
commercial or marketing incentives
appear sufficient to protect against
substantial environmental harm. [We
explain specifically how we are doing
this in sections IV and VI of this part of
the preamble.) In this way, we avoid
regulations that could discourage
recycling without significantly
Increasing overall environmental
protection. At the same time, we believe
these proposed regulations fulfill the
overriding statutory mandate to regulate
hazardous waste management as may
be necessary to protect human health
and the environment.
Some recycling activities pose a much
greater potential for harm than others,
and we are proposing regulations, or are
developing regulatory controls, to guard
against these risks. There are three such
activities: (1) Those where wastes are
recycled in a manner analogous to
disposal or incineration; (2) those where
wastes are overaccumulated before
recycling; and (3) those where recyclers
cannot guarantee an end market for
their recycled materials—specifically
where wastes are regenerated or
recovered by reclaimers who did not
generate the reclaimed material and are
not themselves going to use, it. The
proposed regulations, for the mdst part,
are targeted at these activities.
Some commenters, however, question
whether the Agency should regulate any
form of hazardous waste recycling. They
maintain that recycled wastes ae
inherently valuable because they are not
being thrown away, and so will not be
mishandled. This argument goes much '
too far. In fact, recycling operations
account for some of the most notorious :
hazardous Waste damage incidents—-
including nearly one-third of the 61
imminent hazard actions filed to date
under Section 7003 of RCRA, and 20 of
the first 160 interim priority sites listed
under the Comprehensive
Environmental Response,
Compensation, and Liability Act
(Superfund). Appendix B to this
preamble summarizes the damage
incidents known to the agency involving
recycling of hazardous wastes, briefly
describing the recycling operations, die
types of wastes being recycled, and the
types of contamination caused. It is
important to note that these incidents
did not involve sham operators who
merely held themselves out as recyclers
but in reality disposed of an intended to
dispose of the waste received. Rather,
Operators of these damage sites
engaged in some recycling and meant to
recycle the wastes they received.
Facilities that recycle hazardous
wastes have caused serious health and
environmental problems by directly
placing the wastes on the land and by
burning the wastes as fuels or burning ;
waste-derived fuels. Improper storage,
overaccumulation of inventory, and
unsafe transport before recycling have
also been recurring problems where the
facilities are indepedent reclaimers—
i.e., reclaimers who do not generate the
waste and do not use the reclaimed
material.1 The resulting damages include
'The sources for these damage incidents are
found in appendix B unless otherwise noted. In
addition, certain statements are taken from
• allegations in the government's verified complaints
in RCRA Section 7003 actions. The agency
recognizes that the courts must decide ultimately
whether these allegations have been proven, and
we stress that in citing these allegations we are not
seeking in any way to prejudice the outcome of
these actions. At the same time, these statements
are based upon the Agency's investigations of the
sites in question, and the agency believes them, to
be factually accurate. In any case, we are citing
these allegatiohs to demonstrate that there is a need
for regulation in this area, not to ascertain the
potential liability of particular facilities.
contamination of soil, ground water,
surface water, and air. In the case of
indiscriminate storage of-incompatible
wastes (such as oxidizers and
flammables, or acids and cyanides)
before recycling, fires and explosions
have also been a recurring
circumstance. In addition, since many of
these recyclers have failed to label or
otherwise document then- incoming
materials, later cleanup efforts have
been extremely difficult.
A number of these recyclers are •
located in metropolitan areas, resulting
in a risk of immediate exposure to large
numbers of people if wastes are
mismanaged. Damage incidents caused
by independent recycling facilities in
Cleveland and Hamilton, Ohio; Gary,
Indiana; and Columbia, South Carolina
are examples of the Agency's concern.2
Perhaps the archetypal damage case
involving an independent hazardous
waste recycler is the incident involving
the Chem-Dyne Corporation. Located in
Hamilton, Ohio, Chem-Dyne was in the
business of obtaining organic wastes
and blending them to form."Chem-Fuel",
a fuel substitute. Chem-Dyne also
engaged in waste Reclamation. The
company overaccurimlated huge
amounts of these materials. The site
constituted a dangerous'fire hazard due
to the improper storage of flammable
organic materials, and there were in fact
a number of fires at the plant. In
addition, many of the accumulated
drums leaked excessively. As a result,
some'of the chemical wastes present
(including benzene, 1,2-dichloroethane,
trichloroethane, and other toxic and
carcinogenic wastes) contaminated both
surrounding soils and the ground water.
Volatilizing toxicants have polluted the
air. Surface cleanup costs are estimated
at $3.5 million; ground Water cleanup
costs have not yet been estimated. The
company is in receivership.
The cleanup costs for other incidents
also are very high. Although reliable
cost estimates are not yet generally
available for most of the sites, costs at a
number of sites already have proven
considerable: $30 million for cleanup of
the Seymour site; over $1 million at the
Midco site for surface cleanup, with an
unknown amount needed to complete
the cleanup; $2.9 million to date at the
Silresim site; and $1.7 million to date at
the Ottati and Goss/Great Lakes
Container Corp. sites. At the Laskin
Greenhouse site, approximately $1.7
million has already been spent;
additional work'is anticipated. Most of
'Damages and Threats Caused by Hazardous
Materials Sites, U.S. Environmental Protection
Agency, EPA/430/9-80/004, January 1980.
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Federal Register / Vol. 48, No. 65 /Monday, April 4, 1983 -/-Proposed. Rules
14475
the fecyclers involved' in these incidents
are either bankrupt or have insufficient
funds to meet cleanup expenses. .
We consequently have determined
that some exercise of our authority is
necessary to protect human health and
the environment. Before explaining how
we are proposing to craft these
standards, however, we discuss briefly
the Agency's current regulations
defining which recycled materials are
solid wastes, and how these materials
are to be regulated.
III. The Agency's Existing Definition of ,-
Solid Waste
The key feature of the existing
definition of solid waste states that
certain materials, are always solid
wastes, irrespective of. whether they are
disposed of or are destined for
recycling. These materials are garbage,
refuse, sludge, materials that have
served their "original intended use and
''sometimes {are) discarded," and
manufacturing or mining by-'products
that "sometimes (are) discarded." (See <•'
40 CER 261.2 (a) and (b); see also the
preamble to Part 261, 45 FR, at 33093,
May 19,1980.} .
Thus, thV existing regulations
establish broad jurisdiction oVer
recycled materials and recycling
operations, although this is tempered by
regulating quite narrowly (see 40 CFR '
261.6). There are several problems'with
this approach.:
First, materials within the terms of the
existing definition are considered to be
solid waste, even if they are being
recycled in a manner not ordinarily
thought of as waste management. For
example, bottom, ash from utility boilers
(a by-product] being used as an
ingredient in concrete is considered to
be a solid waste because it is .
"sometimes discarded". A sludge used
similarly also would be a waste because
all sludges are defined without
exception as solid wastes.
Second, the "sometimes discarded"
test sweeps many product-like materials
into the solid waste net—unless the
material is never, thrown away.
Although the Agency never intended to
call these "legitimate by-products" solid
wastes, a zealous but literal reading of
the regulation yields this result.
Some critics took this point even
further; since all materials are
eventually thrown away, everything is
"sometimes discarded" and potentially
a solid waste. Another criticism was
that under this standard generators may
have to find out how all other generators
are managing the same material—an
often difficult or even impossible • '•'
undertaking. . •
Commenters also argued against
regulating materials that are reused or .
reclaimed by their generator. The
generator, they argued, can ensure that,
such materials are handled safely,
because he will have a,definite plan to
use the materials productively, and can
control their disposition. Unrelated
parties, by contrast, cannot guarantee a
final use or disposition for their
reclaimed materials (such as a buyer for
their reclaimed solvents) and so are
more prone kroveraccumulate or
mishandle the wastes they take in. This
argument finds empirical support in the
damage cases* since most known
incidents were caused by independent
recyclers who accepted secondary
materials for reuse or reclamation,
rather than by generators accumulating
, secondary materials for their own reuse
(although generators remain capable of
pveraccumulating these materials).
The Agency was aware of a number
of these problems when it adopted the
May 19 definition. To mitigate them, we
regulated quite narrowly. (See 45 FR at
33094.) Under 40 CFR 261.6, persons
engaging in recycling operations are
subject to regulation as hazardous waste
generators, transporters, or storage
facilities only if they are handling a :
hazardous sludge or a.material listed as
hazardous in 40 CFR 261.31 or 261.32.3
At the time of promulgation, the Agency
believed that all such materials were'
. waste-like and should be regulated
accordingly when recycled in any way.
.(Id.} '.".. ,
We were less confident, however,
about materials that are hazardous
wastes only by virtue of exhibiting a
characteristic. The rule therefore
excludes from regulation such materials
'(other than sludges) when they are
beneficially recycled. (See 40 CFR ,
261.6£a).J In addition, listed wastes and
sludges are regulated up to, but not
including, the point of recycling. Thus,
when these wastes are destined f5r
recycling, their transportation and
storage is regulated, and generators of
these materials must meet the Part 262
generator standards. (See 40, CFR
261.0(b).)
Despite these mitigating features in
the current regulations,, the Agency :
would like to amend the definition of
solid waste/We wish to remove
materials being reused as ingredients in
production processes and product-like
sludges and by-products from the solid
waste category. We also wish to target
the regulations more directly at the class
of recycling operations that, so far as we
know, present substantial
environniental risks. At the same timej-
we wish to regulate both characteristic
and listed hazardous wastes to the .
extent that they are recycled in a way "
likely to pre.sent substantial
environmental concerns. As noted
above, the distinction in the present
§ 261.6 exists only to mitigate the sweep
of the current defintion, not because ,
wastes that exhibit a'characteristic
present less ;of a hazard than listed ,.
wastes or sludges. '--•-.-
The next Elections of this preamble
describe in broad outline arid in detail
the approach developed by the Agency
to achieve these objectives.4
IV. The proposed Amendment to the
Definition of Solid Waste ,
A. Changesin Overall Approach
Between the Proposed and the Existing .
Defintions r
The proposed amendment would
make several important changes in the
defintion or solid waste. First-^and
perhaps mbSit fundamental—the
amended'defintion would no longer base
a material's ^tatus as solid waste on
whether it is "sometimes discarded".
Instead, a recycled material's regulatory
status would depend upon both what
the material is and how it actually is
managed—^and the status could vary
with the mejins of recycling. For
example,-and electroplating wastewater.'
treatment sludge used as an ingredient
in a manufacturing process would not be
a solid waste, whereas the same sludge
being applied directly to the land fop
land reclamation would be. This change
in regulatory approach meets one of the
chief criticisms raised in the comments.
Second, we have tailored the
accompanying management standards
so as to regulate only'those recycling
activites-^—or those particular aspects of
recycling activities—that pose a
significant potential for environmental
harm. The principal example is
reclamation where this activity is
conducted .by the generator5 of the
3Of course,'any waste from the recycling •
operation is an ordinary RCRA waste, and if
hazardous, is subject to regulation under all of the
Subtitle C regulations. In such a case, the recycler is
at least a generator, and may be a storage,
treatment, or disposal facility, depending upon the
disposition of its waste.
4The Agency has been assisted greatly in its
efforts by petitioners and their counsel in settlement
negotiations in Shell Oil v. EEA fD.G. Cir, Nc> 80-
1532) (litigation challenging EPA's May 19,1980,
hazardous wastij regulations). Factual material
obtained during settlement discussions has been
placed in the public docket. '" '
6For the sake of convenience, EPA is using the
terin. "generator1? throughout this preamble to mean
the person generating the waste in question. Term is
not used in its regulatory sense (see § 260.10(a)J.
The Regulation itself does not speak of -~
"generators" because it applies to "persons" not
merely to individual sites, "Person" is defined in 40
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14476
Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 -/- Proposed Rules
waste, or by a person who subsequently
uses the reclaimed material in his own
operation.
B, An Overview of the Proposed
Definition.
1. Materials That Are Solid Wastes.
The revised definition of solid waste
sets out 'the Agency's view of its
jurisdicUon over the recycling of
hazardous waste. The definition, of
course, continues to define as solid
wastes those materials that are disposed
of, burned, or incinerated—or stored,
treated, or accumulated before or in lieu
of these activities. Proposed § 261.6 then
contains exemptions from regulation for
those hazardous waste recycling
activities that we do not think require
regulation.
As discussed above, the revised
definition of solid waste indicated that
particular materials being recycled are
solid wastes if recycled in specified
ways. In other words, to know if a
material being recycled is a solid waste,
one must know both what it is and how
it is being recycled.
The definition states that five types of
recycling activities are within EPA's
jurisdiction:
• Use constituting disposal; this
activity involves the direct placement of"
wastes onto the land.
• Burning waste or waste-derived
fuels for energy recovery, or using
wastes to produce a fuel.
• Reclamation; this activity involves
regeneration of wastes or recovery of
material from wastes.
* Speculative accumulation; this
activity involves accumulation of wastes
that are potentially recyclable, but for
which no recycling market (or on
feasible recycling market) exists. .
* Accumulation without sufficient
amounts of stored material being
recycled; this activity involves
accumulation of secondary materials for
CFR 200.10 to Include corporations (among other
entitle*). Thus, an entity with a single corporate
•trucluro but multiple sites is a single person for
purpose* of this regulation. Conversely, an entity
with a separately Incorporated affiliate is not single
potion, [Tills distinction Is particularly significant in
the provision conditionally exempting from
regulation materials reclaimed by the person
generating them and materials reclaimed by a
pcnsn for that person's own subsequent use.)
The defintion of "person" also idudes all Federal
Agencies. A Dumber of agencies, particularly the
Department of Defense, have numerous and highly
diverse operations located nationwide. RCRA
enunciates a strong Congressional policy that
hazardous waste management conducted by federal
facilities comply with all federal, State, interstate, •
and local rtqurtemenU respecting hazardous waste
management (RCRA. Section 6001). Wholesale
exemption of federal agencies because they are
"persons" thus may be Inappropriate. EPA is
investigating alternative approaches, and solicits
comment on this point.
one year without'75% being recycled
during that time.
These categories then are divided
further according to the type of waste
involved—spent materials, sludges, by-
products, or commercial chemical
products.
"Spent materials" (proposed
§ 261.2(b)(l)) are materials that have
been used and are no longer fit for use
without being regenerated, reclaimed, or
otherwise re-processed. Examples are
spent solvents, spent activated carbon,
spent catalysts, and spend acids.6
"Sludges" are defined in RCRA and
the implementing regulations as residues
from pollution-control processes. (See
RCRA Section 1004(26A) and 40 GFR
§ 260.10.) The statute further indicates
that sludges include not onlythese
materials but "other such waste having
similar characteristics and effects." The
Agency interprets this language as
covering pollution-control residues other
than those types listed specifically in the
statutory definition.
"By-products" are defined essentially
the same way as in the existing
definition to encompass those residual
'materials resulting from industrial,
commercial, mining, and agricultural
operations that are not primary products
and not produced separately (proposed
i 261.2(b)(3)). As used in the definition,
the term is a catch-all, and includes
most wastes that are not spent materials
or sludges. Examples are process
residues from manufacturing or mining
processes, such as distillation column
residues or mining slags.
"Commercial chemical products" are
the commercial chemical products and
intermediates, off-specification variants,
spill residues, and container residues
listed hi 40 CFR 261.33. As explained
more fully below in Section VI. A. and B.
in this part of the preamble, although
these materials ordinarily are not
wastes when recycled (see 45 FR at .
• 78540-541, November 25,1980), we are
proposing to include them as wastes
when they are recycled in ways that
differ from their normal use.
One difficulty in characterizing these
types of waste is that certain sludges
and by-products are more product-like
than waste-like. Examples are
hydrofluorosilicic acid from
• manufacture of phosphoric acid (a
sludge commonly used to fluoridate
drinking water), by-product turpentine
from paper manufacture, and various
by-product metals from primary copper
manufacture. These product-like sludges
and by-products are potentially subject
to regulation under the reclamation .
provision in the definition because they
cannot be put to direct use but first must
be regenerated or recovered. Similarly,
certain commercial fuels that technically
are by-products remain potentially
subject to regulation under the
definition's burning-as-fuel provision.
The Agency sp far has been unable to
devise a narrative standard that
convincingly distinguishes between
reclamation of product-like and waste-
like sludges and by-products, or a
standard that adequately distinguishes
between legitimate by-product and
waste by-product fuels. ' To solve this
dilemma, the.Agency has structured the
regulation so that not all sludges and by-
products are wastes when reclaimed,
and not all by-products are wastes when
burned as fuels or used to produce fuels.
Rather, we will list those sludges and
by-products that are solid wastes when
reclaimed, and those by-products that
are-solid wastes when burned as fuels
or used to produce fuels. The list, at
least for the time being, will be co-
extensive with the hazardous sludges
and by-products listed in 40 CFR 261.31
and 261.32 of the regulations. The
Agency has examined each of these
materials, and is convinced that they
typically are wastes when reclaimed or
when burned as fuels (see the preamble
to Part 261, 45 FR at 33094, May 19,
1980). .
Putting all of this together, spent
materials, sludges, byproducts, and
commercial chemical products are
considered to be solid wastes when they
are recycled in any one of the following
ways:
(1) Used or reused in a manner
constituting disposal via direct
placement onto the land; this provision
applies to all spent materials, sludges,
and by-products. It also applies to
'Refuse and garbage likewise are spent materials
(although they rarely, if ever, would be hazardous
wastes). In any case, refuse and garbage ordinarily
are not subject to regulation under Subtitle C of
RCRA because they are household wastes (see 40
CFR261.4(b)(l)J.
'The problem is to distinguish between materials
of a residual character that habitually have been
disposed of and secondary materials that the
industrial community ordinarily uses as
commodities in commerce. Any regulation using this
type of standard, however, is probably too
judgmental to be generally applicable. Further, as
noted already, a standard based upon whether
secondary materials are put to direct commercial
use also is unlikely to work, because most materials
must be processed or reclaimed before use.
However, the Agency solicits comments as to an
appropriate narrative standard. We request
specifically that commenters address a possible
standard which would indicate that secondary
materials are wastes when (i) they contain
significant levels of non-recyclable toxic
constituents, and (ii) these constitutents are not
customarily found in raw materials or products for
which the secondary materials are used as
substitutes.
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Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
14477
commercial chemical products (and
relatedmaterials) applied to the land in •
lieu of their intended use; •
(2) Burned for energy recovery -
(including when burned as a component
of a-waste-derived fuel), or .used to
produce a'fuel; this provision applies to-
all spent materials, sludges, and listed :
by-products. It also applies to • ,__
commercial chemical products, (and
related materialsj'burned as fuels in lieu
of their.: intended use; . : -.--••;
(3) Reclaimed; this provision applies
to all spent materials, and to the sludges
and by-products that are listed in 40
CFR 261.31 or 261.32.
(4)-Accumu].ated for recycling without
a specific market existing for the
material (speculative accumulation); this'
provision applies to all spent materials,
.sludges, and by-products; and"
•(5) Accumulated for recycling without
sufficient amounts being recycled; this
provision also applies to all spent
materials, sludges, and by-products.
2. Materials That Are 'Not Solid
Wastes. Not all recycling activities
potentially involve waste management.
The definition excludes from the
concept of reclamation three activities
involving direct use or reuse of
secondary materials. These activities
ordinarily will not be considered to
involve waste management. In addition;
we state specifically that one type of
reclamation operation is an activity
outside the Agency's jurisdiction over
recycling. These activities are:
{i} Using or reusing secondary
materials as ingredients or feedstocks in
production processes. Examples .are
using fly ash as a constituent in.
cement, * or using distillation bottoms
from carbon tetrachloride manufacture"*-
as a feedstock in producing
tetrachloroethylene. The Agency is
convinced that in these and similiar
circumstances, the recycled materials
are usually functioning as raw materials,
and therefore;ordinarily should not be
regulated under Subtitle C.
(2) Using secondary materials as
substitutes, for raw'materialsin
recovery processes that usually use raw
materials as, feedstocks—even though_
material values are recovered from the
secondary materials as an end-product
of the process (for example, when
secondary materials are smelted at
primary-smelting facilities). Because the
secondary materials are merely
substitutes for the primary material
ordinarily used in an essentially primary.
material-based process, the Agency .
does not regard such processes as
involving waste management. ...... -.
(3) Using or reusing,secondary
materials as substitutes for commercial
products. Examples mentioned in the
public comments are spent solvents
used as roofing materials and by-
product hydrochloric acid from chemical
manufacture used in steel pickling. In
these examples, the recycled.materials
are substituting for other commerical
products, and material values are not
being recovered from them.
(4) Reclamation conducted at a single
plant site when the reclaimed material
is reused within the original process in
which it was generated, Inthil situation,
._ secondary materials are not used or,
reused directly, but are reclaimed first.
However, where reclamation occurs
at the plant site and the reclaimed ,
materials are returned'to the original
.process in which they were generated,
the entire set of operations is really a
closed-loop type of process. Regulating
the reclamation step thus could amount
to regulating an on-going production
process. " ._.-...V
.3. Exemptions for Certain Recycling
Activities, We also have chosen to
conditionally exempt from regulation
certain recycling activities that do,
constitute waste management. The most
important of these exemptions are
regulations governing storage and
transportation 9 of wastes in the
following situations:
• When wastes are reclaimed by their,
generator;
• When wastes-are reclaimed by a ,
reclaimer who subsequently uses the
reclaimed material;
• When non-listed spent materials are
burned as fuels (either by their
generator or by another person). 10
In these situations, there appears to
be a significantly reduced risk of waste
mismanagement, because the generator
or ultimate user has decided to retain
control of the recycled waste and, thus,
can assure a market for the recycled
materials. Our investigation of
hazardous waste recycling activities
indicates that improper storage,
.overaccumulation, and subsequent
-damage have been associated with
reclamation where the market for the
recycled material is uncertain or where
the recycling technology is unproven.
8Fly ash at present is not subject to Subtitle C
regulation as a Jesuit of the 1980 amendment to
RCRA (amended section 3001 (b)(3)(A)(i)). It is
included in the text only as an example.
'Some of these exemptions also encompass
activities subject to regulation under Parts 262 and
263. Furthermore,, as explained in Sections VI. B.
and C. in this part of the preamble, these :
exemptions are also conditioned to guard against
overaccumulation. . ' - . • '.-
10 Actual burning of wastes also is exempt from
regulation, although we intend that this exemption
be temporary (see Section (IV. D. in this part of the
premable).
Overaccumulation is a particular risk :
where reclaimers are paid to take
wastes they don't intend to use.
themselves, since this creates an
incentive to keep accepting wastes that
may prove unsalableAafter recycling. The
most severe damage incidents, such as
Cherri-Dyne and Silresim, all. fit this
pattern. These circumstances, are least
likely'to be present when a generator or
ultimate, user reclaims because of .the
continued exercise of control and ability
to assure '.the- wastes,' end disposition. ,
We consequently are proposing
conditional exemptions for these
situations. Tlie conditions are designed .-••
primarily to jjuard against
overaccumuLjtion which (based on
existing data), is the chief danger in
these operations.
We note, however, that we are
continuing to;inve.stigate the potential of
these facilities to store wastes
improperly. (We are doing this -
particularly in the course of conducting
a Regulatory Impact Analysis of our «
storage reguliitions.) In devising the •'.'.
conditional exemptions proposed today,
our premise (based on the known data)
is that pveraccumulation of wastes is
the chief danger to guard against.'The
conditions attached to these proposed
exemptions serve as adequate
safeguards tq overaccumulation, in our .
view. It may be that the risks of
, improper storage by these facilities—
prior to prolonged waste accumulation—
are greater than they appear. In this
regard, we are examining not only
storage at recycling operations but also
the incidence! and severity of spills and
leaks, from raw material and product'
storage, sincei this type of storage is
analogous to storage prior to recycling.
These further investigations thus may
lead to^a regtilatory approach with some
immediate controls on storage for those
recycling operations that would be
conditionallyexempt under today's
proposal. ,il .,
The following charts illustrate the
principles discussed hi this section. The
matrix in Figiire 1 indicates which types
of secondary materials are proposed to
be solid wastbs when recycled in
particular ways. The flow charts in
Figures 2 and; 3 indicate which materials
are solid washes and which materials (if
hazardous) are regulated as hazardous
wastes irnder the proposed definition. -
The table in Figure 4 summarizes which
recycled materials are or are,not .
considered to; .be solid and hazardous
wastes and which solid and hazardous
wastes will be regulated when they are
recycled under the proposed rules.
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14478
Federal Register / Vol-48, No. 65 / Monday, April 4, 1983 / Proposed Rules
C, The Agency's Decision to Reject a
Standard Based on the Value of the
Recycled Material
The Agency seriously considered a
standard that would count a recycled
material as a solid waste when a person-
other than the generator is paid to
recycle it The corollary also would
apply: when a recycler pays to obtain
the material it is not a solid waste." The
logic here was that recyclers who pay
for their materials must recycle them to
stay in business; in addition, the
materials they buy have demonstrated
economic value and so are less waste
like. Conversely, when a recycler must
be paid to take material, the material
may not be recycled, since its mere
receipt generates cash flow.
11 This "value" standard was not the sole test for
determining if a material is a solid waste. It would
replace the provision on reclamation (proposed
§ 261.2(a)(2)(iii) in the proposed definition.
FIGURE 1.—PROPOSED MATRIX OF WHICH TYPES OF SECONDARY MATERIALS WILL BE DEFINED AS SOLID WASTES WHEN USED, REUSED, AND
RECLAIMED AND WHICH TYPES OF RECYCLING ACTIVITIES CONSTITUTE WASTE MANAGEMENT *
SkxJgffl* (non-fe&d/ctwadw&ifc) ,
Conynordal ctwmlcal products listed in 40 CFR 261 33 that
«• not orfnvty applied to Use land or buned as fuels.
Usa constituting
disposal1
<§261.2(a)(2)(!)) -
Yes _
Yes •
Yes
Yes
Yes
Yes
Burning for energy
recovery, or use to
produce a fuel2
(§261.2mont activity is defined In proposed §281.2(c)(3) to include those materials which are accumulated for over one year without 75 percent being recycled during that
few. Tttiif, thn«i mthtnala* status as wtutos is not determined until one year has past A person who falls to recycle at least 75 percent of materials accumulated may petition the Regional
for * determination that tha materials are not solid wastes (§261.2(c)(3)(ii)); the materials are solid wastes, however, unless the Regional Administrator grants the petition.
BltUHQ CODE 6560-50-M
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Federal Register /Vol. 48, No; 65 /Monday, April 4,1983 / Proposed Rules;
14479
:. ' "-'••',' FIGURE 2 ' •'-' "';: .-'-••'•' '..":'
MATERIALS DEFINED flS BOOH SOLID AND HAZARDOUS WflSTB UNDER
•me PROPOSED HflzflRpoas wflSTE MamGEMENT SYSTEM
Is the material a "discarded '
material."" A discarded material
is any garbage, refuse, sludge,
or any other solid, liquid, semi-
solid or contained gaseous inaterial
resulting from industrial, qotroercia
mining, and agricultural operations
or community activities.
NO-
YES
IS material excluded
under 40 CFR 261.4(a>
YES
fteterial is not a.solid waste.
INO
Is material abandoned by being '
disposed of or abandoned by being
burned or incinerated.
YES
Is inaterial a spent material. Sludge,
by-product, or commercial chemical
product listed in 40 CFR 261.33
(not ordinarily used by being
applied to the land) which is used
in a manner constituting disposal.
YES,
LNO
Is'raaterial a spent material, sludge,
or by-product listed in 40 CFR 261.31
or 261..32,- 01.- commercial chemical
product listed in 40 CFR 261-.33 (that
is not ordinarily a fuel) which is "
being burned for the purpose of energy
recovery-, or used to produce a fuel, or
is a fuel containing one or more of
these materials.
Is material a spent material, or a
sludge or by-product listed in 40 ,
CFR 261.31 or 261., 32 that is reclaiined
(this provision does not apply to
materials reclaimed at the plant site •
and then reused within the original
process in which they were generated.
, MO
Is material a spent material, sludge,
or by-product that, is accumulated
speculatively.
YE
Is material a spent inaterial, sludge,
or by-product that is accumulated for
recycling without sufficient anraunts
being recycled during a one-year
period. •'._•-
YES
IS the solid waste excluded from
regulation under 40 CFR 261.4(b>
NO,
Material: is not a hazardous
waste for purposes of the
hazardous waste management
regulations.
Is material listed in Subpart D of
Part 261*, does it exhibit one or
more of the characteristics of
Subpart C of Part 261, is it a
mixture of-solid waste and hazardous
waste listed in Subpart D of Part
261, or any residue generated from
the treatment, storage, or disposal
of hazardous waste.
YiS
Has Idie waste or mixture been
excluded from the lists in
Subpart D or 40 CFR 261.3
in accordance with 40 CFR
260.20 and 260.22.
YES
NO
Material is a hazardous waste
for purposes of the hazardous
waste matiagement regulations.
NO
Material is not a solid waste;'
*J Comtercial chemical products Usted in 40 CFR 261.33 are regulated as hazardous wastes when
being disposed of or when burned or incinerated. In addition they are proposed to be
constituting disposal or when burned for energy recovery when these activSS^are ra
they are abandoned by
when used in a manner
ordinary use.
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14480
Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
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''• - '•'!'•
Federal Register / Vol. 48, No. 65 /Monday, April 4, 1983 / Proposed Rules '
=14481'
FIGURE 4,—PROPOSED MATRIX OF TYPES OF RECYCLED MATERIALS DEFINED AS SOLID AND HAZARDOUS WASTES THAT ARE REGULATED, TYPES OF
RECYCLED MATERIALS DEFINED AS SOLID AND HAZARDOUS WASTES THAT WILL NOT BE REGULATED, AND TYPIES OF RECYCLED MATERIALS NOT
CONSIDERED To BE SOLID WASTES '.'...' - I ; .
. - • . • • , . .
Use constituting disposal — : —
. Burning wastes or waste-derived
fuels for energy recovery or
using wastes to produce
fuels.1.
Reclamation...... i.;...,.:.. . .,
. Speculative accumulation- ;
Accumulation without sufficient
amounts of stored material
being recycled.
Use and reuse* ,
'The Agency is currently con
Recycled materials regulated as solid and
hazardous wastes ».
All spent materials, sludges, by-products, and com-
mercial chemical products listed in 40 CFR
261.33 that are not ordinarily used by being
applied to the land.
Spent materials, sludges, by-products listed in 40
CFR 261.31 or 261.32, and commercial chemi-
i cal products (listed in 40 CFR 261.33 that are
not ordinarily used as a fuel) that are stored at
fuel blending facilities and when generated and
transported prior thereto when ths facility Is not
also the. person generating the waste or is not
burning the waste-derived fuel containing these
materials.
Sludges and hazardous wastes listed 'in 40 CFR
261.31 and 261.32 when they are to be burned
or used to produce fuels by facilities producing
fuels from these wastes for their own subse-
quent use, or by facilities that , ultimately bum
these wastes. ,
listed in 40 CFR 261.31 or 261.32, that are:
—Reclaimed by a person other than the generator
and the reclaimed material will be used ultimate-
ly by 'a person other than the reclaimer;
—Reclaimed or otherwise processed in surface
impoundments or stored in surface impound-
ments prior to reclamation elsewhere;
—Spent lead-acid batteries being reclaimed
All spent materials, sludges, and by-products
All spent materials, sludges, and by-products
iucting a number of studies to determine what contr
Recycled materials defined as solid and hazardous
wastes but not regulated »
Spent materials, sludges, by-products listed in 40.
CFR 261.31 or 261.32, and commercial chemi-
cal products (listed in 40 CFR 261.33 that are
not ordinarily used as a fuel) that are burned for
energy recovery in boilers and industrial fur-
naces.2 ; '•".-.-...
Non-sludge wastes that are hazardous solely ber
cause they exhibjt a , characteristic (/.a, from
non-listed spent materials) that are stored at
facilities producing fuels for their own subse-
quent use and by facilities that ultimately burn
these wastes or waste-derived fuels containing
these wastes. ' .
listed In 40 GFR 261.31 or 261.32, that are:
—Reclaimed by the person generating them, or
reclaimed by -a person other than the generator
for that perso.n'8 subsequent use (except for
storage or reclamation in surface impoundments
or reclamation of spent batteries (see previous
column))..
—Utilized for precious metal recovery2
—Reclaimed pursuant to batch tolling agree-
ments.3. ^ ",
---•,•<...:..•-• .;
3ls are necessary to reaulata the hurninn fnr anomu
; Recycled materials not considered to be solid
1 ' , . wastes
By-products not listed In 40 CFR 261.31 or
261.3'i!. ' • ' . ' '
Sludges . and by-products not listed in 40 CFR
261.31 or 261.32 that are reclaimed.
Spent materials, and sludges and by-products
listed In 40 CFR 261.31 or 261.32 that are
.reclaimed at the plant site -and then reused
within the original •process in which they were
generated. ..•-,.
Commerdai chemical products listed in 40 CFR
,261.33.. . .
261.33.
261.33.
used nsused.2
Commercial chemical products listed in 40 CFR
261.33.
o iiuiijuoi wi oiuumo ju ueramKiit* wiim uumrois are necessary 10 reguiaie in
uu,,Uw>«—»ic» ,o, controls prior to the time we propose a comprehensive regulatory regime for
.„ change this part of today's proposal prior to final promulgation. .-'••••-• .
• .--..—. may still be regulated as hazardous wastes if the parson does not recycle at least 75 percent over a one year period or If the Regional Administrator determines on a
f-case basis that the matenal should be subject to regulation under otherwise applicable provisions of § 261.6 or Subpart O of Parl264 ? "egionai «omirastrator determines on a
KlrOTistons^f?i6ia6'oraIubP1rtrc3'S a?68 ''the Res'onalM<"™s™<* determines on a case-by-case basis that the material should be subject to regulation under
,™ ™ c,,,v ,duse of these materials include: (1) use or reuse of secondary materials as ingredients or feedstocks in production orocesses fc) use of saconrtarv mpfortaie aa ,,,i^i;t,,t^
materials in processes which usually use raw materials as feedstocks, ah/O) use or reused jecondary materials as^subs«SsPtoSmmercial p^oducte ^ substtutes
Despite its intuitive appeal, this type
of provision is open to several serious
objections. First, it is not clear whether
"sold for value" would cover situations
where the recycler incurs certain out-of-
pocket costs to obtain materials (such as
transportation or marketing costs] and
then is recompensed—or where
materials are sold for a price that
reflects the value of only some of them.
Second, this provision would fail to
ensure that the,purchased materials
would be recycled and would lead to -•
dissimilar regulatory coverage of-the
identical material at a single facility.
The proof is that in many of the damage
incidents involving recyclers, the
recycling facility had purchased waste
materials. In addition, in some cases, the
facility was also given—or was paid to
accept—the very same kind of'material
that it had also purchased (for example,
a spent solvent). ": •
Third, the Value provision may in
some cases discourage recycling. On
occasion, recyclers accept quantities of
material that- are too small to be
recycled economically unless they are
accompanied by some payment. (This is
another example of how the provision
does not always reflect marketplace
realities.) Recyclers may not profit
greatly by these arrangements, and will
discontinue them if they incur the value
provision's regulatory penalty for being
paid to accept these small lots. ._ ,
The fourth and most telling objection
to the value provision is the difficulty of
enforcement. The provision would
require the Agency to, evaluate the bona
fides of complicated, numerous, and
diverse financial transactions—which
may intrude significantly into
companies' legitimate business affairs.-
The Agency is not equipped to do this.
In addition, it is easy to disguise
\ • ' -
whether payments are being made, and
the unscrupulous may well be tempted
to evade regulation in this way.
For all these reasons, the Agency has
decided to reject an approach based on
whether a material is sold for value. We
do, however, solicit comments on this
approach, particularly on whether this:
kind of scheme could be implemented
and enforced, successfully. ,
E}. Materials Burned To Recover Energy
The Agency has concluded that the
statute gives,ERA the authority to
regulate burning of hazardous waste to
recover energy, and that we should
.exercise this authority. In most cases,
such burning'is environmentally
identical to burning the same material in
an incinerator and could pose a parallel
or greater risk of environmental
dispersal of hazardous waste
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Federal Register / Vol. 48r No. 65 / Monday, April 4, 1983 / Proposed Rules
constituents and products of incomplete
combustion."
Furthermore, by allowing burning to
go uncontrolled, the Agency's existing
regulations create a loophole in the
RCRA regulatory structure, as more and
more wastes that can be burned are
channelled to boilers or heat-recovery
units to avoid disposal or incineration
costs. It is estimated that 20 million
metric tons of hazardous waste are
currently burned in boilers. (See H.R.
Rep. No. 97-570,97th Cong., 2d sess. at 4
(1982).)
Furthermore, a number of facilities
blend hazardous wastes into fuels and
then sell these fuels to unsuspecting
residential and other municipal users
who burn them under conditions which
may harm humans and the environment.
Two of the most notorious of these
facilities—Quanta, Inc., and B & L Oil
Corp. (the latter company pleaded guilty
to criminal violations of New Jersey's
hazardous waste regulations)—
produced fuels containing PCBs,
phenolic compounds, chlorinated
solvents, and other chlorinated
hydrocarbons. These compounds not
only are very toxic and hard to destroy,
but when burned at low temperatures
for short residence times (as in
residential boilers) can form chlorinated
dioxinst and dibenzofurans, phosgene,
and hydrochloric acid.
EPA's existing regulations require that
sludgost and wastes listed in 40 CFR
261.31 and 261.32 that are to be burned
as fuels or used to produce fuels be
accumulated, manifested, transported,
and stored under the applicable
requirements of Parts 282 through 265.1S
These regulations do not control the
actual burning of these materials,
however.
Today's proposal, insofar as it relates
to waste-derived fuels, is intended
principally to establish jurisdiction for
eventual regulation; it does not seek to
establish all aspects of an ultimate
regulatory regime. We are, for example,
proposing to continue the present
exemption for actual burning of
hazardous wastes in boilers for
legitimate energy recovery until we
complete on going analyses of the
environmental consequences of burning
hazardous wastes in boilers. Once we
have completed these studies, we plan
"In fact, there I* a parallel here wffli the dass of
wane whoM reuse constitutes disposal in the sense
of direct land placement In that case, the reuse is
the functional equivalent of landfilling. Similarly,
burning wastes as fuel: is functionally identical to
Incinerating them.
" See 40 CFR 281.2 (a) and (b) and 261.6[b).
Sludges, and spent materials and by-products that
are 8orr.ctitr.es discarded and are listed in 40 CFR
201,31 and 261.32, are subject to regulation from
Uiclr point of generation until recycling begins. .
to substantively regulate burning for
energy recovery hi those areas that
appear to present a potential for
substantial hazard to human health and
the environment.
Presently, we are studying whether
there should be interim controls—that is,
controls before we propose a
comprehensive regulatory regime for
actual burning—on other aspects of
hazardous waste-derived fuel
management. Possible options under
active consideration include requiring
blenders, marketers, and certain users of
hazardous waste-derived fuels to notify
EPA of their activities, to keep records
of the amounts and types of hazardous
waste-derived fuels they are producing
or burning, and (for blenders) to affix a
•label to all hazardous waste-derived
fuels they produce, indicating that the
fuel contains a hazardous wastes., A
manifest for certain transactions
"involving hazardous waste-derived fuels
is another possibility. These actions are
not part of the present proposal, but may
be taken as separate regulatory actions.
We are also proposing to regulate,
under certain circumstances, the storage
and ancillary management of hazardous
wastes before the wastes are burned.
We are convinced controls are needed
for hazardous wastes sent to fuel
blenders who do not ultimately burn the
wastes. This is the recycling situation
posing the greatest risk of improper
storage, overaccumulation, faulty
tracking, and the like, as already
explained. Consequently, we are
proposing that hazardous spent
materials, sludges, and listed
byproducts, and nonfuel. commercial
chemical products, sent to these
blenders be subject to Subtitle C
regulation,, and the blenders be subject
to regulation as storage facilities.
We are less sure of whether storage
standards are needed for hazardous
wastes being burned by the person
generating them, or being sent directly
from a generator to an ultimate user.
Although we are proposing to exempt
conditionally other recycling practices
fitting this pattern because of the
reduced risk of overaccumulation or
faulty, tracking, fuels may present a
special case due, for example, to
additional concerns that ultimate users
,be notified of what they are burning. We
also are concerned that proper records ..
be kept for federal and state regulatory
authorities, and for concerned citizens.
In light of our uncertainty, we are
proposing today to leave essentially
unchanged the current regulatory regime
for hazardous wastes burned by their
generator, or sent from a generator to a
person who ultimately burns them. This
scheme calls for regulation of sludges
and wastes listed in 40 CFR 261.31 and
261.32 (see 40 CFR 261.6(b)). While we
may alter this part of the proposal later,
we think maintaining the status quo is
the least confusing way to proceed until
we decide on a comprehensive
regulatory strategy to control burning
hazardous waste-derived fuels.
EPA is therefore proposing today to
assert jurisdiction over spent materials,
sludges, listed byproducts, and
commercial chemical products (and
related materials) listed in 40 CFR 261.33
where any of these materials are burned
as fuels, used to produce fuels, or
contained in fuels—the jurisdictional
prerequisite to eventual regulation in
this area (see Section VI. D. of this part
of the preamble). We are also proposing
for the time being to continue to exempt
the. actual burning of these materials
from regulation. We also are proposing
to regulate most storage of spent
materials, sludges, listed by-products,
and commercialichemical products that
are not themselves fuels and are listed
in 40 CFR 261.33, where any of 'these
materials are used to produce fuels. The
only exception will be where the person
who operates the storage facility also
generates the material, or burns the
waste-derived fuel itself. In these cases,
we are proposing provisionally to
maintain the status quo by regulating
only sludges and wastes fisted in 40 CFR
261.31 and 261.32.
V. New Definitions Relating To Burning
of Hazardous Waste
The identity of the combustion unit in
which secondary materials are burned is
highly relevant in EPA's developing
regulatory regime for burning of
hazardous secondary materials. We are
proposing in 40 CFR 260.10 to amend the
definition of "incinerator", and to add
definitions of "boiler" and "industrial
furnace", to distinguish among these
devices. . ' v ' .
A word of background as to why we
are-amending and adding these terms.
EPA's existing rules establish a class of
facilities subject to regulation under
Subpart O of Parts 264 and 265—thermal
treatment devices-Mif which
incinerators are a subset. Incinerators
are currently defined on the basis of
their purpose—if the primary purpose of
a device 'is thermal destruction of
hazardous waste, the device is an
incinerator (see 40 CFR 260.10, definition
of "incinerator"). We meant for this
definition to provide the distinction
between regulated facilities (thermal
treatment devices, principally
incinerators) and heat recovery units
(primarily boilers).
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Federal Register / Vol. 48, Nov 65 / Monday, April 4, 1983 -/Proposed Rules
14483
Although me existing definition of ...
incinerator focuses on the purpose for
which a device is used, the Agency did.
not intend to classify facilities solely on
the basis of purpose. Rather, we,
'intended that incinerators be . -
distinguishable, from boilers in order
that the class of facilities subject to the
standards for incineration be
identifiable. The purpose for which a1 ,
device is operated was used to indicate
whether the device is an. incinerator or a
boiler. Thia distinction, however, has
proven.-difficult to implement because •
the reference to "purpose" to the
-regulation, introduced an unintended
element of subjectivity. ."
We accordingly are proposing a
revised definitipn.of inemerator that.
avoids the use of purpose to identify
incinerators—-.so that facilities will no
longer be able to escape, regulation, by
claiming to have a primary purpose of
recovery. The regulations do this by
focusing on the physical character of the
unit and not onits claimed purpose.
Thus, the proposal defines an
incinerator as a controlled-flame
combustion device in, which the.
combustion chamber and any heat
recovery section"are.nof of "integral
design", i.e., formed into a single
manufactured unit such that there
occurs significant radiant as opposed to
convective heat recovery. This occurs,
for example, when the combustion
chamber and heat recovery section are
joined by ducts that carry the flue gas to
heat recovery sections. Thus, waste heat
recovery units added to an incinerator.
cannot exempt it from regulation as a
hazardous waste treatment facility.
Incinerators—including those burning
secondary materials and recovering
energy or material-r—are normally
subject to regulation under Subpart Oof
Part 264 and 265. (The major exception
is for incinerators that are "industrial
furnaces", a term explained below.)
Boilers, in contrast, ordinarily are not
subject to regulation under Subpart O,
but rather may be regulated under
today's proposed regulations, applying to
' recycling facilities. "Boilers" also are
defined on the basis of design instead of
purpose. Under the proposed definition,
they must have: £1) provision for heat
recovery, and (2) combustion chamber
and heat recovery sections that are of
"integral design:", i.e., that are formed
physically into one manufactured or
assembled unit. In addition, the unit
must accomplish significant heat
recovery hi the combustion.chamber,
section by means of radiant heat
transfer. ,
The key distinction between boilers
and incinerators is that boilers achieve
. heat transfer within the combustion
chamber itself, generally by exposing
'the heat recovery surface to the flame.
In contrast, heat transfer does not
ordinarily occur in th& combustion
chamber of an incinerator. Rather,
combustion gases are transferred
elsewhere in the device,, where heat
transfer mas? occur.
. There may be situations where
incinerator operators design or retrofit
their devices to avoid regulation: by .
achieving minimal heat transfer in the
combustion chamber;; The regulation
consequently requires that a :
"significant" percentage of the thennaJ
input to the unit be recovered in the
combustion chamber by radiant heat
transfer.
In determining what constitutes
"significant1' radiant heat transfer, the
Agency, considered the design, of boilers
that have only one surface (or -side) of
the combustion chamber with boiler;
tubes that "see the flame," i«, that
experience? radiantheat transfer. This, is
essentially the Tmm'mmn design that
would meet Hie integrated; design
criterion and represent a bona fide
boiler. (The Agency is aware of typical
-"package, boilers" that meet this design;}
In such a boiler, one may .assume for
purposes of simplification that the one
boiler wall with exposed boiler tubes
receives.from.one sixth.to one fourtiTof
the heat released. A typical heat
recovery efficiency for such a boiler
might be, 75 percent [z.e.,, 75 percent of,
the heat content of fuels fed. to the boiler
is actually recovered). Thus, viewed as a
percentage of total heat recovered, the
radiant portion represents 21 to 33
percent of the total. Since radiant heat
recovery is, in fact, the more efficient
portion of the total recovery, it probably
represents a slightly higher portion of
the total.
Thus, the benchmark the Agency
intends to use in judging "significant"
radiant heat transfer in the combustion
chamber is 25 to 35 percent of the total
heat recovered in the unit. This is
consistent with industry estimates of the
lower range of radiant-he at transfer that
occurs in typical boilers: We specifically
solicit comments, however, as to the
accurancy and appropriateness of this
benchmark. - -
The proposed regulations make one.
further distinction among combustion
devices.' There are combustion devices
.designed as incinerators or boilers that
are used as integral components of
manufacturing, processes to recover
materials or energy, not to destroy
wastes. Examples are smelting furnaces,
cement kilns, and blast furnaces. These
units—termed "industrial furnaces" in
the proposal;—are normally considered
, to be engaged in recycling activities
when burning, secondary materials, so ,
will not be' regulated as incinerators •
(even if they are not, of integral design).
The proposed definition of industrial
furnace specifically designates certain
devices as industrial furnaces, namely
cement kirns, aggregate kilns, lime kilns,
phosphate kilns,.blast furnaces.smelting,
furnaces; combustion, devices used in. ,
the recovery of sulfur values from spent
sulfuric aeiai methanol reforming
furnaces, and pulping; liquor recovery
furnaces.?* The proposal also allows for
the Agency tct add devices to the Iist> by
rulemaking, on the basis of considering
several criteria. When adding to the list
of industrial furnaces, we will consider
these criteria: together. Therefore, a
particular device need,not satisfy all of
the criteria to be'designated an
industrial furnace if it satisfies one or
more of them. '
These criteria have been, selected.
because they- describe those aspects of
industrial furnaces feat distinguish, them
from hazardous waste incinerators. "
Thus, a flame combustion device may be
designated as art industrial furnace if it
is 'designed and used, primarily to
accomplish recovery of material or
energy, such as a secondary smelting
furance that recovers- usable metal from
scrap, or mefhanol reforming units. A
device-also may be designated an
industrial furnace if it is used to^ burn
spent materials, sludges, or by-products
as ingredients-in a production process.
Similarly, where these secondary
materials are used as effective .
substitutes fqr raw materials in a device
that uses raw materials; as principal
feedstocks, tlie device could be an
industrial furnace. These last two
criteria are used to describe materials
that serve essentially as raw materials
and therefore! are not appropriately
subject to relation under RCRA (See
Section VI. E,, of Part I of the preamble).
A device ffiat burns raw materials to
niake a material product (such as a .,
cement kiln or aggregate loin) may also
be designated as an industrial furnace.
Finally, in de termining whether a device
should be listed as an industrial, furnace,
the Agency vcill consider whether the
device is commonly used in a
manufacturing process.
"The Agencynis continuing to investigate the
design of these, la;tter three: devices; as well as their
precise role in this sulfuric acid, methanol, and
pulping manufacturing processes in order to assure
that they are properly classified as industrial
furnaces. ! . /
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Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
VI. Discussion of Specific Provisions of
the Revised Definition of Solid Waste
A. Proposed § 261.1(b): Purpose and
Scope
It is necessary to define solid waste
because of statutory draftsmanship
("hazardous waste" being a subset of
"solid waste" (see RCRA Sections
1004(5) and 1004(27)). However, the
proposed new § 281.1(b)(l) indicates
clearly that the definition of solid waste
proposed today is intended to apply
only to materials that would also be
hazardous wastes. It does not apply to
recycled non-hazardous materials (for
example, most scrap metal), although
we do not commit ourselves as to when
such materials are wastes, and see no .
reason to do so in this rulemaking.
Our intention is to emphasize that we
do not mean the proposed definition to
be applied in contexts other than the
Subtitle C hazardous waste
management regulations.
We also are clarifying (in proposed
i 261.1(b)(2)) that the proposed
definition of solid waste in § 261.2 does
not limit the Agency's jurisdiction under
Sections 3007, 3013, and 7003 of RCRA.
The Agency's jurisdiction under these
provisions is not limited to "hazardous
wastes indentified or'listed under
Subtitle C", whereas the proposed
definition is part of the process of
identifying hazardous wastes for
purposes of Subtitle C and has no other
applicability. Consequently, these other
statutory provisions need not be limited
to the materials covered by this
definition. (See generally 45 FR at 33090,
May 19,1980.)
B, Proposed § 261.2(a)(l)
This provision is nearly identical to
§ 281.2 (b)(l) and (c) in the existing
definition. It indicates that materials
abandoned by being disposed of,
burned, or incinerated, or otherwise
accumulated, stored, or treated in lieu of
or before such activities are solid
wastes. This includes materials actually
or intended to be discarded.
However, this proposal does differ
from the existing provision in two
significant respects. First, proposed
§ 261.2{a)(l)(ii) removes the
qualification that burning materials to
recover energy does not consititute
discarding (existing 40 CFR 261.2(c)(2)).
This clause no longer is appropriate
because we are restructuring the
definition to indicate explicitly that this
activity Is subject to our jurisdiction. (As
explained in Section IV. D. above, most
secondary materials burned for energy
recovery are solid wastes under the
Agency's existing regulations because
they are sludges, or are spent materials
or by-products that are sometimes
discarded.)
Second, we wish to clarify that
materials being burned in incinerators
or other thermal treatment devices,
other than boilers and industrial
furnaces, are considered to be
"abondoned by being burned or
incinerated" under § 261.2(a)(l)(ii),
whether or not energy or material
recovery also occurs. (The meanings of
these terms were explained in Section
V. above). (The regulatory provision
also applies, of course, to devices in
which materials are burned or thermally
decomposed for destruction without any
recycling purpose.) In our view, any
such burning (other than hi boilers and
industrial furnaces) is waste destruction
subject to regulation either under
Subpart O of Part 264 or Subpart O and
P of Part 265. If energy or material,
recovery occurs, it is ancillary to the
purpose of the unit—to destroy wastes
by means of thermal treatment—and so
does not alter the regulatory status of
the device or the activity. Thus, a
hazardous waste incinerator burning
chlorinated hydrocarbon wastes and
recovering hydrochloric acid remains a
Part 264 incinerator and the chlorinated
hydrocarbon wastes are.being
incinerated, not recycled. -..-
We intend shortly to propose a set of
regulations clarifying the status of
incenerators, boilers, and industrial
furnaces for purposes of regulation as
incinerators under Part 264. The Agency
intends to explain these definitions in
more detail at that time, and to provide
further opportunity for comment. For
purposes of this discussion, however,
the key concept is that materials fed to
incinerators that are not boilers or
industrial furnaces are deemed to be
solid wastes, and the unit is subject to
regulation under Part 264, Subpart O,
regardless of whether material or energy
also is recovered from the unit.lp
C. Proposed § 261.2(a)(2)(i): Wastes
That Are Used in a Manner Constituting
Disposal f .
The first category of secondary
materials considered to be solid wastes
when recycled atnd when destined for
recycling are secondary materials used
or reused in a manner involving direct
placement on the land. Examples are the
direct use of recycled materials for land
reclamation, as dust suppressants, as
fertilizers, and as fill material. In the
Agency's view, these practices are
virtually the equivalent of unsupervised
land disposal, a situation RCRA is
designed to prevent.1S In fact, the
Agency regards the direct use of these
materials as fertilizers to be a form of
land treatment subject to, the standards
of Subpart M of Parts 264'and 265. (See
Background Document for Permitting
Standards for Land Disposal Facilities,
Response to Comments, July 26,1982, p.
158.)
.The many damage incidents resulting
form wastes being used in a manner
constituting disposal bear out the
Agency's concern. This type of recycling
activity has also been a particular
concern of the Congress. The September
1979 report of the Subcommittee on
Interstate and Foreign Commerce on
hazardous waste disposal (Committee
Print 96-1FC 31, 96th Cong., 1st sess.,
1979) describes three 'damage incidents
involving wastes used in a manner
constituting disposal (id. at 4,12-13,17,
24,41, and 53-54). This report indicated
that these uses should be subject to
regulatory control-and criticized the
Agency's proposed regulations for not
adequately tracking this type of recycled
material (id. at 41-42,. 53-54).
These references to damage incidents
reflect not only Congress' concern but
its intent that EPA's Subtitle C *
regulations cover this type of activity."
The recent report of the House
Committee on Energy and Commerce
likewise voices special concern about
this type of recycling and would
mandate Agency action in this area.
(See H.R. Rep. No. 97-570 at 22-23.) A
provision mandating Agency action was
later adopted by the full House. •
The proposed provision applies when
a material is used essentially "as-is" (for
example, a sludge used directly as fill
material) or where the material is mixed
with another substance without any
appreciable chemical change ("simple
mixing"). An example of-the latter is the
notorious incident where waste
containing dioxin (TCDD) was mixed
with waste oil and then used as a dust
suppressant at a Missouri horse arena,
15 We add that if a boiler or an industrial furnace
is used to destroy wastes, that unit is being used as
an incinerator and is subject to regulation as such..
«" See 43 FR 58946, 58950, and 58954 (December 18,
1978) where the Agency initially proposed the
concept of use constituting disposal.
"A number of industiral commenters likewise
conceded the legitimacy of Subtitle C jurisdiction
over uses constituting disposal, or indicated that if
the Agency indeed possesses Subtitle C jurisdiction
over recycling, then jurisdiction appropriately can
be exercised over uses constituting disposal. See
comments of the American Paper Institute, August
IB, 1980, p. 9; of Stauffer Chemical Co., August 18,
1980, pp. 12-15,19, and 21; and of the Chemical
Manufacturers Association, August 15,1980, pp. 34-
35, and 51. The Environmental Defense Fund, in its
comments, likewise generally supported regulating
this type of recycling activity. We think these
comments contain some acknowledgment that
activities virtually tantamount to unsupervised land
disposal of hazardous wastes are within our proper
jurisdictional purview.
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14485
killing livestock, arid seriously injuring
an exposed child. ., ,
On. the other hand, a material blended
so that it is significantly changed
chemically or biologically (i.e., the new
material is chemically or biologically *;
distinct from the original material being
blended), does not count as a waste—
and the recycling activity would not be
regulated—even if the product then is
placed on the land. An example is fly
ash used as an ingredient in cement.18
The Agency believes this outcome is
_ satisfactory in most cases but is
concerned about not regulating
fertilizers made from toxic metal-
containing sludges and by-products
(where these materials are significantly
changed in the process). (Fertilizers
using such materials as the1 sole or
virtually sole ingredient, or using such
; materials in virtually unaltered chemical
form would, however, be regulated
under the proposal.) The Agency is
gatering information on waste-derived
fertilizers and may alter this part of the •
proposal after assessing this , ,
information. : ~
- The regulation, however, does cover
residues of waste treatment processes
applied to the land (even though the. -
wastes may have undergone a chemical
change as a result of treatment).
Examples are waste stabilization
processes where the stabilized material
-.is then used as fill. Assuming the
stabilized material is a hazardous
waste, the reuse remains subject to
regulation. The Agency is convinced
that these waste treatment operations
are not production processes arid can
therefore be regulated as waste ... -
management, and. that the treated
material remains subject to regulation as
a solid waste.
Finally, the regulation applies to ,
commercial chemical products (and
related materials) listed in 40 CFR 261.33
that are not ordinarily used by being
applied to the land. This provision is
intended to close an unintended gap in
regulatory coverage. Under the existing
regulations, commercial chemical
products must be "discarded" (or
intended for discard) before they can be
wastes, anduseln a manner constituting
disposal is not deemed to be a form of -
discard (see 40 CFR 261.2 (c)). The
Agency does not normally intend to
'_8 Ano.ther example where the provision similarly
does not appljris when spent materials, sludges, or
by-products are used as water conditioners or for
water treatment. An example would be spent pickle
liquor used to treat wastewater (see 46 FR 44970,
September 8r 1981). In this 'case, although the
material technically may be applied"to the land, it is
chemically combined as part of a conditioning
process and is subsumed as an ingredient in the
conditioned water^ . ' ., .
regulate the recycling of these materials,
since such recycling simply restores
these materials to usable condition, and
in a large sense simply continues their
normal use (see 45 FR 78540-541,
November 25,1980). However, use of
these materials in a manrier constituting !
disposal is not analogous to their normal
use, unless they ordinarily are meant to
be used by being applied to the land.
We consequently are proposing to ' .
define these materials as wastes when
they are recycled in this way.
D. Proposed §§ 261.2(a)(2)(ii) and
261.6(b)fl)(v): Wastes That Are Burned
to Recover Energy, Are Used to Produce
Fuels, or Are Contained in Fuels
This provision indicates that spent
materials, sludges, listed by-products,
and any commerical chemical products
(and related materials, such as off-
specification variants and spill residues)
listed in 40 CFR 261.33 that are not
themselves fuels, are solid wastes when
they are burned as fuels.lused to
produce fuels, or contained in fuels. , • -. •
EPA's reasons for asserting jurisdiction
over these materials have been
described in Section IV. D. above.19
To see the actual extent of proposed
regulatory coverage, this provision
should be read together with proposed
§ 261.6 (b)(l)(v). We are proposing to
continue temporarily the present
exemption for actual burning for energy
recovery (proposed § 261.6 (b)(l)(v))
pending completion of the studies
described in Section TV; D, above. We"
also reiterate that burning in
incinerators (that are not industrial -
furnaces) is considered to be
incineration and is regulated under
Subpart O of Parts 264 or 265, whether
or not energy or materials also are
recovered. Such incineration is not
affected by the exemption in proposed
§ 26i.6(b)(i)(v). ;•
The exemption does cover burning for
energy recovery in units whose principal
purpose is energy or, material recovery,
rather than waste destruction—namely
boilers and industrial furnaces. (These
terms were explained in Section V.
above.) For certain wastes, the
exemption also applies to storing and
transporting these materials before
burning. These wastes are those that are
hazardous only by reason of exhibiting a
characteristic and are not sludges, and
1BIn interpreting this provision, the Agency does
not consider materials to be. burned as fuels when
both material values and energy are recovered from
burning a single material, and material recovery is
an important part of the recovery operation. For
example, furnaces burning secondary materials to '
recover economically significant amounts of
contained chemicals, and that also recover energy
from the same-materials, are not considered to be
burning the materials as fuels. . .• ,
are used as a: fuel or used to produce a-
fuel(a) by the person generating the
wastes, (b>, by a fuel blender who burns
the fuel it blends, or (c). by a person
ultimately burning a waste-derived fuel.
Thus, anyorie who—prior to their
burning or blending—manages sludges ;:<
or hazardous
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Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed .Rules
named commercial fuels. Spent
materials and sludges, on the other
hand, appear to be waste-like whenever
used to produce fuels, and are so
classified.
The inclusion of commercial chemical
product!! and other materials listed in 40
CFR 261.33 that are not themselves fuels
closes an unintended gap in EPA's
current regulations, and parallels the
similar inclusion in this proposal of
commercial chemical products used in a
manner constituting disposal. Burning of
these materials as fuels and using them
to produce fuels is not at all analogous
to these materials' normal use. We
consequently are proposing to define
these materials recycled in these ways
as solid wastes. We intend to regulate
their storage at a facility using them to
produce fuels [as well as their prior
generation and transport) when that
facility is not also the generator or is not
burning the waste-derived fuel
containing these materials. These ,
materials were present at many of the
damage sites involving improper storage
by producers of waste-derived fuel,
pointing up the need to exercise
regulatory authority.
To give an example, Generator A
generates several unlisted ignitible
spent organic chemicals that it blends
and burns in its boilers as a fuel. These
chemicals are hazardous wastes but are
not subject to regulation before blending
because they are being blended by the
original generator, and are not listed in
40 CFR 281.31 or 281.32. The actual
burning also is exempt, since it occurs in
a boiler,.
& Proposed §§ 281.2(a){2)(iii),
261,2(c){l), and 261.6(b)(l) (i) and (ii):
Wastes That Are Reclaimed
1. The Proposed Provisions. These
provisions are among the most
important in the proposed regulations.
Read together, they say that spent
materials, listed sludges, and listed by-
product!) that are reclaimed are solid
wastes, except where these materials
are reclaimed at the plant site and
returned .to the original process in which
they were generated. (See proposed
5 281.2(a)(2]{iii).) However, these
materials are subject to regulation
during storage and transportation only:
* Where reclaimed by a person other
than the generator and when the
reclaimed material will be used
ultimately by a person other than the
reclaimer; *° or
• Where reclaimed or otherwise
processed hi Surface impoundments, or
stored in surface impoundments before
• reclamation elsewhere; 21 or
• Where accumulated for over a year
without sufficient amounts being
reclaimed (see proposed § 261.2(a)(2)(v)
explained in Section VI.G. of this part of
this preamble);22 and or
« Where regulated on a case-by-case
basis (see proposed § 261.6(b)(2),
explained in Section HI. B. of Part II of
this preamble).
These provisions are directed at the
type of operation that has caused most
of the recycling damage incidents—the
unrelated reclaimer (i.e., a reclaimer
who is not the generator of the material)
reclaiming material for another perons's
use. This type of operation cannot
guarantee an end market for its
reclaimed materials, and so runs the
most risk of overaccumulating waste
inventory. This risk has been borne out
again and again in the damage cases, the
most well-known being the Chem-Dyne
and Silresim facilities, which accepted
solvents and other spent organic
chemicals for reclamation (and fuel
production) with disastrous
consequences. Indeed, all of the 20
Superfund interim priority sites
involving recyclers were unrelated
reclaimers reclaiming materials or
blending them as fuels for a different
person's use.
These provisions apply to all spent
materials, but only to listed sludges.and
listed by-products—to avoid including
sludges and byproducts routinely
processed to recover usable products as
part of normal commercial practice.
Although some of those .materials may
be wastes, the Agency wishes to
consider them individually before
asserting jurisdiction, since many of
them also have product-like aspects. .
The basis for exempting
(conditionally) hazardous wastes
reclaimed by their generator or
reclaimed for the reclaimer's subsequent
use is that by exerting continuing
control over these materials, the
generator or reclaimer/user is treating
them in a way that ensures their end
disposition. In fact, our investigation of
recycling activities confirms that such
operations have not caused the harms
associated with the risk of
overaccumulation.23
These reasons do not apply, however,
when hazardous wastes are reclaimed
or processed in surface impoundments
or are stored in surface impoundments
before being reclaimed. Surface
impoundments containing hazardous
waste pose a particular threat of
contaminating-ground water and have
always been one of the chief concerns of
the hazardous waste management
program. (See generally, the Background
Document tro Subpart K Interim Status
Standards, April 28,1980.) Not only is
containment without a liner system
usually impossible, but wastes are
present as liquids or are constantly in
the presence of liquids. This creates the
situation most conducive to forming
leachate. In addition, the collected.,
liquids in an impoundment will form a
pressure head, causing downward "
dispersion of the leached contaminants.
Since most impoundments are unlined,
and because many are underlain by
permeable soils, the potential for
downward seepage of contaminated
fluids into ground water is high.24 In fact,
incidents of ground water contamination
from impoundments have been reported
in nearly all states.25Thirty-eight of the
first 180 Superfund interim priority list
sites involve leaching from unsecured
surface impoundments.
Surface impoundments also can
contaminate surrounding soil and
surface water by directly releasing the
contaminated liquid via washout,
overtopping, or dike breakage.26
Volatilization of organic contaminants
also can pollute air in areas surrounding
the impoundment.27
"Proposed §| 261,6{b)(l) (1) and pi) consequently
exempt from regulation hazardous wastes reclaimed
by tli* person who generates them, or reclaimed by
* person who ultimately uses the reclaimed material
Itself.
There is one exception to this principle, namely
when spent lead-acid batteries are reclaimed. We
are proposing to regulate these wastes whether or _
not the reclaimed material is used ultimately by the
reclaimer. Our basis for this distinction, and the
regulatory scheme we are proposing for spent lead-
acid batteries, is explained in Section ffl.D.3. of Part
II of the preamble.
21 The exemption mil 261.6(b)(l) (i) and (ii) does
not apply to hazardous wastes that are reclaimed in
surface impoundments, or that are stored in surface
impoundments prior to being reclaimed elsewhere.
Our basis for this approach is explained below in
this section.
aThe exemptions in §§ 261.6(b)(l) (i) and (ii)
likewise do not apply to hazardous wastes that
accumulate lor over a year without sufficient
amounts being reclaimed.
23 The State of California's statutory definition of
solid waste, which is quite similar in approach to
that proposed today, in fact excludes materials .
reclaimed by the original generator. See California
Hazardous Waste Control Act, Article 2 § 25122.5
(California Health and Safety Code Division 20,
Chapter 6,5) (definition of "recyclable material").
24 See U.S. EPA, Report to Congress, Surface
Impoundments and Their Effects) on Ground Water
Quality in the United States—A Preliminary
Survey, EPA § 7019-78-004 (1978); see also U.S.
EPA, The Prevalence of Subsurface Migration of
Hazardous Chemical Substances at Selected
Industrial Waste Disposal Sites, EPA/5301 SE 6341
(October 1977).
25 See the Brackground Document cited earlier at
pp. 9-29, collecting dozens of incidents of ground
water contaimination caused by leaking surface
impoundments.
26 See id. at pp. 9-17 again detailing numerous
damage incidents.
27 Id. at 26-29.
*i '
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Federal Register /Vol. 48, No. 65 / Monday, April .4, 1983 / Proposed Rules 14487
These potential dangers are all .
present when wastes are reclaimed in •
surface impoundmenfs or stored in . • • .
impoundments before reclamation. In
fact, reclamation in surface ' " -."'•'
impoundments is very similar to a use or
reuse constituting disposal: both involve
direct, uncontrolled placement of waste
in the land. We thus are not exempting
this activity from regulation. (However,;
since the concern here is waste .
management in surface impoundmentsr
the hazardous wastes are not
automatically subject to regulation
when they are removed from the
impoundment to be used, reused, or
reclaimed.} ,
By using the language "reclaimed or
otherwise processed" in proposed
§ 261.6(b)(l) (i) and (if), the Agency
means to cover virtually all management
activities occurring in surface
impoundments involving material
recovery for subsequent use, reuse, or
additional reclamation, or involving
processing designed to make the
impounded material amenable for
recovery.
The following examples show how the
provisions operate with respect to
surface impoundments:
• Generator A has a listed wet
emission control sludge that is
dewatered in a surface impoundment..
The settled sludge is then dredged and
used as an ingredient in manufacturing
•cement.
The sludge is a solid waste and.is
subject to regulation when it is
dewatered in the impoundment. The
recovery and processing of the sludge itt
the impoundment meets the "reclaimed
or otherwise processed" standard of the
proposed regulation. This result conform
well with the 1 anguage of RCRA, since
dewatering is conducted to recover the
entrained solids for future use—i.e., to.
make the sludge "amenable for
recovery", in the language of the
statutory definition of treatment. :
The sludge is not a solid waste once it
is removed from the impoundment
because it is being used as an
ingredient, not reclaime,d. (This concept
is explained in the following
subsection.) This sludge could be a
waste, however, if it accumulates, after
being removed from the impoundment,
for over a year without a sufficient
amount being used (see proposed
§ 26l.2(a)(2)(v), described in Section Gr
: below).
• Generator B generates a listed '
wastewater treatment sludge by
precipitating metals from wastewater
collected in a surface impoundment. The
sludge is then dredged and shipped to a
secondary smelter for metal recovery.
The smelter is not smelting for its own
subsequent use.
The sludge is a solid waste and is , '
subject to regulation when in the
impoundment for the same reason as the
'previous example. In addition, the'
sludge remains a solid waste when sent '
to the secondary smelter because it is
being reclaimed by a person other than
the generator for use by a person other
than the reclaimer.
2. The Meaning of "Reclamation". The
Agency has defined "reclamation" in
proposed §261.2(c)(l) to constifate either
regenerating waste materials of
processing waste materials to recover
usable products. Regeneration processes
involve removing of contaminants or
impurities so that the material can be .
-put to further use. Examples are spent
solvent and other spent organic
chemical reclamation (ordinarily a
regeneration process), spent catalyst
regeneration, and most secondary metal
reclamation, including secondary . ' .
smelting (recovery of usable metal from_
otherwise unusable material).2*
In thus defining reclamation
operations to involve solid wastes, the
Agency is following closely the various
'statutory definitions that indicate
unequivocally that recovering usable
material from otherwise unusable :
material constitutes solid waste -
management, and that the materials
from which resources are recovered are
solid wastes. Thus, one aspect of solid
, waste management is "resource
recovery " which involves "the recovery
of material or energy from solid waste " ,
(Sections 1004(30) and 1004(22},
emphasis added). Similarly, a
"recovered material" (Section 1004(19)}
includes material or by-products that
"have been recovered or diverted from.
solid waste* * *." To tke same.effeet,
see Sections 1004(7}, (18), (23}, (24), and
(29). ' ,
This provision is-perhaps not as
encompassing as it may appear^Firsti aa
described in. the next subsections,
activities involving use or reuse of, the
materials are not deemed to constitute
reclamation. Second, reclamation
2sTheAge.ncy believes that blending, or
combining materials, to form fuels also is similar to
reclamation, and within the Agency's jurisdictional
purview, since otherwise unusable materials are
being restored to usable condition so that energy
can be recovered. [See Section. 10Q4(22J of.RCRA
defining "resource recovery" as "the recovery of
material or energy from solid waste" (emphasis
added); see also Section 6002(c)(2), which refers to
"systems that have the technical capability, of using
energy or fuels derived frora solid waste.. ; ." The
House Report to RCRA likewise indicates that both
raw materials'and energy can be recovered from
solid waste fsee H. Rep. Noi 94-1491 at 11 and 13).)
We are exerting regulatory control, over this activity
by means of separate regulatory, language in the •
interest of definitional clarity. ••'
conducted al: the plant site -where the
reclaimed material is returned to the ' '
original process also is outside the scope,
of the definition. Operation's where a '
generator re claims, his owii materials, or
when a reclaimer reclaims for his own;
use, also are'ordinaruy exempt from
regulation. In addition, most reclamation •
activities do not involve hazardous ,,
wastes, and sio are unaffected by this
provision.29.! '
The limitafion of the regulation to.
listed sludges and listed by-products
also reduces1 the scope of the "*
reclamation provision. By examining
whether a particular type of sludge or '
.by-product is a waste when reclaimed,
the Agency will have an opportunity to «
determine if reclamation of the
individual sludge or by-product should
be viewed asi a waste management
process. At the same time* the Agency
believes it important to have the means *
to regulate particular sludges and by-
products that are to. be reclaimed.
3. The Distinction Between "Use" and.
"Reclamation". Proposed § 261.2(c)(l)
contains an important clarifying clause
indicating that three types of activity
involving the use or reuse of spent.
materials, sliidges, or by-products do not
constitute reclamation! .
•. First, usi|ng; materials a? ingredients
to make new; products, without "distinct
components of the materials being
recovered as; end-products. Examples
are zinc-containing sliidges used as
ingredients; in fertilizer manufacture,
and chemical intermediates (for
instance, distillation residues from one'
process used, as feedstocks for a second
process}.30This exception does not
apply when fee spent material, sludge,
or by-product is itself recovered or when
its contained! material values are
recovered as' an end-product. For
example, if a metal containing sludge- is
29 Metal-containing scrap-comprises the great '
majority of reclaimed materials. See, National
Association of Fsoycling. Industries, Recycling;
Resources: Priorities fop the. 198Q's, indicating that
'over 80 percent of the materials recycled by its
members are scrap metal. Scrap is-not usually
considered hazardous. Generators can-determine
this, on the basis of their .knowledge of the material
(see § 262.11(c](i!)). Thus, most secondary metal
reclamation is hot affected by this provision. ; ,
30 Another example, which occurs often In the
chemical industiy, is using spent sulfuric acid as an
ingredient in producing sulfuric acid. In this
operation, spent^sulfuric acid is introduced as'a
feedstock where| it is burned to derive sulfur as SOZ.
As part of the same process, this SOS is then
purified, catalyti pally converted, and absorbed into
existing sulfuric acid. This process does not
constitute reclamation because the spent sulfuric
acid is neither regenerated (impurities are not
removed from th.e spent sulfuric acid" to make it
reusable) nor recovered (acid values are not :
recovered (acid values-are not recovered from the
spent acid). It is.being used as an ingredient. .
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14488 Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
processed to recover its contained metal
values, the process constitutes
reclamation, and the sludge, if listed, is
a hazardous waste.
• Second, using the materials as
substitutes for raw materials in
processes that normally use raw
materials as principal feedstocks; this
exception does include those situations
where material values are recovered
from these substitute materials.
Examples are sludges or spent materials
used as substitutes for ore concentrate
in primary smelting. The Agency does
not believe these processes constitute
reclamation, in spite of the recovery or
regeneration step, because the materials
literally are being used as alternative
feedstocks.81 This is not the case when
the same materials are recovered in
secondary processes (such as secondary
smelting). These processes are waste-
based, so that the materials being
recovered are not substituting for raw
materials. Indeed, this distinction is
reflected in the clear delineation of
primary and secondary processes.
Secondary processes involving recovery
or regeneration thus are defined as
reclamation.
• Third, using the materials as
substitutes for commercial products in
particular functions or applications. An
example is spent pickle h'quor used as a
phosphorus precipitant and sludge
conditioner in wastewater treatment.
This does not regenerate pr recover the
pickle liquors. Rather, the material is
being used (actually reused, since pickle
liquor is a spent material) to substitute
for other commercial products.
In these three cases, the materials are
being used essentially as raw materials
and so ordinarily are not appropriate
candidates for regulatory control.
Moreover, when these materials are
used to manufacture new products, the
processes generally are normal-
manufacturing operations (although not
when these materials are combined into
fuels). The Agency is reluctant to read
the statute as regulating actual
manufacturing processes.
However, we are somewhat
concerned that in the first of these cases
the proposal leaves unregulated certain
processes that could constitute waste
management. Processes where
secondary materials are the
predominant (or even the sole)
ingredient are conceivable examples,
particularly where the process operator
is paid to take the materials. In addition,
processes using spent materials may be
"Spent tiulfurio add fits within this exception, as
well «* the "use as Ingredient" exception. The spent
Held IB usually relumed to the original sulfutlc acid
production process, where it substitutes for raw
material customarily used as feedstock.
more logical candidates for regulation
because spent materials (having already
fulfilled their original use) are more
inherently waste-like than by-products
and sludges. We have not been able to
reduce these ideas to a quantifiable
regulatory standard, however, and
solicit further comment on this point.
Examples
« Generator A generates an ignitable
spent solvent that it sends to reclaimer-
R who reclaims the solvent for resale to
the general public.
The spent solvents are solid wastes in
A's hands and hi R's and are subject to
regulation. Solvent reclamation meets
the definition of reclamation since it is a
regeneration process, and is subject to
regulation since A is not reclaiming its
own materials, nor is R reclaiming for its
own use.
• Generator B generates a spent
solvent that it reclaims itself; the
reclaimed solvent is not sent back to the
original process from which it was.
generated.
The spent solvent is a solid waste but
is not subject to regulation because B is
reclaiming his own materials. The spent
solvent could be regulated, however, if it
accumulates for over a year without a
sufficient amount being reclaimed (see
proposed § 261.2(a)(2)(v), described in
Section G., below), and also could be
regulated on a case-by-case basis (see
proposed § 261.6(b)(2), described in
Section m. B. of Part H of this preamble).
• Generator C generates an emission
control dust (a sludge) that it sends to a
secondary smelter for metal recovery.
The smelter then sends the recovered
metal to anunrelated refiner for
processing. .'. -
The emission control dust is a solid
and hazardous waste if it is listed in
§261.31 or 261.32 and would be subject
to regulation. The smelting process
recovers metals from the dust as an end-
product, and the smelter is not engaging
in reclamation for its own use.
• Generator D generates, the same
emission control dust that is sent to a
cement manufacturer for use.
The dust'is not a waste abecause it is
being used as an ingredient to make
cement and is not being recovered or
regenerated.
^'Exception for Materials Reclaimed
at the Plant Site and Returned to the
Original Manufacturing Process. There
is one further exception to the
reclamation provision. Reclamation can
sometimes be part of a closed-loop-
recycling step, where reclaimed
materials are recycled back into the
initial production process. This type of
recycling is really an adjunct to the
original process, and as such it
represents a situation where the
recycling activity may not fall within the
Agency's jurisdiction. An example is
wastewater recycled to the original
process after being purified in an
impoundment.
To allow for these cases, we do not
count spent materials, listed sludges,
and listed by-products as solid wastes—
even if reclaimed or processed in
impoundments—where they are
reclaimed at the plant site and then
returned to the manufacturing process
from which they were generated for,
further use, Similarly, the same,
materials are not wastes if they are •
stored (even if stored in impoundments)
and reclaimed at the plant site, and the
reclaimed material is then returned to
the original manufacturing process. (The
exclusion would not apply, however, if
the reclaimed material is later used in a
different process—even if under the
generator's control—since this goes
beyond the Agency's conception of
closed-loop recycling.) The material
need not be returned to the exact
production step in which it was
generated, so long as it is returned to the
original process.32
The term "plant site" means
essentially the same thing as "on-site",
namely, the same geographically
contiguous property, as well as non-
contiguous parcels owned-by a single
person arid connected by a private right-
of-way. In addition, the plant site
includes contiguous property divided by
rights-of-way, wheflier or not the
entrance and exit between parcels is a
cross-roads (compare the definition of
"on-site" in 40 CFR 260.10). The
limitation regarding means of egress in
the definition of on-site is not relevant in
determining whether a recycling
operation is a closed-loop.
The Agency's proposed definition of a
closed-loop process hinges essentially
on the proximity of location of the
reclamation operation, plus return of the
material to the original process. There
may be better ways to distinguish when
reclamation is integrally tied to a
production process, such as the length of
time materials accumulate before being
reclaimed. The Agency solicits
35 It should be noted, with respect to surface
impoundments, that an impoundment would not be
regulated under this provision only if all of the
material in it that could be a hazardous waste is
recycled back to the original production process.
Seepage impoundments and impoundments from
which wastewaters are both discharged and
recycled consequently would remain subject to
regulation. In addition, an impoundment still could
_be regulated if sufficient amounts of material
accumulated within it are not recycled within a year
of accumulation (see Section G., below),
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Federal Register / Vol. 48, No. -65 / Monday, April 4, 1983 / Proposed Rules
14489
comments on the question of alternative
approaches in this area.
: The following example illustrates how
this exclusion applies. • • .
• A pulp and paper manufacturer
generates black, liquor, a potentially
corrosive spent residue from the pulping
process. Black liquor is sometimes .-..,
stored in, impoundments before being
routed to boilers where it is burned to
recover chemipals and energy. The
chemicals, are then reused in the original,
pulping process. •"••
The black liquor would not be a waste
for this purpose, since it is reclaimed at
the plant site and the reclaimed product
is reused within the original
manufacturing process.
The following example shows how the
various provisions dealing with
reclamation operate in combination.
• Generator A generates a listed
emission control dust that is placed in
an ori-site excavated ditch for holding
until it can be re-smelted. To prevent
wind dispersion; the dust is wetted
down while in the ditch. The dust then is
dried and placed back in the smelting
process to recover metal values..
While the dusts are in the surface
impoundment they are not being
reclaimed and therefore are not
necessarily solid wastes. The purpose of
the wetting process is to hold the dusts
in place, not to recover material.values
in the dusts or to facilitate later
•recovery of the metals (since the dusts
could be smelted without being wetted
first). In contrast, when wet sludges are
dewatered in. impoundments, recovery is
occurring, since the sludges could not be
recycled further without the dewatering
step.
The dusts may or may not be deemed •
to be stored in an impoundment
{assuming the ditch is an impoundment)
before reclamation, depending on their
disposition upon being removed from
the impoundment. If the dusts are ' ~ •
smelted at a primary smelter, they are
not being reclaimed since they are
substituting for raw material feedstocks.
Thus, even though the .materials would
be stored in an impoundment, they
would not be stored before reclamation
and so would not be wastes. ",---.
On the other hand, if the metal values
in the dust are recovered at a secondary
smelting facility, the materials would be
claimed and so would-be wastes, when
stored in the impoundment However, if
the dust is returned to the original
smelting process (primary or secondary),
it would not be regulated while in the
impoundment because the process is
essentially a closed-loop.
5. The Status of Reclaimed Products.
The Agency also has added language to
§ 26J.3(c)(2) (the "derived from" rule) to
indicate .that commercial products
reclaimed from spent materials, listed
sludges, and listed by-products—e.g., a
reclaimed solvent—are not wastes and
are not subject ot regulation under
RCRA; This proposed addition merely
clarifies-the existing regulations and
'does not represent a change: in ' :
regulatory approach. However, this •
principle does not apply to reclaimed
materials that are not ordinarily -
considered to be commercial products,
such as wastewaters. These materials
rarely are dealt with as products moving
in commerce, and are often discharged,
and so reasonably can be considered to
remain wastes. In addition* we wish to
make clear that waste-derived fuels are
not products reclaimed from a
hazardous waste and thus remain
wastes. Our claim of jurisdiction over
these materials is made explicit in
proposed § 261.2(a}(2)(ii).
We also caution that waste materials
do not become products if they are
merely processed minimally—i.e.,
operations that leave materials unfit for
use without further processing. For
instance, a hazardous sludge remains a
waste when it is dewatered and sent to.
a metal reclaimer or used in a manner
constituting disposal. Similarly, a spent
solvent that is processed by removing
rocks and other debris, and then sent to
be distilled, remains a waste.
F. Proposed§§ 281.2(a)(2)(iv) and
261.2(c): Wastes That Are Accumulated
Speculatively
The next category of solid wastes is
materials that are accumulated
speculatively. Proposed § 261,2(c)(2)
defines these as materials with recycling
potential, that are accumulating with a
legitimate expectation of eventual
recycling but have never been recycled
or cannot feasibly be recycled. An
actual example is a generator that has ,
accumulated emission control dust from
steel production (Hazardous Waste
KO61) for over eight years without being
able to find a feasible means of recyling
it, despite legitimate efforts. Over 40,000
tons are now piled in the open in an,
abandoned quarry near a drinking water
source. ,
The Agency believes strongly that
these types of materials are wastes, .at
least until a means of recyling is found.
To hold otherwise simply invites
unregulated accumulation of materials
under the guise of being held for
recycling. For this reason, the provision
applies to all spend materials, sludges^
and by-products. 33
The Agency does not mean to include
in this category materials actually
recycled by other generators, such as fly
ash. Because'of their known recycling
potential, these materials generally are
not deemed immediately to be solid
wastes, eveil if'a generator is
accumulating them without a known ' :
market. Instead, these materials will be '
considered solid wastes if insufficient
amounts are recycled (see the following,
section). A rather narrow qualification
to this is that generators must have •
some feasible way of recycling the
material. An example would be an
emission control dust used as an
ingredient injan industrial process. If a
generator is accumulating the dust with
no feasible means of sending it to a user
Snd no other Immediately feasible
means of recycling it, the generator
would be deemed to be accumulating
the material speculatively.
The regulatory status of § 261.33
commercial diemical products, pff-
speeifieatiori (Variants, spill residues, -
and container residues under this
provision, as well as under the next
provision—accumulation without
sufficient amounts being used, reused, or.
^reclaimed—requires a bit more
explanation.: As described earlier^
commercial chemical products are
presently regulated as hazardous wastes
when discarded or intended for discard,
and not wheil recycled or intended for .
recycling (see 45 F.R.78540). Commercial
chemical products that are being stored
with recycling potential and with a '
legitimate expectation of recycling,
therefore, are not intended for discard
and thus are hot subject to this
provision. (As already explained,
however, we rare proposing to define
certain commercial chemical products
destined for recycling by burning to
recover energy or by direct .land .
placement as solid wastes under other
provisions of ;the revised definition.)
If, however, a,recycling market does
not develop .a,nd one is not expected
within a reasonable time period, or if
insufficient amounts of these materials
are being recycled, we would consider-
these commercial chemical products as
being stored for discard, and thus ,
subject to regulatory control. We are not
setting any time period for determining
when these commercial chemical
33The jurisdictipnal basis for this provision^ as
well as the following provision (materials being
overaoouniulated), rests on a fooiing different from
the earlier provisions. Those provisions apply to
materials actually being recycled. In contrast, -
proposed & J Z61.;2[a)(2)(iv{[ and (v) apply to
materials not being recycled, but for which
recycling is eventually a possibility. Since the
materials are not actually being recycled, and there
is only a possibility of eventual recycling, there is
no question that these materials are RCRA solid
wastes., t" • •" ' ": •-,•:
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Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
products would become wastes.
However, we do expect persons storing
these materials to have appropriate
documentation or information to support
their claim that these materials have
recycling potential and that the
materials are accumulating for eventual
recycling (see Section!. of this part of
the preamble on record-keeping
provisions).
As indicated above, we are not
proposing a time' period for determining
when these commercial chemical
products would become wastes. We
instead would retain the existing
Standard indicating that these materials
are wastes when intended for discard.
Although a subjective standard of this
type does not provide absolute
certainty, alternatives appear to have ,
greater problems. For example, if we set
a time period that would define when
commercial chemical products would
become wastes, we believe persons
might have to keep records of all
commercial chemical products they use
or keep in inventory in order to comply
with the regulations. The Agency does
solicit comment on this point; in
particular, we ask commenters to
address the following questions: (1)
whether a time period should be set for
commercial chemical products being
stored for recycling before they are
defined as wastes; (2) what are the
maximum and average lengths of time
that commercial chemical products are
stored before recycling; (3) how and
where (/.e., with normal inventory) are
these commercial chemical products
stored; and (41 how many .hours (on the
average) would be required to keep
appropriate documentation to ensure
that the commercial chemical products
are recycled if a time period were set.
G. Proposed §§ 2B1.2(a)(2)(v) and
261.2fc)(3): Materials That Accumulate
Without Sufficient Amounts Being Used,
Roused, or Reclaimed
A major recurring circumstance in the
damage incidents involving recyclers is
the accumulation of materials for
extended periods before recycling,
leading to eventual overaccumulation
and improper storage. Accordingly,
proposed § 261.2(a)(2)(2)(v) defines as a
solid waste any spent material, sludge,
or by-product accumulated over time
without sufficient amounts being used,
reused, or reclaimed. (See the previous
section's discussion of the regulatory
status of § 261.33 commercial chemical
products that accumulate without
sufficient amounts being recycled.) This
provision is not limited to listed sludges
or listed by-products, since the
material's status as a waste turns on the
amount recycled over time, not on the
material's inherent character. The
provision also applies both to a
generator's own materials that it plans
to recycle itself and to materials
accumulated by reclaimers for their own
eventual use.
• Proposed § 261.2(c)(3) defines
materials with known recycling
potential to be overaccumulated—and
thus solid wastes—when they
accumulate at a site for over a year
without at least 75 percent (by volume)
being recycled. Under this provision, the
amount of material turned over in a year
is critical, not the total amount
accumulated at the end of the year.
Thus, if A starts with 100 units, and
during the year generates 300 more
units, but recycles 75, none of the
material is a solid waste even though
325 units remain at the end of the year.
Of course, iri the following year A would
have to recycle (or transfer to a different
site for recycling) 75 percent of the 325
units present at the beginning of that
year. The time period can be computed
according to a calendar, fiscal, or
inventory year, whichever is appropriate
for the person accumulating. We note
that this approach could allow
essentially a free year to accumulate
where a generator starts a year with
little or no waste, since the generator
would have to recycle little or no
material during the year to meet the test.
(We solicit comments as to whether
some controls are needed as to when the
one-year period begins.)
The Agency has not decided whether
the specified percentage of turnover
should apply on a material-by-material
basis, or on another basis, such as to:
• All materials of the same class (i.e.,
all solvents, or all still bottoms); or
• All materials to-be recycled in the '
same way (i.e., all materials held for
burning to recover energy); or
• All materials of the same class to be
-recycled in the same way (i.e., all
solvents held for burning to recover
energy).
Our initial preference is for this last
option, but we solicit comments on all of.
these alternatives, and ask that
commenters suggest how these
alternatives can be expressed in
regulatory language.
The Agency nevertheless recognizes
that some persons may be unable to
recycle sufficient amounts of material in
a given year but could dp so if given
additional time. Accordingly, the
Agency offers a procedure' (in
§ 261.2(c)(3)(ii)) that the person
accumulating the material can use to
notify the Regional Administrator, of the
circumstances. Although it need not
follow any specified format, the
notification would have to describe
what kind of material is involved, how
much is being stored, how it is being
stored, how and when it is expected to
be recycled, and why this expectation is
reasonable. The Regional Administrator
could then decide—on the basis of the
submitted information—that the
material is not a solid waste, or could
request further information from the
notifier. Once the material has *
accumulated for over a year without
sufficient turnover, it becomes a waste .
unless the Regional Administrator
decides otherwise. . .
The ultimate standard for the
Regional Administrator's finding is
whether a large portion of the
accumulated material is reasonably
likelyjo be recycled in the next year.
Factors to be considered are the
notifier's past history of recycling the
material (including any contractual
arrangements for recycling), relevant
market factors, the character and
quantity of material being accumulated,
and how it is being stored.
For example, assume generator A has
an emission control dust that he
ordinarily sells as an ingredient in
fertilizer. In a given year, however, he is
unable to turn over 75 percent because
the fertilizer manufacturer has gone out
of business. Generator A believes he
can find an alternative user in the next
three months. Under these
circumstances, the Regional
Administrator could find legitimately
that the material may be recycled and
need not be managed as a waste.
There also may be extreme situations
where a material can accumulate for a
second year without 75 percent turnover v
and still possibly not be considered a :
waste. We thus have allowed (in
§ 261.2(cH3)(ii)(B)) the,person
accumulating to present a second
petition to the Regional Administrator
containing the same information
described, above. The Regional
Administrator could use this information
to determine again whether the material
is reasonably likely to be recycled. To
submit the 'petition, however, the person
accumulating must have recycled at
least 50 percent of the total accumulated
material. For example, assume that on
day one A has 100 units of potentially
recyclable material, recycles 50 percent
in the first year, and successfully
petitions the Regional Administrator.
During the first year, A generates 200
more units of material. Thus, if A fails to
recycle 75 percent of the 250
accumulated units,- he would have to
recycle ^at least 125 units to petition a
second time. .
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Federal Register /Vol. 48, No, 65 / Monday, April 4, 1983 / Proposed .Rules
,14491:
The Agency believes that a two-year
grace period is sufficient. Materials
accumulating up to three years without
75 percent turnover are therefore solid
wastes, with no further opportunity for
petition (proposed § 261.2(c)(3)(ii)(C)).
Once materials are considered to be
solid wastes under, this provision, all of
the accumulated materials are wastes.
The materials remain wastes in the'
hands of the accumulator until 75
percent are. turned over in a given year.
Of course once any part of that
accumulation is physically segregated
from the rest and sent to recycling, that
part is no longer automatically •
considered to be hazardous waste under
this provision. For example, if a
recyclable listed distillation residue
"overaccumulates" under this
provision—so that the total accumulated
is a waste—and 10 percent is then sold
to an asphalt manufacturer as an
ingredient in asphalt production, that 10
percent is not a waste once it is sent to
the asphalt manufacturer. (The material.
would remain a waste, however, if it
were eventually sent to a reclaimer, and
would be subject to regulation if that
•reclaimer was reclaiming for another
person's use.) >
The Agency considered exempting
from this prpvision situations where a
generator accumulates its own non-
listed by-products in tanks or containers
for its own subsequent use or reuse (but
not subequent reclamation). 34It could
be argued that materials a generator
retains for its own use differ from
materials sent to an unrelated person,'
since the generator is controlling the
material until its end disposition. In
addition, the risk of protracted,
uncontained accumulation is reduced
with materials accumulated in tanks or
containers. '
We have decided against including
this exemption at the present time.
These materials pose the potential to
cause substantial harm if "
overaccumulated, and the provision
safeguards against this risk. In addition,
we do not believe that accounting for
the volume of unlisted by-products being
used constitutes a substantial
administrative burden, since in
assessing compliance,* we contemplate
that tracking can be tied to normal
inventory practice. .
We request comment however, as to
whether the Agency should include this
exemption in its final regulation.. •
Commenters should address which
materials are being accumulated by
generators for their own use, their
intended use, the/type of vessels the
materials are stored in, duration of
storage, and volume of materials being
stored.
The Agency acknowledges that the
turnover-notification provision is ,
complicated in description. However, if.
safeguards against overaecumulation of
materials without recycling,;while
creating a strong incentive to turn over
accumulated materials. It also ensures
that the Regional Office will be alerted '
to possible problem operations. Persons
accumulating materials may incur some
expense when accounting for their
materials, but the turnover period is tied
to normal inventory practice and
involves keeping track only of relative
in-flow arid out-flow, not of each
specific unit of material.
.The Agency still has a number of
questions about this type of provision.
The first is whether further controls are
necessary, to provide regulatory control
over facilities accumulating material for
their own recycling. Another is whether
the one-year tune period is too, long to
allow substantial amounts of material—
e.g., a 20,000 ton-pile of a hazardous
emission control dust—to accumulate
unchecked. The Agency would
appreciate comment on these questions,
as well as on questions of this
provision's enforceability and
feasibility.
H. Proposed § 261.2(a)(3): Spent
'Materials, Sludges, and By-Products To
Be Listed as Solid Wastes •
As explained above, certain recycling
activities are deemed to constitute ,
waste management only if the sludge or
by-product being reclaimed, or (in the
case of by-products) being burned as a
fuel or used to produce a fuel, is also
listed. These listed sludges and by-
products are the same sludges and by-
products listed as hazardous wastes in
40 GFR 261.31 and 261.32.3S
Proposed §261.2(a)(3) states that the
Administrator also may list particular
materials as solid wastes without regard
to the mode of recycling. Thus, if a
material is listed under this provision, it
is a solid waste and a hazardous waste
no matter how it is recycled, and would
be subject to regulation under the
34For this purpose, materials stored before.
blending, processing, or burning as fuels would lie
deemed to be stored before use.
""For the purpose of paragraph (a)(2)(lil), the
listed sludges currently are EPA Hazardous Waste
Nos. F006, F012, F019, K001, K002, K003, K004, K005,
K006, K007, K032, K035, K037, K040, K041, K044,
K046, K048,'K051, K061, K069 K084, K106. For the
purpose of paragraphs (a)(2}(ii) and (a)(2)(iii) the
listed by-products currently are EPA Hazardous
Waste Nos. F008, F010, K008, K009, K010, K011,
K013, K014, K015, K016, K017, K018..K019, K020,
K022, K023, K024, K025, K026, K027, K029, K030, '
K031, K034, K036, K039, K042, K043, K049, K050,
K052, K060, K071, K073, K083, K085, K087, KQ93,
K094, K095, K096, K101, K102, K105.
provisions oi: proposed ,§261.6. The .-,;..•
reasons for this provision is to provide a
safeguard to cover situations where a
secondary material being recycled is .
inherently waste-like and the recycling
activity, potentially poses substantial
environmenfarTisk, but the material is
not otherwise defined as a solid waste..
The most likely examples would be
particular secondary materials being
used or reused as ingredients or as
commercial product substitutes. As we
stated above, secondary materials
ordinarily function more like raw
materials or products than wastes when
used or reused in these ways (see
Section VI.E.3.), and so are not
ordinarily defined as wastes. There are
exceptions, however. The listing
provision in Ihe'revised definition would
cover these exceptions by listing'the •
particular material as a solid waste, the
listing functioning in essence as a
caveat to the general principles
regarding use and reuse.
Spent materials, sludges, and by-
products could be listejd as solid wastes
under § 261.2 (a)(3) if they meet two
conditions. First, the material would
have to be waste-like. To be waste-like,
the material, on a nationwide basis,
would ordinarily have to be disposed of;
or incinerated, rather than recycled. The
justification is that materials that are
ordinarily thrown away are inherently -,
waste-like. (See 45 FR at 33093, May 19,
1980, citing legislative history.)
Alternatively, the material would be
waste-like if (i) it contained toxic
constituents listed jn Appendix VII of ,
Part 261 not cirdinarily found in
significant concentrations in the raw •
materials or products for which it was
substituting, ,iind (2) these toxic
coifstituents were not used, reused, or
reclaimed during the recycling process. .
Second, to be listed, the material
would have to pose a potentially
substantial threat to human health and
the' environment when recycled in ways
not already defined as waste
management.| This condition is relevant
in determining w.hether a waste-like
material is a isolid waste since it sheds
light on whether the purpose of recycling
is ancilliary to a central purpose of
disposal. Potential dangers posed by the
practice are also relevant in'determining
whether there is any need to assert
control over the practice.
The Agency is proposing today to list
as solid wastes dertain dioxin and
dibenzofuran-containing wastes that we
arealso proposing to list as hazardous
wastes in another proposed regulation
appearing in the Proposed Rule section.
of today's FR,: As we explain.there in
more detail, these wastes typically are
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Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
disposed of, and are extremely toxic, so
that unregulated recydingtinciuding use
and reuse) 3s potentially hazardous.
They contain hazardous constinitents
that ar« not ordinarily present in raw
materials or products, and are not
recyclable. Accordingly, we are
E reposing to list them as solid as well as
azardoos wastes la order to control all
means of recycling. (We are including
the relevant regulatory language in this
rule, rafter Uian in ttie proposed dioxia
waste listing, so that all the proposed
regulations on recycling are in one
place."
We note that we do not expect to
invoke this provision very often, since
ordinarily the recycling situation is of
concern (for example, reclamation by a
person who did not generate the
.material), not the type of material
involved. We also solicit comment on
whether § 261.2{a"{3) should apply when
materials are used as chemical
intermediates by the generator of the
materials at the site where the materials
are generated. It can be argued that this
type of use is close to use of raw
materials in the same production
process. _
7. Proposed § 261.2(d): Record-keeping'
Provisions
No formal record-keeping
requirements are imposed as part of the
definition of solid waste. However, in
many cases some type of records will be
needed to substantiate that a particular
material is not a solid waste under the
definition or is a waste not subject to
regulation. For example, a generator
may need to demonstrate that a material
is sent to a different person to be reused
rather than reclaimed, or that
accumulated materials are being turned
over sufficiently during a year,
The Agency accordingly has proposed
§201,2(d), requiring persons to keep
whatever records for alternative means
of substantiation] are appropriate to
document their claims that they are not
managing a solid waste or that their
wastes are exempt from regulation
because they are being recycled in a
particular way. The burden of proof
rests with the person handling the
material, so that failure to provide proof
means that the person will be
considered to be managing a solid waste
or be subject to regulation. An
analogous situation is a fax audit, where
taxpayers must provide appropriate
records or substantiation to support
their claimed deductions. (Indeed, the
Agency interprets present" §261.8 as
putting the burden of proof on the entity
claiming to be exempt from regulation
because of its recycling activities, in
accord with the general principle that
the party asserting an affirmative
defense has Ifae burden of proof.i)
The Agency is seriously considering a
requirement that persons who recycle 75
percent or mots «of their accumulated
materials send a snort annual letter to
the Regional Administrator identifying
themselves, their accumulated materials,
and the percentage and volume recycled
during the past year. The Agency is
concerned that without suck a
requirement it will never be able to
identify potential problem facilities for
follow-up inspection. The Agency
solicits comments on whether it should
adopt such a requirement.
Part tt Standards for Managing
• Hazardous Wastes That are Recycled
I. The Agency's Existing Standards for
Managing Hazardous Wastes That are
Recycled and the Agency's Rationale for
the Proposed Revisions
In the Agency's existing regulations,
the requirements for recycled hazardous
wastes are the same as those that apply
to generators, transporters, or storers of
any hazardous waste {see 40 CFR 261.6).
The rationale is that these wastes
present essentially similar hazards
when they are transported or stored
before their end disposition, whether
recycling or disposal. Accordingly,
certain hazardous wastes to be recycled
are regulated up to, but not including,
their recycling.38
In rethinking the definition of solid
waste, the Agency considered the
possibility of less stringent substantive
management standards for persons who
recycle hazardous, wastes. Such
materials could be expected to be
handled somewhat more responsibly
than ordinary was-tes, given their value
as reusable commodities^ In addition,
since our policy is to encourage
recycling, we would be willing to ease
the standards, provided no substantial
threat is posed to human health and the
environment
However, fhe Agency concluded that
, such relaxation is not now advisable. In
the first place, certain types of facilities
recycling hazardous wastes repeatedly
have mismanaged these wastes, causing
extensive damage—thus refuting the
argument that these wastes necessarily
are handled more responsibly. Second,
and more important, the Agency does
not now have the technical information
necessary to determine which
management standards should remain
M Section 263-8[b] (has provides .that these wastes
are subject to {19 notification requirements under
Section 3010 of RCRA., (2) 40 CFS Part 262, (3J 40
CFR Part 263, (4) 40 CFR Par! 264 Subparts A
through L, \S) 40 CFR Part 263 Subparts A through L,
and (6) 40 CFR Parts 122 and 124.
unchanged and which should be
streamlined or eliminated. Given these
materials' demonstrated potential for
harm, as well as legal requirements of
an adequate record for rulemaking, we
believe Uiat the current substantive
standards should remain in place, at
least for the present.
Accordingly, the existing substantive
standards wall continue to apply to
• persons who generate, transport, and
store hazardous wastes before recycling
(subject to several exceptions discussed
below). Recycling facilities (as opposed
to generators and transporters] also will
continue to be subjectjto the notification
requirements of Section 3010. In
addition, recycling facilities that are
ineligible for interim status will have to
obtain a .storage permit to legally store
the wastes they take In. (See Section VI.
of this Part of the preamble for a
detailed discussion of the eligibility of
recycling facilities for interim status.)
However, the Agency is also in the
process of gathering additional
information to develop modified
regulatory standards for hazardous
waste storage facilities. Thus,, under
Executive Order 12291, the Agency is
analyzing the RCRA storage standards
to determine which management
- standards are most appropriate for
which types of wastes. We expect to
complete this analysis soon, and we will
begin to repropose these standards as
appropriate.
To provide regulatory relief, we are
also considering the development of
substantive permitting standards for
certain classes of facilities that would
be essentially self-implementing or
would reduce the amount of required
interaction with a permit writer.
Coupled with the'se standards would be
simpler procedures for obtaining permits
for these classes—procedures that
would allow all members of an
appropriate class that handle similar
types of wastes or manage wastes in a
particular manner to submit' a short
permit application to an EPA Regional
Office. The application, would indicate
that a facility Is a member of the class
and that it will~.be in compliance with
the applicable permitting standards
when the permit is issued. The Regional
Office would then provide public notice
of the permit application, and a hearing
would be available, if requested. This
procedure would streamline the existing
application process for both applicants
and the Agency and would still provide
for the public participation required by
RCRA.
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Federal Register / Vol. 48, :No. 65 /Monday, April 4, 1983 / Proposed Rules
,14493;
II. An Overview of the Proposed-
Regulations
Section 261.6 of the existing
regulations contains the special
requirements for hazardous wastes that
are beneficially used, reused, recycled,
or reclaimed. Section 261.6(a) of the
existing regulations excludes from
hazardous waste regulation those
recycled wastes (except sludges) that
are hazardous only because they exhibit
a hazardous waste characteristic.
Section 261.6(b) of the existing
regulations indicates that persons
engaged in recycling operations are
subject to regulation if they handle a
hazardous sludge or a waste listed as
hazardous *' in 40 CFR 261.31 or 261.32.
This paragraph further specifies the
management standards those persons
are subject to when the wastes are
beneficially used, reused, recycled, or
reclaimed.
The proposed amendment to § 261.6
eliminates the current distinction
between listed wastes and wastes
exhibiting a characteristic. Amending
•the potentially overbroad features of the
solid waste definition renders this
distinction unnecessary. The
substantive standards for generators
and transporters of recycled hazardous
wastes, which are identical to those in
the existing regulation, have been
moved to proposed § 261.6(c). The
standards for facilities that store wastes
that are to be recycled (again,
substantially identical to those in the
existing regulation) are now found in
proposed § 26t.6(d).
There also are a number of :
conceptually new provisions. To avoid
possibly stigmatizating the hazardous
wastes that are recycled; we are
proposing a new § 261.6(a) which
redesignates these wastes as:"regulated
. recyclable materials." We also are
proposing a new § 261.6(b), which
conditionally exempts certain types of
regulated recyclable materials from
regulation.
As discussed in Section III.D. in this
part of the preamble, we are proposing
to regulate materials that are used in a
manner constituting disposal, including
the actual recycling phase. Therefore,
the standards for those materials that
are used in a manner constituting
disposal are found in proposed
§261.6(e).
In addition, certain regulated
recyclable materials, and certain types
of facilities managing these'materials,
• are subject to regulatory standards
31 On November 25,1980, the Agency clarified
that wastes listed in § 261.33 are not at present
subject.to regulation when recycled (see 45 FR at
78540), ' ;. ,.':
different from those contained in Parts '
262 through 265 and Parts 122 and 124 of
the existing regulations. The regulatory
standards for these materials and
facilities are containedin various
proposed Subparts of Part 266. Proposed
§ 261.6(f) serves as a cross-reference,
listing the various materials and
.facilities subject to special standards. At
present, we are proposing Part 266
standards for materials reclaimed under
non-batch tolling agreements and for
spent lead-acid batteries being
reclaimed. ^
Finally, § 261.6(g) provides
substantive and procedural standards
for case-by-case regulation of otherwise
exempt regulated recyclable "materials.
The following table .compares the
various provisions of the current and
proposed regulations:
•„" Subject
Exemption for recycled
hazardous wastes exhib-
iting a characteristic.
Regulatory standards for
recycled hazardous
wastes.
Redesignation of recycled
hazardous wastes.
Exemption for certain regu-
lated recyclable materi-
als. .
Reference to tailored man-
agement standards for
regulated recyclable ma-
terials. •
Substantive and procedural
requirements for case-
by-case regulation of
otherwise exempt regu-
lated recyclable materi-
als.
Existing
provision
§261.6(a)...
§261.6(b)...
;
„ „
;
„„." „..,..,.
Corresponding
provision in
proposed rule
Eliminated.
§261.6(0), (d),
andfe).
§261 .6(a).
§261.6(b).
§261.6(f).
§261.6(g).» :
-,... i
. MWe also are proposing conforming amendments to
|261.5(c), §264.1(g)(2), and §265.1(c). The amendment to
§261.5(c) carries over the principle contained in the existing
regulation that recycled wastes that are exempt from regula-
tion are not included in the small quantity generator calcula-
tion. The amendments to §§264.1 and 265.1 indicate that
the requirements of Parts 264 and 265 do not apply to
certain types of recycling activities—namely, those condition-
ally exempt under §2S1.6(b) and those subject to regulation
under Part 266 (unless the Part 266 standards make refer-
ence to the Part 264 or 265 standards).
III. Discussion of Specific Povisions of
the Proposed Regulation
A. Proposed § 261.6(a): Regulated
Recyclable Materials
We added this paragraph to respond
to public comments that merely to
designate a recycling activity as
"hazardous waste management" is
immediately to stigmatize it. The
Agency is somewhat skeptical that a
redesignation will significantly affect
the volume of recycling or that public ,
response to hazardous waste recycling
necessarily is negative. However, to
avoid conceivable stigmatization, we
are willing to re-name recycled
hazardous waste's "regulated recyclable
materials." - >•'
However, public announcements—via
newspaper and radio—of intent to issue
a permit to a recycling facility will
continue to mention hazardous waste
(for example, a "hazardous waste permit
to store regulated recyclable materials").
Eliminating reference to "hazardous
waste" in the public notice would "
substantially undermine the meaningful
opporturiity-iFor public participation in
the RCRA peirmit-issuing process (under .
amended Section 7004(b)(2)).
B. Proposed § 261.6(b): Exemptions
This section exempts frpm regulation
. certain categories of regulated "•
recyclable materials and persons
handling them. i - ,
1. Proposed § § 261.6(b)(l) (if and (U),
261.6(b)(2), and 261.6(g): Exemption of
Hazardous Wastes Reclaimed by the
Person Who Generates Them, or
Reclaimed by a Person Other Than the
Generator For That Person's Subsequent
Use. These exemptions already have
been discussed in Part I of the preamble.
They exempt from regulation regulated
recyclable.materials [i.e., hazardous
wastes) being reclaimed by the person
generating them, or reclaimed by a
person other than the generator for that
person's subsequent use. The
.exemptions apply from the time the -
waste is generated until it is reclaimed.
Thus, if A generates a hazardous spent
solvent and (sends it to B who reclaims it
and then uses the reclaimed solvent, the •
waste is not subject to regulation in A'S
hands or in, It's.39 .
, As discussed hi Section VLB. of Part I,.
there are four qualifications to these
exemptions. First, these exemptions do
not apply when the materials are being
reclaimed or otherwise processed in
surface impoundments or stored in
surface impoundments prior to
reclamation. Second, they do not apply
when spent batteries are being
reclaimed. Third, sufficient amounts of
the materials; must be reclaimed during
a one-year period, as provided in
§ 261.2(c)(3). This qualification guards
against the risk of overaccumulation.
Fourth, and finally, the Regional .- .
Administrator may regulate these
materials on a case-by-case basis upon
discovering that the materials are being !
stored or accumulated in a manner
injurious or potentially injurious to
39 ^ncidentally, if a material being reclaimed ,
consists of a mixture of listed sludges or by- ,
products, and non-listed materials, or a mixture of
spent material and unlisted sludge or by-product,
the material is subject to regulation if the portion
being reclaimed would be subject to regulation if
reclaimed separately. For example, a mixture of a ,
spent solvent and an unlisted product would be
considered a spent material being reclaimed if it is
being utilized foi solvent reclamation.'
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1449*
Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
public health and safety. {See
§ 281.6(b)f2).) To meet this standard, the
Regional Administrator must find that
the materials {or their toxic constituents')
are not being contained, or that
incompatible materials are being
accumulated or .stored together. ISee
§ 2ei.6|g)(l)0 Relevant factors in making
this determination are the type and
quantity of material accumulating, the
mode and length of accumulation, and
tho type of hazard posed by the site. For
example, if during an inspection of an,
otherwise exempt reclamatioH
operation, the Agency's compliance
assistance officers find that materials
are being stored in large quantities In
leaking drums or that a site poses a
danger of fire or explosion, these
observations could become the basis for
a finding that the facility should no '
longer be exempt from regulation,
The case-by-case regulatory
provisions function as a safety valve.
allowing the Agency to regulate
Individual unsafe reclamation
operations, while maintaining an
otherwise appropriate exemption..
Indeed, the Agency routinely conditions
general exemptions "by providing for
regulation of individual operations
causing environmental harm.49
Proposed § 261.2{g)(3) sets out ,
applicable procedures.41 Upon deciding
that material at a particular location is
to be regulated, the Regional
Administrator will Issue a notice to the
person Storing the material stating why
the material is considered to be
improperly contained (for instance,
because contaminated runoff from a pile
of the material is seeping into surface
water or ground water). If the person !s
accumulating the material as a generator
(i.e., the material is reclaimed or
blended within 90 days and is being
held in tanks or containers), the notice
wiH require compliance with the
provisions of § 282.34. The notice
becomtts final within 30 days, unless the
person accumulating requests a hearing,
in which case a public {non-evidentiary
legislative) hearing will be held. A final
"See ti,$:, 40 CFR 12Z.S4(e)t raree-by-case
permitting «itcancc3<;«lBd.iniBiai feeding
operations lhat otherwise'hums a general permit:
122,5s; c); casB-by-cuse panmiHng of concentrated
aquatic animal production facilities that otherwise
have a gwneral permit 122,57fe): tase-hy-csse
permitting of sepsrmte storm sewers Hut otherwise
have a general permit; and 122,59(c](2): case-by-case
permitting of certain facilities otherwise covered by
general permits, Soe also proposefl5J.22.20tdJ(tH45
FR 76082 November 17,1B80) where an individual
permit is required for individual elementary
neutralteitioB units ofwastewaler treatment units
otherwise subject to a pormh-by-rnle.
"These procedures are modelled, to some extent,
on those in 10 CFR 124.S2. a provision similarly
dealing with case-by-case permitting of facilities
otherwise subject only to general permit standards.
order, appealable to the Administrator,
will be issued after the hearing.
If the person is storing the material,
the notice will require him to apply for a
storage permit within 80 days of being
notified. ** Permit applicants normally
have six months to Submit a Part B
permit application. {See 40 CFR
122.22{b){2).3 We are specifying .a shorter
time period because facilities subject to
§ 261.6(g) ordinarily w|ll he causing
actual harm or have the potential to
cause harm. The person can challenge
the determination that he is storing a
hazardous waste, either in comments
filed with his permit application or in.
the public hearing on either a draft
permit or the decision to deny the
application.*3
The Agency believes this provision
safeguards against unsafe operation .and
possible abuses by otherwise exempt
facilities. The Agency solicits public
comment on these points, as well as on
the proposed procedures.
2. Proposed § 261^b}flj(lJi):
Exemption of Regulated Recyclable
Materials Used for Precious Metal
Recovery. The Agency also is proposing
to exclude from regulation those
regulated recyclable materials from
which precious metals are reclaimed.
These materials also are excluded from
regulation when stored and transported
before reclamation.
By "precious metal reclamation," we
mean to include any reclamation
operation recovering gold, stiver,
iridium, palladium, platinum, rhodium,
ruthenium (or any combination of
these}.44 Examples are certain
electroplating wastewater teeatment
sludges, solutions and sludges fijom
electroplating and heat-treating
operations, and certain sirver-beaxing
scrap and sllver-TOOritaining
photographic films and solutions,.
Generally, the value of the metal in
these materials is so great that they will
not be mishandled. Indeed, many of
these materials are never disposed of
because of their value.45 •
"If the facility in Question were .eligible for
interim status, the effect of the notice wtfuld be to
require submission ofa-parlB permit application.
43 No compliance order can be issued against an
excluded reclaimer .-or fuel bender until it has been
finally determined that Ihe .exemption should not
apply since no regulatory standards apply before
the time.
"These are Ihe metals considered precious in
sub-categorizing file electroplating industry for
purposes of effluent limitation guidelines {see 40
CFR 413.20), The Agency proposes to use the same
definitionhere.
"See 45 FR 74884 and:748S7-(November 12, IflSO),
indicating that solutions and sludges from precious
metal electroplating are.never*Uscarded and so are
not solid wastes unjUer.the May 19,1980, definition.
However, the Agency is conditioning
this exclusion to allow a case-by-case
determination that particular problem
facilities storing or accumulating wastes
containing precious metals can be
regulated .before reclamation. The hasis
for this, and the applicable procedures,
are the same as 'those in proposed
§ 261.6(g5fl) and {SVBTo guard against
the risk of overaccumulation, we ar-e
also subjecting these facilities to the
turnover notification requirements of
§ 261.3(c){3),
In addition, we are proposing to make
a conforming amendment to the listing
description of certain "wastes listed -in 40
CFR 261.31 (Hazardous Wastes FOD7-
"F012] to remove the existing exclusion
for precious metal solutions and sludges.
This exclusion will be redundant in light
of the proposed exclusion in § 26lJ6(b)
(and also would not allow case-by-case
regulation as discussed above).
Finally, the wastes from precious
metal reclamation are considered toJbe
hazardous whenever the material being
reclaimed is a hazardous waste fie.,,a
regulated recyclable material]. (See 40
CFR 2Q-LS[c)i2), the so-called residue
rule.) The usual example is precious
metal reclamation from spent cyanide
solutions or sludges listed as wastes
F007-TFQ12. Precious metals also can be
reclaimed from electroplating , •
wastewater treatment sludges
(Hazardous Waste POOS).
This result is soundly based in fact.
since all the hazardous constituents
(usually cyanides and possibly toxic
metals) in the material being reclaimed
remain in the waste solutions and
sludges after the precious metals are
recovered. Ihus, waste residues from
precious metal reclamatiDir of regulated
recyclable materials are presumptively
hazardous. If the material being
reclaimed is a listed hazardous waste,
the waste residues from reclamation .
remain hazardous unless the Agency
has taken action to exclude them under
40 CFR 260.20 and 260.22 (and they do
not Exhibit a characteris'tic of hazardous
waste). If the material-being reclaimed is
a waste that exhibits a hazardous
characteristic, !ths waste residues
remain hazardous "unless they no longer
exhibit that characteristic.
3. Proposed §28LS{bjfi}(iv):
Exemption of Regulated Recyclable
Materials Being Reclaimed Under Batch
Tolling Agpeeaients, A "batch tolling
46 The Chemical Metals Industries facility, a
Superfund interim priority site, -engaged primarily in
precious metal reclamation (under non batch tolling
agreements] but still mishandled the materials it
received. By conditioning the exclusion, the Agency
has a means of bringing such a facility'into
compliance with regulatory standards.
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federal .Register / Vol. 48, No. 65 / Monday, April .4. 1983 / Proposed Rules
14495
agreement is a contractual arrangement
between a generator and a reclaimer.
While retaining ownership of the
material, the -generator sends it io
another person for reclamation; the
reclaimed portion is then returned to ihe
generator/owner.
For such materials to be exempt, .the
proposed regulation specifies that: (1)
they must foe sent to the reclaimer
within 180 days of generation, (2) the
• reclaimer must reclaim them and return
the reclaimed material within 90 days of
receiving them, and (3J the reclaimer
may not commingle the materials being
reclaimed under a "batch tolling
agreement with materials generated by
any other person. The reclaimer also
must be paid according to the amount of
reclaimed material returned to the
generator/owner and must be paid more
as the amount of material returned
increases. _ • .'"".•
Batch tolling agreements satisfy the
Agency's concern that materials will be
tracked properly and moved safely from
the generator to the reclaimer, and that
they will be stored safely before
reclamation. In addition, discrepancies
will be discovered,, .since failing to
deliver a shipment to the reclaimer or
delivering a nonconforming shipment is
a breach of the agreement. For these
reasons, a manifest requirement is
unnecessary.
The batch tolling agreement also
guarantees that the reclaimed material
will have an end market, so thai each
batch of material sent to a reclaimer will
be reclaimed and not allowed to.
overaccunmiate. In Ihis respect, such
reclamation is very similar to .a
generator reclaiming its own material.
The regulatory requirements that
material be sent to a reclaimer within
180 days of generation and that the
reclaimed material be returned to the
generator within SO days after the •
reclaimer receives the materials
likewise safeguard against
overaccumulafion.
The conditions for payment provide a
strong incentive for the reclaimer to
store materials properly, since any
material lost, in storage costs the
reclaimer money. The requirements that
the generator retain ownership of the ' -
material and that the material hot be
commingled by the reclaimer .further
ensure safe storage, since the generator
will be evincing a strong interest
(indeed, creating a legal obligation) in
receiving back the reclaimed portion of
the material he sends to the reclaimer.
(We also expect that a generator who
retains ownership will scrutinize the
handling practices of reclaimers because
his ownership guarantees iis continuing
legal responsibility for the materials.)
For all of these reasons,, therefore, we
believe thai regulated recyclable
materials reclaimed under batch tolling
agreements should be exempt from
regulation. We also have provided that
generators or facilities that mishapdle
materials being accumulated or stored
under batch tolling agreements -can be
regulated on a case-by-case basis,
according to the standards and
procedures" contained .in proposed
§ 261.6(g) (1) and {3J.
• Batch tolling agreemerits, as defined
in the proposed regulation, exist now.
(Examples are in -lie public docket)
Thus, the proposed regulation will not-
disrupt on-going commercial practice. In
addition, we do not expect this proposed
exclusion to significantly alter the .scope
of regulatory coverage. Few, if any,
reclamation facilities conduct all of their
business under such arrangements.47
Thus, we do not believe that many
reclamation facilities will be exempt
completely from regulation as a result of
this proposed exclusion. We do expect,
however, that it will promote these
, agreements, a desirable result in light of
the environmental safeguards they
incorporate. -
, Finally, the Agency is aware of
certain arrangements where the
reclaimer retains title lo the waste being
reclaimed, leases the reclaimed material
to a user, and then receives back the
spent material which it reclaims and re-
leases. This is a batch tolling agreement ,
where the reclaimer rather than the user.
retains title. Tie Agency interprets the
exemption for batch tolling to cover
these arrangements as well, since they
provide the same .assurances for
tracking and handling as the more usual
batch arrangement, due to the continued
retention of title. (This type .of batch
tolling arrangement was .complimented
during the House of Representatives'
rebate on H.R. ,6307 for providing
environmental safeguards. See 128
Cong. Rec. Hi 6740 (daily ed. Sept. 8,
1982), remarks of JRejp. PlorioJ
4, Proposed § 261.6{bj(lJ(vj; .
Temporary Exemption of Regulated
Recyclable Materials Being Bumed as
Fuels, Being Used to Produce Fuels, or
That Are Contained in Fuels,
This provision has already been •
described in detail in Sections I¥. D.
and VI" D. of Part I of the preamble. In
essence, if states the following;
(1) Recovering energy by burning
spent materials, sludges, and listed by-
products {and § 261.33 materials that are
not themselvesTuels) is exempt from
"A survey conducted by the National
Association of Solvent Recyclers indicates that
none of their members operate exclusively under
batch tolling agreements.
'•• • '! • ' •
regulation when, these materials are
burned in unregulated boilers or , (
industrial furnaces. This exemption is
temporary and will be amended
following completion and assessment of
the technical studies described earlier.
(2) Spent materials, sludges, and listed
by-products (and § 261.33 materials that
are not themselves fuels) are subject tos
regulation when used to produce fuels
by perso;os who did notgenerate them
: and who;are not themselves burning "the
fuels containing these materials. In these
situations, the materials are subject to
regulations under Parts 262-265. Non-
, exempt fuel-producing facilities thus are
subject to regulations as storage
facilities,1
(3) Sludges and hazardous wastes
listed in slOCFR 261.31 or 261.32 would
be subject to regulations when they are
to be burned or used to produce fuels, as
they are 'under the existing regulations.
These wastes would be subject to
regulation whether or not they are -
managed by facilities producing fuels
from them for their own subsequent use,
or by facilities that ultimately burn these
wastes. We may re-propose and alter
this part ibf the proposal.
(4) Storage and ancillary activities by
facilities would be provisionally exempt
if: (1) facilities produce fuels for their
own subsequent use from non-sludge
wastes that are hazardous solely
.because 1faey exhibit a characteristic
[i.e., from non-listed' spent materials), or
(ii) facilities ultimately burn these
wastes oi| waste^derived fuels
containing ihese wastes. These facilities
remain subject-to the turnover-
notin'catibn requirements of
§ 261.2(6) (3), however. In addition, they
can be regulated,on a case-by-,case
basis as storage facilities iir as
generators under ihe provisions and
procedures of % 261.6(g},
The actual burning of these materials
also is subject immediately to case-by-
case regulation. The proposed regulation
(§ 261,0fg;i(2,)) thus provides that persons
burning these materials as fuels in
unregulated bollera or industrial „
, furnaces imn be regulated on a case-by1-
case basis under the Part 264 Subpart O
regulations applicable to incinerators.
Thejroun ds for regulating are that the
f. materials are being burned in a manner
insufficient to-protect human health and
the environment, based upon the
toxicity and quantity of stack emissions.
Relevant factors in making this
determination include the content and -
mass of the waste feed, operating
- conditions of the unit, andpotential of
stack emissions to pose a health hazard.
For example, if the Regional :
Administrator discover§ that a boiler is
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14496 Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
burning large quantities of solvents at
low temperatures and with short
residence times, and that stack
emissions indicate presence of toxicants
(all of which circumstances have
occurred in the damage incidents
Involving improper burning in boilers),
the unit could be regulated under the
Subpart O regulations.
5. Proposed §2B1.6(b)(l){vi):
Temporary Exemption of Recycled Used
Ot'L The Used Oil Recycling Act of 1980
requires EPA to determine whether used,
oil is a hazardous waste and to report to
Congress the basis for that
determination.48 This Act also requires
EPA to promulgate regulations that
protect human health and the
environment from the hazards
associated with recycled oil and to
tailor the regulatory scheme so that
recovering or recycling used oil is not
discouraged.
The Agency intends to regulate
certain recycled used oils as hazardous
wastes. Wo also are developing the
tailored management requirements
contemplated by the statute. Until the
specific regulations are completed,
however, the Agency is deferring any
regulation of recycled used oils that
exhibit a characteristic of hazardous
waste. (Used oil that is a hazardous
waste and is disposed of, or treated or
stored before disposal, remains subject
to regulation as any other hazardous
waste.) To regulate now would make
little sense when the Agency is working
on a specially tailored regulatory
scheme and would well conflict with
congressional intent by discouraging
used oil recycling.
This exemption does not apply when
a hazardous waste is mixed with used
oil and the resultant mixture is recycled.
The most usual case is placing the
mixture on the land—e.g., when a listed
waste from aniline production is mixed
with used oil, and the mixture is used as
a dust suppressant. In this case, the
Agency is regulating the hazardous
waste that is mixed with the used oil,
not the used oil component of the
mixture. The recycling activity would be
regulated as a use constituting
disposal. 4*
"See Pub. L. S6-402 (now codified substantially
«a Section 3012 of RCRA). Under EPA's current
regulations, used oil is a hazardous waste only if it
moots one or more of this hazardous waste
charactKrisUKS. It is not subject to regulation when
recycled bcc.iuso it is neither a listed waste nor a
gludge.
'•Sea Section Vl.C. of Part I of this preamble, as
well as proposed I 281.2(a)(2)(i), indicating that
materials can be used in a manner constituting
disposal, and thus be subject to regulation, when
they are mixed together without appreciable change
end then plased on the land.
6. Proposed §2B1.6(b)(l)(vii):
Exemption of Used Batteries Returned
to a Battery Manufacturer for
Regeneration. Used batteries sometimes
are returned intact to battery
manufacturers to be regenerated by
replacing the drained electrolyte or
replacing one or more bad cells.80This
could be subject to Subtitle C regulation
under the proposed solid waste ,
definition, since it constitutes
reclamation of a spent material by a
person other than the generator (used
batteries may be hazardous wastes
because of acid and metal content).
However, the Agency believes the
practice presents minimal
environmental risks and is very similar
to recycling commercial chemical
products, an activity not ordinarily
regulated (see 45 FR at 78540, November
25,1980). This practice is not subject to
the turnover-notification provision for
the same reason. Accordingly, we are
proposing today to exempt from Subtitle
C regulation used batteries returned to a
battery manufacturer for regeneration.
C. Proposed §§ 261.6 (c) and (d):
Specific Management Standards for
Generators, Transporters, and Storers of
Hazardous Wastes That Are Recycled.
These proposed provisions are the
analogues to the present § 261.6(b) and
provide the specific management
requirements for recycled hazardous
wastes. As an organizational change,
the Agency has placed the generator
and transporter requirements (proposed
§ 261.6(c)) and the storage requirements
(proposed § 261.6(d)) into different
paragraphs of this section.
As descussed above, the Agency, for
the most part, is retaining its current
management standards for regulated
recyclable materials. Thus, these
materials (unless subject to a Part 266
standard) will continue to be regulated
through the conclusion of their storage.
Persons managing them will be subject
(in some instances) to Section 3010 of
RCRA and in all cases to the provisions
of Parts 262-265, as well as Parts 122
and 124 for storage facilities requiring a
permit.
Specifically, generators and
transporters are subject to requirements
of Parts 262 and 263. We are not
requiring RCRA notification from these
persons (see amended Section 3010(a)),
since we believe the Part 262 and Part
263 requirements (such as obtaining an
identification number) satisfy the
5'Batteries also are recycled to recover contained
lead values. This practice prevents environmental
risks different from regnerating used batteries and
is subject to a set of special management standards
(see Section HI. D. 3. of this part of the preamble).
objectives of the notification provision.51
Generators accumulating -regulated
recyclable materials in tanks and
containers for less than 90 days are
subject to the provisions of § 262.34,
provided they comply with the
substantive conditions of-that provision.
(Persons accumulating regulated
recyclable materials in piles or
impoundments for any length of time are
storage facilities. See proposed
§26l.6(d).) " -•'
Facilities storing regulated recyclable
materials are subject to the standards
contained in Subparts A-E of Parts 264
and 265, and to the technical standards •
of Subparts F through L.of the same
parts (depending upon the manner of
storage—in tanks, containers, piles, or
impoundments). The permit
requirements and procedures of Parts
122 and 124 also apply (see proposed)
§ 261.6(d)).
D. Proposed § 261.6(e): Management
Standards for Hazardous Wastes Used
in a Manner That Constitutes Disposal.
The standards for regulated cyclable
materials used in a manner that
constitutes disposal appear in § 261.6(e).
We believe that these materials should
be regulated at all stages of
management. This includes the recycling
phase, since recycling that constitutes
disposal is virtually tantamount to
unsupervised land disposal.
We are proposing, for the time beingj
to regulate these activities under the
land treatment or landfill regulations of
Parts 264 and 265. (These are the two
Subparts that are most analogous to
uses constituting disposal.) The risk of
irrevocable environmental
contamination from unregulated
placement of hazardous wastes on the
land is obvious. In addition, we
indicated in our land .disposal
regulations that waste constituents
cannot be contained indefinitely, and so
are likely to migrate to ground water at
some time. Predictions as to when and
what the rate will be are very difficult.
, (See 47 FR at 32293, July 26,1982.) We
indicated that in protecting ground
water, any statistically significant
increase at the compliance point in
ground water background levels of the
51 Amended Section 3010(a) allows the Agency to-
make notification optional when it amends a Part
261 regulation "identifying additional
characteristics of hazardous waste or, listing any
additional substances as hazardous waste.. . ." In
spite of this language, the Agency believes the plear
intent of the provision is to give the Agency ,
authority to make notification optional whenever it
amends Part 261 to bring additional persons into the
V hazardous waste management system, not just
when additional characteristics or listings are
promulgated; we are so interpreting the statutory
language.
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14497
Part 281 Appendix VIII constituents is
sufficient to trigger compliance
monitoring (40 CFR 264.91{a)(l)) and
possibly corrective action. In light of the
uncertainties of predicting waste
migration, and the need for action If
there is even a small increase in the
concentration of hazardous constituents
in ground water, there, ordinarily will be
some need for immediate regulation of
this recycling activity. •
, At the same time, we recognize that
uses'constituting disposal involve
unique situations different in practice
(though possibly equivalent in risk) from
waste management at ordinary land
disposal facilities. Thus, uses
constituting disposal can be regarded as
a type of activity that does not fit
precisely the decription of any of the
specific units that are covered by
specific Subparts of Part 284 or 265. In
our land disposal regulations, we ,
indicated that we were considering
promulgating separate regulations to
addres.s these types of waste
management units. These regulations
would consist of general environmental
performance standards similar to those
contained in 40 CFR § 267.10. (See 47 JPR
32281.) We believe 'that ultimately
developing such general standards
probably is suitable for regulating uses
constituting disposal, because of the
situation-specific nature of the activity.
We accordingly solicit comments as to
whether we should proceed along these
lines. .:...'-.
In any case, the immediate impact of
these provisions is likely tefoe minimal.
Public comments and the Agency's own
investigations indicate that most
materials recycled in this manner are at,
present excluded from regulation by the
1980 statutory amendments^Tlie
principal examples are utility wastes
and wastes from phosphate mining and
processing.52 We are studying these
wastes and their management, flmay be
that special standards (other than those
proposed today) will prove appropriate
for these wastes, should an* be subject
to regulation as hazardous wastes.
The proposed rules also cover the
regulated recyclable materials before
they ultimately are recycled to the land.
Thus, the materials must be^arrie'd to
the use location by a Part 263
transporter. In addition, ihe manifest
system must track these materials"to the
use location. (See proposed § 261.6(c).}
. The owner or operator of :the facility
using the materials must th® comply
with the provisions for using the
MUsed oil, which often is used directly on the
land, will be regulated under a separate set of
regulations. See Section Ilt.B. of this part of the
preamble. •-.',"'
manifest (40 CFR^264.71 or 265.71) and
for dealing with manifest discrepancies
: (40 CFR 264.72 or 265.72). -
Without these requirements, there
would be nothing in the arrangement for
use constituting disposal to ensure
proper tracking of materials from the
point of their generation to the point of
their use. In fact, a user or generator
might well not know if a shipment has
been misdirected, particularly if the
material involved is being shipped in
• large volumes -via repeated movement
(as in a land reclamation situation).
If a generator stores materials that
will be used by a different person in a
manner constituting disposal, the
generator must still comply with
applicable storage standards. The
generator is hot relieved of storage
responsibilities because .the end use is
approved; nor are owners or operators
of intermediate storage facilities exempt
from regulatory control [i.e., storage
facilities whose owners or operators do
not ultimately use the waste).S3-(See
proposed § 261.6[dJ.)
K Proposed §§ 261.6ffj andSubparls
C and I) of Part 266. Proposed § 261.6[fj
serves as a cross-reference to the
special management standards in Part
266. The Agency intends to use Part 266
for all regulatory standards that differ
from those in Parts 264 or 265—in other
words, for tailored management
standards. Eventually) we hope to
develop Part 266 standards for many
types of recycling activities. At present,
we are proposing two: for materials
reclaimed tinder non-batch tolling
agreements and for spent lead-acid
batteries that are reclaimed.
1. Proposed §§ 261,6(f](3.)and 266.20:
Regulated Recyclable Materials
Reclaimed Under Nonbatch Tolling
Agreements. We have_developed special
management standards for regulated
recyclable materials reclaimed under
nonbatch tolling agreements. A
nonbatch tolling agreement is a contract
between a generator and_a reclaimer.
Under this contract, the generator
physically transfers waste material to a
reclaimer, who then returns reclamed
material to the generator by a specified
deadline. It differs from the batch tolling
agreement (discussed in Section HI. B. 4.
of this part of the preamble) in that (1)
the generator does not retain ownership
of the .material sent to the reclaimer and
(2) the reclaimer is not paid in
proportion to the amount of reclaimed
material returned. Instead, the generator
"The" Agency is aware of at least one damage
incident caused by Improper storage off wastes prior
to a use constituting disposal. See Damages and
Treats Caused By Hazardous Materials Sites,
supra, p. 44.
is simply'guaranteed the return of a
reclaimed material. (Contracts also may
call for &e waste and the reclaimed
material to meet particular
specifications.) -
Nonbafch lolling agreements appear '
to satisfy [all of Ihe Agency's objectives
in .requiring a manifest system for
generators, transporters,, and facilities,
As explained earlier, the agreement
itself ensures proper tracking of
materials from the generator to the
reclaimer^. We accordingly are
eliminatixjg any manifest requirements
for generators, transporters^ and
facilities reclaiming wastes under these
agreements. However, persons handling
wastes under fliese agreements must be
able to show that they actually are.
doing so tiy keeping copies of .the •
apposite Eigreemeni. (See the discussion
of proposed § 261.2[dj in the first part of
today's preamble.)
We are also proposing to eliminate
the general waste analysis requirements
of 40 CER sections 264.13 and 265.3 for
facilities managing materials under
these agreements. Under those
provisions* an owner or operator who
treats, stores, or disposes of any
hazardous waste must obtain a chemical
or physical analysis of a representative
sample of ihe waste and must develop
and follow a written analysis plan that
describes.the procedures to obtain the
analysis. I/his requirement is to ensure
that the facility has all the information
necessary to properly treat, store, or
dispose of the waste.
However, the nonbatch tolling
agreement' already serves the same
purpose because the material sent to the
reclaimer ordinarily must meet physical
specifications to enable the reclaimer to
return suitable reclaimed material to the
generator..Thus, the materials will be
analyzed by the reclamation facility or
other appropriate party, whether or not "
regulations apply.
We do not believe, however, that
existence «f the nonbatch tolling
agreement satisfies any of the technical
standards for storing or properly
handling tlie material Indeed, materials
stored under such agreements have been
mishandled at a number of the recycling
facilities involved in damage incidents.
(See Appendix B.) Unlike batch tolling,
nonbatch tailing agreements neither
guarantee an end market for the
materials, nor provide incentives for
safe storage.
We thus are proposing to retain all of
the technical requirements. However,
the Agency1 solicits comments on
whether further requirements could be
reduced or eliminated. For each
suggested elimination or reduction, we
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request the commenter to explain how
the nonbatch tolling agreement ensures
that the policy underlying that affected
requirement would be satisfied.
2, Proposed §§281.6ff}(2) and 268.30:
Management Standards for Spent Lead-
Acid Batteries Being Reclaimed. The
final category of materials for which the
Agency is proposing a tailored
management standard is spent lead-acid
batteries that are hazardous wastes54
and are being reclaimed. Reclaiming
these batteries involves recovering the
lead they contain by first cracking or
breaking the casings and then smelting
the lead plates that were inside.
We are proposing to regulate these
spent batteries only when they are
stored by persons who reclaim them.
Spent batteries thus would be subject to
regulation when stored by battery
crackers and secondary smelters
(including smelters who subsequently
refine the recovered lead). However,
they would not be regulated when
accumulated by generators, or when
stored by persons who do not also
reclaim them, or transport them. The
basis for these distinctions is set out
below.
a. Regulation of Spent Batteries
Stored By Reclaimers. Spent batteries
have been mishandled while being
stored by all types of reclamation
facilities—by integrated smelter-refiner
operations as well as by independent
battery crackers and smelters (see
Appendix B). Thus, we have no
justification for distinguishing among
, these facilities for regulatory purposes.
In this respect, the provisions proposed
for these facilities differs from those
proposed today for other types of
reclamation facilities. In the case of
those other facilities, the Agency-
based in part on the lower level ofrisk—
is proposing not to regulate generators
"We believe thai most spent lead-acid batteries
will exhibit Ilia characteristics of corrosivity and EP
loxldly and no will be hazardous wastes. With
regard to corrostvity, these batteries contain
concentrated sulfuric add, which is corrosive (40
CFR 201.22). {Although the characteristic of
comwivity applies only to aqueous and liquid
solutions, the Agency does not consider batteries to
be «ol!d» for purposes of evaluating thetr
corroiivily. fa determining the hazardousness of the
waste, n roptcicntaUve sample of the material must
b« taken. In the case of spent batteries, this means
alt parti of the battery, including the liquid acid,
must bo part of the sample. When this is done, most
lead-acid batteries meet the definition of a corrosive
liquid.)
These batteries also may exhibit the
characteristic of EP toxicity. Spent batteries contain
lead plalo* and leaded compounds that are engulfed
In highly acidic solutions. Since lead is quite soluble
tmdef these conditions, we expect that the
contained solution would be lead-contaminated and
probably would exhibit the EP toxicity
characteristic.
reclaiming their own wastes or facilities
reclaiming for their own subsequent use.
However, many battery reclaimers do
not store batteries before reclaiming
diem, as the Agency interprets its
current regulations. These reclaimers
transfer the batteries directly from the
delivery truck to the battery-breaking
equipment.
The batteries sometimes remain on
the truck for several hours, sometimes
for up to several weeks. We ordinarily
do not consider this temporary holding
to constitute storage. This holding time
usually is short because it is expensive
for transporters to keep their delivery
..trucks off the road. We expect to
propose soon a clarifying regulation
indicating that temporarily holding
hazardous wastes on bona fide
transport vehicles does not constitute
storage. The proposed time limit for
such holding probably will be 14 days.
Under the present proposal, therefore,
battery reclaimers (and similarly
situated persons) need not obtain a
storage permit, unless they take the
batteries off of the truck and store them
at a separate area before reclamation.
We acknowledge that some questions
remain as to the efficacy of regulating
storage of spent batteries before
reclamation. Most of the environmental
damage from battery reclamation has
been caused by disposing of wastes
from the reclamation process father
.than by storing batteries before
reclamation. Existing regulations,
already apply to disposing of process
wastes.55 We also recognize that risks
from improper storage are reduced with
the increased use of automated battery
shredding equipment.
Nevertheless, the damage from'
improper storage by battery reclaimers
indicates some need for regulation. We
also can envision potential problems
arising from storing spent batteries. For
example, a facility could pile batteries in
leaking containers in the open, spilling
metal-contaminated acid. Reclamation
facilities also can receive damaged
batteries with the possibility of harm if
storage is unsafe.
We consequently are proposing to
regulate spent battery reclaimers who
store these batteries. At the same time,
we solicit comments on alternative
regulatory approaches, such as a class
permit for battery reclaimers directed '
narrowly to containing releases of • - ,
"These wastes are spent acid solutions and
spent battery casings. Ordinarily, both are ,
hazardous wastes when disposed or when treated
before disposal (the spent acid solutions usually are
hazardous because of their corrosivity and toxicity,
and the spent casings may exhibit the EP toxicity
characteristic). The regulation of these wastes is not
affected by the regulations proposed today. ,
hazardous waste occurring both during
storage and during treatment (battery
breaking). A second alternative is to
limit the quantity of batteries that a
reclamation facility can store at one
time without having to obtain a storage
permit. '. -. .
We also would like commenters to
address the following questions: (1)
What are the maximum and average
lengths of time that reclaimers store""
spent lead-acid batteries before
^reclamation? (2) How are these spent
batteries stored? and (3) What risks of
environmental damage are associated
with the reclamation process itself?
b. Exclusion of Spent Batteries from
Regulation When Accumulated by
Persons Other than Reclaimers or When
Transported. We are proposing to
exclude spent batteries from regulation
when they are accumulated by persons
other than reclaimers or when they are
transported. This exclusion is needed
because an excessive (and unnecessary)
regulatory burden is likely to result if
Subtitle C standards are extended back
to cover activities before storage by
reclaimers.
Generator and transporter
requirements do not appear necessary,
since there are other incentives outside
RCRA and other regulatory constraints
that ensure that these materials both
arrive at their intended destination and
are not improperly managed during this
phase of the management cycle. First,
. these spent batteries are a valuable
commodity, and customarily are
reclaimed;06 therefore, the Agency can ,
be assured that these materials
ordinarily will arrive at their intended
designation. Second, acid spillage during
transport is unlikely because the
Department of Transportation currently
regulates these batteries during their
transportation under 49 CFR Part 122.
Under these regulations, batteries,must
be properly packaged, labelled, etc., to
prevent hazards during transport. (Such
spillage also would constitute illegal
hazardous waste .disposal.) Finally, as
indicated by both the independent
battery crackers and the integrated
smelter-refiners, reclamation operators
pay for each battery on a weight basis.
Therefore, to increase their profit,
generators and transporters are
encouraged to deliver batteries full of
acid.
We also think it unnecessary to
regulate storage of these batteries by
"•In fact, these spent batteries are the primary
source of lead for secondary lead smelters. Of the
approximately 50 million batteries produced each
year, ov.er 90 percent are recycled and used again to
make lead-acid batteries or other lead-based
products. • ;
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Federal Register /Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules 14499
retailers, wholesalers, or local service
stations that receive s'pent batteries
from consumers. These types of _
establishments rely heavily on
maintaining good public relations with
the consumer, and thus have an added
incentive to manage their wastes
properly. We also are reluctant to -
impose Subtitle C regulations on
establishments of this type [particularly
when a recycling activity is involved),
unless there is a compelling
environmental need. No such need is
apparent in the case of stored spent
lead-acid batteries.
We also are proposing" not to regulate
the storage of spent lead-acid batteries
at immediate collection centers. Many of
these centers are small establishments—
e.g., scrap yards or salvage dealers—
that receive many different types of
scrap metal (including spent batteries),
segregate it, classify it1 into the various
grades, and send it off to be smelted and
refined. We estimate that there may be
thousands of these establishments. We
believe that these facilities are unlikely
to present a significant hazard to human
health and the environment because
they ordinarily do not store large
quantities of these batteries for long
periods. Therefore, we are proposing not
to regulate spent batteries when
accumulated at these intermediate
collection centers. However, we believe
that we need to investigate these
facilities further. If after this analysis we
conclude that regulatory control of these
facilities is necessary, we will propose
appropriate regulations.
In summary, foe Agency is today
proposing to regulate spent lead-acid
batteries only when stored before
reclamation at battery cracking, battery
cracking-smelting operations, or battery
cracking-smelting-refining operations.57
Spent batteries stored by these persons
thus would be subject to the
requirements contained in Parts 264 and
265. These include: (1) the
administrative requirements of Subparts"
A through E, minus those regulations
pertaining to the manifest requirements
and waste analysis (since the batteries'
composition is known) and (2) the
technical standards of Subparts F
through L [depending on the manner of
storage). The permit requirements of
Parts 122 and 124 also apply.
67 For our purpose, the reclamation process
includes both cracking and smelting, both being
necessary to recover lead. (Lead plates obtained by
cracking batteries are, unlikely to exhibit a
characteristic of hazardous waste, and so could be
• sent from a battery cracker to a secondary lead
smelter without being subject to RCRA regulation.)
IV. Standards Applicable to the Various
Activities Constituting Waste
Management Under the Proposed
, Definition of Solid Waste
This section of the preamble reviews
which regulatory standards apply to the
activities defined in § 261.2 as waste
management.
Persons engaging in uses constituting
disposal 58 are regulated under proposed
§§ 261.6[c) (generators and
transporters), 261.6(d) (storage
facilities), and 261.6(e) (uses constituting
disposal). Persons handling wastes
being reclaimed by someone other than
the generator or by someone who
subsequently uses the reclaimed
material are regulated under proposed
§§ 261.6(c) and 261.6(d).59In the case of
hazardous wastes that are listed in 40
CFR 261.31 and 261.32 or are hazardous
sludges, persons managing these wastes
prior to burning or blending are also
regulated under proposed §§261.6(c)
and 261.6(d). Any wastes listed under
proposed § 261.2(a)(3) also would be
regulated under these provisions.
Persons accumulating materials
. speculatively likewise are subject to the
standards in proposed §§261.6 (cj and
(d). These materials are deemed
immediately to be solid wastes.
Generators who accumulate these
materials for less than 90 days in tanks
and containers are subject to the
provisions of 40 CFR 262.34. Storage for
longer periods (or for any length of time
in piles or impoundments) must satisfy -
.the applicable storage standards.60
The standards applicable to materials
that are accumulated without sufficient
amounts being recycled require further
explanation. Under the proposed
definition, it is not determined whether
these materials are regulated recyclable
materials until a year has passed. The
person accumulating these wastes also
may petition the Regional Administrator
for a determination that the materials he
is accumulating are hot solid- wastes.
In the Agency's view, persons
accumulating these materials are,
storage facilities when a year elapses
without sufficient turnover of the
material. Thus, they are subject to the
standards contained in proposed
§ 261.6(d). These persons should not be
5SThe descriptions of the recycling activities that
constitute waste management are shortened
characterizations. The actual regulatory standards
in the proposed definition of solid waste are
described in detail in Part I of this preamble.
"Regulated recyclable materials reclaimed under
a nonbatch tolling agreement are subject tti
regulation under Part 266.
60 It should be remembered, however, that these
materials do not necessarily remain solid wastes
once they are removed from accumulation to be
recycled. See proposed § 261.2{c)(2).
considered generators,-or have the .-
benefit of the generator accumulation
provision [§ 262.34), because they
already have held the material for well
over 90 days. '
We do, however, interpret these
provisions as.allowing a six-month
period for a facility either (1) to come
into compliance with the applicable
requirements (i.e., the storage standards
in proposed § 261.6{d), and the
requirement to submit permit
applications—both Part A and B
applications for facilities ineligible for
interim status), or (2) to ship all the
materials to another Subtitle C facility.
This is analogous to Section 3010(b) of
RCRA, which provides that Subtitle C
regulations become effective six months
after promulgation—to allow regulated
entities lead time to come into
compliance!.
The Agency believes a similar
principle applies when a material
becomes a solid waste after held for a
year without sufficient turnover. In this
situation, the applicability of regulatory
requirements is not certain until the year
has passed,, just as the applicability of
regulatory requirements is uncertain
until a regulation is promulgated.
Because of this uncertainty, the person
accumulating the material may not have
had, and cannot reasonably be expected ,
to have Jtiad, sufficient opportunity to
come into compliance with the
regulatory requirement.S1 ,
V. Possible Inclusion of a Variance
Provision ;i"; ; ,- . . ; :'.; '"\
The Agency considered including a
variance provision in these regulations
to cover processes that do not appear to
be waste-baised but that nevertheless
fall under flue revised definition of waste
management. However, we decided that
such situations, if they exist, can be
dealt with by using the rulemaking
provisions and procedures of § 260.20 of
the regulations. In fact, informal
rulemaking, which would accord rejief
on a classwi.de basis is the most
appropriate mechanism. If a petitioner
can show that its process should not be
considered waste management, all
similar processes should be, accorded
the same regulatory status at that time.
61 These facilities also would have tp file a
notification within 90 days after the accumulated
material becomes a regulated recyclable material.
As an incidental! matter, the six-month period
described above; is a good time to apply to the
Regional Administrator, under proposed
§ 261,2[c)(3Kii), for a determination that the
accumulated material is not a solid was'te^ The time
it takes for the Regional Administrator to make this
determination is another reason to allow a six-
month lead time to come into compliance.
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We do not think that a variance
provision to exempt individual facilities
(or generators or transporters) from
particular regulatory requirements is
appropriate. We believe that petitioners
for this type of variance would argue
that their facility performs a certain
activity properly and so should not be
regulated. This type of claim is properly
made in the permitting process, where
the existing Part 264 (or Part 266)
standards provide flexibility to
accommodate individual situations. If
the form of relief requested is justifiable
on a classwide basis, a rulemaking
, petition can be filed.
Consequently, we are not including a
variance provision in the proposed
regulation. We solicit comments on this
approach, however.
VI. Eligibility of Owners or Operators of
Recycling Facilities for Interim Status
It obviously is of great practical
significance whether owners or
operators of recycling facilities newly
brought into the hazardous waste
management system are eligible for
interim status. The requirements for
interim status are no different for
recycling facilities than for any other
hazardous waste management facility.
They requite: (1) that the owner or
operator of a facility notify he is
engaging in a hazardous waste
management activity (if the Agency
requires notification), (2) that he submit
a Part A permit application in a timely
manner, and (3) that the facility had
been in existence on November 19,1980.
See § 122,23(a) and 45 FR 76630
(November 19,1980), interpreting these
requirements.
In general, the owner or operator of
any facilityss that presently has interim
status will continue to have such status
if his recycling operations are now
brought into the hazardous waste
management system for the first time. If
the owner or operator of a facility does
not have interim status, he may qualify
if he notifies the Agency, if he submits a
Part A permit application, and if on
November 19,1980, his facility was
treating, storing, or disposing of a
material later identified or listed as a
hazardous waste.
The following examples illustrate how
theseprinciples apply:
1. The ABC Company generates.and
stores a listed waste and did so before
November 19,1980. It also complies with
the other statutory prerequisites and so
MS«e 45 FR at 7S63J-634; only owners or
operators of "facilities" can obtain interim status,
and no only entities engaged in treatment, storage,
or disposal may qualify. See also i 260.10(a)
defining "facility" as an entity that treats, stores, or
disposes of hazadous waste.
has interim status. After November 19,
1980, the company begins to reclaim a
different person's EP toxic spent
material, an activity considered to be
hazardous waste management under the
amended definition of solid waste. Does
the company still have interim status
and can the recycling activity be
conducted permissibly?
The company continues to have
interim status, and the recycling activity
constitutes a change during interim
status—specifically adding waste,
increasing design capacity, and possibly
adding a new process (if storage
incident to reclamation uses a different
type of vessel or mode of storage than
that used for the listed wastes). The
regulations on changes during interim
status (§122.23(c)) determine whether
this change is permissible and, if so,
what regulatory obligations apply (such
as filing an amended Part A
application).
2. The EFG Company does not have
interim status. After November 19,1980,
it begins to reclaim a different person's
spent corrosive materials. It was not
handling this waste before November
19,1980. The facility owner or operator
notifies the Agency and submits a timely
Part A permit application. Does, the
company have interim status?
The company does not have not have
interim status. Although it has complied
with the notification and application
requirements, it was not "in existence
on November 19,1980," because on that
date it was not treating, storing, or
disposing of waste it now is recycling.
(See 45 FR at 76633-634, which
interprets the requirement that a facility
be in existence on November 19,1980.)
Consequently, until the company
obtains a storage permit, it must stop
storing the waste before recycling.
3. The DBF Company does not have,
interim status. On November 19,1980,
the company was reclaiming an EP toxic
spent material generated by a different
person and storing that material before
reclamation. It is now deemed to be
engaged in hazardous waste
management as a result of the amended
definition of solid waste. The owner or
operator of DBF notifies the Agency and
promptly submits a Part A permit
application. Does the company have
interim status?
This company's facility meets all of
the prerequisites for interim status. A
facility is "hi existence on November 19,
1980" if it was treating, storing, or
disposing of a material on.that date, and
action by the Agency subsequently
brings that material (or management
activity) into the hazardous waste
management system. This is the case in
the example above. The company also .
has satisfied the other interim status
requirements.
4. The XYZ Company does not have ,
interim status. It was generating a "
hazardous distillation bottom qn
November 19,1980, and then it obtained
an EP toxic sludge for recycling. The
sludge lias accumulated for over one
year without sufficient amounts being
recycled, and so is a solid and
hazardous was_te under amended
§ 261.2(a)(2)(v)'. The company promptly
notifies and files a Part A application in
a timely fashion. Does it have interim .
status?
The company .does not have interim
status. Although the company has
notified and filed a permit application, it
was nof in existence on November 19,
1980, because ifwas not then treating,
storing, or disposing of a hazardous
waste—but only generating a hazardous
waste. (This result is the same if XYZ
generated a hazardous waste on
November 19,1980 and subsequently
began to store and recycle that same
waste.) XYZ still was not treating,
storing, or disposing of a hazardous
waste on the critical date, and so its •
facility was not in existence on
November 19,1980.
Part III: Miscellaneous
I. Regulatory Impact
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and thus requires a Regulatory
Impact Analysis. This proposed rule is.
not a major rule because it will not (1)
" have an effect on.the economy of $100 •
million or more, (2) significantly
increase costs or prices for industry, or
(3) diminish the ability of U.S.-based
enterprises in domestic or export
markets. '*
This assessment is based on two EPA
studies of the economic effects on the
regulated community of the proposed
changes to the definition of solid waste
and accompanying management
standards. The first of these, studies is
entitled "Impact on the Regulated
Community of Possible Changes in the
Definition of Solid Waste: Use, Reuse,
Recycling, Reclamation." This study
analyzed the net reductions and
increases in regulation of establishments
that recycle hazardous wastes if the
current regulations defining solid waste
, and establishing management standards
for recycled hazardous wastest were
replaced by those proposed today.
This study identified 39 industrial
categories which are involved in the 15
recycling activities that will be affected
significantly. We based our numerical
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estimates on 27 of these industrial
categories. (The number of
establishments within the other 12
industrial categories could not be
quantified within the scope of the study.
• Available information indicates
strongly, however, that—under the
proposed standards—there will be a net
reduction in the regulation of the
1 establishments within these categories.
According to the study, under the
proposed regulations:
• Approximately 4,500 to 5,300
establishments would have their
requirements under the hazardous waste
management regulations reduced;
• At least 76 establishments that use
or reuse materials otherwise considered
hazardous wastes would be excluded
from regulation;
• Approximately 230 to 350
establishments would have their
requirements under the hazardous waste
management regulations increased;
• Approximately 60 establishments
that recycle hazardous materials would
be newly subject to regulation.
These findings show a significant
.reduction in regulatory impact as a
result of the proposed regulations. The
most significant change would be the
reduced regulatory impact on persons
reclaiming materials, that they generate :
(particularly spent solvents). These:,
persons would not be subject to ,.
regulation under the proposed definition
• if they reclaim 75 percent of the material
on hand at the beginning of a 1 year
period. At present, they are subject to
regulation immediately if they are
reclaiming listed hazardous wastes or
hazardous sludges. The regulatory
impact on persons using or reusing listed
hazardous wastes and hazardous
sludges also would be significantly
reduced. These regulated activities
would not be regulated at all under the
proposed regulation.
The proposed regulation increases the
regulatory impact of facilities that
reclaim hazardous wastes generated by
others, or that process such wastes to
. make fuels. However, because this class
or recycling operations has caused most
of the damage incidents involving
recycled hazardous wastes, we view
this effect as appropriate.
The second study is entitled "Cost
Impact Analysis for Proposed Changes
in the Definition of Solid Waste and
Management Standards for Wastes
Which are Used, Reused, Recycled, and
Reclaimed." It analyzed what the
proposed change will actually cost the
regulated community. The study applies
the appropriate unit cost estimates to
the estimates developed in the first
study to arrive at a net cost. (These
costs were adjusted to reflect only the
volume-dependent variable costs and
not the incremental fixed costs'already
incurred by the affected • ^
establishments.)
The results of the study demonstrate
that the proposed regulation will reduce
compliance costs by an estimated $24.4
million (costs shown are the annualized
after-tax cost savings). This figure
represents the sum of increases and
decreases in annualized costs for all
affected establishments, including:
* An estimated decrease in costs of
$24.7 million for establishments with
reduced regulatory requirements, or for
establishments that are released from
the hazardous waste management
regulations entirely; and .
• An estimated increase in costs of
$0.34 million for newly-regulated
establishments or for those facing
increased regulatory requirements.
Our analysis further suggests that for
industries facing increased regulatory
requirements under the proposed
regulations, there would be no
significant cost increases or other
adverse effects on competition,
employment, or investment.63
Finally,-it should be noted that many
of the assumptions made in both reports
. were conservative. Thus, we believe
that our estimates understate the
reduced regulatory impact from the
proposed changes. Moreover, a number
of provisions presented unquantifiable
effects for which we made no estimates
at all, even thouth we know.that costs
will be reduced. Therefore, because this
proposed amendment is not a major
regulation, no Regulatory Impact
Analysis is being conducted.
This proposed amendment was
submitted to the Office of Management
and Budget (OMB) for review, as ,
required by Executive Order 12291.
II. Regulatory Flexibility act •
Under the Regulatory Flexibility Act, 5
U.S.C. 601 et seq., whenever an agency
is required to publish a general notice of
mlemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
rule's impact on small entities (i.e., small-
businesses, small organizations, and
small governmental jurisdictions). This
•_• " We could not compare the estimated increases
in cost for independent battery crackers with
profits, value added, or other measures of financial
strenght because the available economic
information is not sufficiently disaggregated.
However, for a number of reasons, we do not expect
that the proposed changes in the definition will
cause significant adverse impacts (see cost impact
analysis for details).
analysis is-unneces'sary, however, if the
. Agency's Administrator certifies that the
rule will not have a significant economic
impact on $ substantial number of small
entities. > '••''. -
EPA and its contractor performed an
analysis tojdetennine whether the
proposed changes in the definition of
solid wast and' the accompanying
. _managememt standards will impose
significant posts on small entities. The "
resulting report ("Cost Impact on Small
Entities of Proposed Changes in the
Definition (if Solid Waste and
Management Standards for Wastes
Which Are Used, Reused, Recycled, and
Reclaimed' ') indicates thaf in none of
the industry categories would this rule
have a "significant economic impact on
small entities" (as this is defined under
.the criteria for a Regulatory Flexibility
Analysis). Accordingly, I hereby certify
that this proposed rule will not have a .
significant economic impact on a
substantial number of small entities and
therefore does hot require a regulatory
flexibility analysis.
JH. Paperwork Reduction Act
The reporting or record-keeping
(information) provisions in this rule will:
be submitted for approval to the Office
of Management and Budget (OMB)
under Section 3504{b) of the Paperwork
.Reduction Act of 1980, U.S.C. 3501 el
.. seq. Any final rule will explain how its
reporting or ; record-keeping provisions
respond to any OMB comments.
' IV. List of Subjects in
- . • .
Administrative practice and
procedure, Hazardous materials, Waste
treatment and disposal.
40CFR261 j
Hazardous materials, Waste
treatment arid disposal, Recycling.
40CFRPartp64
Hazardous materials, Packaging and
containers, Reporting requirements,
Security measures, Surety bonds, Waste
treatment and disposal.
40 CFR Part '265
Harzardouis materials, Packaging and
containers, Reporting requirements,
Security measures, Surety bonds,
Waster treatment and disposal, Water
supply.^ j '
40CFRPartS86
Hazardous! materials.
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14502
Federal Register / Vol. 48. No. 65 / Monday, April 4, 1983 / Proposed Rules
Dated: March 21,1983.
John W. Hernandez, Jr.,
Acting Adminlstator.
Appendix A
This Appendix sets forth the Agency's
legal basis for asserting jurisdiction
under Subtitle C and the implementing
regulations over materials being
recycled. Although the statutory
definition of solid waste (Section
1004(27)) does not expressly address the
question of whether a material being
recycled or destined for recycling can be
a solid waste, we believe that Congress
did indeed intend that recycled
materials can be solid wastes, and, if
they are hazardous, that they can be
regulated under the hazardous waste
management regulations^
I. Recycled Materials Can Be "Solid
Wastes" Under RCRA
Many commenters to the Agency's
May 19,1980 regulations argued that
recycled materials cannot be wastes
under RCRA, basing their claim largely
on the phrase "other discarded
material" in the statutory definition (a
term nowhere defined in RCRA). They
claim that this language means that a
material must first be discarded, in the ~%
sense of thrown away or abandoned,
before it can be a RCRA solid waste.
The Agency disagrees with this
reading. It is quite clear from the text of
other statutory provisions that recycled
materials con be wastes," Perhaps the
most pertinent provision is the definition
of "hazardous waste management." This
term [which is the title of Subtitle C) is
defined as "the systematic control of the
collection, source separation, storage,
transportation, processing, treatment,
recovery, and disposal of hazardous
waste." (Section 1004(7).) The recycling
activities of recovery, source separation
(the selection of recyclable from non-
recyclable items), and collection thus
can involve hazardous waste.
Equally clear, a whole series of
statutory definitions dealing with
resource recovery indicate that this
activity involves reclaiming material or
energy from solid waste, demonstrating
again that a material being recycled can.
be a waste. "Resource recovery" itself
means "the recovery of material or
energy from solid waste." (Section
1004(22) (emphasis added).) A "resource
recovery facility" is "any facility at
which solid waste is processed for the
"The Agency's Interpretation that "wastes" are
recycled alto accords with common understanding
and usage. In fact, a number of industry
advertisements on waste management refer
repeatedly to recycling of their "wastes". These
advertisements are in the EPA docket which is
listed in thi« address section of the preamble.
purpose of extracting, converting to
energy, or otherwise separating and
preparing solid waste for reuse."
(Section 1004(24) (emphasis added),) A
"resource recovery system" is a "solid
waste management system which
provides for collection, separation,
recycling, and recovery of solid wastes,
including disposal of non-recoverable
waste residues." (Section 1004(23)
(emphasis added).) A "recovered
resource" is "material or energy
recovered from solid waste*" (Section
1004(2) (emphasis added).) Section
6002(c)(2) speaks of "systems that have
the technical capability of using energy
or fuels derived from solid waste *'* *."
See also Sections 1004(18), (28), and (29)
all of which likewise presuppose a solid
waste from which resources can he
recovered.65 There also are repeated
references to resource recovery
throughout the statute; these references
would be meaningless if solid wastes •
were never reclaimed or otherwise
recycled. See, e.g., Section 1002(c) (2)
and (3), 1003 (1) and (5)-(8), 2003,
4002(c)(10), 4003 (5) and (6), 4008
(a)(2)(A) and (d), 5001, 5002, and 6002
(c)-(g).66
B A number of commenters have argued that the
statutory definition of "recovered material" (Section
1004(19)) suggests by negative implication that
- materials "generated from, and commonly reused
within, an original manufacturing process" are not
solid wastes. The Agency disagrees. The plain
language of the provision does not support the
negative implication read into it by these
commenters. Equally Important, the legislative ,
history indicates unequivocally that this provision '
was intended to apply to Federal procurement
guidelines issued pursuant to Section. 8002.See S.
Rep. No. 96-172,96th. Congress, 1st Session at 2, It is
clear, therefore, that the provision does not have the
broader meaning attributed to it by these
commenters.
M A number of commenters also found support in
the House Report to RCRA for their argument that
only discarded materials can be wastes. They
pointed to the following language in the Report:
"Much industrial and agricultural waste is
reclaimed or put to new use and is therefore not a
part of the discarded materials disposal problem the
committee addresses." H.R. Rep. No. 94-1491.94,th
Cong., 2d Sess. at 2.
This language is taken out of context. In fact, it
applies only to non-hazardous solid waste.
Throughout the report, it is clear when the
committee refers to non-hazardous waste and
hazardous waste. Indeed, these two types of waste
often are referred to separately. See, e.g., H.R. Rep.
at 1,4, 5, 8,12: "discarded materials and hazardous
wastes." Congress intended a regulatory solution
for hazardous, wastes. Id. at 3,4. a-7. Statements,
made about non-hazardous wastes thus have little
or no bearing on Congress' intent regarding
hazardous waste.
Furthermore, the House Report indicates that
"discarded materials" can indeed be utilized fdr
recycling (and hence can be solid wastes). See H.R.
Rep. at 7,10: "the state plan must provide that no
state or local government shall prohibit such local
community from entering into long-term contracts to
supply discarded materials of the community to
resource recovery facilities"; "(rjesource recovery
facilities cannot be built unless they are guaranteed
The commenters' argument that a
material must first be discarded or
thrown away before it can be a RCRA
waste also has been rejected by the
United States Court of Appeals for the
D.C, Circuit in United States Brewers'
Association, Inc. v. EPA, 600 F. 2d 974
(D.C. Cir. 1979), a lawsuit challenging a
beverage container recycling guideline
issued by EPA under Section .1008(a)(l)
of RCRA. The petitioners in that
proceeding contended that beverage
containers were not "solid wastes" until
"discarded" and therefore that. EPA had
no authority under Section 1008(a)(l) to
require that beverages be sold in
returnable containers, or that a
minimum deposit be charged on
containers (to encourage their return for
recycling). The Court of Appeals
rejected this contention, saying that it
flies squarely in. the face o£ the explicit
definition in the statute. Section 1008(a) t.
directs EPA to publish suggested guidelines
-, for solid waste management, which as
defined in Section 1004[30) expressly
included 'planning or management respecting
resource recovery and resource conservation,
* * * and 'utilization of recovered resources';
(600 F. 2d at 982-83.)
In addition, 17 courts to date have
exercised jurisdiction in imminent
hazard actions under Section 7003
brought against recycling facilities
(reclaimers reclaiming wastes generated
by a different person).67 Since the
a supply of discarded material"; see also H.R, Rep.
at 13: "locating new markets for resources
recovered from waste", and4E "(t}he Committee has
received mush information, on the importance of
expanded and stable markets for the materials
recovered from waste."
CT These cases are; KS. v. Midwest. Solvent .
Recovery, Inc., 4B4.F. Supp. 138 (N~D. Ind.,. 1980); .
U.S. v. Solvent Recovery Services of New England,
Inc., 49&F. Supp. 1127 (D. Conn.. l98Q)i,U.S. v. West,
Cir. No. C 801342 M (D. Wash., 1981J (the complaint
in this action was later amended to include only
counts for violation of fte Subtitle C regulations; a
preliminary infunctioci was entered agains^ the-
facility ordering compliance with certain of these
regulations); U.S. v.Acme Refining Co.,,No. 80C *.
3213 (N.D. 111., filed 6/20/80); U.S. v. Chem-Dyne
Corp., No. C-l-79-703 (S,D. Ohio, filed' 12/19/78);
U.S. v. Chemical Recovery Systems, Inc., No. C-80-
1858 (N.D. Ohio, filed 10/7/80); US. -v.Bi-idgsport
Rental and Oil Service, Inc., et al.. No. 80-3267
(D.N.J., filed 10/Z/80); U.S. v. Ken Industries, Inca et
al., No. H80-420 (N.D. Ind., filed 8/l/80)r U.S. v.
Fisher-Calo Chemicals: and Solvent Corp.. etal.. No.
S80-204 (N.D. Ind., filed 7/3/80); KS. v. AS-F .
Materials Co., Inc., et al,. No,,, 80-4395 (S.D.'IIU filed
9/3/80); U.S. v. South Carolina Recycling and
Disposal, Inc.,t Np; 8O-1274-6 (D.S. Car., flied 7/7/ -.
80); U.S. v. Automated Industrial Disposal and .
Salvage Co.., Inc., No,, 2-80-139 (E.D. Tenn., filed 8/
1/80); US'. v. Gulf Coast Lead Co.,, No. aa-1127 (M.D.
Fla., filed 10/9/80}; U.S. v. Chemicals and Minerals
Reclamation, Inc., No. C-79-1356 (N.D. Ohio, filed
1/10/79); U.S, v. Spectron, Inc., No. HM80-15-52 (D.
Md., filed 6/17/80); U.S. v. Laskin Greenhouse and
Waste Oil Co., No. C-79 75 9v (N.D. Ohio, filed 4/
24/79); 17.5. v. Seymour Recycling Corp., et al, No.
IP-80-157-C (S.D. Ind., filed.B/9/80).
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Federal Register AVoI. 48. No. 65 / Monday. April 4, 1983 / Propole'd Rules
"14503
government's authority to bring an
imminent hazard action depends upon
the presence of "solid waste" or
"hazardous waste" (see Section 7003(a)),
these cases all stand for the proposition
that materials destined for recycling can
indeed be solid and hazardous wastes.
See U.S. v. Midwest Solvent Recovery,
Inc., 484 F. Supp. 138 (N.D. Ind., 1980)
(spent solvents held by a reclamation
facility are "chemical wastes" which are
" 'solid wastes' or 'hazardous wastes' as
those terms are defined in Section 1004
of (RCRA), [and] that the chemical
wastes so present are the objects of
'storage' and 'disposal' activity * * * "
484 F. Supp. at 142); U.S. v. Solvent
Recovery Services of New England, 496
F. Supp. 1127 (D. Conn. 1980) (solvent
reclaimer "accepted waste products
(including chlorinated organic solvents)
from industries in New England,
processed those materials in order to
recover usable chemicals, and returned
the recovered chemicals to industry for
reuse." 496 F. Supp. at 1130).
Finally, the House Committee on
Energy and Commerce likewise
reaffirmed, in recent action, that RCRA
presently provides authority over
hazardous wastes being used, reused;
recycled, or reclaimed, and directed the
Agency to exercise this authority more
fully. (H.R. Rep. No. 97-570, 97th Cong.
2d Sess., at 16.) Although not part of the
contemporaneous legislative weight, this
report still carries "considerable weight
as a kind of 'expert opinion' concerning
the meaning and proper interpretation of
the statute." U.S. v. Solvents Recovery •
Services of New England, 496 F. Supp
1127.1240 n. 18 (D. Conn. 1980). The full
House of Representatives later adopted,
by a wide margin, the provision reported
by the Committee.
In sum, in view of the statutory
language, the holding in the Brewers'
case, and the results of the various
Section 7003 actions.the Agency
believes that solid wastes can be
reclaimed, reused, or otherwise
recycled, and that such recycling
activities as material processing, source
separation, and reclamation (termed
"recovery" in the statutory definitions)
involve solid wastes.68
//. EPA Has Regulatory Authority Under
Subtitle C To Regulate Hazardous
Wastes That Are Recycled and to
Regulate Hazardous Recycling
Operations
1. A number of commenters made the
further argument that even if recycled
materials could be solid and hazardous
wastes under RCRA, Congress did not
intend that the Agency's Subtitle C
regulatory authority apply to hazardous
wastes that are recycled pr to hazardous
waste recycling activities. The argument
is that the Agency's regulatory .authority
is limited to treatment, storage, and
disposal of hazardous, waste (and any
incidental generation and transport
incident thereto), and that waste
recycling (of any kind) does not
constitute treatment, storage, or
disposal.
The Agency does not accept this
argument, for a number of reasons. As
shown above, Congress'defined the term
solid wasteland therefore hazardous
waste) to include recycled materials. It
is at odds with the whole thrust of
Subtitle C to argue, as these commenters
do, that Congress did not then intend for
these wastes to be regulated. Congress'
"overriding concern" (H.R. Rep. No. 94-
1491, 94th Cong., 2d Sess. at 3) ("H.R.
Rep.") in enacting RCRA was to
establish the statutory framework for a
comprehensive system that would
ensure the proper management of
hazardous waste. Implementing this
framework, Subtitle C establishes a
cradle to grave management system,
with regulatory control attaching to
hazardous waste from the point of
generation to the point of final
disposition. A broad grant of regulatory
authority over all enumerated aspects of -"
waste management is necessary, and we
believe intended, to effectuate this
scheme.
68 One commenter argued that even though the
various statutory definitions dealing with resource
recovery are phrased in terms of recovery from
solid waste, and that hazardous wastes are a subset
of solid waste, these definitions apply-only when a
non-hazardous solid waste is involved. Although
non-hazardous materials can be wastes when
recovered, the argument goes, hazardous materials
cannot; they must be discarded first.
•Ti!M\.A8<;nCy disaSrees- The argument is at odds
with the plain meaning of the statute, hazardous
waste being a type of solid waste. Furthermore, we
believe it highly unlikely that Congress intended the
term waste to have a different meaning in
different statutory provisions. Not only is the
identical term used throughout the statute, but
Congress' intent in promulgating Subtitle C was to
implement a comprehensive scheme for controlling
hazardous waste management and~so to
'eliminate} the last remaining loophole in
environmental law". H,R. Rep. No. 94-1491 at 4. In
light of this intenaon, it seems highly unlikely that
Congress would intend to adopt a different and
narrower meaning pf "waste" in Subtitle C than in
other statutory provisions. .
_ fa any case, the statutory definitions themselves
indicate that hazardous wastes as well as non-
hazardous wastes can be recycled. "Hazardous
waste management" includes recycling activities
such as .collection, source separation, and recovery
__Solid waste management" (which term includes
management respecting resource recovery"
(Section 1004(30)) occurs at "solid waste
management facilities"; these facilities include
those which manage hazardous wastes. See Section
1004(29)(C). Thus, solid waste management facilities
engaging in management respecting resource
recovery can indeed be managing hazardous
wastes.
Failure to regulate hazardous waste
recycling would moreover leave open
the very loophole Congress] sought to
close—unregulated disposition of
hazardous waste—vitiating ,
substantially the whole cradle to grave
system. For example, hazardous wastes
could be recycled by being placed
directly on the land for land reclamation
without regulatory control,
contaminating soil and groundwater.
Hazardous'wastes could be stored
insecurely for years before being
reclaimed, with, resulting environmental
contamination. Wastes destined for
.recycling cciuld be mishandled during
transportation, or never arrive at their
intended destination because of the lack.
of a manifest to track the waste. Indeed,
all of these (situations have occurred
repeatedly, causing extensive damage.
The Agency believes these are the very
situations Congress meant to control hi
establishing'the hazardous waste
management system, and that the grant
of regulatory authority in Subtitle C
reaches these situations.
Congress' intent to regulate hazardous
wastes which are recycled is borne out
further by several of the damage
incidents cited by Congress as
justification for establishing a national
hazardous waste management system. A
number of incidents resulted from waste
recycling activities, including an
incident where wastes were stockpiled
in-the open prior to reclamation and
leached toxic metals into public water
supply wells (H.R. Rep. at 18); a similar
incident where wastes destined for
reclamation were improperly;stoTed in
, lagoons and 1:oxic metals seeped into an •
adjacent creek [id at 17); and a final
incident when a child was poisoned by
contact with ii pesticide drum being
reused as a tiash container '(id. at 22).
The Agency does not believe Congress
would have referred to these incidents
without intending that the described.
activity be reflated.
Congress also has continued to
express a desire that recycled
hazardous waistes be regulated. The
Subcommittee on Interstate and Foreign
Commerce issued a report of its
oversight hearings on the Agency's
proposed hazardous waste regulations
(Committee Print 96-1FC 31, 96th Cong
1st Sess. (September 1979) (the
"Eckhardt Report")). The report
describes three damage incidents
involving recycled hazardous wastes,
and expressed the Subcommittee's view
that these acti vities should be controlled
and thatthe Agency possessed
jurisdiction to exercise control. •
(Eckhardt Report at 4,12-13,17, 24, 41-
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14504
Federal Register /Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
42, 53-54; see also discussion in Section
VI. C. of Part I of the preamble.) 69
The recent report of the House
Commtttee on Energy and Commerce, a»
well as the substantive legislation it
accompanies, likewise would mandate
EPA's regulations of hazardous waste
rccyling. In doing so, it stated
unequivocally that the legislative change
"clarifies" that "materials being used,
reused, recycled, or reclaimed can
indeed be solid and hazardous wastes
and that these various recycling
activities may constitute hazardous
waste treatment, storage, or disposal."
H.R. Rep. No. 97-570, supra at 22.
The Agency thus believes that
Congress meant for it to regulate
hazadous wastes which are recycled.
The lack of an absolutely explicit
directive in the statute (for instance "all
persons reclaiming hazardous waste
must obtain a permit") appears to result
from a factual misconception that
hazardous wastes are rarely, if ever,
recycled of amenable for recycling. H.R.
Rep. at 4. In light of this assumption, a
statutory directive to control hazardous
waste recycling would be unnecessary.
2. Even if one disregards
Congressional intent, and assumes that
Congress meant that EPA regulate only
the treatment, storage, disposal, and
transportation of hazardous wastes, the
wording of these provisions indicates
that the Agency possesses authority to
regulate most hazardous waste recycling
(and all recycling operations that the
Agency seeks to regulate or
contemplates regulating), and transport
and storage incident thereto. There is
indeed no question that transportation
and storage of hazardous wastes prior
to recycling is covered by the definitions
of "transportation" and "storage", so
that these activities can be regulated
under SubtitleC.70
The definitions of treatment and
disposal provide regulatory authority
over the major types of recycling
activity the Agency actually seeks to
regulate oc contemplates regulating:
resource recovery (termed 'reclamation'
in the proposed definition), and
recycling involving direct placement of
**Regarding the value of this report in interpreting
Congressional intent, see U.S. v. Solvents Recovery
Sen'iees c/A'cw England. 406 F. Supp. 1127,1140 n.
18: Such a subsequent report is not part of the
legislative history of RCRA and therefore lacks the
probative value as to legislative intent that
contemporaneous statements of Congress' purpose
would have. Nonetheless, it is entitled to .
considerable weight as a kind of'expert opinion'
concerning the meaning and proper interpretation of
the statute (citations omitted). <
MThB only argument against regulation is that the
materials involved in recycling cannot be wastes,
and this argwnent already has been answered
above.
residual materials or materials derived
therefrom on land or water or into the
air.
a. Reclamation Operations Constitute
Waste Treatment. Reclamation
operations—that is, operations involving
recovery of energy or material—meet
the statutory definition of "treatment."
This term is defined in RCRA to include
"any method, technique, or process
* * * designed to change the physical,
chemical, or biological character or
composition of any hazardous waste
* * * so as to render such waste *' * *
amenable for recovery, amenable for
storage, or reduced in volume." (Section
1004(34).)
One key part of this definition is the
phrase "amenable for recovery." The
Agency interprets this language to mean
that processes that make a waste or its
contained values available for further ,
use constitute treatment. This includes
processes that recover material or
energy resources from wastes.71 Subtitle
C jurisdiction exists potentially until the
material is available for reuse, or until
energy has been recovered. For
example, a spent chemical would be
'treated' until material values were
finally recovered. This interpretation not
only is consistent with the literal sense
of the words, but also with the definition
of treatment as a form of activity in
addition to, and more encompassing
than, processing. (See Sections 1004 (7),
(28), and 29(C)—all dealing with waste
management—where the terms
'processing' and 'treatment' are both
included, indicating (to avoid
. redundancy) that treatment includes
additional activities.)
"Treatment" also includes operations
designed to reduce the volume of
material. Where such a process is
conducted incident to or as part of
reclamation operations, there is thus
another basis for regulating the process
as waste treatment. The best example of
such an activity is dewaterins of sludges
before their reclamation or use
elsewhere. Dewatering is conducted to
reduce the volume of sludge; in the'.
words of the statute, it is a process
"designed to-change the (waste's)
composition* * * so as to * * * render
such waste * * * reduced in volume."
Even if (contrary to the Agency's
view) one interprets the "amenable for
"This interpretation is reflected in the regulatory
definition of treatment contained in § 260.10(a). the
Agency realizes that it once took a contrary view in
one of the background documents to its 1978
proposal, but has now reconsidered. Of course,
"(n)othing in the Administrative Procedures Act
prohibits an agency from changing its mind, if that
change aids it in its appointed task." American
Petroleum Institute v. EPA, 661 F. 2d, 340 (5th Cir.
1981).
recovery" language to mean that
treatment occurs only up until the point
reclamation commences, the Agency
still would retain Subtitle C jurisdiction
over all aspects of reclamation (and
ancillary activities) that it seeks to
regulate. Under this reading, storage,
transportation, and processing
preceding reclamation could be
regulated.
v' These are the very activities which
the Agency presently regulates (see
existing § 261.6(b)), and which the
Agency would regulate under today's .
proposed regulation. Furthermore, where
tanks, piles, or surface impoundments
are used both to store and reclaim
hazardous wastes, they are subject to
regulation as storage facilities even
through the reclamation phase of the
operation would not be regulated. See
generally, 46 FR at 2808 (second column)
(January 12,1983). All of these facilities
thus are subject to regulation under
Subtitle C whether or not the actual
process of reclamation is subject to
control. > . '
b. Recycling Involving Direct . •
Placement of Residual Materials on
'Land or Water, or Into the Air Can Be
Regulated As Waste Disposal or
Treatment. The other major types of
recycling activity the Agency would
regulate involve the direct placement of
residual materials on the land or water
(such as use-of wastes for land
reclamation or structural fill), or into the
air (burning of these materials as fuel).
We think reuse involving direct land or
water application is fully encompassed
. by the statutory definition of disposal.
"Disposal" means
the discharge, deposit, injection, dumping,
spilling, leaking, or placing of any solid waste
or hazardous, waste into or on any land or
water so that such. . . waste or any
constituent thereof may enter the ;
environment or be emitted into the air or
discharged into any waters, including
groundwaters. (Section 1004(3].)
Recycling involving direct placement on
land or water meets the terms of this
" definition. The waste is placed on the •,
. land in a fashion, "so that such * * *
waste or any constituent thereof may
enter the environment * * *."
Environmental contamination by the
waste or escaping waste constituents
, has resulted repeatedly from-this type of
recycling activity. The Agency, in fact,
believes that in many cases this activity
is the functional equivalent of . ;..-..
unsupervised land disposal, an activity
.obviously within its jurisdictional
purview. We therefore believes that this
type of recycling activity can be
regulated as waste disposal under the •
Subtitle C regulation.
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Tederal Register / Vol. 48, NO. 65 / Monday. April 4. 1983 / Proposed Rules
14505
The burning of residual materials as
fuels, arid production of fuels from these
materials, likewise is potentially subject
to regulation under Subtitle C. The
Agency believes that this activity is a
type of waste treatment, being designed
to "change the physical, chemical, or
biological character or composition" so
as to render it less hazardous, amenable
to energy recovery, or reduced in
volume. (See also H.R. Rep. No. 97-570,
supra at 12: "(p)roductiori and burning of
hazardous waste-derived fuels recovers
energy from hazardous waste, and so
constitutes hazardous waste treatment
under the statute.") In addition, this;
activity is the environmental equivalent
of incineration, a waste management
technique regulated as hazardous Waste
treatment (see 40 CFR Parts 264 and 265,
Subpart OJ. Consequently, this'type of
recycling also can be regulated under
Subtitle C regulations.
- Conclusion
In summary, the Agency believes that
recycled materials can be hazardous
wastes under RCRA, and that recycled
hazardous wastes can be regulated
under Subtitle C regulations. This
conclusion is fully in accord with the
statutory language and the legislative
history. It i:s also in accord with the
paramount policy objective of the
statute tq 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 Subtitle C and
the implementing regulations.
APPENDIX B.-SUMMARY OF DAMAGE INCIDENTS RESULTING FROM RECYCLING OF HAZARDOUS WASTES
—:—;—* —; '-^-^—^. •.*.'',., -, • -*• - ,- • .j-,1- -,., -c-..- ..;.,..../'... ;','.'__-i , .:..••••..,,.•,..'.' -HI" -. -.•-. : • -• - :,& .. -
Type of recycling operation, wastesipresent.t damages caused, or hazards posed
and —-'*««- >«"!• * ""lined lagoons prior
Vered '8ad fr°m Spent baMries- Dama99 to surface a"«
leaohin9 from savered batte.S. v. Solvent Recovery Service of New England (§ 7003
action). ' i • - - '.-'..
uperfund Interim Priority Site.
Do.
S. y.. South Carolina Recycling and Disposal Company
(.Bluff Roads); ft 7003 action); Supertund Interim Priority
amages. and Threats Caused by Hazardous Material
Sites, EPA/430/9-80/004, p. 251; followup phone con-
versations with'representatives of Ecology and Environ-
ment (EPA Superfund contractors); Superfund Interim
Pnonty Site. >,.. . , • , ' -•
amages and ff/reats from Hazardous Material Sites, p.
-------
14506 Federal Register / Vol. 48. No. 65 / Monday, April 4. 1983 / Proposedjlules
APPENDIX B.-SUMMARY OF DAMAGE INCIDENTS RESULTING FROM RECYCLING OF HAZARDOUS WASTES "-Continued
Type of fecydfog operation, wastes present, damages caused, or hazards posed
Sotace of information.
1T Th. Latkin ifewnhowe and Wtsa Oi Co. (located in Jefferson, Onto) acepted wast* oil and spent solvents for storage prior
VuL S^?o^ («ro«*3sna Stats of gallons accumulated without being recycled, resulting to a substantial hazard The
£*£ £whk* tt» waSTo«vr« burr* were incapable of. destroying the contained contaminants (including PCffs). resultmg in
STootottofL AixxtaittaMv St 7 miKon has already been expended; addttonat funds, are to be allocated
18 TOaMt/KS h^|. «Sr«dl * lSSta«» reclamation from waste 0* an* ate ndalme* metal hydroxide sludges,
S ^SeTS riSmeouVsludses. These materials -overaccumulated in pits, laaoons, and tanks. PCB's
. and P^^efoundln ZrwaaTolt Chren*m. cadmium, and toad are- also- present, as are benzene; toluene, and
'to **fae» waters has caused extensive damage, Ov« §300,000 has beer, spent on
aeTS1!LlL
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JFederal Register / Vol. 48, No. 65 / Monday, April 4. 1983 / Proposed Rules
14507
APPENDIX B.-^-SUMMARY OF DAMAGE INCIDENTS RESULTING FROM RECYCLING OF HAZARDOUS WASTES '^Continued
Type of recycling- operation, wastes present, damages caused, .or hazards posed
51;,(* -^ '' IS Predominant|y a solvent reclamation operation. Solvents are stored In drums and tanks Drier to reclamation f
•) pad to return .refined materials to the manufacturer. The site was investigated primarily because o? L sofflaae o^obtem (mm
loartng and unloading .drums outside. Potential hazards -on the site include coWminaZ of a^wSr Supply and g'rcSS wa?e
risk of fire and explosion, spills, leaks, runoff, and inadequate security. . «»,»o«* supply, ana ground wate
62. (' • •) is a solvent reclamation operation. The 'waste generator buys back the reclaimed waste Pre-RCRA '(• • TnilB
53WAn oY^"9 r°?S °f "«" '" '"I*""*" °" PemeaWe "* N° labels 'we'e °" *e *>"» and toxfchemiSk le'ached J P
S3. An oil fecfamation firm in Region V recycles oil for large manufacturing plants.. The firm takes used oil restores >t to rip.«r»
levels of purity, blends it with virgin oil, and finally sells it back to the dealer to be sold
" °f «*» «T. sol,, and ai, noflceabte odors, fire/
Presentiy stores approximately 5000 drums in poor condition. A
facility' °peraie'i an o«/solwnt reclamation facility. The-siie was abandoned, leaving hazardous wastes
7;Xn=i2' a..Nel" Je^f. drum reconditioner, went out of business leaving approximately 3000 drums on the site "There is
extensive soil contamination and runoff into an adjacent drainage ditch ' "«» MIO. mere is
N8,W J,fSey) "Si?*8" tainted waste oils and SP6"' solvents whtah * btende" in'" fuels.- The fuel was
meia!s' bromoform' and harosenated soivents - *""* at
H— '" ?,0k.Hi"1 S,OUth Cat°"'na) St0red spent solven"te P™r to Carnation. The solvents were stored in
drums, and leakage from the drums contaminated soil and seeped into surface water T
the waste and surrounding soil including toluene, bis(2-ethylhexyl) phthlate, xylene. ethyl chlorkle Stf r^om
"• «&*> - sp
nr,nr0uni-d^erSey> S°ld <»n|aminated - waste oil as fuel. The blended fuel contained -phenolic
STd^^^ The -company and its president both haS, beln
63. Madison Industries (located in Old Bridge, New Jersey), manufactures zinc chloride and zinc sulfate from waste zinc and spent
64 /S ootta rSfed ^ f TT1 The?S materialS WSre ac^mulated ^property in large quantities, causing Damage
rty l« ' r8°OVely Operati0ns co"ducted by Frinck's lndusWal Wa^ 'A floated in
ni
oil
^ 3" °" -='-*" P'ant Storage 'tanks .overflowed into hoffig
^0^ te ™ abandoned waste oil recycling facility. Lagoons used in the recovery of waste
jacent wetlands. The lagoons and wetlands remain contaminated with PCB-oontaining oil
douwale .^y*l'n3 'acuity in Indiana, was investigated by State officials after' an employee dled-in a
a'S ,'Td 21'°°° barrels of •"^"MS wa=te at the site. The facility has beer, ordered to
8ludae and conta™nated soil from a pit, failure to provide adequate concrete pads for
..
68. American Recovery, a chemical waste reprocessing facility, (located in the Baltimore area) has suffered a
•caused by explosions of accumulated wastes. The facility also was fined for violation of various st
of fires
;(: ; "Source of information
Do.
Telephone conversation with-state site inspector on May
. 5, 1981. i . .. • .
Do. -I .- -• •..-••.•.' ' .
! .. -,. -' -. -•
Task Force Siource Data Report. . •
EPA Damage- Incident Rles; Superfund Interim Priority.
EPA, Region II .officials. •'-..'.
-bo.. | : '"•'• '• ' •. . ' - ' -
Do. •] ,. . ; - „ •
EPA, Region II officials. (This site was also the subject of
ABC's "20/20" broadcast on waste oil).
U.S.. EPA, Remedial Actions at Hazardous- Waste Sites:
Survey and Case Studies, EPA 430/9-81-05.
Report of this House Committee on Energy and Com-
merce (May 1982).
EPA, Region VII officials.
New Jersey l-lazardous Waste News, April, 1982; Conver-
sations witfi'New Jersey state officials.
"ranscript of sitate enforcement proceedings.
Documents from Illinois Environmental Protection Agency.
• i "
iuperfund Interim Priority Site.
-Do. - "\ _ ' '-
EPA,'Regipn V officials.
PA, Region III officials.
3008 inspections.
For the reasons set out in the
preamble, it is proposed to amend Title
40 of the Code of Federal Regulations as
follows:
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for Part 260 is
as follows:
Authority: Sections 1006, 2002{a), 3001
through 3007, and 3010 of the Solid Waste
Disposal Act, as amended by the Resource
Conservation arid Recovery Act, as amended
(42 USC 6905, 6912(a), 6921 through 6927, and
6930).
2. Section 260.10 is amended by
adding new definitions for "Boiler" and
"Industrial Furnace" to appear
alphabetically and by revising the
definition of "Incinerator:"
§ 260.10 Definitions.
* * .*.*,*
"Boiler" means an enclosed device
using controlled flame combustion and
having the following design
characteristics:
(l)The unit has provision for heat
recovery; and
(2) The combustion chamber and heat
recovery section are of integral design.
The combustion chamber and heat
recovery sections are of integral design
if formed physically into one ••'..
manufactured or assembled unit. (A unit
in which the furnace or combustion
chamber and heat recovery section are
joined by ducts or connections carrying
flue gas in not integrally designed); and
(3) Significant heat recovery takes
place in the combustion chamber section
by radiant transfer of heat to the
transfer medium.
"Incinerator" means an enclosed
device using controlled flame
combustion,; and having a combustion
chamber and heat recovery section, if
any, that are not of integral design.
"Industrial Furnace" means any of the
following deivices that are integral
components of manufacturing processes
and use flange combustion or elevated
temperature; to accomplish recovery of
materials or: energy: cement kilns, lime
kilns, aggregate kilns, phosphate kilns,
blast furnaces, smelting furnaces,
methane reforming furnaces, combustion
• devices used in the recovery of sulfur
values from spent sulfuric acid, and
pulping liqucir recovery furnaces. The
Administrator may decide to add
devices to this list on the basis'of one or
more of the following factors:
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1983 / Proposed Rules
Federal Register / Vol. 48, No
14508
(1) The device is designed and used
primarily to accomplish recovery of
material products;
(2) The device burns secondary
materials as ingredients in an industrial
process to make a material product;
(3) The device burns secondary
materials as effective substitutes for raw
materials in processes using raw
materials as principal feedstocks;
(4) The device burns raw materials to
make a material product;
(5) The device is hi common industrial
use to produce a material product; and
(6) Other factors, as appropriate.
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTES
3. The authority citation for Part 261
reads as follows:
Authority: Sections 1006. 2002(a), 3001, and
3002 of the Solid Waste Disposal Act, as
emended by the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C.
0905.6912(8), 6921, and 6922).
4. In § 261.1, paragraph (b) is revised
to read as follows:
§ 261.1
*
Purpose and scope.
* * *
(b)(l) The definition of solid waste
contained in this Part applies only with
respect to the regulations implementing
Subtitle C of RCRA.
(2) This Part identifies only some of
the materials which are solid wastes
and hazardous wastes under Sections
3007.3013, and 7003 of RCRA. A
material which is not defined as a.solid
waste in this Part, or is not a hazardous
waste identified or listed hi this Part, is
still a solid waste and a hazardous
waste for purposes of these sections if:
(i) In the case of Sections 3007 and
3013, EPA has reason to believe that the
material may be a solid waste within the
meaning of Section 1004(27) of RCRA
and a hazardous waste within the
meaning of Section 1004(5) of RCRA; or
(ii) In {he case of Section 7003, the
statutory elements are established.
5. § 281.2 is revised to read as follows.
§ 261.2 Definition of solid waste.
(a) A solid waste is any discarded
material that is not excluded by
§ 261.4(a). A "discarded material" is any
material that fits one of the descriptions
in paragraphs (a)(l) and (a)(2) of this
section.
(1) Any garbage, refuse, sludge, or any
other solfd, liquid, semi-solid, or
contained gaseous material resulting
from industrial, commercial, mining, or
agricultural operations or from
community activities tha is:
(i) Abandoned by being disposed of;
or
(ii) Abandoned by being burned or
incinerated; or
(iii) Accumulated, stored, or treated
prior to—or in lieu of—paragraphs (a)(l)
(i) or (ii) of this section.
(2) Any of the following materials,
when used, reused, or reclaimed in the
following ways or accumulated, stored,
or treated prior thereto:
(i) Any spent material, sludge, or by-
product, or any material listed in
§ 261.33 that is not ordinarily used by
being applied to the land, that is used or
reused without essential change to its
identity, or after simple mixing, in a
manner that constitutes disposal;
(ii) Any spent material or sludge, or
any by-product listed in § § 261.31 or
261.32, or any material listed in § 261.33
that is not itself a fuel, that is being
burned for the purpose of energy
recovery, or that is being'used to
produce a fuel, and any fuel that
contains one or more of these materials;
(iii) Any spent material, any sludge,
listed in §§ 261.31 or "261.32, or any by-
product listed in §§ 261.31 or 261.32, that
is reclaimed (as this activity is
explained in paragraph (c)(l) of this
section). This provision does not apply,
however, to materials reclaimed at the
plant site and then reused within the
original process in which they were
generated;
(iv) Any spent material, sludge, or by-
product that is accumulated
speculatively (as this activity is
explained in paragraph (c)(2) of this
section); .
(v) Any spent material, sludge, or by-
product that is accumulated for use,
reuse, or reclamation without sufficient
amounts being used, reused, or
reclaimed during a one-year period (as
this activity is explained in paragraph
(c)(3) of this section);
(3) Materials that meet the criteria
stated in paragraph (a)(3)(i) of this
section, and that are listed in paragraph
(a)(3)(ii) of this section are solid wastes
when used-or reused:
(i)(A)(I) The materials are ordinarily
disposed of, burned or incinerated, or
(2) The materials contain toxic .
constituents listed in Appendix VIII qf
Part 261 and these constituents are not
ordinarily found in raw materials or
products for which the materials
substitute and are not used or reused
during the recycling process; and
(B) The materials may pose a
substantial hazard to human health and
the environment when used or reused.
(ii) Hazardous Waste Nos. F020, F021,
F022, and F023.
(b) For the purpose of this section:
(1) A "spent material" is any-material
that has been used and has served its
original purpose;
(2) "Sludge" has the same meaning
used in § 260.10 of tins chapter; ...
(3) 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. •
(c) For the purposes'of this section
and §281.6:
"" (1) A material is "reclaimed" if it is
processed to recover usable products, or
if it is regenerated. (Examples are
recovery of lead values from spent
batteries and regeneration of spent
solvents.) However, a material that is
used or reused in the following ways is.
not considered to be reclaimed:
(i) Used or reused as an ingredient
(including use as an intermediate) in an -
industrial process to make a product (for
example, sludges used as ingredients in
cement production, or distillation
bottoms from one process used as a
feedstock in another process), provided
that distinct components of the material
are not recovered as separate end
products (as in recovery of metals from
metal-containing secondary materials);
or
(ii) Used or reused as effective
substitutes for raw materials in
processes using raw materials as - •-
principal feedstocks (for example,
sludges used, as substitutes for ore
concentrate in primary smelting); or
(iii) Used or reused in a particular
function or application as an effective
substitute for a commercial product (for
example, spent pickle liquor used as a
phosphorous precipitant and sludge
conditioner in wastewater treatment).
(2) A material is "accumulated
speculatively" if it is potentially usable,
reusable, or reclaimable but is held
without having any known market or
disposition, or is held without having
any feasible means of use, reuse, or
reclamation. However, when a material
that has been accumulated speculatively
is removed from accumulation for use,
reuse, or reclamation, it is no longer
considered to be a solid waste for
purposes of this paragraph.
(3) A material is "accumulated
without sufficient amounts being used,
reused, or reclaimed" if—during the
calendar, fiscal, or inventory year
period—the amount of material that is
used, reused, reclaimed, or transferred
to a different site for use, reuse, or
reclamation does not equal at least 75
percent by volume of the amount of that
material accumulated at the beginning
of the period. However, paragraphs
(c)(3)-(i) and (ii) of this section provide
certain exceptions to this principle. (In
addition, materials excluded from
regulation under § 261.6(b)(l) (vi)-(vii)
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No. 65./ Monday, April 4, 1983 / Proposed Rules
imain11niiiiiiimmim\\tnmimv111iniiininiiiiiiin.nl • i i ....• ••.!'! '
14509
are not to be included in making this
calculation.)
(i) Spent materials, sludges, or by-
products are not considered to be solid
wastes under this paragraph if after .
being accumulated initially without
sufficient amounts being used, reused, or
reclaimed, they are removed from
accumulation for use, reuse, or
reclamation.
(ii) (A) If a material accumulates for
one year without use, reuse,
reclamation, or transfer of at least 75
percent of the accumulated volume, the
Regional Administrator may determine
that the accumulated material will not
be a solid waste during the following
year. To obtain this determination, the
person accumulating the material must
notify the Regional Administrator in
writing, submitting the following
' information: > •.
CO The name and address of the
person required to notify and the
address of the location of the .
accumulated material, if. different.
{2} A description of: [f] the material
being accumulated, (#) why the material
. would be a hazardous waste if deemed
to be discarded (i.e., whether it is listed
or exhibits a characteristic], (iii) the
• quantity accumulated at the date of
notification, and (iv] the way the
material is stored prior to use, reuse,
reclamation, or transfer; and
(3) A statement of: (/) what the nbtifier
expects the disposition [use, reuse,
reclamation, or transfer) of the material
to be, (ii] why this expectation is
reasonable (for example, because of
past practice, market factors, or
contractual arrangements), {iu} why the
material has accumulated for over one
year, and {iv} when the notifier expects
the use, reuse, reclamation, or transfer
to occur;
The Regional Administrator may then
use this information to determine „
whether the material will not be a solid
waste during the following year, or
alternatively, may require further
pertinent information from the notifier.
Such a determination will be based
upon the reasonableness of the notifier's
expectation that the material will be
used, reused, reclaimed, or "transferred
for these purposes, taking into account:
the past practices, market factors, and .
contractual arrangements; the character
and quantity of the .material being
accumulated; and the manner in which
the material is being stored. The notifier'
' must keep appropriate records to
demonstrate why he reasonably expects
the accumulated material to be used,
reused, reclaimed, or transferred for
these purposes.
(B) After the second year without use,
reuse, reclamation, or transfer of at least
75 percent of the total volume
accumulated at the beginning-of that
year, the Regional Administrator may
again determine that the accumulated
material will not be a solid waste during
the following year. To do this, he must
receive in writing the same information
set out in paragraph (c)(3)(ii)(A) of this
section from the person accumulating
the material; and at least 50 percent of
the total volume accumulated at the
beginning of the year must have been
used, reused, reclaimed, or transferred. •
• (C) If the material accumulates for a
third year without use, reuse,
reclamation, or transfer of at least 75
, percent of the total volume accumulated
at the beginning of that year, all material
not actually used, reused, reclaimed, or
transferred is a solid waste.
(d) Respondents in actions to enforce
regulations implementing Subtitle C of
RCRA who raise a claim that a certain
material is not a solid waste, or is
exempt from regulation, must
demonstrate that there is a known
market or disposition for the material,
and that they meet the terms of the
excmsion or exemption. In doing so,
they must provide appropriate
documentation (such as contracts •
showing that a second person uses the
material as an ingredient in a production
process) to demonstrate that"the
material is not a waste, or is exempt
from regulation. la addition, owners or
operators of facilities claiming that they
are actually using, reusing, or reclaiming
materials must show that they have the
necessary equipment to do so.
6. Section 261,3 is amended by
revising paragraph (c)(2 to read as
follows: •
§261.3 Definition of hazardous waste.
* ""* * * * .
(c)* * * .
(2) Any solid waste generated from
the treatment, storage, or disposal of a
hazardous waste, including any sludge,
spill residue, ash, emission control dust,
or Jeachate (but not including
precipitation rmvoff), is a hazardous
waste. (However, materials that are
reclaimed from solid wastes and that
are used beneficially are not solid
wastes and hence are not hazardous
wastes under this provision,')
* **•*.*
7. Section 261.5 is amended by -•
revising paragraph (c) to read as
follows:
§ 261.5 Special requirements for
hazardous waste generated by sma!!
quantity generators.
(c) Hazardous waste that is used,
reused, or reclaimed and that is
excluded from regulation under
§ §- 261.6(b) and 261.6(f)(2) is not
included in the quantity determinations
of this section, and is not subject to any
requirements of this section. Hazardous
- waste that is subject to the special
requirements of § § 261,6 (c) and (d). and
261.6(f)(l) iis included in the quantity
determinations of this section and is '
subject to the requirements of this
section, i ' "
* * *' •' * * • •. '•
8. Section 261.6 is revised to read as
follows: i .,
§261.6 Special requirements for regulated
recyclable materials.
(a) Hazardous wastes that are used,
reused, or reclaimed will be known as
'regulated recyclable materials.' (b)(l)
The followiig regulated recyclable "
materials are not subject to regulation
under Parts 262 through 266 or Parts 122
through 124 of this Chapter and are nof
subject to thse notification requirements
of Section 3010 of RCRA:
(i) Regulated recyclable materials that
are reclaimed by the person genera ting
them, prbvicled that sufficient amounts
of materials, are reclaimed during a one-
year period (as defined in § 261.2(c)(3)).
This exemption does not apply,
however, when the regulated recyclable
materials are stored in a surface
impoundment prior to reclamation, or
are reclaimed or otherwise processed in
a surface impoundment. This exemption
also does not apply to spent lead-acid
batteries being reclaimed.
(ii) Regulated recyclable materials
that are reclaimed by a person who
subsequently uses the reclaimed
material in his own operation, provided
that sufficient amounts of materials are ~
reclaimed during a one-year period (as
'defined in § 261.2(c)(3)). This exemption
does not apply, however, when the
regulated recyclable materials are
stored in a.surface impoundment prior —
to reclamation, or are reclaimed or
otherwise processed in a surface
impoundment This exemption also does
not apply to spent lead-acid batteries
being reclaimed.
(in) Regulated recyclable materials ,
utilized for precious metal recovery,
provided that, sufficient amounts of
materials are reclaimed during a one-
year period (sis described in
§ 261.2(c)(3)).;;_
• (iv) Regulated recyclable materials
reclaimed pursuant to batch tolling
agreements&For purposes of this
paragraph, a "batch tolling agreement"
is a contractual arrangement pursuant to
which the person generating die
material retains ownership of the
material, possession of the material is
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Federal Register / Vol. 48, No. 65 / Monday, April 4, 1983 / Proposed Rules
transferred within 180 days of
generation to a reclaimer who reclaims
that material and returns the reclaimed
portion to the owner, reclamation and
return of the reclaimed materials is
completed within 90 days, the material
is not commingled with that of any other
person prior to or while being reclaimed,
the reclaimer is paid according to the '
amount of reclaimed material returned
to the owner, and the reclaimer is paid
more as the amount of reclaimed
material returned to the owner
increases,
(v) Regulated recyclable materials
(including any fuel produced from one or
more of these materials) burned for
energy recovery in an industrial furnace
or in a boiler that is not regulated under
Subpart O of Part 264 of this ch'apter.
("Industrial furnace" and "boiler" are
defined in § 260.10 of this chapter.) This
exemption does not apply when any of
these materials are accumulated,
treated, or stored prior to being used to
produce fuels by a person who did not
generate them and who is not using the
fuel in its own operation, or when
regulated recyclable materials that are
sludges or are listed as hazardous
wastes in §§ 261.31 or 261.32 of this
chapter are accumulated, treated, or ^
stored prior to burning as a fuel or prior
to use to produce a fuel. This exemption
also does not apply when these
materials are accumulated prior to
burning as a fuel or prior to use to
produce a fuel without sufficient
amounts being used during a one-year
period (as defined in § 261.2(c)(3)).
(vi) Used oil that exhibits one or more
of the characteristics of hazardous
waste indentified in Subpart C of Part
261.
(vli) Used batteries returned to a
battery manufacturer for regeneration (a
used battery can be "regenerated" by
addition of electrolyte, replacement of
defective cells, or other minor
processing).
(2) The Regional Administrator may
decide on a case-by-case basis that
persons accumulating, storing, or
burning the regulated recyclable
materials described in paragraphs (b)(l)
(ij_(v) of this section should be subject
to regulation under otherwise applicable
provisions of this section or Subpart O
of Part 264 of this chapter. The standard
and procedures for this decisions are set
forth in paragraph (g) of this section.
(c) Generators and transporters of
regulated recyclable materials are
subject to the following requirements,
unless the materials are regulated under
Subparts C or D of Part 266 of this
chapter, or exempted under paragraph
(b)(l) of this section:
(1) Generators: Part 262 of this
Chapter;
(2) Transporters: Part 263 of this
Chapter.
(d) Owners or operators of facilities
that store regulated reyclable materials
are subject to the following
requirements, unless regulated under
Sufapart C or D of Part 266 of this
Chapter, or exempted under paragraph
(b)(l) of this section: . .
(1) Notification requirements under
Section 3010 of RCRA;
(2) All applicable provisions in
Subparts A through L of Part 264 of this
chapter;
(3) All applicable provisions in
Subparts A through L of Part 265 of this
chapter;
(4) All applicable provisions in Parts
122 and 124 of this chapter. .
(e) Owners or operators of a facility
that uses regulated recyclable materials
in a manner that constitutes disposal
(within the meaning of § 261.2(a)(2)(i) of
the chapter) are subject to the following
requirements:
(1) Notification requirements under
Section 3010 of RCRA;
(2) All applicable provisions in
Subparts A through F and M through N
of Part 264 of this chapter;
(3) All applicable provisions in
Subparts A through F and M through N
of Part 265 of this chapter;
(4) All applicable provisions in Parts
122 and 124 of this chapter.
(i) The following regulated recyclable
materials are regulated under Subparts
C and D of Part 266 of this chapter and
• all applicable provisions in Parts 122
' and 124 of this chapter:
(1) Regulated recyclable materials
reclaimed pursuant to non-batch tolling
agreements (Subpart C); and
(2) Spent lead-acid batteries being'
reclaimed (Subpart D). .
(g)(l) The Regional Administrator may
decide on a case-by-case basis that
persons accumulating or storing the
regulated recyclable materials described
in paragraphs (b)(l) (i)-{v) of this
section are subject to regulation under
otherwise applicable provisions of this
section. The basis for this decision is
that the materials are being
accumulated-OT stored in a manner
insufficient to protect human health and
the environment due to failure to
contain the materials or their toxic
constituents, or incompatibility of the
materials being accumulated or stored.
In making this decision, the Regional
Administrator will consider the
following factors:
(i) The materials accumulated or
stored by the person, and the amounts
accumulated or stored;
(ii) The method of accumulation pr
storage; • -
(iii) The length'of time the materials.
have been accumulated or stored prior
to being reclaimed;
(iv) Whether any contaminants are
being release_d into the environment, or
are likely to be so released; and
(v) Other relevant factors.
(2) The Regional Administrator may
also decide on a case-by-case basis that
persons who are burning regulated
recyclable materials as fuels in boilers
or in industrial fumances are subject to
regulation under Subpart O of Part 264
of this chapter. The basis for this
decision is that the materials.are being
burned in a manner that is insufficient to
protect human health and the
environment based upon the quantity
and toxicity of the stack emissions. In
making this decision, the Regional
Administrator will consider the
following factors: ~
(i) Th'e content and mass of the input;
(ii) The conditions under which the
unit is operated;
(iii) The potential for stack emissions
to pose a hazard to human health and
the environment; arid
(iv) Other relevant factors.
(3) The following procedures will be
used in making the determination set
forth in paragraphs (g)(l) and (g)(2) of
this section.
(i) The Regional Administrator will
issue a notice setting forth the factual
basis for the decision. If the person is
accumulating the regulated recyclable
material as a generator, the notice will
state that the person must comply with
the applicable requirements of Part 262
of this chapter. The notice will become
final within 30 days unless the person
served requests a public hearing to
challenge the decision. Upon such
request, the Regional Administrator will
hold a public hearing, and after the
conclusion of the hearing, will issue an
appropriate final order. This final order
may be appealed to the Administrator.
(ii) If the person is accumulating the
regulated recyclable material as a
storage facility or burning the material
in a unij; subject to regulation under
Subpart O of Part 264 of this chapter, the
notice will state further that the person
must obtain a permit in accordance with
all applicable provisions of Parts 122
and 124 of this chapter. The owner or
operator of the facility must apply for a
permit within 60 clays of notice. If the
owner or operator of the facility wishes
to challenge the Regional
Administrator's decision, he can do so
in his permit application, or in a public
hearing held on the draft permit. The
question of whether the Regional
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federal Registey / Vol. 48, No. 65 / Monday, April 4,1983 / Proposed Mes
14511
Administrator's decision was proper
will remain ppen for consideration
during the public comment period under
§ 124.11 of this chapter and in any
subsequent hearing.
9. Section 261*31 is amended by
revising the hazardous waste listings
F007, F008, F009, F010, F011, and F012 to
read as follows: .
§ 261.31 Hazardous waste from non-
specific sources.
Industry
Genafic..
EPA
hazard-
ous
waste
No
F007.....
F008
F009
F010
FOIL
Hazardous waste
Spent cyanide plating
bath solutions from
electroplating
operations.
Plating bath sludges
from the bottom of
plating baths from
electroplating
operations where
cyanides are used
in the process.
Spent stripping and
cleaning bath
solutions from
operations where '
cyanides are used
in the process.
Quenching bath
sludges from oil
baths from metal
heat treating
operations where
cyanides are used
in the process. *
Spent cyanide
solutions from salt
bath pot cleaning
from metal heat
treating operations.
Quenching
wastewater
treatment sludges
from metal heat
treating operations
where cyanides are
used in the process.
Hazard
(R.1).
(R.T).
(R.T).
m.
10. Section 261.33 is amended by
revising the introductory text to read as
follows: -
§ 261.33 Discarded Commercial chemical
products, off -specification species,
container residues, and spil! residues
thereof. .-'".-
The following materials or items are
hazardous wastes when they are
discarded or intended to be discarded in
a manner described in § 261.2(a)(l),
when they are burned for purposes of
energy recovery in lieu of their original
intended use, when they are used to
produce fuels in lieu of their original
intended use, and when they are applied
to the land in lieu of their original
intended use:
PART 264—STANDARDS FOR
OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT,
'STORAGE, AND DISPOSAL
FACILITIES
11. The authority citation for Part 264
reads as follows:
Authority: Sees. 1006, 2002(a), 3004, and
3005 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C.
6905, 6912(a), 6924, and 6925).
12. In § 264.1, paragraph (g)(2) is
revised to read as follows:
fe}*** ;
(2) The owner or operator of a facility
managing regulated recyclable materials
described in §§ 261.6(b) or 261.6(fJ of :
this chapter (except to the extent that
requirements of this Part are referred to
in Subparts C or D of Part 266 of this
chapter). ,
PART 265—INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND
DISPOSAL. FACILITIES
13. The authority citation for Part 265
reads as follows: '•'..'. .
Authority: Sees. 1006, 2002(a), 3004, and
3005 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery Act of 1976, as amended (42 ttS.C.
. 6905, 6912(a), 6924, and 6925).
14. In § 265.1, paragraph (c)(6) is
revised to read as follows: ,
§ 265.1 Purpose, scops, and applicability..
*'••* '1 * *
W*** :
(6) The owner or operator of a facility
managing regulated recyclable materials
described in §§ 261.6(b)«or 261.6(f) of
this chapter (except to the extent that
requirements of this Part are referred to
Jn Subparts G or D of Part 266 of this
chapter).
PART 266—STANDARDS FOR THE
MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
MANAGEMENT FACILITIES
15. The authority citation for Part 266
reads as follows:
Authority: Sees. 1006, 2002(a), and 3004 of
the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act
of 1976, as amended (42 U.S.C. 6905, 6912(a),
and 6924).
16. Jn Part 266, Subparts G and D are
added-to read as follows; .
Subpart C—Regulated 'Recyclable'- .
~ Materials Reclaimed Pursuant to
Nonfoatch Tolling Agreements " .' -:
§ 266,20 Applicability'and requirements. - '
(a) The regulations of this Subpart
apply to generators and transporters of
regulated recyclable materials being
reclaimed pursuant to nonbatch tolling
agreements, land to owners or operators
of facilities that store regulated
recyclable materials'pursuant to
nonbatch tolling agreements. For
purposes of ibis Subpart, a "nonbatch
tolling agreement" is a contractual
arrangement pursuant to which the
person generating the regulated - . -
recyclable material transfers the
material to a reclaimer who returns
reclaimed material to the person
generating the material.
(b) Generators arid transporters of
regulated recyclable materials reclaimed
pursuant to nonbatch tolling agreements
are subject to the following
requirements: • - • , .
(1) Generators: Subparts A, G, D, and
E of Part 262 of this chapter.
(2) Transporters: Subparts A and G of
Part 263 of thi.s chapter.
(c) Owners or operators of facilities
that store regulated recyclable materials
being reclaimed pursuant to nonbatch
tolling agreements are subject to the
following reqiiirements:
(1) Notification requirements under
Section 3010 of RCRA;
(2) All applicable provisions in
Subparts A, B (but not § 264.13 (waste
analysis)), C, D, E (but not § § 264.71 and
. 264.72 (dealing with use of the manifest
and manifest 'discrepancies)), and F
through L of Part 264 of this chapter;
(3) All applicable provisions in
Subparts A, B (but not § 265.13 (waste .
analysis)), C, D, E (but not §§ 265.71 and
265.72 (dealing with use of the manifest
and manifest (discrepancies)), and F
through L of Part 265 of this chapter;
(4) All applicable provisions in Parts
122 and 124 of this chapter.
Subpart D—Spent Lead-Acid Batteries
Being Reclaimed ,
§266.30 Applicability and requirements.
(a) The regulations of this Subpart
apply to persons who reclaim spent
lead-acid batteries that are regulated
recyclable materials ("spent batteries").
Persons who generate, transport, or
collect spent batteries, or who store
spent batteries but do not reclaim them
are not subject to regulation under Parts
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14512
Federal Register / Vol. 48, No. 65 / Monday, April 4. 1983 / Proposed Rules^
202-266 or Parts 122-124 of this chapter,
and also are not subject to the
requirements of Section 3010 of RCRA.
(b) Owners or operators of facilities
that store spent batteries prior to
reclaiming them are subject to the
following requirementsr
(1) Notification requirements under
Section 2010 of RCRA;
(2) All applicable provisions in
Subparts A, B (but not § 264.13 (waste
analysis)), C, D, E (but not §§ 264.71 or
264.72 (dealing with the use of the
manifest and manifest discrepancies)),
and F through L of Part 264 of this
chapter;
(3) All applicable provisions in
Subparts A, B (but not § 265.13 (waste
analysis)), C, D, E (but not §§ 265.71 and
265.72 (dealing with use of the manifest
and manifest discrepancies)), and F
through L of Part 265 of this chapter;
(4) All applicable provisions in Parts
122 and 124 of this chapter.
[FR Doc. 83-7931 Filed 4-1-83; 6:45 am]
BILLING CODE 6560-SOrM
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