-------
624 Federal Register / Vol. 50, No. 3 / Friday, January 4. 1985 / Rules and Regulations
Part II: Secondary Materials That Are
Subtitle C Solid and Hazardous Wastes
When Recycled
I. Definitions of Particular Terms Used
i'n the Amended Definition of Solid
Waste
A. Spent Materials/Sludges/By-
Producls/Scrap Metal
The final definition classifies the
universe of secondary materials that are
wastes when recycled as either sludges,
spent materials, by-products, or scrap
metal.'With the exception of scrap
metal, this is the same classification
scheme as in the proposed rule. See 48
FR14478/2. We have not changed the
proposed definition of "sludge," but are
clarifying what we mean by spent
materials and by-products. We also are
explaining the new definition of scrap
metal.
1. Spent Materials. We are continuing
to define spent materials as those which
have been used and are no longer fit for"
use without being regenerated,
reclaimed, or otherwise re-processed. In
response to comments, however, we
have altered the wording of the
definition of spent material to express
this concept more clearly. As the
proposal was worded, a spent material
was one that had been used and no
longer could serve its original purpose.
The Agency's reference to original
purpose was ambiguous when applied to
situations where a material can be used
further without being reclaimed, but the
further use is not identical to the initial
use. An example of this is where
solvents used to clean circuit boards are
not longer pure enough for that
continued Use, but are still pure enough
for use as metal degreasers. These
solvents are not spent materials when
used for metal degreasing. The practice
is simply continued use of a solvent.
(This is analogous to using/reusing a
secondary material as an effective
substitute for commercial products.) The
reworded regulation clarifies this by
stating that spent materials are those •
that have been used, and as a result of
that use become contaminated by
physical or chemcial impurities, and can
no longer serve the purpose for which
they wore produced. (This reworded
definition appropriately parallels the
definition of "used oil"—a type of spent
material—in RCRA section 1004(36).)
In response to comment, we also note
that leftover, unreacted raw materials
from a process are not spent materials,
since they never have been used.
Unreacted raw materials thus are not
subject to RCRA jurisdiction unless they
are discarded by being abandoned.
2. Scrap Metal—a. Classification. We
have added a new definition of scrap
metal to the final regulations. At
proposal, scrap metal that was
generated as a result of use by
consumers (copper wire scrap, for
example) was defined as a spent
material. (This type of scrap is usually
referred to as "obsolete scrap".) Scrap
from metal processing, on the other
hand (such as turnings from machining
operations) was defined as a by-
product. (It is usually called "prompt
scrap".) Yet the scrap metal in both
cases is physically identical (i.e., the
composition and hazard of both by-
product and spent scrap is essentially
the same) and, when recycled, is
recycled in the same way—by being
utilized for metal recovery (generally in
a secondary smelting operation).
In light of the physical similarity and
identical means of recycling of prompt
• scrap and obsolete scrap, the Agency
has determined that all scrap metal
should be classified .the same way for
regulatory purposes. Rather than
squeeze scrap metal into either the
, spent material or by-product category,
we have placed it in its own category.
b. Recycled Hazardous Scrap Metal is
a Solid Waste. We have further
determined that for purposes of the
regulations implementing Subtitle C of
RCRA, all scrap metal that would be
hazardous9 is a solid waste when
disposed of or when recycled (although,
as explained in more detail below, it is
exempt from Subtitle C regulation at this
time when recycled). Scrap metal is
waste-like in that it is a used material
that is no longer fit for use and must be
reclaimed before it can be used again, or
is a process residue that must be
recovered in a different operation from
the one in which it was generated.
We also believe that scrap metal
comes within the series of statutory
definitions which state generally that •
materials from which resources are
recovered are solid wastes. See RCRA
sections 1004 (19), (30), (22), (7), (18),
(23), and (24); see also 48 FR at 14502/1-
2. Based on these provisions, the Agency
has stated that most reclamation
operations involve waste management,
and all reclamation operations utilizing
materials that have been used and that
must be re-processed before they can be
reused constitute waste management.
We believe that scrap metal that is '
•Commercial chemical products listed in S 281.33
«!lo ura wnitei when recycled to the land or burned
*J fuel(. when this Ii not their normal manner of
USB,
•For clarification of this point, see the discussion
of I 281.1(b). Section I1.A. of this part of the.
preamble.
being reclaimed fits within these
provisions.
c. Definition of Scrap Metal and
Regulatory Distinctions Between Scrap
Metal and Other Metal-Containing
Wastes That Are Recycled. Although
we are defining hazardous scrap metal
as a Subtitle C waste when recycled, we
are exempting such metal from
regulation for the time being. We need
to study types of scrap metal and types
of management practices further before
deciding on an appropriate regulatory
regime (if any). It thus is important to
distinguish scrap metal from other
metal-containing wastes that are subject
to Subtitle C regulations when recycled.
See Section II.H.4. of Part III of the
Preamble.
Scrap metal, as defined in this rule,
means bits and pieces of metal parts
(e.g., bars, turnings, rods, sheets, wire),
or metal pieces that are combined
together with bolts or soldering (e.g.,
radiators, scrap automobiles, railroad
box cars), which when worn or
superfluous can be recycled. Put another
way, scrap metal is defined as products
made of metal that become worn out (or
are off-specification) and are recycled to
recover their metal content, or metal
pieces that are generated from
machining operations (i.e., turnings,
stampings, etc.) which are recycled to
recover metal. Materials not covered by
this term include residues generated
from smelting and refining operations
(i.e., drosses, slags, and sludges), liquid
wastes containing metals (i.e., spent
acids, spent caustics, or other liquid
wastes with metals in solution), liquid
metal wastes (i.e., liquid mercury), or
metal-containing wastes with a
significant liquid component, such as
spent batteries.
We have defined scrap metal in this
way based on our general understanding
of the way industry uses this term. As
noted, this definition does not include
liquid spent materials that contain
metals. Liquids are different from metal
pieces in content, physical form, and.
manageability. Members of both the
National Association of Recycling
Industries (NARI) and the Institute for
Scrap Iron and Steel (ISIS) also
generally agree that liquid wastes are
not commonly referred to as scrap
metal. Although these metal-bearing
liquids and scrap metal are both
classified as solid wastes under this rule
(if hazardous), the regulatory
significance of not including these
liquids as scrap metal is that the liquids
are subject to immediate regulation
when they are reclaimed (assuming they'
are hazardous spent materials, listed
sludges, or listed by-products) whereas
-------
Federal Register / -Vol. 50, No. 3 / Friday, January 4, 1985 /., Rule's $ad Regulations • 625
T^'T''Tf'™"""*B"™"''«^*™H^hl«tJIW1t1E«1ltf19W?Pc'afl^'^""^'«"'a'''^^ -':t~t ".TMg^ersTOg*""""uiu^pyMMHmjamtacMrwaM
scrap metal is not.10 It is iha Agericy's
judgment the* immediate regulation of
metal-bearing liquids,is appropriate
because: (1) (As liquids) They need
special precautions when managed, [2]
the current regulatory regime in Parts
264-265 is appropriate, and (3) wastes of
this type have been linked to a series of
damage incidents when stored before
reclamation.11 The reasons for deferring
regulation of scrap metal thus do not
apply here. • : '
Similar reasoning underlies the
Agency's classification of spent lead-
acid batteries as a spent material,
subject to immediate regulation when
reclaimed. Spent batteries,are different
in physical form from scrap metal
because they contain substantial
amounts of liquid acid. As-discussed in
Section II.G. of Part III of this premable,
it is appropriate to immediately regulate
the storage of spent lead-acid batteries
at reclamation-facilities. We
consequently, are classifying and
regulating spent batteries differently
from scrap metal.
Scrap metal is also classified
differently from me.tal-eontaining
process residues such as slags, drosses,
and sludges partly because it is different
in physical form and content. More
importantly, these residues can be
involved in recovery operations that
amount to on-going processing of the
virgin material and so are not invariably
wastes when utilized for metal recovery.
As noted above, this is hot the case
when scrap metal is recovered. For this
reason, ail hazardous scrap metal is
classified as a waste (although exempt
from regulation at this time), while
sludges and by-products being
reclaimed must be identified more
particularly.by listing before they are
wastes. .;.''.
3. By-products Versus Co-products.
We are also modifying the definition of
by-product. In the proposed rules we
said by-products were not primary
products and were not solely or
separately produced. This language did
not directly address situations where
there are a number of co-products being
produced. By "co-product" we mean a
material produced for use by the general
public and suitable for end use
essentially as-is. Examples are sulfuric
acid from smelters' metallurgical acid,
plants, various metals produced, in
tandem by smejting operations (such as
lead recovered from primary copper
smelting operations), or co-products
such as kerosene, asphalt, or pitch from
petroleum refining. These co-products
are not (and were never intended to be)
covered by the regulations.
We therefore are clarifying the
definition to indicate that by-products
are materials, generally of a residual
character, that are not produced
intentionally or separately, and that are
unfit for end use without substantial
processing. Examples are still bottoms,
reactor cleanout materials, slags, and
drosses.
On the other hand, materials
produced intentionally, and which in
their exisiting state are ordinarily used
as commodities in trade by the general
public, are considered to be co-products
end not by-products.12 In response to
coirment, we also note that these
materials can be produced from a
combination of processes at a facility,
and need not result from one single
process. (It is also possible to put a by-
product to use—for example a still
bottom can be used as an intermediate ,
to make a new product. The still bottom
would not be considered a waste under
the amended definition due to its
manner of recycling™-use as an
ingredient. It would, however, atill be ?
by-product).
B. Definitions of Incinerator, Boiler, and
Industrial Famace
1. General Classes of Combustion
Units. Many enclosed devices are used
to treat hazardous waste through
controlled flame combustion.13 The'
proposed regulations divided that
universe into three groups: incinerators,
boilers, and industrial furnaces. We are
adopting this same tripartite division in
the final rule. The Agency already
regulates the emissions from hazardous
waste incinerators and intends to
regulate the emissions from combustion
units that burn hazardous wastes for
energy recovery. Regulation will be
established at a level that is necessary
10 In particular, in reviewing a booklet published
by the National Association of Recycling Industries
(NAR1) which classifies non-ferrous scrap into 133
different categories, most of the categories
described—approximately 85 percent—refers to
metal pieces (i.e., wire, castings! clippings, sheet
metal, slabs, etc.). See NARi Circular NF-82,
Standard Classification^ focNon-Ferrous Scrap
Metal. The Institute of Scrap Iron and Steel (ISIS)
likewise classifies scrap metal as metal pieces.
1' See Appendix A. • i - "
" We note, however, that products or co-products
that include hazardous wastes as ingredients are
classified as wastes whan they are to be burned for
energy recovery or placed directly on the land for
beneficial use. See Sections V.C. and V.D. of this
part of the preamble.
13 There are also a few hazardous waste
management devices which rely on thermal
treatment, but do not directly combust the treated
waste. EPA will allow permitting of those devices
under the criteria of 40 CFR Part 264, Subpart P:
Other Thermal Treatment, or under the criteria of 40
CFR Part 264, Subpart X: Miscellaneous Waste ,
Management, following promulgation of those
Subparts.
lo protect human health and the
, navironment. It is necessary to ^
distinguish arh'orig the types of
combustion units, however, because
incinerators are being regulated sooner
than boilers and industrial furnaces, and
because the ultimate standards for
boilers and industrial furnaces may vary
from each other, as well as from the
standards for incinerators. ,
2. Definition of Incinerator. .
Incinerators burning hazardous.waste
are subject to the permitting standards
of 40 CFR Part 264, Subpart O. An
incinerator is defined as any enclosed
device that is neither a boiler nor an ;
industrial furnace that uses controlled
flame combustion to treat waste. This
definition differs from the text of the .
proposal-in order- to makeit clear that
the three defined units—incinerators,
boilers, and industrial furnaces—cover
the entire universe of enclosed devices
using controlled flame combustion to •
treat hazardous, waste. The regulation
also amends the former definition of • '
incinerator, promulgated on May 19,
1980, which defines the device in terms
of the primary purpose for which wastes
:are burned. However, this change is
. essentially a clarification of the existing
rules which should have little effect-on
the number or identity of units already
, subject to Subpart O. As -We stated at
proposal, incinerators are built to
destroy hazardous waste, so wastes
burned in them are obviously being ' •:
burned for the primary purpose of ' •
destruction. 48 FR14484/2.
The May 19,1880 definition focused
on whether each waste fuel was burned
for the primary purpose of destruction.
Today's regulatory, scheme more
appropriately describes how one can
examine the nature of the combustion,
unit to recognize combustion for
purposes other than destruction. It then
classifies units used for those activities
as either boilers or industrial furnaces. If
combustion o'f,a-waste does not meet
the criteria for those classes.'then the
primary purpose of its combustion is
necessarily destruction. Thus, it should
properly remain subject to the
permitting standards of Part 264,
Subpart O.
Comforming changes are being made
in § § 264.340 and 265.340 defining the .'
applicability of Subpart Q's standards
for incinerators. Similarly, § 265.370,
defining the applicability of the interim
.status standards for other thermal
, treatment, is being amended. These • ,
changes clarify the coverage of flame
combustion devices, but do not alter
existing obligations.
3. Definition of Boiler. Boilers burning
hazardous waste for energy recovery
-------
Federal Register / Vol. 50, No
^ - -- -
1985 / Rules and Regulations
now fall within the exemption from
regulation of actual recycling processes
found in 40 CFR 261.8, pending
promulgation of substantive regulations
controlling emissions from burning
hazardous wastes in them as may be
necessary to protect human health and
the environment. Thus, boilers do not
now require RCRA permits to continue
their combustion activities. (Storage of
certain hazardous, wastes before burning
requires a storage permit and the
transport of these wastes is regulated,
however. See 40 CFR 281.6(b).J
a. Adoption of a Standard Based on
Integral Design of the Device. The
definition of boilers focuses on physical
indicia of their legitimate use for energy
recovery. The final definition, like the
proposal, relies upon the concepts of
integral design, combustion efficiency,
and energy recovery. This reflects the'
fact that boilers, unlike incinerators, are
designed and operated to convert fuel
into more usuable energy (generally
steam). This is most efficiently done
when energy recovery devices, such as
water vessels, are physically In contact
with (integrally connected to) the
combustion chamber in which the fuel is
burned."EPA consequently proposed
that the combustion chamber and heat
recovery sections of a boiler must be of
Integral design-physically formed into
a single unit—and that significant heat
recovery must take place in the
combustion chamber by means of
radiant heat transfer.
Many parties commented on the
proponed definition, Some had
generalized objections to the basic
concept of a test based on physical
criteria, arguing that it would stifle
Innovation and that it was unrelated tq
environmental.protection. Othe'rs had
specific criticisms related to the
proposal's exclusive reliance on radiant
heat transfer as the measure of
"significant heat recovery." Commenters
also described a few specific types of
legitimate boilers which might not meet .
the proposed "integral design" test.
EPA has considered, but is
unpefsuaded by, the general criticism of
the rule's reliance on physical criteria to
differentiate between these units.
Significant regulatory consequences
spring from the distinctions between
classes of combustion devices, Thus, it
is important that the tests for thosi?
distinctions be unambiguous and easy to
apply. The physical test of integral
"van Nculrand's Scientific Encyclopedia (5th
Ed,) at 32+-331 define* "boiler t^rlace" as those
p*rti "which ara in contact with the hot gates on
one ilda and water or a mixture of water and steam
on Iht other ildc." Sea olio, McGraw Hill
Encyclopedia of Science and Technology (1962) at
design meets those needs. The test also
has environmental significance since it
will pinpoint those cases in which the
unit is hot designed to achieve efficient
energy recovery and, thus, cannot be
relied upon to attain complete
combustion.
Adverse impacts on innovation are
unlikely to occur since the test focuses
on efficient transfer of energy from fuel
to fluids—the most common and
widespread element of boiler
technology. Furthermore, extensive
comments actually identified only two
limited classes of boilers for which the
test could be inappropriate; the final
regulation specifically deals with those
classes, as discussed below. Finally,
EPA has provided for a case-by-case
determination that a unit is a legitimate
boiler, based on an assessment of
specified relevant factors.
Under the final rule, therefore, the
great majority of boilers can be
unambiguously identified by a simple
examination of. physical design while a
case-by-case assessment can be made
of the few units, for which it is possible
that the physical test is inappropriate.
b. Supplementation of Integral Design
Standard With Additional Physical
Standards. The integral design test is
supplemented by quantified criteria for
continuous and long-term energy
/ recovery. These supplementary testa are
designed to ensure that units that are
physically designed as boilers are not
actually being used to destroy
hazardous waste. In the final regulation
these criteria are quantified and placed
in the regulation to avoid the ambiguity
about regulatory coverage which might
have arisen if they had been left in the
preamble, as at proposal. (A specific
background document explains these
criteria-in detail.)
The final definition does include
several changes based on specific
technical comments. These are
discussed in the background document;
however, the major points are
mentioned here.
First, the definition of boiler now
identifies specific units—process
heaters and fluidized bed combustion
units—which are generally recognized
as boilers but for which the integral
design test is not determinative of
Whether the unit is a boiler. Historically,
these units have generally been
regarded as legitimate boilers despite
the fact that they might not meet a strict
integral design test. As such, they would
often qualify for the case-by-case
classification procedure, assuming they
meet the energy recovery criteria. The
explicit reference to them in the
definition avoids the need for case-by-
case assessments.
Second, the definition now gives
credit for all forms of heat recovery
which are exported from the unit and
actually are utilized. This significant
technical change is in response to
criticisms of the proposal's, reliance on
radiant heat transfer alone As such, it
avoids many problems of measurement
and classification. In fact, measurement
can now often be based on a simple
comparison of annual feed to the unit,
and annual pounds of steam recovered
from the unit, with both measured in
British Thermal Units fBTUj.
Finally, the specific required .-.tnergy
recovery ratios have been revised since
proposal. The changes reflect the shift
from reliance on radiant heat .recovery
alone to reliance on the total heat
recovery. We are indicating that boilers
must maintain a thermal energy
recovery efficiency of 60 percent when
in operation. (This is to be based on the
higher heating value of the fuel, the
common means of evaluating boilers
efficiency in this country.) This value is
within the range recommended by
commenters, and also is within the
range of recoveries reported in relevant
technical literature. We also are
indicating that boilers must export and
utilize 75 percent of the recovered
energy on an annual basis. This value
allows for unit downtime but guards
against situations where heat recovery
elements have been added as incidental
parts of a combustion unit, or have been
added in an attempt to avoid
classification as an incinerator. The vast
majority of legitimate, well-maintained
and well-operated boilers (and all those
of which EPA is now aware) should
meet the criteria now in the regulation.
Specific outlying units may be eligible
for a case-by-case assessment,
4. Definition of Industrial Furnace.
Industrial furnaces burning hazardous
waste for energy recovery are currently
exempt from regulation by the
provisions of 40 CFR 281.6, Thus, they "
do not now require permits to continue
their combustion activities. (As with
boilers, storage of certain hazardous
wastes before burning in industrial
frunaces requires a storage permit, and
the transportation of these wastes is
regulated. See § 281.6(b).)
We indicated at proposal that
industrial furnaces were those
combustion devices designed as
incinerators or as boilers that are used
as integral components of manufacturing
processes to recover materials or
energy, not to destroy wastes. 49 FR
14463. To be an "industrial furnace", a
unit had to fall within the classes that
-------
Federal Register / Vol. 50, No. 3 /
'-• .-' -'-'v-v>:^''&&?;^^
Friday, January % 1>?85/ Rules ahti,Regulatigns 627
EPA had specifically designated in the
rule, based on a series of criteria
relating to how ths device was an
integral component of a manufacturing
process.
We have adopted this same scheme in
the final rule. Thus, only those devices
specifically named in the regulation [i.e.,
in the definition of industrial furnace
contained in § 200.10] are considered to
be industrial furnaces for purposes of
the regulation. The criteria for adding
new industrial furnaces are the same as
at proposal. We have added certain new
devices to the list of industrial furnaces.
Our reasons are provided in the
background document supporting, this
portion of the regulations.
//. Discussion of Specific Provisions of
the Revised Definition of Solid Waste
A. Section 261.1(b): Purpose and Scope
1. Use of The Regulatory Definition of
Solid Waste Only For Purposes of The
Subtitle C Regulations. The applicability
provision in the final rule is virtually
identical to the one proposed. Section
261.i(b)(l) reiterates that the regulatory
definition of solid waste applies only to
materials that also are Subtitle C
hazardous wastes. This point is implicit
since the regulatory definition of solid
waste appears in regulations
implementing Subtitle C of RCRA, which
subtitle only applies to hazardous
wastes. In response to comment, we are
adopting a clarifying provision in
§ 261.1(b) to ensure that the regulatory
definition is not used in unintended
contexts, for example to justify
regulation of non-hazardous wastes. The
language of the final rule is modelled on
Section 8 of H.R. 2867 and is consistent
with the Committee's intent. See H.R.
Rep. 98-198 at 47.
This provision also makes clear that
waste-derived products placed on the
land for beneficial use or burned as
fuels must themselves be hazardous [by
exhibiting a characteristic or containing
a listed hazardous waste] to be covered
by the rule.
2. Use of The Statutory Definition for
Purposes of Sections 3007, 3013, and
7003. EPA also is promulgating
§ 261.1(b](2], which provision states that
the regulatory definition does not limit
the Agency's jurisdiction under Sections
3007, 3013, and 7003 of RCRA. Rather,
the statutory definitions of solid and
hazardous waste will apply when these
provisions are involved. A substantially
identical provision has been hi the
regulations since May of 1980. (Those
provisions recopied from the May 19,
1980 rules are not being repromulgated
and are not subject to judicial review.)
Several commenters objected to its
continued inclusion, arguing >thal the
statutory definitions of solid and
hazardous waste dp not provide •./•'.
adequate notice to the regvitqled •„
community. These comments are
unfounded. Congress clearly intended &•
broader definition of waste to apply ••.'..
whan these three provisions are
involved. See 48 FR at 14484 (Apw* 4, , ''
1983) and 45 FR 33C90 (May 19, J980);
see also H.R. Rep. SS-133 at 47 (EpA's
authority under Sections 3007 and 7003
includes all wastes that meet the
statutory definition of hazardous waste,).
Courts also have repeatedly applied the
statutory definition in Section 7003:
actions. See 48 FR 4502 n.87 (Section,
7003 actions against recycling facilities),
Therefore, the statutory definitions of
solid waste and hazardous waste will
apply in all actions involving Section?
3007, 3013, and 7003 of RCRA. This
means that the Agency's authority under
these provisions extends to all materials/
that could be solid wastes under R^RA,
not just to those defined as solid wastes
in the regulations. Thus, SPA has,
authority to sample a potentially
hazardous unUsted by-prpptyct being
reclaimed even though this material
would not be defined as a solid waste in -
§ 261.2. It could be a solid waste,
however; the regulatory definition states /
that this is a question requiring material-
by-material consideration by EPA- IpPA
thus retains the statutory "authority to .'•
obtain the information necessary to
determine whether the materials are ;
solid wastes (or, in the case of Sections
3013 and 7003, to talce appropriate
action under those provisions). The
same reasoning applies to materials/
potentially designable as solid wastes
under | 261.2(d). . " . . , ;
This portion of the rule is effective
immediately. The HSWA amended
Section 3010 of RCRA to allpw rujes t
-------
628
Federal Register /. Vol.- 50,
Friday,
4 1885 / Rules and Regulations
applied to the land. They argued that the
simple mixing standard in the proposal
was imprecise, had no relation to
environmental consequences, and
deviated from Congressional intent to
control placing hazardous wastes on the
land. The House Committee on Energy
and Commerce also indicated that it
expects EPA to control "hazardous
wastes-derived products used or reused
by being applied directly to the land."
H.R. Rep. 98-198 at 46. Indeed, the
Agency itself noted in the preamble to
the proposal that we might reconsider
the question of asserting authority over
hazardous waste-derived products that
are used on the land. (See 4fl FR14485/
After reconsideration, we are revising
the final rule to apply not only to
hazardous secondary materials used on
the land without significant change but
also to all products containing these
wastes that are applied to the land and
that are themselves hazardous. We read
'our jurisdiction as applying to waste-
derived products whose recycling is
similar to a normal form of waste
management—in this case, land
disposal (The jurisdictional basis fo.r
the following provision on hazardous
waste-derived fuels is similar, except,
. that incineration is the waste
management practice corresponding to
recycling by burning.) We thus agree
with those commenters who maintained
that the Agency's jurisdiction extends to
all hazardous wastes placed on the land,
whether or not the waste was mixed
wi)h other materials or chemically •
altered before being placed on the land.
The type of processing involved is
relevant in determining what regulatory
scheme to adopt or in deciding if the
waste-derived product is still hazardous.
We have determined, however, that
processing does not deprive the Agency
of RCRA Subtitle C Jurisdiction when
the waste-containing product is still
placed on the land.
The Agency is thus asserting
jurisdiction over all hazardous
secondary materials, and over products
that contain these wastes, when they
are applied to the land. Thus, fertilizers,
asphalt, and building foundation
materials that use hazardous wastes as
ingredients and are then applied to the
land are subject to RCRA jurisdiction.
Secondary materials applied directly to
the land likewise are within the
Agency's Subtitle C regulations, as are
secondary materials dumped into water
to serve as fill or structural support.1*
We note that we are not asserting
RCRA jurisdiction over pesticides or
pesticide applications. Use of a pesticide
involves use of a product, not recycling
of a waste. Thus, if a pesticide
(including off-specification pesticide,
pesticide rinse waters or unused dip
solution applied in accord with label
instructions) is applied to the land for
beneficial use, the practice is not viewed
as use constituting disposal.
At the present time, the principles of
§ 261.3 (c) and (d) continue to apply in
determining whether a hazardous
waste-derived product remains a
hazardous waste. Thus, if a waste that
exhibits a characteristic of hazardous
waste is incorporated into a product to
be placed on the land, the waste-derived
product is a hazardous waste only if the
product itself exhibits one or more of the
characteristics of hazardous waste. For
example, if a product contains an EP
toxic sludge, but the product itself does
not exhibit EP toxicity or any other
characteristic of hazardous waste, it
would not be subject to regulation under
Subtitle C. If the waste-derived product
contains a listed waste, it is subject to
regulation under Subtitle C unless and
until it is delisted under the standards
and procedures contained in §§ 260.20
and 260.22. See § 261.3 (c)(2) and (d)(2).
(We may eventually revisit this part of
the rule because there are no hazardous
waste characteristics that measure
exposure pathways posed by certain .
waste-derived products, such as crop
up-take for waste-derived fertilizers.)
By asserting jurisdiction over
hazardous waste-derived products
placed on the land, EPA necessarily is
asserting authority over the hazardous
wastes—the hazardous spent materials,
sludges, by-products and § 281.33
commercial chemical products—that go
into these products. Thus, if a generator
sends a hazardous sludge to a fertilizer
producer, for example, the sludge is a
hazardous waste in the generator's
hands. This result represents a change
from the proposal, where these
materials would not have been wastes
because they were to be used as
ingredients (proposed § 261.2(c)(l)(i)).
(All of these secondary materials are
wastes under the existing (May 19,1980)
definition of solid waste, however, and
are presently subject to regulation if
they are listed wastes or sludges. See
§ 261.6.) Thus, there is not a significant
change in overall regulatory coverage
between the existing and final rules for
wastes to be incorporated into waste-
" Wo note, however, that we do not consider
secondary materials that are used ai wastewater
conditioner* to ba within the scope of this provision.
Tba activity Is not similar to land disposal because
the secondary material is chemically combined as
part of a conditioning process and ia subsumed as
an ingredient in the conditioned water. See 48 FR
14485 n,18.
derived products that are used on the
land. (See also Section III.C. of Part HI of
the preamble on this point.)
3. Regulatory Strategy for Commercial
Products Containing Hazardous Wastes
that are Placed on the Land. Although
SPA is asserting authority over waste-
derived products that are placed on the
land for beneficial use, we are not yet
ready to undertake regulation of these
waste-derived commercial products, and
therefore are temporarily exempting
them from regulation. Ultimate users of
these materials—farmers and highway
construction crews, for example—are in
many cases individuals not ordinarily
within the ambit of the Subtitle C
regulatory system. EPA needs more time
to determine whether it is possible to
develop a more sophisticated means of
including these types of users within a
regulatory framework. The Agency also
needs moje time to develop a regulatory
system for determining when end uses
of these products could present a
substantial hazard to human health and
the environment, and when such
practices as waste-product application
rate protect against potential harm.
In developing a short and long-term
scheme for controlling hazardous waste-
derived products placed on the land for
beneficial use, the Agency hopes
eventually to develop specification
levels for toxic constitutents or other
specific standards—for those waste-
derived products whose use on the land
may cause substantial harm. We are not
sure if it is technically feasible to
develop such specifications, however.
and it would take years to work out this
type of approach. EPA therefore
. believes that short-term controls of
these practices are needed since
uncontrolled land placement of
meterials containing hazardous wastes
is potentially very dangerous. We also
believe that persons generating or using
hazardous waste-derived products on
the land should demonstrate that the
product is safe to use for land
placement, or else comply with
regulations that apply to hazardous
wastes placed on the land.
The Agency intends, therefore, to
develop regulations whereby generators
or users of hazardous waste-derived
products could demonstrate that these
products can be placed safely on the
land. To this end, EPA expects to
conduct studies of these waste-derived
products to determine: (1) the types of
hazardous wastes contained in waste-
derived products that are applied to the
land, and (2) the potential hazards
presented by these waste-derived
products. Once these studies are
completed, the Agency will take
-------
Federal Register / Vol. 50, No. 3 / Friday, January 4^1985 / Rules and Regulations
629
appropriate regulatory action. One
alternative the Agency is examining is
for the user or producer of the waste-
derived product to demonstrate via a
risk assessment assuming possible
exposures via groundwater, crop uptake,
runoff to surface water, wind dispersion,
or direct human contact that such
waste-derived products do not present a
substantial hazard to human health or
the environment when the waste-
derived products are applied to the land.
la some cases, users or producers could
also evaluate toxicant mobility by
existing methods, as in delistings. This
system would remain in place until the
Agency developed different regulations.
The Agency therefore is limiting its
regulatory coverage at this time to
hazardous wastes placed directly on the
land, or placed on the land after
processing, unless the waste a)
undergoes a chemical reaction so as to
become inseparable by physical means,
and b) the resulting combined material
is marketed as a commercial product.
(See Section II.G. of Part 3 of the
preamble for an explanation of these
terms.) The practices'we are regulating,
as we stated at proposal, are
tantamount to land disposal and should
be regulated as such. We also are
regulating hazardous wastes that are
transported and stored before being
incorporated into hazardous waste-
derived products. These wastes stand
on the same conceptual and regulatory
footing as other hazardous wastes
transported and stored before being
recycled.
D. Section 261.2(c) (2): Wastes That Are
Burned to Recover Energy, Are Used to
Produce Fuels, or Are Contained in
Fuels
These provisions are among the most
important in the regulation, and are
integrally related to other regulations
proposed or being developed by the
Agency. We noted in Section IIJ3. above
that much of the Agency's on-going
activity addresses burning of hazardous
wastes for energy recovery in boilers or
industrial furnaces, and explained our
definitions of these terms, as well as our
definition of incinerator. We discuss
here which secondary materials are
wastes when burned as fuels, and how
to distinguish among burning for energy
recovery, burning for material recovery*
and burning for destruction, as well as
the regulatory implications of falling into
each of these three categories. We also
discuss our future regulatory plans, and
finally address how we are regulating
storage that occurs before burning.
hazardous waste for energy recovery.
.1. .Materials ThatArs Wastes When
Burned As Fuels, The Agency proposed
that all spent materials, all sludges, and,
listed (but not unlisted) by-products be
considered solid wastes when they are '
burned as fuels, as well as (of course)
when they are burned for destruction,1'
Fuels derived from these wastes
likewise were defined as solid wastes.
As a'point of clarification, if a waste
exhibiting a characteristic of hazardous
waste is used as an ingredient in a fuel,
and the waste-derived fuel does not
exhibit a characteristic, the waste-
derived fuel would not be considered to
be a hazardous waste. See f 261.3(d)(l).
Our reason for limiting our jurisdiction
in the proposed rule to listed by- •
products was that we were unsure
whether certain commercial fuels might
technically be by-products (as defined),
See 48 FR 14485. We have reconsidered
the issue and have determined that all
by-products (again as defined) are solid
wastes when burned as fuels or used to
produce a fuel. We have three principal
reasons for this change in approach;
(1) Both the comment? and pur own, [
investigations failed to disclose
instances where by-products were!
normal commercial fuels;
(2) Data indicates that many process
residues, which are by-products, '
containing high concentrations of
Appendix VIII constituents are burned
as fuels in industrial boilers; and •
(3) Congressional intent is for the ',-'..
Agency to read its jurisdiction over ,
waste-fuels expansively. ,
States, environmental groups, anot
waste treatment industry members •
urged the Agency to expand its claim of
jurisdiction. The Agency likewise
believes that its authority over recycling
is broadest when the recycling practice
is like a classic waste management , •
activity, iri this case, incineration, •. .
. Those commenters who supported the
proposal did not maintain that the
Agency would regulate normal •
commercial fuels if all by-products were
wastes when burned as feels. Rather,
I6The Agency also proposed that commercial
chemical products listed in 5 281.33 that are not
themselves fuels, are solid wastes when they are
burned as fuels, or used to produce fijels, and that
fuels containing these materials f/,e, the commercial
chemicals themsevles, incorporated into the fuel in
lieu of normal use) are solid wastes. We are
finalizing this provision today. One qommenter,
however, misread this language to state that if a fuel
contains a chemical that also is on the § 261.33
list—for example, acetaldehyde—fuels containing
acetaldehyde were solid wastes regardless of the
source of the acetaldehyde. This is incorrect. These
materials must first be commercial chemical
products (or related materials such, as off-
specification variants or spill residues} listed ,
pursuant to § 281.33, and must be burned or
processed as fuel in lieu of their original intended
purpose. We also note that the RCRA
Reauthoiization legislation takes precisely this
position. See H.R. Rep. No. 96-198 at 40: & Rep. No.
93-284 at 37. '
they argued that many residual
materials have high Btu values, and
''. emissions from burning these materials
are not substantially different from
burning fossil fuels. Others argued that
if these by-products were ignitable and
did not contain Appendix VIII
hazardous constituents, they should not
be considered to be wastes when
burned,
These comments, in the Agency's
view, go to the issue of whether burning.
and storage of these materials needs to
be regulated. The Agency will address
these questions in a different
rulemaking. These comments do not,
however, address the conceptual '
question of whether the materials are
wastes, Jt is ow opinion that by-
. products that are unlike commercial
fuelsmbeqcuse they are residual
materials not intentionally produced,
and are significantly different in
composition from fossil fuels—are
, wastes when burned as fuels.
< Pur opinion is reinforced by data
submitted to the Agency regarding by-
product waste streams presently being
burned in boilers and industrial
furnaces. Pata from the Agency's
industry Studies program of the organic
ehemiqaj and pesticides industry
indicate that boilers and industrial
.furnaces within these industries burn
• residual by-products containing high
: concentrations of such Appendix VIII
, hazardous constituents as aniline,
cyanides, dimethyl phthalates, isobutyl
alcohol, and tetraqhloroethene. By-
products identified in comments to this
rujemaking as being burned in boilers or
industrial furnaces include chlorinated
solvents, chlorinated aliphatic
hydrocarbon production wastes,
nitrochlorobenzene production wastes,
• and solvent recovery still bottoms. By-
• products identified in responses to the
. Agency's survey on waste and used oil
fuels .(Questionnaire: IJsed Oil antf
ffazftrdous Waste as Fuel, OMB No.
20500019) include distillation bottoms
from production of carbon tetrachlaride,
distillation bottoms from production of
phenol/acetone from cumene,
distillation bottoms from production of
aniline and excess cyanide from
acrylonitrile production.
.: These by-products are physically and
conceptually very different from fossil
fuels. They are waste-like because they
are residual materials containing toxic
constituents not ordinarily found in
fossil fuels. Many are typically
discarded. We therefore believe that we
-------
63d
Fetjer^l Regip.ter /..Vol. 50*; No. 3 / Friday, January 4.-.1985-/ Rules and Regulations
have jurisdiction over the burning of
these materials."
Furthermore, recent statements of
Congressional intent strongly support ,
and expansivo reading of authority over
waste-fuels. The HSWA commands the
Agency to regulate burning hazardous
wastes for energy recovery, and voice
special concern over recycling practices
involving "direct introduction of
hazardous wastes to the air...." H.R.
Rep. No. 98-198,98th Cong., 1st Sess. 46.
Our action today is in full accord with
these declarations.
As a point of clarification, the Agency
reemohasizes that it has modified the
difinition of by-product to indicate more
clearly that co-products—materials
intentionally produced for a commercial
market and suitable for use as-is—are
not considered to be by-products. Thus,
co-products from petroleum refining
such as kerosene, pitch, or various
grades of fuel oil, are not by-products
for purposes of this regulation.u On the
other hand, residual materials such as
tank bottoms (EPA Hazardous Waste
No. KO52) are by-products a'ndare
considered to be wastes when used as
fuels or when incorporated into fuels.
We note that the HSWA takes precisely
this position. See RCRA amended
Section 3004fg)(2){A) and 3005(r)[2}.
Fuels containing these wastes likewise
remain solid wastes. Id, Again, it may
turn out that regulation of-these
materials is unnecessary to protect
human health and the environment. EPA
also may be able to establish , .
specifications that distinguish waste-
derived fuels from products. Today's
rule makes clear that the Agency has
•jurisdiction to make these
determinations.
As a result of this change, all spent,
materials, sludges, by-products, and
5 261.33 commercial chemical products
and all fuels to which these materials
are added," are potentially subject to
"We note as well that Congress already has
required the Agency to develop Jjerfbrmance ' •
standards for used oil burned as a fuel. See RCRA
Sections 3014 and 1004(37). The Agency believes
that If we have authority to regulate bumingpf use'd
oil whleh 1* composed primarily of petroleum
fractons and therefore is physically similar to fossa
fuel or fuel oil. a fortiori, we also have authority tp
regulate burning of secondary materials that are
physically quite distinct from fossil fuels.
'•Orf-npedflcatlon fuels burned for energy • •
recovery also are not by-proaucts. and »o would not
be considered to be wastes under this provision. An
oxnmple provided In the comments was of natural
ga» pipeline condensate. The condensate contains
many of the same hydorcarbons found in liquefied .
natural gas. and certain higher hydrocarbons that
also have energy value. It is generated in ths
pipeline transmission of natural gas. This
condensate is not considered to be a waste when
burned for energy recovery.
"As noted above, for a waste-derived fuel to be
' hazardous waste, it would have to contain a listed
regulation when transported, stored, and
burned for energy recovery. We discuss
below in sections 3 and 4, the Agency's
on-going efforts to control burning and .
storage of these materials.
2. Determining When a Waste is
Burned for Energy Recovery and
Applicability of the Rules to Burning for
Materials Recovery. Today's regulations
apply to hazardous wastes burned for
"energy recovery." This limitation raises
two issues: Distinguishing burning for
energy recovery from burning for
destruction, and determining how to
regulate wastes if they are burned to
recover materials.
(a} Burning for Energy Recovery. The
Agency has already.addressed in part,
what it means to burn wastes for
legitimate energy recovery. In a
Statement of Enforcement Policy issued
on January 18,1983 (printed at 43 FR
11157 (Nferch 16,1983)), EPA stated that
as a general matter—subject to
. individualized consideration of
particular circumstances—burning of
low energy Hazardous, wastes, as alleged
fuels is not considered ta be burning for
legitimate energy recovery. This is the
case even if the low energy hazardous
.waste is blended with high energy
materials and then burned. Thus, under
these principles, boilers and industrial
furnaces burning low energy wastes
could be considered to be incinerating N
them, and so be subject to regulation as
hazardous waste incinerators. (See 48
FR 11158,11159. and fn.3.)
Today's regulation leaves the
principles of the Statement in force.
However, EPA, in the Statement,'
indicated that sham burning was easiest
to determine when burning occurs in
pon-industrial boilers. We also said that
larger industrial boilers are more
efficient at recovering energy rand so
could be deemed, more" often, to be
• burning lower energy wastes
legitimately. (Id. at 11159.) In applying
the Enforcement Policy Statement to
industrial boilers and industrial
furnaces, we would seek to enforce only
in situations where large amounts of low
• energy wastes with high concentrations
of toxicants are burned. These are
clearly situations where low energy
hazardous ^vaste adulteration was
deliberate and massive. We also note
that the Policy Statement does not
address burning for material recovery,
or situations where a single waste is
burned for material and energy
recovery. In this situation, the fact that
Itcr; energy wastes are involved would
not necessarily indicate that there is no
waste or exhibit a hazardous waste characteristic.
Sea 8 261.3 (c) and fd).
recycling, because material recovery
also is involved.
(b) Burning for Material Recovery. A
second question is the scope of these
regulations when burning involves
material recovery. The Agency views
these regulations as applying whenever
hazardous wastes are burned in boilers.
Boilers, by definition, recover energy. If
materials are also recovered, this
recovery is ancillary to the purpose of
the boiler, and so does not alter the
regulatory status of the activity.
Burning for material recovery in
industrial furnaces, however, raises
different kinds of issues. As discussed
above, industrial furnaces are used as
integral components of manufacturing
processes to recover materials. Thus,
regulation under RCRA of actual
burning in industrial furnaces could, hi
some circumstances, represent an
intrusion into a normal production
process, particularly if the material
being recovered is the same material the
furnace ordinarily produces. On the
other hand, when an industrial furnace
is used for material recovery and the
secondary material being burned is: (a)
Not ordinarily associated with the
furnace (for example, organic still
bottoms), (b) different in composition
from materials ordinarily burned to the
unit (as when the secondary material
contains Appendix VIII hazardous •
constituents different from, or in
concentrations in excess of those in
materials ordinarily burned in the
furnace), or (c) burned for a purpose
ancillary to the chief function of the
furnace, we think that RCRA jurisdiction
over the burning exists, (jurisdiction
obviously exists, for example, if that
purpose is destruction.)
When industrial furnaces burn for
energy recovery, regulation of the
burning would not constitute an
impermissible intrusion into the
production process because burning for
energy recovery is an activity that is not
central to the usual function of an
industrial furnace. See H.R. Rep. 98-198
at 40 (industrial furnaces burning for
energy recovery are to be regulated
under the waste-as-fuel provisions of
H.R. 2867). We therefore are asserting
RCRA jurisdiction when an industrial
furnace burns hazardous secondary
materials—i.e, hazardous wastes—for
energy recovery.
The regulations would also apply
when an industrial furnace burns the
same secondary material for both
energy and material recovery. Examples
are blast furnaces that burn organic
wastes to recover both energy and
carbon values, or cement kilns that burn
chlorinated wastes as a s jurce of energy
-------
' 3 ^ Friday, January 4, 1985 / Rules and Regulations
631'
and chlorine. (Indeed, energy recovery
from burning in kilns is automatic, so
that all burning of hazardous wastes in
kilns is within the Agency's RCRA
jurisdiction.) These activities are not so
integrally tied to the production nature
of the furnace as to raise questions
about the Agency's jurisdiction. In
addition, EPA believes that both the
existing statute and the new legislation
express a strong mandate to take a
broad view of what constitutes;
hazardous waste when hazardous
secondary materials are burned for
energy recovery, and to regulate as
necessary to protect human health and
the environment. See e.g., 48 FR14502
(statutory definitions stating that
secondary materials burned for energy
recovery are solid wastes); H.R. Rep. 94-
1491, supra at 4 (Congress* concern in
promulgating Subtitle C was, to
"eliminat(e) the last remaining loophole
in environmental law", not to create
new loopholes); H.R. Rep. 98-198* supra
at 41-42; S. Rep. No. 98-284 at 36. In
taking this view, we thus reconsider and
withdraw footnote 19 of thepreamble to
the proposed rule where we said we
would count materials burned in
industrial furnaces for both energy and
material recovery as being burned for
material recovery. For the reasons given
above, we think that was a mistaken
idea.
We note as well that if an industrial:
furnace burning secondary materials for
ostensible material recovery is used to
destroy the materials* it is not recycling
but rather is Incinerating them.
Examples of such sham recovery are
when there is no material recovery, or
where material recovery is economically
insignificant. Another example is when
wastes are burned in excess of what can
feasibly be recovered and used. (The
following subsection discusses a
regulatory change clarifying this
principle.)
(c) Amendment to Applicability
Section of Subpart O of Parts 264 and
265. In the final rule, we are codifying
the general principle that boilers and
industrial furnaces used to destroy
wastes rather than to recover energy
and material from them axe considered
to be incinerating the wastes, and thus
are subject to the permit requirements of
Subpart O of Part 264 or the interim
status requirements of Part 265. (This.
amendment is found in the applicability
sections of Subpart O of Parts 264 and1
265.) We intend for this amendment to
remain in effect until we develop permit
• standards for burning in boilers and
industrial furnaces. Not only is an
interim control on those- practices
needed, but without this provision
boilers and industrial furnaces burning
for destruction would have no means of
receiving a permit.
It also should be noted that with the
exception of certain conditions in the
definition of "boiler," we are not
defining objectively what constitutes
burning for destruction, such as
specifying precise Btu limits for waste
fuels or volume limits on waste feed. We
have decided that there are too many
exceptional circumstances where
unvarying rules of this type would yield
unintended results. It is better policy, we
think, to apply the concepts explained
here and in the Statement of
Enforcement Policy, and so enforce this
provision in a more individualized
manner.
(d) Examples of How These
Provisions Operate*
The following examples indicate
which secondary materials are wastes
when burned for energy recovery.
• Facility A burns an unlisted
ignitable by-product in its boilers.
A is considered to be burning a
hazardous waste since all secondary
materials burned for energy recovery
are defined as solid wastes; (Ignitable
wastes will have high Btu value, and ac-
me waste will be burned for legitimate
energy recovery.)
• Facility B burns the same by-
product in an industrial furnace to
recover energy.
B is considered to be burning a
hazardous waste for the same reason as
A was in the first example.
• Facility C burns an unlisted EP toxic
by-product in its boiler to recover both
materials and energy.
C is considered to be burning a
hazardous waste for energy recovery,
since secondary materials burned for a
dual recycling purpose in boilers are
considered for jurisdictional purposes to
be burning for energy recovery. This
answer assumes that sufficient energy
and material values are recovered so
that the waste is not being burned for
destruction.
• Facility D burns the same by-
product in an industrial furnace to
recover both energy and materials.
D is considered to be burning a
hazardous waste, even though the waste
is an unlisted by-produet, and even
though there is some material recovery.
Unlisted by-products burned for energy
recovery in any type of combustion unit
are defined as solid wastes. If D were
burning exclusively for material
recovery—for example if D operated a
smelting furnace burning' to recover
metal—the material would not be a solid
waste since it would be an unlisted by-
product being reclaimed.
• Facility E burns an unlisted EP toxic
sludge in its industrial furnace but
recovers no energy and minimal
material values. The material recovered
is also unrelated to the material the
furnace normally produces.
E would be considered to be burning a
hazardous waste for destruction, and so
would have to comply with the
standards for incineration in Subpart O
of Parts 264 and 265.
3. The Agency's Future Plans for
Regulating Burning of Hazardous Waste
for Energy Recovery. As noted above,
the actual burning of hazardous waste
for energy recovery in boilers and
industrial furnaces is exempt from
regulation. There was strong consensus
in the public comments—confirmed by
recent legislative action—that there is a
need for regulatory action to control this
type of burning. The Agency agrees, and
is adopting a phased approach to
address the problem. We will soon be
proposing the first set of regulations
which would ban burning of hazardous
wastes and contaminated used oil in
non-industrial boilers, and would
impose administrative controls on these
materials whenever burned in industrial
boilers or industrial furnaces.
The next phase of regulations will
develop permit standards for burning in.
industrial boilers and in some industrial
furnaces. In developing these standards, :
we will use many of the factors
recommended by commenters in this
proceeding. Thus, we intend that these
units achieve the same ultimate level of
protection as incinerators, and (in some
cases) will specify design and operating
conditions based on the type of waste
and the operating efficiency of the
combustion unit to ensure that this level
of performance is achieved.
We also are considering adopting
general narrative standards, roughly
analogous to those contained in the Part
267 regulations (see 46 FR 12429,
February 13,1981), for remaining
industrial furnaces burning hazardous
wastes for energy recovery. This will
allow these units to be permitted
immediately until such time as the
Agency is able to develop unit specific
permit standards for them.
At the time these standards are m
place, the Agency intends to withdraw
the Statement of Enforcement Policy and
the rules stating that the Subpart O
regulatory standards for incinerators
apply to boilers and industrial fexaaces
burning hazardous wastes for
destruction. This is because we will then
have promulgated the permit standards
necessary to protect human health and
the environment for boilers and
industrial furnaces burning hazardous
-------
632
FederalJRefflster /Vol. 50. No. 3'/ Friday, January 4, 1985 /Rules and Regulations
waste, and so the purpose for which a
material is burned will no longer be
relevant in determining what the
regulatory regime for the burning device
should be,
4, Regulation of Generators,
Transporters andStorers of Hazardous
Wastes Before the Wastes are Burned
for Energy Recovery. Up to this point.
we have been discussing the Agency's
jurisdiction over wastes burned as fuels
and over fuels containing these wastes,
and our planned regulatory regimes for
the actual burning of these wastes and
waste fuels. We now discuss regulation
of these materials before they are
burned.
EPA proposed the following
regulatory scheme for generators.
transporters, waste fuel processors, and
ultimate burners:
TABLE 5. APRIL 4 PROPOSED RULES FOR GEN-
ERATORS, TRANSPORTERS, FUEL PROCES-
SORS AND BURNERS
Generator unoVg watt* to
tvsA procetjor.
Cenentor Mndng wwle *
r*c
-------
Federal Register / Vol. 5O, No. 3 / Friday. January '4. 1985
633
exempt from regulation at the present
time (see § 266.30(a})
• Generator G generates a hazardous
spent solvent listed under § 261.31,
blends it with virgin fuel oil, and sends
the blend to Burner D who burns it in a
boiler.
The answer is the same as, for the last
example, for the same reasons.
« Generator E generates a hazardous
•spent solvent listed under § 261.31,
blends it with virgin fuel oil, and sends
the blend to processor F who processes
the blend and does farther blending. F
then markets the hazardous waste fuel
to Burner G who burns it in his boiler.
Generator E is subject to Part 262, as
in the previous examples. Processor F is
a storage facility (see § 266.34(c)(2)),
However, the hazardous waste fuels-
thai F markets are exempt front
regulation, so Burner G may store and
burn them without regulation (at the
present time).
• Generator H generates an unlisted
Jgnitable by-product that he sends t&
Burner I to be burned in a boiler.
The hazardous waste is exempt from
regulation because it is neither a listed
waste nor a sludge (see 1266.36). This
result would be the same if the ignitable
by-product weie blended at any point,.
or sent to an intermediate processor
instead of the ultimate burner.
The following chart summarizes the
generation, transportation, and storage
standards in the final rule for hazardous
wastes to be burned as fuels..
TABLE 6: FiNAt RULES REGARDING TRANSPORT
AND STORAGE BEFORE BURNING FOR GEN-
ERATORS, TRANSPORTERS, Foa. BLENDERS,
AND BURNERS
TABLE 6: FINAL RULES REGARDING TRANSPORT
AND STORAGE BEFORE BURNING FOR GEN-
ERATORS, TRANSPORTERS, FUEL BLENDERS,
AND BURNERS—Continued
Generator sending waste to
fuel procssser.
Generator sending waste di-
rectly tp bunw,
Transporters t&tas. waste
from goWTBtort to fuel
Transporter* taWnj waste
from generajoffi to burners.
Fuel processors who do not
general $9 wests or fawn
the waste-dafived fuel ,
Hazardous wastes that ere
subject to regulation
Spent materials and by-pro*
uctB listed in f$ 281.31; and
.32, all skidgssi snd any,
blend containing- ona of
thsaa wastes.
Spent materials and' by-prod-
ucts listed in §8 261,31 and
.32, aH stodges, and any
Kend containing, ona «f-
those wastes..
Spent materteJs and by-pro*
ucts listed In f$2S1.31 and
.32, aU sludges, and any
blend containing, one of
thas» wastes.
Spent materials and by-prod-
ucts listed in §§261.31 and
.32, aH stodges, and- any
containjng. ono. of
Transportars taking interme-
diate waste-derived fuels
from fuel processors to
burners.
Burners—
Hazardous wastes that are
subject to regulation
Exempt from regulation.
Spent materials and by-pro*
uct* feted in 5§ 261.31 and
.32, til sludge*, ami any
blend containing one of
these wastes; waste-d*-
rived fuels from fuel proc-
essors who did not. gener-
ate tin waste are exempt
from regulation.
E. Section 261.2(c){3): Reclamation
1. Definition of Reclamation. EPA
proposed that all spent materials, listed
sludges, and listed by-products that are
reclaimed are solid wastes.20 See 48 FR
at 14486. We limited the definition to
listed sludges and listed by-products to,
avoid including sludges and by-products
that are routinely processed to recover
usable products as part of on-going
production operations. We defined.
"reclamation" to constitute either
regenerating waste materials or
processing waste materials to recover
usable products. In essence, reclamation
involves regeneration or material
recovery. Wastes are regenerated when,
they are processed to remove
contaminants in a way that restores
them to their usable original condition.
Examples are reclamation of spent
solvents or reclamation of other spent
organic chemicals. Secondary metal
reclamation processes, such as
secondary smelting, .are examples of
material recovery. Our regulatory
definition of reclamation relies heavily
on a number of statutory definitions,,
including those of "resource recovery'*
(RCRA Section 1004(31}). and "recovered;
material" (RCRA Section 1004(19)). Id at
14487/2.
We also drew a distinction in- the
proposal between situations where
material values in a spent material, by-
product, or sludge are recovered as at*
end-product of a process (as in metal
recovery from secondary materials) as
opposed to situations where these
secondary materials are used as
ingredients to make new products
without distinct components of the -
materials being recovered as end-
products. The former situation is-
reclamation; the latter is a type of direet
Spent materials! and by-prod-
ucts lists* in $| 2S1.31 and
,32, en- sludges,, and' any
Mend containing one of
these- wastes;, wsste-de-
ifeed fuata producs* by ths
processor art exempt from
regulation.
"The proposal contained an exception tat
materials that were-reclaimed at the plant site and
returned to the original process- in which they were
in the finat rate, for the reasons explained' in section
H of this part of the preamble.
use that usually is not considered to
constitute waste management. 48 FR
14487. In addition, we proposed that
secondary materials put to direct use as
substitutes for commercial products
were not considered to be reclaimed, so
that this type of use also is usually not
considered to be waste management.
Our reason for this distinction is that
secondary materials put to direct use in
this way are being used essentially as
products.
We are adopting these provisions, as
proposed. (Additional discussion of
recycling involving direet use of
secondary materials is found in Section
H. below.) Also, as discussed in Section
I.A.2. of this part of the preamble, we
have added provisions to the final
definition indicating explicitly that scrap
1 metal that is hazardous is considered to
be a waste for the regulatory purposes
of RCRA Subtitle C when it is reclaimed
As we noted, recovery from scrap metal
is not normally analogous to on-going
processing of virgin materials, and much
of the scrap metal that is reclaimed- is
waste-like because it is no longer fit for
use and must be reclaimed before it can
be used again. (As discussed in Part HI
of the preamble, however, the Agency is
at this time exempting from SuMtle C
regulation hazardous scrap metal that is
to be reclaimed.)
As a matter of drafting, we have;
reorganized this provision so that the
definition of reclamation is found: in
§ 261.1. The exceptions for direct use
recycling are contained in a separate
provision (i 2&1.2fe),} indicating when
secondary materials that are to be
recycled are not solid wastes.
Most of the comments agreed with the
proposed definition of reclamation
(although many questions were raised
about how to regulate reclamation
activities and about exclusions for direct
use recycling^ One commenter
requested clarification as to the
intended result when a secondary
material is first reclaimed and then put
to direct use. Under the final1 rule, spent
materials, listed sludges, and listed by-
products that are processed1 to recover
usable products, or that are
regenerated^—/.e., that are reclaimed—
are solid wastes. If the material is to be
put ta use after it has been reclaimed,, it
still is a solid waste until reclamation
has been completed Thus,, the fact that
wastes may be used after being
reclaimed does not affect their status as
wastes before and while being
reclaimed.
Other commenters raised a related
question about the status of spent
materials, listed sludges, and listed by-
products that are reclaimed and :
-------
634
Federal Register / Vol. 50, No. 3 / Friday, January 4, 1985 /Rules and Regulations
subsequently used as feedstock. This
situation is a subset of the one just
described, so that these materials are
wastes until reclaimed. Their later use
as feedstock does not alter this result.
The Agency acknowledges, however,
that its discussion of the recycling of
spent sulfuric acid in the proposal
preamble (footnote 30) created some
confusion. The Agency still does not
think this process involves reclamation.
To eliminate any uncertainty, however,
we are amending § 261,4(a) of the
regulations to state that spent sulfuric
acid that is recycled to produce virgin
sulfuxic acid is not considered to be a
solid waste. (See Section I. below.)
2,The Status of Reclaimed Products.
The Agency proposed a clarifying
amendment to § 261.3(c)(2) (the "derived
from" rule) to indicate that commercial
products reclaimed from hazardous
wastes are products, not wastes, and so
are not subject to the RCRA Subtitle C
regulations. See 48 FR11489. Thus,
regenerated solvents are not wastes.
Similarly, reclaimed metals that are
suitable for direct use, or that only have
to be refined to be usable are products,
not wastes. This amendment states a
fairly evident principle, and was not
challenged by any commenter.
We caution, though, as we did in the
proposal, that this principle does not
apply to reclaimed materials that are not
ordinarily considered to be commercial
products, such as waste-waters or
stabilized wastes. The provision also
does not apply when the output of the
reclamation process is burned for energy
recovery or placed on the land. These
activities are controlled by the
provisions of the definition dealing with
using hazardous wastes as ingredients
in fuels or land-applied products. For
instance, if a spent solvent is treated
and blended with oil to sell as a fuel,
that waste-derived fuel is still subject to
RCRA jurisdiction.
The principle also does not apply to
wastes that have been processed
minimally, or to materials that have
been partially reclaimed but must be
reclaimed further before recovery is
completed. (See 48 FR at 14499 n. 57.)
For this last situation—where materials.
are partially reclaimed but must be
reclaimed further until recovery is
completed—we are providing a variance
procedure for situations in which the
initially reclaimed material is
commodity-like in spite of the need for
additional processing before it is finally
reclaimed. This variance is explained
fully in Section J.2. of Part 3 of the
preamble below.21
F. Section 261.2(c)(4): Wastes That Are
Accumulated Speculatively
1. Grouping of Speculative
Accumulation and Overaccumulation
Provisions. EPA proposed that any
secondary material (Le., spent materials,
sludges, or by-products) being
accumulated speculatively were solid
wastes. We said these materials are
"accumulated speculatively" when they
are being stored with a legitimate
expectation of eventual recycling but
have never been recycled, or cannot
feasibly be recycled. See 48 FR 14489.
The Agency further proposed that
secondary materials that accumulate at
a site for over a year without 75 percent
being recycled are solid wastes. 48 FR
14490. The sense of this provision was
that all secondary materials that
overaccumulate before being recycled
are solid wastes, even if they are going
to be recycled in ways that ordinarily do
not constitute waste management.
We have combined these concepts in
a single provision in the final definition.
'We have drafted the provision so that
secondary materials are considered to
be solid wastes if they are accumulating
before being recycled. However, the
materials will not be considered solid
wastes (under this provision of the '
definition) if the person accumulating
can show, on request, that: a) the
materials have known recycling
potential and can feasibly be recycled,
and b) during a one-year calendar
period that the amount of material
recycled, or transferred to a different
site for recycling, is at least 75 percent
of the amount accumulated at the
beginning of the year.22
We think that drafting the provision in
this way most accurately reflects
Congressional intent that accumulated
hazardous secondary materials are
ordinarily to be regarded as solid and
hazardous wastes. Congress believed
that hazardous wastes are rarely, if
ever, recycled or amenable for recycling.
H.R. Rep. No. 94-1491, at 4. It mandated
11 One commenter questioned whether
recirculated industrial cooling water was
considered to be reclaimed. Ordinarily, we consider
cooling water (contact or non-contact) to be reused
directly when it is recirculated. Cooling water is not
ordinarily processed or treated to remove impurities
before recirculation, but is routed away from the
process (often through a cooling tower) to lose
enough heat to be reusable. The Agency does not
consider cooling water routed in this way to be
reclaimed.
** Of course, the materials could still be solid and
hazardous wastes depending on how they are
recycled. For example, they would be wastes if they
are to be recycled by being burned to recover
energy.
a "regulatory framework" to ensure that
"hazardous wastes (are not) disposed of
in ponds or lagoons or on the ground in
a manner that results in substantial and
sometimes irreversible pollution of the
environment." (Id.) This mandated
"regulatory approach" would
"eliminat(e) the last remaining loophole
in environmental law. . .".(Id.)
Although accumulating hazardous
secondary materials are ordinarily
regarded as solid and hazardous wastes,
this is not invariably the case. As noted
earlier in the preamble (see Section Il.B.
of Part 1 and Section H of Part 2), these
materials would not be wastes if they .
can be recycled in certain designated
ways, and if they are not accumulated
'speculatively before being recycled.
These situations represent exceptions to
the general statutory prohibition against
unregulated waste management
The final rule thus states the general
principle that hazardous secondary
materials accumulating before recycling
are wastes unless the person
accumulating is able to show on request
that he is indeed recycling sufficient
volumes of the materials on an annual
basis. The provision is not substantively
different from the proposed rule on
overaccumulation; the drafting indicates
explicitly, however, that this is an
exception to the general statutory
principle. Thus, the burden of showing
that sufficient amounts ate being
recycled is on the person accumulating
the material. (See Section J. of this .part
of the preamble.)
2. § 281.2(c)(4)(A): Wastes That Are
Accumulating With Expectation of
Recycling But- Which Have Not Been
Recycled. We are adopting in the final
rule the proposed provision that all
materials stored with a legitimate
expectation of eventually being recycled
but for which there is no known
recycling market or disposition, or no
feasible means of recycling, are wastes.
These wastes are subject immediately to
all applicable RCRA Subtitle C
standards. Ordinarily, these are storage
standards for the applicable type of "'
storage facility. (See 48 FR 14499/2.)
Materials that are known to be
recyclable, such as solvents, scrap
metal, used oil, or most smelting
drosses, slags, and sludges ordinarily
would not be subject to this provision.
A person accumulating hazardous
secondary materials would have the
burden of proving that there is a feasible
means of recycling the material. (See
Section J. below.) This ordinarily will
require identification of actual recyclers
and recycling technology, location of the
recycler, and relative costs associated
with recycling. For example, if the
-------
Federal Register / Vol. 50, No. 3 /Friday, January4, 1985 / Rules arid Regulations'
BBS
nearest recycler is 800 miles away, the
person accumulating the hazardous
secondary material would have to show
that it is economically reasonable to
send his material that far to be recycled.
The most convincing demonstration
clearly would be that the hazardous
secondary material actually has been
recycled.
Most comments supported the
proposal. Two commenters, however,
suggested that material for which
generators could demonstrate that on-
going developmental work will lead to
recycling at a future date should not be
considered to be accumulated
speculatively. We disagree. We think
that materials that are not known to be
recyclable (or not feasibly recyclable in
the hands of e particular generator} are
wastes immediately. The example in the
preamble to the proposed rule of a
waste accumulating over eight years
while the generator endeavored to find a
means to recycle it indicates that
conducting research into recycling
possibilities is much different than being
able to recycle a waste. In addition, the
Agency is not equipped to evaluate
whether an unproven developmental
plan will ultimately prove feasible,
3. Section 2613(cJ(4){BJ: Wastes
Accumulating Before Recycling That
Are Not Recycled In Sufficient
Amounts, a. The Proposed Provision.
EPA proposed that secondary materials
not already defined as wastes that
accumulated at a site for over a year
without 75 percent being recycled, or
transferred to a different site for
recycling, ere solid wastes. (The
materials must, of coarse, have a know
potential fen-recycling, or they will be
considered to be wastes immediately.)
EPA also proposed that certain wastes
which were exempt when recycled
would no longer be exempt if
insufficient amounts were recycled in a
year.
We coupled this provision with an
exception allowing persons who failed
to recycle 7$ percent in a given year to
petition the Regional Administrator (or
authorized State having this provision}
to demonstrate that they could recycle
sufficient amounts in the subsequent
year. If the petition was granted the
accumulated material was not a waste,
or remained exempt from regulation.
Once the rnateriaj accumulated for over
a year without sufficient turnover,
however, it became a weste or lost its
exemption fjrpm regulation unless the
Regional Administrator" (or authorized
State) wer§ to decide otherwise.
-b. The Final. Regulation. Wears
promulgating this provision essentially
as proposed. We continue to believe
that the length of time secondary
materials are accumulated before being
recycled is an important indicator of
whether or not they are wastes (or, in
the case of precious metal wastes,'
whether they should be subject to
regulation). This is borne out by the
large number of recycling damage cases
where secondary materials that were
overaccumulated over time caused
extensive harm. Commenters likewise
stated that raw materials usually are
processed through production processes
in a continual manner and therefore that
the length of time a secondary material
accumulates before recycling is relevant
in determining whether the material is a
waste. The Agency also believes, and.
many commenters agreed, that the one-
year period and 75 percent turnover
figure were within the reasonable range
of values the Agency could select. We ,
are promulgating this provision
essentially as proposed.
As just discussed, the major change in
the provision involves the structuring of
the regulation to indicate that secondary
materials stored before recycling are
wastes unless the person accumulating
the waste is able to show that they are
being recycled at an annual rate of 75
percent or more. By requiring persons
accumulating the materials to be able to
show that they are recycling sufficient
amounts, we mean that they have the
burden of proof on this issue. We are
not requiring specific reports to be
submitted to the Agency, nor that
particular records be maintained. (See
Section d. below discussing the type of
records that would satisfy the burden of
proof.) • ••'
As at proposal this provision applies
to all spent materials, sludges, and by-.
products not already defined as solid
and hazardous wastes and that are
accumulated before any type of
recycling. The provision thus applies to
secondary materials not otherwise
considered to be wastes when
recycled—namely, to materials that are
to be used as ingredients or as
commerical product substitutes, to
.materials that are recycled in a closed-
loop production process, to unlisted
sludges and by-products that are to be
reclaimed, and to black liquor and spent
sulfuric acid being reclaimed. Thus, if
one of these materials are
overaccumulated, they would be
considered to be hazardous wastes and
would become subject to regulation
under applicable provisions of § 261.6,
normally § 261.6 (fa) and (c) (see Section
H.I. of Parts of the preamble).
The provision also continues to apply
to one set of wastes which are
ordinarily exempt from most regulation '
when recycled, precious metal wastes
being reclaimed. Thus, if these wastes
are overaccumulated, they no longer are
conditionally exempt from regulation
(see § 266.70(d)).
The provision does not apply to
secondary materials that already are
wastes when they are recycled, for
example scrap metal, secondary
materials burned as fuels, or spent lead-
acid batteries being reclaimed. The
regulations in § 261,6 and Part 266 must
be consulted to determine if these
wastes are regulated. Rate of turnover
thus is not a factor in determining the
extent of regulation for these wastes.
In response to comment we are
adding that the provision also does not
apply to materials generated in a
manufacturing process unit or
associated non-waste-treatment
manufacturing unit covered by
§ 261.4(c). Including materials that are
generated in these units in the
calculation would be inconsistent with
the reasons EPA initially exempted
wastes accumulated in these types of
units. See 45 FR 72025 (October 30,
1980).»
EPA proposed that the 75% turnover
rate be calculated based on volume. In
response to comment, we are writing the
final rule so that rate of turnover can be
calculated biased on either weight or
volume. Either measure appears to be a
reasonble way to calculate turnover.
We are making one other change to
the proposed rule by requiring that 75%
of the accumulated materials be
recycled during the calendar year,
starting on January 1.1985. The proposal
would have allowed the person
accumulating to choose among the
calendar, fiscal, and inventory years as
the period during which 75% turnover
must be achieved. On reflection, we
think that a single time period is needed
to facilitate enforcement and to achieve
uniformity. EPA believes that if
enforcement officials are confronted
with a differing starting date at each
facility, this provision would become too
difficult to implement.
q. The Requirement That Materials of
The Same Class Being Recycled The
Same Way Be Counted Together. In the
proposal, we left open the question of
whether the overaccumulation provision
applies on a material-by-material basis
or on a basis that takes into account
both the material being recycled and the
" Although the final rale refers to } 281.4(e}—a
provision that exempts waste* from regulation—
EPA ii not stating that the materials in these units
are wastes. EPA is stating that the secondary •
materials not otherwise defined as solid wastes tha*
are accmmdatfog in the product storage tanks or
other vessel* described in 1281.4(c) ire not subject
to the turnover provision contained in the
speculative accumulation rule. . , . .•
-------
636
Register / Vol. 50.JNo. 3 / Fiday, January 4, 1985 /Rules andRegulations
manner of recycling. We indicated that
our preference was for the 75 percent
recycling renuirement to be applied to '
all materials of the same class which
were to be recycled in the same way.
Most commenters agreed, as this kind of
accounting best assures that similarly
situated materials will be grouped in the
same way.
We are adopting this standard in the
final rule. We wish to clarify precisely
wha« this standard means, however. By
"materials of the same class" we mean .
materials of the same type generated
from the same process. Examples of
materials that would be grouped are
distillation bottoms from integrated
production of chlorinated aliphatic •
, hydrocarbons, slags from a smelting
process, drosses from a smelting
process, dry sludges from the same
process, or wastewater treatment
sludges from the same process.
The requirement that the materials be
"recycled in the same way" means that
materials are either td be used to make
the same thing (for materials to be us'ed
as ingredients}, used in the same way
(for materials used as effective
substitutes for commercial products), or,
for unlisted by-products and sludges,
that the same material be recovered
from them. Thus, still bottoms used as
intermediates to make the same
products would be counted together—
for example, all still bottoms from
chlorinated aliphatic hydrocarbon
production that are used to make carbon
tetrachloride. On the other hand, still
bottoms used as intermediates in the
production of ethylene dichloride would
be counted separately. All of a
generator's spent pickle liquor used as a
wastewater sludge conditioner would be
aggregated; the same generator's pickle
liquor used to produce iron oxide would
be counted separately. Smelting drosses
from which lead is recovered would be
counted separately from smelting
drosses from which zinc is recovered.
The Asency is adopting this approach
to ensure that materials most alike in
terms of physical characteristics and
mode of recycling are counted together.
EPA also believes thia approach
safeguards against situations where
recyclable materials are counted along
with unrecyclable ones, shielding the
unrecyclable materials from being
wastns. For instance, if a generator has
100 units of a secondary material all of
which are recycled as ingredients in a
process, and 20 units of die same
material only one unit of which is
recycled in a different process, the
remaining 19 units should be classified
as wastes because they arei t being
recycled.
d. Means of Satisfying the Burden of
Proof. As noted, persons accumulating
secondary materials not otherwise
defined as wastes have the burden of
proving that they are recycling sufficient
amounts of the secondary materials. At
a minimum, we would expect that
accumulators have on hand (1) the
amount of secondary material of each
class recycled in the same way on-hand
at the beginning of the one-year period,
(2)-the amount of such material added
during the one-year period, and (3) the
amount remaining at the end of the one^
year period. Records customarily
maintained, such as records of
throughput through an industrial
process, should be satisfactory. For
materials used as intermediates in
closed-loop processes, records of
consistent historical use should be
sufficient. In addition, names and
addresses of recyclers receiving the
secondary materials should be
maintained, as well as any other
information that substantiates the
minimum turnover rate [e.g. contracts or
• correspondence with a recycler).
e. Response to Comments. Although
commenters expressed concern about
the provision's complexity, most
supported it in principle. One
commenter, while supporting most of the
overaccumulation provision, urged that
it not apply to unlisted by-products
accumulated in tanks and containers for
a generator's own use or reuse. We have
considered this comment but are
rejecting it for the reasons given in the
proposal (48 FR14491/1). As a general
matter, we believe the key measure of
whether a material is overaccumulated
is the length of time before use occurs,
not how the material is stored or who
will recycle it. In addition, the
commenter was most concerned about
accounting for unlisted by-products
burned as fuels; since these materials
are'defined a§ wastes in the final rale
(although they are not at this time
subject to storage,iequirements), this
question is of less importance.
There were a series of comments
regarding the status of commercial
chemical products that accumulate over
time without being used. EPA indicated
in the proposed rule that commercial
chemical products that are hazardous
wastes when discarded (I.e., those listed
in § 261.33 of the regulations) were not
subject to either the speculative
accumulation or overaccumulation
provisions of the proposed rule. 48 FR
14489. We also asked for comments as
to whether some type of maximum
accumulation period should be imposed
by rule. Virtually all comroenters
opposed this idea, due to the large
recordkeeping requirements involved,'
and the difficult practical problems
involved in observing and enforcing
• such a standard. The Agency shares
these concerns. Id. at 14490. We
therefore are not adopting any time limit
on when a commercial chemical product
held for recycling becomes a waste. The
May 19,1980 standard remains in place;
these materials are wastes when
discarded or intended for discard (by
means of abandonment), and are not
wastes when stored for recycling.
f. Variances for Secondary Materials
Not Recycled in Sufficient Volumes. We
also believe that there may be valid
reasons that persons are unable to
recycle sufficient amounts of non-waste
secondary materials in one year (or the
precious metal wastes that are
conditionally exempt form regulation)
and have retained the petition process
to accommodate these situations. The
petition is now termed a variance from
being a solid waste, and is found in
§ 260.30 Substantive standards for the
Regional Administrator's (or authorized
state official's) decision are in § 260.31
(a) and procedures for applying for and
processing variances are in § 260.33.
The standards for granting a variance
are basically those we proposed. The
Regional Administrator must decide if
sufficient amounts of material are likely
to be recycled or transferred for
recycling in the following year. Factors
to be considered are: (a) The kind of
material being accumulated and its
expected manner of recycling, (b) how
much is being stored, (c) how it is being
stored, (d) whether it is being stored in a
way that minimizes loss, (e) how and
when it is expected to be recycled, and
(f) why this is a reasonable expectation.
The Regional Administrator should
consider the applicant's past history of
recycling the material, whether there are
contractual arrangements or market
conditions bearing on the likelihood of
future recycling, the reason that the
material was accumulated without 75
percent being recycled Sa the past year,
and other relevant factors. If, for
example, a company has a multi-year
history of selling a secondary material
as a commercial product substitute, but
was ui able to sell 75 percent during a
given year due to a temporary downturn
in market conditions, and is handling
the secondary material in a manner
commensurate with its value as a
substitute commercial product, the
company may be eligible for a variance.
On the other hand, a company that
overaccumulates a secondary material
not ordinarily reused, but that has been
able to pay other companies to use the
material in the past, and now has tons of
-------
" , ',-_ •!,•• «• •-• •'.' ..'"
/ Vol. 50, No. 3 / Friday, January 4, J985'j
jRegwiafioriis1 v 637
material on hand in open piles, is much
less likely to be eligible for a variance.
A variance, if granted, would be valid
for only one year. If the accumulator
failed to recycle 75 percent of the
material on hand in the following year,
it would have to petition for a new
variance. Under the proposal, the
company would have had to recycle 50
percent of the total accumulated
materials to be eligible to apply for a
second variance. In addition, a variance
could only be renewed two times. In
response to comments, we are not
adopting either of these requirements in
the final rule. There do appear to be
situations, although infrequent, where
secondary materials can accumulate for
over two years without being recycled
and still not necessarily be deemed a
waste. Possible examples are certain
traditionally reclaimed mining by-
products that are being accumulated
because of cyclically depressed metal
prices. However, in determining whether
to grant a variance, the longer a material
has accumulated without recycling, the
more likely it is that the variance
application will be denied.
G. Section 261.2(d): Secondary Materials
That are Designated as Solid Wastes
1. The General Standard. EPA
prpposed that particular inherently.
waste-like materials could be
designated as solid wastes without
regard for the mode of recycling. Some
comments criticized this provision as
being a vague catch-all, while others
supported it or (in the case of certain
industry commenters) conceded the
need for this type of provision.
EPA ia retaining this listing authority
in the final regulation. A provision of
this type is needed because it is
impossible ia practice to devise a single
definition which completely
distinguishes wastes from non-wastes.
We continue to think that certain
residual materials are inherently waste-
like, either because: (a) They are
typically disposed of or incinerated on
an industry-wide basis, or (b] they
contain toxic constituents 2* in
concentrations not ordinarily found in
the raw materials or products for which
they substitute, which toxic constituents
are not used, reused, or reclaimed
during the recycling process. In addition,
recycling of the materials must have the
potential to pose a substantial hazard to
human health and the environment The
Agency believes these criteria are
relatively straightforward and
understandable. Certainly they are not
"vague" in any legal sense. The Agency
will be required to designate in the rule
that particular materials are wastes so
that there is no risk that those subject to
regulation are uncertain or their
obligations. • :-
The criticism that this provision is a
"catch-all" also does not appear to have
merit. We believe the criteria limits
those materials the Agency could
designate. The Agency must determine
that the materials ordinarily are not
recycled on a nation-wide basis, and
that the material contains Appendix Vin
constituents at levels not found in
analogous raw materials or products.
The criteria that the recycling activity
potentially pose a substantial hazard
also limits the Agency, by suggesting
that a purpose of the activity is to
dispose of the non-recycled toxic
.constituents, and by suggesting that the
secondary materials have so little value
that they are stored insecurely, and are
thus waste-like.25
One commenter suggested that the
Agency designate secondary materials
as solid wastes if management of the
materials presents an "unreasonable
risk of injury to health or the
environment." This determination would
be based on an assessment taking into .
account such factors as effects of the
material on human health and the
environment, benefits of using the
material, and economic consequences of
listing.
This standard, aa the commenter
admits, is drawn essentially from the
Toxic Substances Control Act. This is
not the standard Congress enacted for
RCRA decisionmaking, RCRA
determinations are to be based on
health and environmental based factors, •
(See 45 FR 33089 (May 19,1980).}
The consequences of being designated
, as a solid waste is that the material will
be within the Agency's jurisdiction no
matter how it is being recycled. Thus,
the particular dioxin-containing wastes
designated in today's regulation (see the
following subsection) are considered to
be wastes (for example) even if used
directly as substitutes for commercial
products or as ingredients in producing .
a product. On the other hand, § 261.6
must be consulted to determine the type
of regulation that applies to the waste.
2. Application of the Standard to
Specific Wastes. EPA proposed to
designate a group of dioxin-containing
materials as solid wastes. See 48 FR
14491-492. We are modifying the
M These are toxic constituents listed in Appendix
VIII of Part 261, The proposal erroneously referred
to "Appendix YH" (48 FR at 14491), due to a
misprint by the Federal Register.
35 We thus disagree with the commenter who
argued that a hazard posed by recycling a material
is not relevant in determining Whether the material
is a waste. •
proposal, in response to comments, to
exclude the listed commercial chemical
formulation? (Hazardous Waste FO27).
These formulations do not meet the
designation criteria because they are not
.chemically dissimilar from analogous
commercial products (i.e. they are
virtually the same as pesticides that are
used), and they are not typically
discarded. In determining if these
formulations are wastes when disposed
or recycled, the regulated community
should refer to the rules applicable to
commercial chemical products. The
formulations thus would be wastes
when they are discarded by being
abandoned, or when they sire burned for
energy recovery (the manner of
recycling not analogous to normal use).
See § 261.33 as amended by today's rule.
We also 8W indicating that Hazardous.
Waste F021 is not designated as a solid
waste if it is used as an ingredient to
make a product at the site of generation.
It is a solid waste if recycled in any
Other wa£ (or if disposed.) The Agency
is taking this step in response to
comments indicating that
pentachlprophenpl production plants
typically reuse these materials in their
own production process.
H. Section 261.2(e): Secondary Materials
That Are Not Solid Wastes When
Recycled
It, Secondary Materials Used as
Ingredients to Make New Products, or
Used as Substitutes /or Commercial
Products, a,,The Agency's Subtitle C
forisdiction, EPA proposed that
secondary materials that are used as
ingredients to make new products were
hot solid wastes provided that distinct
components were not recovered (i.e.
reclaimed) as end products., We also
proposed that secondary materials used
as substitutes for commercial products
in particular functions or applications
are not solid wastes. See 48 FR 14477,
14487-88. An example of the former
practice-r-/.e., use as an ingredient—is
the use of chemical industry still
bottoms as feedstock. Use of
hydrofluprosilicic acid (an air emission
control dust) as a drinking water
fluoridating agent, or use of spent pickle
liquor as a wastewater conditioner, are
examples of use of a secondary material
as a commercial product substitute.
When secondary materials are
directly used (or* in the case of
previously used materials, reused) in
these ways, we stated, they function as
raw materials in normal manufacturing
operations or as products in normal.
commercial applications. We reiterate
these positions in the final regulation.
These direct use recycling situations
-------
688 Federal .Register / Vol. 50, No. 3 / Friday, January 4, 1985 / Rules and Regulations
represent exceptions to the general
principle that accumulated hazardous
secondary materials are hazardous
wastes.
The final rule consequently states that.
secondary materials used as ingredients
or used directly as commercial products
are not wastes and so are outside the
Agency's RCRA jurisdiction. They thus
are not subject to RCRA Subtitle C
regulations when generated,
transported, or used (unless they are
accumulated speculatively, as described
earlier).
Most commenters. agreed with the
Agency on this point Those who didn't
felt that the Agency's jurisidiction over
recycled, secondary materials is
unlimited. The Agency disagrees. Our
RCRA authority over recycling of
hazardous secondary materials is broad,
but has some limits. The legislative
history indicates that Congress rejected
an approach that would have required
modifying production processes in order
to reduc* the volume of hazardous
waste generated. This is because such
restrictions "i(n] many instances would
amount to interference with the
productive (sic) process itself...." H.R.
Rep. No. 94-1491,94th Cong. 2d Sess. at
2& The Agency accordingly has
interpreted its jurisdiction so as to avoid
regulating secondary materials recycled
in ways that most closely resemble
normal production- processes. These
typcer of recycling are, use of secondary
materials as ingredients or as direct
commercial product substitutes, or (as
explained below) use in a closed-loop
type of production process.3*
It, Redrafting of the Exclusion in the
Final Rule, la the proposal, exclusions
for using and reusing materials directly
took the form, of exceptions to the
definition of reclamation (proposed
i 2812[cKlMO-pii)J- We have redrafted
the final regulation so that ?261.2{e)(l)
indicates explicitly which secondary
materials used/reused in particular
ways are not solid wastes. A definition
of "use"/"reuse" appears in 5 261.1(c).
Exceptions to. this principal are found in
1261.2{e)(2), and restate the situations.
where recycling might be considered to
involve a use (or a closed-loop recycling
situation, explained in the next section),
but nevertheless constitutes waste
management.
As noted* above, there are several
such use/reuse circumstances where the
nature of the material or the nature of
"We Bate, la response to comment*, that the
material* excluded from the-RCRA definition still
on bo hizardoui material* Tor purpose! of
Department «rf TMrwporiation regulation* governing
tbo tnn*portation of hazardous material*.
the recycling activity indicates that
RCRA jurisdiction exists:
• where the material being used is
inherently waste-like;
• where insufficient amounts of the
material are recycled;
• where the material Fs incorporated
into a product that is used in a manner
constituting disposal or where the
material is used directly in a manner
constituting disposal; and
• where the material is used by being
incorporated into a fuel, or being burned
directly aa a fuel.
In addition, when a component of the
material is recovered as an end product,
the material is being reclaimed, not
used.
c. Distinguishing Sham Situations.
Other commenters voiced concern that
these exclusions open opportunities for
sham recyclers to claim that they are
using secondary materials* and so not
engaging in waste management. The
Agency shares these concerns, and
wishes to take this opportunity to
indicate some of those situations (which
also were pointed out in comments) we
regard as shams.
First; where a secondary material is
ineffective or only marginally effective
for the claimed use, the activity is not
recycling but surrogate disposal. An
example (provided in comments) is use
of certain heavy metal sludges in
concrete. The sludges did not contribute
any significant element to the concrete's
properties, and so we would not regard
this activity as legitimate recycling.
A second example of sham use occurs
when secondary materials are used in
excess of the amount necessary for
operating a process. Examples are when
secondary materials which contain
chlorine are used as ingredients in a
process requiring chlorine but are used •
in excess of the chlorine levels required.
An indication that secondary materials
are not being used in excess- ia if the
recycler requires product specifications
on incoming secondary materials, and
these specifications are hi accord with
those generally in use in the industry.
Another indication that a claimed
recycling use is a sham is if the
secondary material is not as effective aa
what it is replacing. Conversely, where
the secondary material is as effective as
the alternative virgin material, the
activity is much more likely to be
considered legitimate recycling. Spent
pickle liquor, for example, is known to
be as effective as. virgin materials when
used as a phosphorous precipitant in
wastewater treatment. See 46 FR 4497Q
(September 8,1981). This reuse is
legitimate. A secondary material
considerably less effective, however,
could well be viewed as not being used
legitimately.
Absence of records regarding the
recycling transaction is another
ihdication.of a sham situation. Records
ordinarily are kept documenting use of
raw materials and products. Records
likewise are usually retained to
document secondary material use and
reuse. The Agency consequently views
with skepticism situations where
secondary materials are ostensibly used
and reused but the generator or recycler
is unable to document how, where, and
in what volumes the materials-are being
used and reused. The absence of such
records in these situations consequently
is evidence of sham recycling.
A final indication of sham use is if the
secondary materials are not handled in
a manner consistent with their use as
raw materials or commercial product'
substitutes. Thus, if secondary materials
are stored or handled in a manner that
does not guard against significant
economic loss (i.e., the secondary
materials are stored in leaking surface
impoundments, or are lost through fires
or explosions), there is a strong
suggestion that the activity is not
legitimate recycling.
A recurring type of situation posing
' the potential for sham use involves
using corrosive wastes as neutralizing
agents. The potential for disposal in
these situations ia high since a waste
acid can be dumped into (or onto) other
materials, and any resulting change in
pH would be incidental to the disposal
purpose of the transaction. Accordingly,
EPA will not accept a claim that a
corrosive secondary material is being
used as a substitute for virgin acid or
caustic unless indicia of legitimate
recycling are present These include lhat
the secondary acid or caustic meet
relevant commercial specifications, that
they be aa effective as the virgin
material for which they substitute, that
they be used under controlled
conditions, and that in a two-party
transaction there be consideration
(usually monetary) for use of the .
material. In addition, the more
contaminated the acid or caustic is in
relation to virgin material, the less likely
the Agency ia to view its application as
legitimate recycling.
We note also that persons claiming
that they are recycling hazardous
wastes in a manner excluded by the
regulation have the burden of proof that
are within the terms of the exclusion.
See Section J. below.
Finally, persons intending to use
secondary materials that are not listed
in the Chemical Substance Inventory
compiled by EPA pursuant to Section
-------
Federal Register / Vol. SO, No. 3 / Friday.
and
8(b) of the Toxic Substances Control Act
(TSCA) must notify the Agency of the
intended use at least 90 days before the
use begins. See TSCA Section 5(a) and
48 FR 21722 (May 13,1983). EPA can
regulate these substances under TSCA if
it determines that the manufacture,
processing, distribution in commerce,
use, or disposal of the substance will
present an unreasonable risk or injury to
human health or the environment.
(TSCA, Section 5(f).) EPA can also
extend the review period an additional
90 days for good cause. (TSCA, Section
5(c).)
2. Closed-Loop Recycling, a. The
Agency's'Proposal. The Agen,cy also
proposed to exclude from the defintion
of solid waste materials that are
reclaimed at the plant site where
generated and that ere then returned to
the original production process in which
the material was generated.27 See 48 FR
14488/89. We referred to this type of
operation as "closed-loop recycling,"
and stated that this type of operation
could be viewed as an on-going
production process and therefore
outside the Agency's Subtitle C
jurisdiction.
There were many comments on this
provision. Virtually all commenters
agreed that some type of closed-loop
provision was justified, but disagreed
about its scope. Some commenters felt
that the proposal was too broad, while
others stated that it should be extended
to any situation where a generator
reclaimed its wastes and reused the
reclaimed material in a process under its
control. In addition, many commenters
criticized elements of the proposal as
unclear, particularly what the Agency
meant by "original process from which
generated".
b. Modification of the Proposal. We
have determined that the proposal was
both inexact and overbroad (see below).
However* we believe that there are
certain "closed-loop" situtations that are
so closely tied to on-going production
that they, should be considered not to
involve solid wastes. In our opinion,
there are three key requirements to a
closed-loop process—that is, a
production process that at some point
utilizes secondary materials but
nevertheless is both essentially on-going
and closely interrelated throughout all
steps. The first requirement is the return
of secondary materials to the original
process without undergoing significant
alteration or reprocessing, namely
without first being reclaimed. Second,
the production process to which these
unreclaimed materials are returned itself
must be primary material based—/.o.,
the materials must be returned to a
primary production process.*8 This is
because if the material originally
introduced to a process already is a
waste, the process residue returned to
the" process should not be any less of a
waste than the material originally
introduced. For example, a still bottom
from reclamation of hazardous spent
solvents would never be considered to
be involved hi a closed-loop operation if
it were redistilled because solvent
reclamation is a secondary process and
spent solvents introduced to it are
wastes.29
Third, the secondary material must be
returned as feedstock to the original
production process and must be
recycled as part of that process. Thus, a
spent degreasing solvent returned to
degreasing operation would not be
covered by this provision because it is
not involved in actual production. It
merely cleans equipment.
We consequently are stating in the
final rule that secondary materials are
not solid wastes when they are returned
for recycling as feedstock to the original
primary production process in which
they are generated, and they are not
reclaimed before they are returned to
that process. The broader provision we
proposed, which allowed reclamation
before return to the original process,
would exclude from the solid waste
definition too many operations where
the reclamation step is less and less
directly related to the principal
production process. Examples are
situations where hydrochloric acid is .
recovered from chemical industry still
bottoms, and the acid is returned tq the
chemical reactor. Another potential
situation is when fluoride is recovered
" The. proposal actually excluded these materials
from thtrdefintion of reclamation, but the effect of
the provision was to exclude these materials from
the definition of solid waste.
58 For purposes of this provision, a "primary
process" is one that uses raw materials as the •
majority of its feedstock. Secondary processes,
conversely, use spent materials or scrap metal a»
the majority of their feedstock. The Agency note*
that the Office of Management and Budget Standard
Industrial Classification Manual uses very similar
definitions in establishing primary and secondary
process classifications. ''••..
29 The requirement in the final rule that materials
. be returned to the original primary process to be
eligible for the closed-loop exclusion thus subsumes
part of another exclusion that the Agency proposed
for secondary materials returned to primary
processes. (See proposed § 2B1.2(c)(l)(U) and 48 FR
14488.) As explained in the following section, we
are limiting the scope of that proposed exclusion to
situations where secondary materials are returned
without first being reclaimed to the primary process
in which they were generated. The language of the
final rule (I 261.2(e)(l)(fli)) thus indicates that
secondary materials must be generated by, and
returned as feedstock to processes using raw
materials as their principal feedstocks in order to be
considered eligible tor this provision.
(as cryolite) from primary aluminum
spent potliners and the fluoride is
reused. In these examples, neither the
still bottoms nor the spent potliners
should be considered to be involved in a
closed-loop operation because the
reclamation step is ancillary to normal
production activities. The proposed
approach might also have excluded
operations where the secondary
material itself is substantially
unrecoverable and contains
comparatively small percentages of
utiljzable material. The proposal thus
might have invited abuse, as companies
might spek to avoid regulation by
reclaiming some small increment, and
returning that increment to the original
production process.
We consequently are not adopting the
proposed approach in the final rule. The
final rule makes clear that the situations
discussed in the paragraph above are
not closed-loop recycling and so are not
excluded from the definition.
. c. Explanation of the Requirements
That Secondary Materials Not Be
Declaimed, and That They Be Returned
To The Original Process. The final rule
raises two principal issues of
interpretation: distinguishing between
reclamation and incidental processing, .
and clarifying what the Agency means
by return to the original production
process. The Agency has defined
"reclamation" in these regulations to'
'mean recovery or regeneration. We
further clarified, in the April 4 preamble,
that processing steps that do not
themselves regenerate or recover
material values and are not necessary to
material recovery are not reclamation.
See 48 FR 14489/1. Examples are the
wetting of dry wastes to avoid wind
' dispersal [id.] or the briquetting of dry
wastes to facilitate resmelting. Another
example, provided in comments, is
Sintering operations at iron and steel
plants where taconite ores, flue dusts,
and other iron-bearing materials are
agglomerated thermally before charging
to a blast furnace. Conversely,
processing operations that do recover or
regenerate materials so as to make them !
available for further use are considered
to involve reclamation. Examples are
dewatering of wastewater treatment
sludges before the dewatered sludges
are recycled, and the treatment of
wastewater before recycling. (See 48 FR
14487/1, explaining that both of these
operations involve reclamation.)30
"We are aware that under this reading there are
probably no secondary materials generated or
stored in impoundments that would be eligible for
the closed-loop exclusion. The Agency intends this
result Secondary materials stored in impoundments
Continued
-------
640
Federal Register / Vol. 50, No. 3 /-Friday. .January 4. 1985/ Rules and Regulation^
By "return to the original process", the
Agency means that the (unreclaimed)
secondary material must be returned to
the same port of the process from which
it was generated. The material need not
be relumed to the same unit operation
from which it was generated. It is
sufficient if it is returned to any of the
unit operations associated with
production of a particular product, if it
originally was generated from one of
those unit operations. For example, an
emission control dust from a primary
zinc smelting furnace could be returned
to any part of the process associated
with zinc production, such as the
smelting furnace in the pyrolytic plant,
.or the dross furnace. A spent electrolyte
"from the primary copper production
process could be relumed to any part of
the process involved in copper
production—including the roaster^
converter, or tank house. An emission
control dust from steel production could
be returned to the sintering plant for
processing before charging to the blast
furnace.
However, in the first example, if the -
emission control dust from the zinc
smelting furnace was sent to by-product
cadmium recovery operations, it would
not be considered to be returned to the
same of the process from which it was
generated. This is because the cadmium
production processes produce a
different product from zinc production
operations. For the same reason, if the
spent electrolytes in the second example
were sent to by-product recovery ,
operations for recovery of nickel sulfate,
they would not be considered to be .
returned to the original process. Note
that this principle holds even if the by-
product recovery operation is located at
the same plant site.
d. Variance For Hazardous Wastes
That Are Reclaimed and Then Returned
To The Original Process. We do believe,
however, that EPA's proposal—that
materials reclaimed before being reused
in the original primary production
process are not wastes—can have some
applicability. We are allowing for these
situations by means of a variance. The
standards and procedures for granting
or denying a variance for this type of
recycling are described in Section II.J.
2.(b) of Part III of this preamble.
arc ordinarily waste-like. They usually are not
stored In a mnnnor that minimizes loas (see, e.g., 48
FR14-100, as well as substantial portions of
legislative history of the RCRA Reauthorization
legislation), and virgin materials are rarely if ever
stored is this way. We thus see this result—that
wnalowalcr treatment sludges and other wet
sludges arc not eligible for the closed-loop recycling
exclusion—as justified both conceptually and
environmentally.
e. Examples. The following examples
illustrate the operation of this provision:
• Primary smelting facility A
generates a dry emission control dust
that it collects, stores, and resmelt.s in
the original smelting furnace.
The emission control dust is not a
solid waste because it is returned to the
original primary process without first
being reclaimed. (This answer assumes
that the dust is not overaccumulated
before it is resmelted.)
• Primary smelting facility B
generates a listed wastewater treatment
sludge that it dewaters and returns to
the original process.
The wastewater treatment sludge is a
solid waste bscause it is listed and must
be reclaimed (in this case, recovered by
dewatering) before it is resmelted.
• Generator C generates a spent
solvent which it distills and returns to
the same degreasing operation hi which
it was generated.
The spent solvent is a solid waste.
Not only is it reclaimed before reuse, but
it is not reused as a feedstock hi a
production process. (After the solvent is
reclaimed, of course, it is a product a'nd
no longer a waste.)
• Generator D generates a still bottom
that it burns without reprocessing for
energy recovery in a boiler in the same
umt operation.
The still bottom is a solid waste
because it is burned for energy recovery.
The closed-loop exclusion thus does not
appJy. Nor would it apply if recycling
the still bottom constitutes disposal or if
the still bottoms were overaccumulated
before return to the original process.
• Generator E, a petroleum refinery,
generates a hazardous by-product from
refining operations that is returned to
the refining process and incorporated
into fuels, Isphalt, and other products.
This process involves return of
unreclaimed material to a primary
production process but the by-product
remains a waste because it is used as an
ingredient in fuels and in products that
are placed directly on the land. See
' § 261.2(e.)(2) (i) and (ii).
3. Recycling of Secondary Materials
by Primary Facilities, a. The Agency's
• Proposal. The remaining exclusion that
EPA proposed was for secondary
materials that are reclaimed in primary
production processes. These were not
considered to»be solid wastes. Proposed
§ 261.2(c)(l)(ii): 48 FR at 14477,14488.
The usual example is secondary
materials sent to a primary smelter for
material recovery. The reason for the
proposal was that these materials were
substituting for the normal raw material
feedstock. One result of this proposed
exclusion would be differential
regulation of secondary- and primary
facilities reclaiming the same materials,
since the material could be a s.olid waste
when reclaimed by a secondary smelter,
but would not be when reclaimed by a
primary smelter.
The proposal was imprecise regarding
the scope of the exclusion. For example,
we did not discuss whether it made any
difference if the primary reclaimer
recovered the same materials (or even
the same type of material) originally
produced, whether recovery occurred at
the same or a different site, or whether
the primary reclaimer recovered its own
or another person's secondary materials.
There were many comments on this
part of the proposal. Operators of
primary processes supported it, while
operators of secondary processes
objected. Some states and
environmental groups also objected.
b. Modification of the Proposal. We
have,decided not to promulgate this
exclusion as proposed, but rather to
limit its scope to the closed-loop
production situations discussed in the
previous section. We think the .proposal
was in error in failing to differentiate
among the different types of fact
situations where a primary process
would be used for reclamation:—such as
the part of the process involved, location
of the recovery operation, and type of
material recovered. The proposal, for
exairple, could have applied to
situations where: (a) Residues are sent
off-site to be recovered, (b) residues go
to a by-product recovery operation, or
(c) where residues are recovered in
ancillary operations and the material
recovered is not marketable but can be
used in a primary process.31 The
Agency does not believe that an
unvarying rule like the one we proposed
can properly cover all these situations:
Rather, when a secondary material is to
be recovered in an operation different
from the one in which it was generated,
we believe there is a continuum with
secondary materials becoming more
waste-like the more the recovery
operation differs from the original'
process, and the more physically
removed the recovery operation is from
the original process. The nature of the
secondary material—whether it is a
sludge, by-product, or a spent material,
or scrap metal, how frequently it is
recovered, and how it is handled before
recovery—also is highly relevant. The
proposed rule was deficient in failing to
account for all of these factors.
** Cryolite recovery from spent primary
aluminum potliners is a possible example of thia
last situation.
-------
Federal Register / Vol. 50, No. 3 / Friday, January 4, 1985 / Rules and Regulations 641
We believe thai the exclusion should
apply only when residues from primary
processes are returned in unreclaimed
form to the original process where they
are then reclaimed. This is the only
situation where the Agency nan say a
priori that secondary materials
reclaimed in primary processes are not
wastes. .
The by-products and sludges that are
the residue from primary production
processes thus can potentially be solid
wastes when they are reclaimed in other
primary (or secondary) processes. They
are wastes if they overaccumulate
before being reclaimed, and they are
wastes if they are listed in § § 261.31 and
261.32. In determining whether to list
certain sludges and by-products as
hazardous wastes.'we intend to take
into account whether they should be
considered to be wastes when
reclaimed. If materials are reclaimed in
primary processes (such as primary
smelting operations), we will evaluate
how frequently the material is recycled
on an industry-wide basis, whether the
material is replacing a raw material and
the degree to which it is similar in
composition to the raw material, the
relation of the recovery practice to the
principal activity of the facility, and
whether the secondary material is
managed in a way designed to minimize
loss—all of which show that the
material is handled as a commodity.
As stated in the previous section,
hazardous secondary materials returned
for reclamation to the secondary process
in which they were generated are not
excluded from being wastes. The
materials are not substituting for raw
materials normally used, and the
operations themselves—using as they
often do spent materials as a principal
feed~-rare reclamation processes, not
ordinary production operations. Thus,
return of a residue to this type of
process is not the same as a continuous
production operation.
The final regulations thus provide that
the following secondary materials are
wastes when reclaimed by either
primary or secondary reclamation
operations, unless the materials are
returned to the primary smelting process
from which they were generated without
firat being reclaimed:
(1) Sludges and by-products that are
listed in § § 261.31 and 261.32
(2) All hazardous spent materials;
(3) All hazardous scrap metal.
In Addition,
(4) Any secondary material is a waste
if overaccumulated.
q, Examples. The following examples
illustrate these principles:
« Primary smelter A generates a listed
emission control dust that it sends to
primary smelter B for metals recovery.
The dust is a solid and hazardous
waste because it is a listed sludge being
reclaimed.
*• Primary smelter B generates a listed
emission control dust that it reclaims
itself in an as-is condition in its own.
smelting furnace.
The dust is not a solid waste because
it is being reclaimed as part of a closed-
loop recycling process, and has not been
reclaimed before reintroduction to that
process. • ' .
« Primary aluminum smelter A
generates spent potliners from which it
recovers fluoride for use in its own
process.
The,potliners, a spent material, are a
solid waste.32 They are not returned to
the smelting process for recovery, but to
a different unit operation. In addition,
fluoride recovery is an ancillary activity,
far removed from the production of
aluminum, the principal activity of the
primary aluminum facility. (In fact, this
operation is probably best viewed as
-hazardous waste treatment because the'
main purpose of the operation is to treat
the cyanide in the potliners, not to
recover fluoride. See 49 FR 8746 (March
8,1984).)
• Solvent reclaimer S generates
hazardous still bottoms from its .
distillation operation and mixes these
still bottoms on-site with virgin oil. S
then .sends the mixture to a fuel
processor.
The still bottoms are solid wastes
because they are used to produce a fuel.
The fact that this operation occurs at a
single site is irrelevant The mixture of
still bottoms and oil remains subject to
regulation as "a hazardous waste as well.
I. Secondary Materials Specifically
Excluded From the Definition of Solid
Waste
1. § 261.4(a)(6): Black Liquor
Reclaimed and Reused in The Kraft
Paper Process. Pulpmaking processes in
the paper industry use chemicals to
digest wood chips, and the spent
chemicals are recovered from the
digester, reclaimed by burning in a
recovery furnace, and then reused in the
digester in approximately their original
form. "Black liquor" is the name given to
the spent chemicals, which are caustic
and sometime corrosive. Recovery and
reuse of black liquor can occur at a
single paper mill, and also can involve a
second paper mill which reclaims black
liquor for its own use or for reuse by the
3-Thia waste is currently exempt from regulation
as a result of EPA's interpretation of Section
300t(bK3)ofRCRA.
generating mill. All Kraft paper mills*
reclaim their black liquor (or have the
black liquor reclaimed), and little is ever
discarded. The Kraft process itself is not
' economically viable without recovering
the black liquor. Black liquor, is
customarily stored in tanks before being
reclaimed, but also is stored in surface
impoundments. (The paper industry
estimates that one-third of the
approximately 125 domestic Kraft mills
have black liquor impoundments.)
• The Agency has tentatively
determined that black liquor, on a
generic basis, meets the standards for a
closed-loop variance (see section H.J.2.
b. of Part 3 of the preamble below) and
so is not a solid waste when recycled in
this way. (We also indicated hi the
proposed regulation that black liquor
recovery was a closed-loop type of
operation. 48 FR 14489.) At least where
black liquor is stored in tanks rather
than in surface impoundments, black
liquor reclamation is integrally tied to
the Kraft paper production process,
whether it occurs at a single or different
plant All Kraft mills practice black
liquor recovery, and the recovery is
economically essential to the process.
An end use for black liquor is readily
available. The whole operation is
essentially an on-going process, with .
chemicals being used, recovered, and
returned in their original form to the
same process in which they were
generated, or to an analogous,process at
a different facility. Because this
operation appears to occur for all black
liquor generated, we have determined
that black liquor is not a solid waste
when recycled in this way.
The Agency, however, is continuing to
investigate the degree of recycling that
occurs when black liquor is stored in
surface impoundments. Although some
(and perhaps most] of the black liquor
stored in impoundments is recycled in a
closed-loop manner, there are some
reasons to question whether this is
invariably the case. These reasons are:
• Black liquor may remain in
impoundments without being recycled
for long periods of time because of: (a)
Inadequate capacity of the black liquor
recovery furnace; (b) the lack of a
nearby facility to sell or trade the black
liquor; and (c) difficulties in pumping the
black liquor from an impoundment due
to contamination, dilution, or
coagulation of the black liquor with
impoundment bottom solids, wood
chips, or rain.
• Many black liquor impoundments
are unlined, and so may leak.
• Black liquor impoundments are
often built to accommodate excess black
' liquor caused by process upset
-------
642
Federal Register /Vol. 50, No. 3 /Friday, January 4, 1985 /Rulesand Regulations
conditions such as loss of a set of black
liquor evaporators or loss of a recovery
furnace. When this occurs, the black
liquor In the impoundment is
accumulated in excess of what can be
accommodated at the facility and so
may not be recycled, or not be recycled
for a long time.
In light of these uncertainties, the
Agency is investigating further whether
black liquor stored in an impoundment
before recycling in the Kraft process is a
waste. In addition, we note that black
liquor that is disposed of and not
recycled is a waste, and if hazardous, a
hazardous waste. This includes black
liquor that leaks, leaches, or overflows
from an impoundment and is not
recycled. Furthermore, the final rule
states that black liquor stored before
recycling remains subject to the rules on
speculative accumulation. Thus, paper
mills accumulating black liquor must
show that they are recycling 75% of the
amount on hand at the beg -ining of a
one-year period.
In summary, today's final rule states
that:
• Black liquor accumulating before
recycle to the Kraft paper process is not
a Subtitle C solid waste. At least for the
present time, this exclusion includes
black liquor that is stored in a surface
Impoundment before recycling. The
person accumulating must show that the
blark liquor is not being accumulated
spetmlatively, or the black liquor will be
considered to be a waste;
Black liquor that is recycled in some
other manner could be a waste and
black liquor that is disposed of is a
waste.
2. §28L4(a)(7}; Spent Sulfuric Acid
Used to Produce Virgin Sulfuric Acid.
Spent sulfuric acid is frequently used as
a feedstock in the production of virgin
sulfuric acid. It is normally reintraduced.
Into the originalsulfuric acid production
process where sulfur values are
recovered and absorbed into existing
sulfuric acid. 45 FR14487 n.30. Under the
proposal, spent sulfuric acid recycled in
this way was not considered to be a
solid waste because it was used as an
ingredient, used in a primary process,
and was burned in an industrial furnace.
See 48" FR14483,14487 n.30,14488 n.31.
As discussed earlier (see Section E.
above), some commenters questioned
the regulatory status of spent materials
that are reclaimed and then used as
feedstocks. We indicated that normally
the spent material would be considered
to be a solid waste until it was
reclaimed. However, we agree that our
discussion of spent sulfuric acid at
proposal (in footnote 30] created some
confusion.
To eliminate any confusion, we are
promulgating a specific exclusion stating
that spent sulfuric acid recycled in this
way is not a solid waste. As we
explained at proposal, the spent sulfuric
acid recycling process more closely
resembles a manufacturing operation
than a reclamation process. In addition,
the operation is well established, and
accounts for approximately 9% (in 1982)
of the roughly 33 million tons of sulfuric
acid produced annually. At least one
state (California) has indicated by
statute,that spent sulfuric acid returned
to the sulfuric acid production process is
not a solid waste. EPA is therefore
declaring explicitly that spent sulfuric
• acid returned to a sulfuric acid
production process is hot a solid waste.
The acid is a hazardous waste if
disposed (assuming it is corrosive or
' exhibits other hazardous waste
characteristics), and could be a
hazardous waste if recycled in some
other manner (such as burning for
energy recovery).
J. § 261.2(f): Burden of Proof in
Enforcement Actions
EPA proposed that if respondents in
enforcement actions raised a claim that
a particular secondary material was not
a solid waste (or was conditionally
exempt from regulation) because it was
recycled in a particular manner then
they had the burden of proof to show
that they were indeed recycling hi that
way. (Proposed § 281.2(d) and 48 FR
14492.) We are adopting this provision in
the final regulation.
As discussed e.arlier in Section F,
RCRA creates a broad remedial scheme
to ensure that hazardous wastes are
managed safely from cradle-to-grave.
The regulatory framework envisaged for
this problem extends to hazardous
wastes being recycled, and normally
includes any hazardous secondary
material that is being recycled or that is
accumulated with expectation of •
recycling.
Certain exceptions to this remedial
scheme to exist. We think it appropriate,
and the rule states explicitly, that the
burden of proof (in the sense of both the
burden of producing evidence and the
burden of persuasion) is on the persons
claiming that their hazardous secondary
material is not a waste because it is
within the terms of any of these
exceptions. This provision, thus, restates
the legal principle that parties claiming
the benefits of an exception to a broad
remedial statutory or regulatory scheme
have the burden of proof to show that
they fit the terms of the exception. See,
e.g. SEC v. Ralston Purina Co., 346 U.S.
119,126 (1953) (exception to Securities
Act registration requirements); U.S, v.
First City National Bank of Houston, 386
U.S. 361, 366 (1967) (exception to merger
provisions of Clayton Act): Arnald'v.
Ben Knowsky, Inc., 361 U.S. 388, 393
(1960) (exception to Fair Labor
Standards Act for retail sales);
Weyerhauser, Inc. v. Costle, 590 F.2d
1011,1040 (D.C. Cir. 1978) (burden of
proof is on applicant for Agency-created
fundamentally different factors
variance).
Viewed another way, the regulations
presume that hazardous secondary
materials stored before recycling are
hazardous wastes. The person
accumulating can prove, howsver, that
the materials are not wastes due to the
manner of recycling (including t.ha
aiflbunt of material being recycled).
These facts are'within the special
knowledge of the person accumulating
the material. Presumptions of this type
have been upheld consistently when
they further interpret a remedial
statutory purpose, guard against harm to
public health and safety, and where the
facts to rebut the inference are
particularly within the knowledge of the
other party. See Beth Israel Hospital v.
f/LRB, 437 U.S. 482, 493, 502 (1978); U.S.
v. General Motors Corp., 561 F.2d 923,
924 (D.C. Cir. 1977) (Leventhal J.
dissenting in part).
Furthermore, this type of claim is an
affirmative defense, for which it is
appropriate that the person asserting the
defense have the burden of proof. In
addition, the facts underlying the
recycling defense would be peculiarly
within the knowledge of the party
asserting the defense, a situation as
noted above »where it is appropriate for
that party to have the burden of proving
the issue. We thus disagree with those
commenters claiming that the Agency
lacked authority, or was ill-advised, to
allocate a burden of proof in this
regulation. Indeed, the Agency has
allocated burdens of proof to
respondents in other regulations that
create an affirmative defense or an
exception to a generally applicable '
principle. See § 122.42(n)(4) (permittee
has burden of proof to establish the
affirmative defense of upset); § 124.5
(National Pollutant Discharge
Elimination System permit applicant has
burden of persuasion that a permit
authorizing a discharge of pollutants
should be issued). This allocation of the
burden of proof was affirmed in
American Petroleum Institute v. EPA,
661 F.2d 340, 352, 354 (5th Cir. 1981).
There is no formal recordkeeping
requirement in the regulation. However,
persons must keep whatever records or
other means of substantiating their
claims that they are not managing a
-------
Federal Esgister I Vol. 50, No. 3 / Friday, January 4. l'd«5 / Kuies ana Regulations
.' : ,•,-,' „.— .^..^L^,,,,, .jlg^r_m-»«^m^!^TO.n^mgs-^3re^^
643
solid waste because of the way the
material is to be recycled.33They also
must show that they are not '
overaccumulating their secondary
materials. See Section F.3. above. In
addition, owners or operators of
facilities claiming that they are engaged
in recycling must show that they have
the necessary equipment to do so.
Part !H: Standards for Managing
Hazardous Wastes That are Recycled
/. An Overview of the Final Regulations
Section 261.6 of the final regulation
contains the regulatory requirements for
hazardous wastes that are recycled. The
final rule, contains many of the
provisions that were proposed, but also
eliminates all but one of the proposed
conditional exemptions. The other major
change from the proposal is that we are
adopting standards and procedures for
certain variances.'
A. Outline of the Final Regulations
As in the proposal (and as under
current regulations), hazardous wastes
to be .recycled—called "recyclable
materials" in the regulation-—are ..'.'.
ordinarily subject to regulation under
Parts 262 and 263 of the regulations
(when generated and transported) and
to the storage facility requirements in
Parts 264 and 265 (when stored before
recycling). We usually do not regulate'
the recycling process itself, except when
the recycling is analogous to land
disposal or incineration. (See 45 FR
33092-093 (May 19,1980); see also H.R.
Rep. 98-198, supra, at 46 indicating that
' uses constituting disposal and burning
for energy recovery are to be regulated.)
In addition, certain recyclable materials
and certain types of recycling are
subject to regulatory standards that.are
not completely identical to those
contained in Parts 262 through 265 and
Parts 270 and 124. The regulatory
standards for these types of recycling
activities are contained in various
subpartrof Part 266. Section 261.6(a)(2)
serves as a cross reference, listing those
recyclable materials and recycling
activities subject to special standards.
We are adopting Part 266 standards for
the following recycling activities-or
recyclable materials:
• uses constituting disposal;
• burning for energy recovery in
boilers and industrial furnaces and
"Absence of documentation not.only would
make it difficult or impossible for a respondent to
carry its burden of proof, but also would itself be
evidence that the claimed recycling is a sham. See
Section II.H.1.C. above
using recyclable materials to produce a
fuel;
• recyclable nuUeriai from which
precious metal are to bs recovered;
• spent lead-acid batteries being
reclaimed.
Used oil that is to be recycled will
eventually be regulated under- Part 268 •
but presently is exempt from regulation
during the time it takes to dovelop
standards consistent with the
requirements of the Used Oil Recycling
Act and the HSWA (see 48 FR 14496).
We also are exempting permanently
two types of recyclable materials—
industrial ethyl alcohol to be reclaimed,
and used batteries or cells returned to a
battery manufacturer for regenerallon—
from all Subtitle C regulation. The ;9
exemptions are found in {j 261.8(a)(3).
Scrap metal (that is hazardous) and
that is to be recycled is also exempt for
the present time while the Agency
investigates further whether there is a
need for regulation and what an
appropriate regulatory regime might be
if regulation is necessary.
Finally, we have added variances
from § 261.8 or Part 266 (as well as
| 261.2) for certain types of recyclable
materials and recycling activities. These
variances—to be implemented at the
Regional or State level—can result in
increased regulation, or (for materials
determined not to be solid wastes) no
regulation. Standards for granting or
denying variances are found in §§260.31
and 260.32 (variance from being a solid
waste), and 260.40 (additional regulation
of generators or storage facilities).
Procedures for implementing these
variances are found in new § § 260.33
and 260.41.
B. Elimination of Conditional
Exemptions
EPA proposed that four types of
reclamation activities be conditionally
exempt from regulation: (1) A single
person reclaiming his own hazardous
wastes; (2) a single person reclaming
another's hazardous wastes for his own
use; (3) batch tolling reclamation
arrangements; and (4] precious metal
reclamation. With the exception of
precious metal reclamation, we are not
adopting these exemptions in the final
rule. (We are also soliciting comment as
to whether batch tolling reclamation
procedures should be eligible for a
variance.) As stated in Part I of the
preamble, we have concluded that there
is danger of substantial harm from leaks
and spills if these activities are not
regulated. We are supported in this
conclusion by comments of states,
hazardous waste management
organizations, environmental groups,
and the Congressional Office cf
Technology Assessment.
We have also concluded that all of tha
Part 264/265 standards sho'iiid apply to
those recycling situations that are not
( onclilionaiiy exempt. Wo r.onsidered
whether it was possible- to .develop
tailored standards for these facilities,
leaving out those regulatory standards
which guard solely against the risk of .
overaccumulation (a risk unlikely to be.
present; seo 48 FR 14477) and retaining
those standards which guard against
risk of spills or leaks.
This type of tailoring proved
impossible. Design and containment
standards for containers, tanks, and
piles are necessary to protect against
leaks and spills, and were indeed
devised largely to prevent these risks.
Closure and financial responsibility
requirements, which do guard against ••
overaccumulation, also provide
protection should leaks o. "pills occur. •
Thus, facility owners and operators
must ensure that contamination that has
occurred during operation of the facility,
such as by spills or leaks, will be
controlled, minimized, or eliminated so
that post-closure escape of
contaminants will not occur. See
§ 264.111, 264.112(a)(3), and 264.114. The
financial responsibility provisions
ensure that funds will be available to
carry out closure responsibilities,
including those just mentioned.
Contingency and emergency procedures
are also needed to respond to short-term
spills or fires, as are requirements for
preparedness and prevention. The
tracking requirements of the manifest
system are needed if the whole
regulatory system is to'be enforceable
and implementable (most state
commenters were emphatic on this
point: many industry commenters
. likewise favored use of a manifest).
Transportation standards are chiefly
designed to protect against risks from
spills, and to ensure proper tracking, as
are the Part 262 generator standards.
We consequently cannot justify tailored
regulations for these types of operations.
C. Summary
Tables 9 and 10 compare the various
provisions of the current, proposed, and
final regulations. Table 11 provides a
' flow chart which identifies the various
requirements for the different recycling
activities and materials.
-------
644
Federal Register / Vol. 50, No. 3 / Friday, January 4, 1985 / Rules and Regulations
TABLE 9. COMPARISON OF THE VARIOUS PROVI-
SIONS BETWEEN THE EXISTING, PROPOSED,
AND FINAL RULES
Subject
Execution tor
recycled
htiardous wait*!
exNbiiing a
chuacfctUfc.
Central regulatory
siandwdafor
recycled
hazardous wastes.
nodot^natSon o)
ncydod
hazardous WMiet.
Compile
exemption lor
ctrtiin rocyciaKo
rnMtWs.
CondWomi
•xemptions for
cwtain rocydabS*
malaria!*.
Rftfertneato
tOond
. managwMnt
ttwxtafctor
recyclable
matsriate
Standards tor UM»
conttHu&tg
(StposjJ.
Exlri.-ig
provision
526V6(a).
32C16!b)..
H«nt» »««
.......... ..L.!,.
........H. .J....»...
M,,n,.m- K:,4M,,
•* »*» >M«tt>
Proposal
E'niralod...
} 261 8 (c),
(d)«nd
(e).
5261.6(a)._
}2«l.6(b)
tvS).
12616(6)
n>-(iv).
52616(1),,
1261.8 (a)..
Final nils
Elu-rtnalod.
§ 261.6 (b)
and(c).
5 261 .6 (a).
5 261. 6 (a)
(3).
Bmtoalotf
sxcspt
te
prockxa
metal
recycling
(Part
266
Subpart
F).
§261.6 (a)
(21,
Part 268
Subpart
a
TABLE 9. COMPARISON OF THE VARIOUS PROVI-
SIONS BETWEEN THE EXISTING. PROPOSED,
AND FINAL RuLES-^Continued '. . •
Subject
Standards for
recyclable < •
materials to be
burned for energy
recovery.
Standards for spent
lead-acid
batteries being
reclaimed.
Variances..,,..
Existing
provision
».».».«, «•:»*»
_..,„.„• „.
Proposal
5 281 6 (b)
M-
Part 266
Subcart
P- ',
.j.,..,,,^ tl,,.t
'
Final rule.
Part 268
• • Subpart
0-
Part ?66 •
Subpart
• &. , .. ,
Part 260
(stand-
ards and
, proce-
dures).
TABLE 10. COMPARISON OF THE REGULATORY
REQUIREMENTS BETWEEN THE PROPOSED
AND THE FINAL RULE FOR THE VARIOU?
RECYCLING ACTIVITIES
Acthrtly
Use constituting
dioposa!.
Proposal
Regulate. as land
disposal (Waste-
derived products
placed on the
land ware not
defined aasoHd
wastes).
Final
Regulate as land
disposal;
exempt waste-
derived products
(or the time
being.
TABLE 10, COMPARISON OF THE REGULATORY
REQUIREMENTS BETWEEN THE PROPOSED
AND THE FINAL RULE FOR THE VARIOUS
Activity
Burning In boilers
or industrial
furnace for
energy recovery.
Generator
reclaiming own
wastes.
Person reclaiming
someone else's
wastes (or own
'.Wastes reclaimed
pursuant to
batch tolling
agreements.
Wastes roclalrned,
toreeever
precious rnetato.
Spent lead-add
batteries being
, reclaimed.
Prpppsat •
Regulate
transportation
and storage of
listed wastes
and hazardous
• sludge* before
burning; burning
is exempt;
' blenders would
also be
regulated when
they store spent
materials
exhibiting a
hazardous
waste
, characteristic.
portditlonaHy
sxempt
.;.,!.!*>..,,..,....„,„...,.;.
'• Mo
do...,...., ,
Regulate when
battery reaches
tha reciilmors'
stte. •'
. . Final
Regulate
transportation
and storage of
listed wastes
and sludges
" before burning;
burning is
exempt
Regulate under
Parts 262-285,
Regulate under
Parts 262-265,
Regulate under
Parts 262-265.
Conditionally
exempt (Part
266, Subpart F).
Regulate when
battery reaches
the reclaimers'
site (Part 266,
Subpart G).
BtLUNQ cone tseo-so-M
-------
Federal fegfste f Vol. 50, No. 3 / Friday, January 4,1885 / Rules and Regulations
Table ftt Decision Tree Which Identifies the
Various Regulatory Requirements for the Different
Recycling Activities and Materials
Hazardous Secondary
Materials/Recyclable
Materials
%
Is recyci
exempt ur
261. 4'b*
>
Is recycle
used in a
stituting
V
Is recycle
used as a
to produce
.able material ye
or 261.6{a)(4)
/ No
ible material yes
.disposal .
f NO
ible material Yes
5 a fuel
s Material is not
waste control
Regulated under
Part 266
Regulated under
Part 266
I
No
Is recyclable material
accumulated speculatively
Yes
No
Is recyclable material
reclaimed
Yes
Regulated under
-> §§261.6(b> and
Are precious
metals
reclaimed
Yes Regulated under
> Subpart F of
Part 266
Ho
Are spent-lead
acid batteries
reclaimed
Yes Regulated under
-i > Subpart G of
Part 266
BILLING CODE G5SO-SO-C
(All other
reclamation).
•> Regulate under
§§261.6(b) and (c)
-------
648
Federal Register /, Vol. 50, No. 3
//. Discussion of Specific Provisions of
ths Regulation
A. Section 281.6(a){l): Recyclable
Materials
To avoid conceivable stigmatization,
EPA proposed that ha?ardous wastes
that are to he recycled ba calind
"regulated recyclable materials." Most
comments favorfd this approach, and
we are adopting it in the final rule,
choosing the less cumbersome name
"recyclable material." As stated in the
proposal, however, all Section 7004{b)
announcements and notices regarding
permits for facilities managing these
materials must still refer to hazardous
waste. See 48 FR at 14493/3.
B. Section 2ei.6fa}(2}{i} and Part 268
Subpart C: Recyclable Materials Used hi
a Manner Constituting Disposal.
1. The Proposal Rule, EPA proposed
that hazardous wastes used in a manner
that constitutes disposal be regulated
under the Part 284 and 285 regulations
applicable to land treatment or landfill
disposal. Storage and transportation
occurring before the actual recycling
Iso wera to be fully regulated. See 43
\ 14496-497. Only materials placed
urectly on the land in an "as-is"
condition or plated on the land aftei
simple mix'??; were defined as wastes,
however, ana so were subject to the.se
requirements. Most commenters
indicated that the land treatment and
landfill regulations were inappropriate
for this type of recycling because those
regulations contemplate existence of a
facility whereas use constituting
disposal recycling activities occur hi a
variety of situation-specific contexts
which may be dissimilar. Certain of the
land disposal regulations, they argued—
such as Closure or post-closure care or
liner installation requirements—would
b« very impractical to apply to a
recycling situation where a hazardous
sludge was used as road-base material
on a stretch of highway. Other facility
'standards, they claimed, such as plant
security, or preparedness and '
prevention, normally don't apply to this
kind of recycling.
2. Ths Final Rule. The Agency has
decided to promulgate the regulatory
schema essentially as proposed. The
changes from the proposal, explained In
3. below, have to do with a clearer
explanation of what type of chemical
changes to a waste-derived product
result in deferral of regulation. Under
the final rule, hazardous wastes placed
on the land hi the form generated, or
after simple mixing that doesn't
significantly alter the waste's chemical
character, are subject to regulation
under the Part 264 and 265 permit
requirements for landfill or land
treatment facilities. The Agency indeed
has indicated as long ago as the
preamble to the May, 1980 interim status
standards that these regulations would
apply to hazardous wastes placed on the
land, whether or not recycling is a
purpose of the activity. See 45 FR 33205-
208 (any benefit, such as providing crop
nutrients, from placing hazardous
wastes on the land is incidental, and
the practice is to be regulated as land
treatment); see also 43 FR 14484/3 (April,
4,1884} [direct application of hazardous
waste to land as fertilizer is land
treatment, citing the Background
Document for the July 28,1982 laud
disposal permitting standards}.
It may be, as commenters state, that
the Agency ultimately can develop a
more tailored regulatory system for
wastes recycled to the land. We are not
able to do so at the present time. See
Sections H.C.l. and 2. of Part II of the
preamble. Since the Agency :a
implementing a statute designed to
control hazardous wastes placed on the
land, it is inappropriate to defer
regulating this practice any longer. The
Agency therefore does not intend to
* ' " regulating this practice while a
.ient regulatory scheme is developed
and debated. If wastes are safe to put on
the ground, the delisting mechanism
provides some means of'demonstrating
that the practice can occur without
regulation. (See § 260.22 which applies
to listed wastes; wastes exhibiting a
characteristic of hazardous waste could
not be placed on the land without
complying with applicable Part 284 or
265 standards.}3*
We note that the HSWA includes a
prohibition banning use of hazardous
waste (except wastes exhibiting the
characteristic of ignitability) mixed with
waste oil, used oil, or other materials for
dust suppression or for road treatment.
See RCRA amended Section 3004(1}. We
areTadding this prohibition to the
hazardous waste regulations in another
rulemaking codifying provisions of the
' HSWA.
3. Exemption For Hazardous Waste-
Derived Products. As we indicated in
Part II of the preamble, we are deferring
regulation of hazardous waste-derived
products that are placed on the land. Wa
are deferring action because waste-
derived products may present less
potential risk than wastes placed
directly on the land without significant
chemical change, due to the chemical
alteration and.dilution of toxic
constituents that can occur in the course
of Ihe process. Use of hazardous waste-
derived commercial products on the
land also is more clearly a recycling
activity than direct waste applicationS5,
and this use thus is a better candidate
for separate regulatory standards. In^
any case, the Agency wishes to obtain
public comments en this issue in Ihe
context of a specific proposal.36
The final rule thus states that
products that contain hazardous wastes,
which wastes have undergone a
chemical reaction so as to become
inseparable by physirtl means, are net
presently subject to I RA Subtitle C
regulation when th^y ure used in a
manner constituting disposal. We think
the phrase "have undergone a chemical
reaction so as tr become inseparable by
physical meat ' expresses our intention
better than the language used at
proposal, nemeJy 'without essential
change to tli ir identity Or after simple
mixing'. The «;_ste-derived products for
which we are ' jferring regulation are
those where the hazardous wastes have
undergone chemical bonding, so that
they are chemically transformed. The
waste-derived products for which we
are not deferring regulation are those
where the waste is mixed but not
chemically reacted. (An exception is for
commercial hazardous waste-derived
fertilizers which would not have to
undergo chemical bonding to be
exempt.} The language used in the final
. regulation is drawn from 40 CFR § 116.3
(definition of "mixture"} but expresses a
familiar physical concept. See
Condensed Chemical Dictionary, 10th
ed., Van Nostrand Reinhdld Co. (1981}.,
Examples of hazardous waste-derived
products in which contained wastes
have undergone chemical bonding, and
so are deferred from regulation, are
waste-derived cement and asphalt, In
these processes, the constituents
polymerize and so are essentially
inseparable by physical means.3? They
« Delistings do not apply on a site-spBCifiu basis,
howevc.. The petitioner must demor,;-'rate that the
waste will not cause substantial harm io human
health and the environment if iefi unregulated in
any reasonably:occurring management setting.
55 The Agency wes not considering waste-derived
products in its 1980 preamble statement 'juoted
earlier. ;,,
18 We note, however, that the wastes must
contribute to the effectiveness of the waste-darivsd
product for the Agency to regard the waste as being
recycled. FOJ example, a waste used in a fertilizer
would have to contain nutrients or micronutrients; a
waste used in cement would have to have
pozzolanic properties. If a waste does not contribute
to the product, we consider the waste to be
disposed of.
"Technically, not every constituent introduced to
cement or asphalt becomes chemically bonded to
- the polymer. Some constituents become trapped In
the polymer rather than chemically bound. Because
cement and asphalt are not viewed as chemical
mixtures and are commercial products, the Agency
intends to defer regulation of hazardous wastes-
derivt d cement and asphalt at this time.
-------
are not in solution or otherwise mixed.
On the other hand, wastes applied to the
land after drying or dewatering remain
subject to regulation. Hazardous wastes
that are mixed with used oil are another
example of wastes that are mixed, not
chemically reacted. See 48 FR14496/1.
They therefore are subject to regulation
under the landfill or land treatment
facility standards if applied t
-------
648 Fedwral Register / Vpl, 50,- No. 3 / Friday, January 4, 1985 / Rules and Regulations
We also note that the HSWA contains
two provisions relevant to this
discussion. The first prohibits cement
kilns located in cities with populations
greater than 500,000 from burning
hazardous waste fuel unless the kiln
complies with requirements applicable
to hazardous waste incinerators. See
RCRA amended Section 3004(q)(C)(2)(i).
Since the prohibition is imposed by
statute, it applies to all hazardous waste
fuels, not just hazardous waste fuels
containing listed wastes and sludges.
The second statutory requirement
involves labelling of hazardous waste
fuels. The new amendments provide that
any person who produces, distributes, or
markets a hazardous waste fuel must
include a warning label in the invoice or
bill of sale stating that the fuel contains
a hazardous waste and listing all
hazardous wastes contained therein.
See RCRA amended Section 3004(r)(l).
This requirement again applies to all
hazardous waste fuels, and so applies to
fuels containing characteristic spent
materials and by-products, as well as
listed wastes and sludges. Certain
hazardous waste fuels are exempt from
this warning label requirement,
however. These are petroleum coke
containing hazardous waste ingredients
(unless the coke exhibits a hazardous
waste characteristic), and fuels from
petroleum refining containing oil-bearing
hazardous wastes indigenous to refining
(amended Sections 3004(q)(2)(A) and
3004(r) (2) and (3)), respectively.
These requirements are being added
to the hazardous waste regulations by
another rulemaking proceeding which
codifies portions of the HSWA.
D. Section 261.6(a)(2)(iii) and Part 268
Subpart E: Recycled Used Oil
This provision is reserved for the
regulations implementing the Used Oil
Recycling Act (UORA) (Section 3014 of
RCRA). This provision requires EPA to
conduct an analysis and evaluate the
effect of regulation on used oil recycling.
EPA presently is conducting studies and
developing regulations that satisfy the
requirements of the UORA. We will
soon propose the first of these
regulations dealing with contaminated
used oil burned for energy recovery, and
will be proposing additional regulations
in the future.
E. Section 2Q1.6(a)(2)(iv) and Parf266
Subpart F: Precious Metal Reclamation
1. Retention of The Partial Exemption.
Although EPA has concluded that most
of the proposed conditional exemptions
are unwarranted, we continue to believe
that the exemption for precious metal'
containing wastes being reclaimed for
their precious metal content remains
justified because of the high value of the
metals being reclaimed. We noted in the
first part of this preamble that a
decision on how carefully wastes are
stored before reclamation turns largely
on a weighing of how valuable the
wastes are and the cost of buying virgin
products to replace reclaimed materials.
The precious metals being reclaimed
from these wastes are at the high end of
the value continuum, ranging from
values of approximately $9.00 per troy
ounce (silver) to $600.00 per troy ounce
(indium and rhodium).
An examination of how these wastes
are managed confirms that they are
accorded special care due to their value.
Management of these materials
ordinarily is. characterized by very
careful handling from point of '
generation to point of recovery. Wastes
containing these metals are at least
placed in containers, and are sometimes
neutralized, dried and shipped—with
armed guards—in pouches to the
reclaimer. Reclaimers and generators
often enter into batch tolling
agreements, requiring reclaimers to
return the theoretically reclaimable
amount of metal to the generator. For
this purpose, wastes are typically
assayed by both the generator and the
reclaimer for precious metal content,
and precautions are taken by the
reclaimer to avoid loss. Wastes are
containerized before reclamation; the
Agency is not aware that open piles or
impoundments are used for storage.
Accumulation time by reclaimers also
tends to be short (less than one month),
because reclaimers often are required to
return the reclaimed metal (or cash) to
the generator within that time.39
The Agency thus believes that the
value of the contained metals,
corroborated by the usual management
practices for these wastes, supports the
partial exemption. At the same time, the
Agency does not believe a complete
exemption is warranted. As pointed out
in the proposal, individual precious
metal operations have caused
environmental harm, and some of the
wastes being reclaimed—such as spent
cyanide solutions—are very hazardous.
In this regard, we note that some
precious metal reclaimers themselves
supported a partial, rather than total
exemption. (See, e.g., Comments of
Englehard Industries Division, July 30,
1983.)
The rule consequently states that
wastes to be recycled are exempt from
all but the following requirements:
** A memorandum to the record from the Agency's
Effluent Guidelines Division documents these
statements.
(a) Notification requirements under
Section 3010
(b) Manifest requirements '
(c) Requirements precluding
overaccumulation; and
(d) Recordkeeping requirements to
document that wastes are not being
overaccumulated.
Manifest requirements are necessary
to create a paper trail to track wastes
from the generator to the reclaimer. To
enforce the requirement against
overaccumulation, we are requiring
generators, reclaimers, and intermediary
facilities accumulating the wastes to
keep records showing the volume of
wastes on-hayid at the beginning of the
calendar yesr, the amount of waste
generated or received during the one-
year period, and the amount of waste
remaining at the end of the period.
We are making this portion of the rule
effective immediately because the
regulated community does not need time
to come into compliance. RCRA
amended Section 3010.
2. Definition of Precious Metal. As
used in the final regulation, precious
metal reclamation includes reclamation
operations recovering gold, silver,
platinum, palladium, the platinum group
metals (iridium, osmium, rhodium,
ruthenium) or any combination of these.
This is essentially the definition used in
the proposal (the proposal omitted the
metal osmium), and is the same
definition used by the Agency in
developing effluent limitation guidelines
for the precious metal reclamation
subcategory (40 CFR Part 421). The only
comments disagreeing with this
definition suggested (without
explanation) that beryllium, germanium,
gallium, and indium also be included.
These metals are not ordinarily
classified as precious, and commodity
prices for these metals ordinarily are
much lower than for the precious metals
(in some cases, several hundred times
less). The Agency also has little
information on the handling practices
for wastes containing these materials or
whether these wastes would be
hazardous. We therefore are not
expanding the list of precious metals at
this time.
3. Distinguishing Sham Operations.
We also note that sham recovery
operations merely claiming to be
engaged in precious metal reclamation
are not exempt under this provision.
Sham operations not only include those
where no precious metals are present,
but those where precious metals are
present only in trace amounts, or in
amounts too low to be economically
recoverable. The. regulations
consequently state that the reclamation
-------
Federal Register / Vol. 50, No. 3 / Friday, January 4, 1985
649
facility must be recovering economically
significant amounts of precious metals
from each waste for the waste to be
conditionally exempt. For example,
wastes from which small amounts of
silver are recovered by a facility not
ordinarily engaged in precious metal
reclamation would not be exempt from
regulation. Other factors indicating
sham precious metal recycling are lack
of strict accounting by either the
generator or reclaimer of wastes to be
reclaimed, storage (such as in open piles
or impoundments) by either the
generator or reclaimer not designed to
protect wastes from release, payment to
a reclaimer to accept wastes, or absence
of efficient recovery equipment at the
reclaimer's site. Generators or
reclaimers engaged in this type of sham
recycling without complying with RCRA
regulations are of course managing
hazardous wastes without complying •
with applicable regulatory standards.
4. Status of Wastes From Precious
Metal Reclamation When Hazardous
Wastes Are Reclaimed. Several
commenters questioned the statement in
the preamble that wastes from precious
metal reclamation are presumptively
hazardous if the material being
reclaimed is a hazardous waste. This
statement does no more than recite
existing regulations (see § 261.3(c)(23).
and is justified factually here because
the hazardous portions of the wastes are
not recovered but remain in the process
residue. (Effluent sampling data shows
high toxic metal and cyanide
concentrations in wastewater from
precious metal reclamation operations
reclaiming electroplating sludges and
related wastes.) Commenters presented ;
no data disputing these conclusions. In
addition, individual precious metal
waste generators and reclaimers have
the option of delisting the wastes from
the reclamation process if they believe
they are not hazardous.
F. Section 261.6(a)(2)(v) and Part 266
Subpart G: Spent Lead-Acid Batteries
Being Reclaimed
EPA proposed that spent lead-acid
batteries be regulated when stored by
the persons reclaiming them, either a
battery cracker or a secondary lead
smelter. These spent batteries would not
be regulated, however, when handled by
persons other than reclaimers, such as
retailers, wholesalers or local service
stations, or during transportation. Spent
batteries stored at intermediate
collection centers also would not be
regulated. See 48 FR 14498-499.
Many commenters supported these
regulations, including significant
segments of the lead recycling industry.
Other commenters disagreed that the
risks presented by storage of spent lead-
acid batteries warrant regulation. Still
other cbmmenters, including most of the
commenters from the lead recycling
industry, stated that battery storage by
independent collection centers
presented greater risks than storage by
reclaimers. They stated that collection
centers tended to store batteries for a
longer time than reclaimers, and
sometimes in larger amounts, and
provided examples of improper handling
by collection centers. There was
consensus, however, that initial
collectors and transporters did not
require regulation.
We have decided to adopt the '•
proposed regulation without significant
change. Acid spillage from uncracked
batteries can cause significant harm,
and storers have no (or minimal)
incentive to store spent batteries
without acid spillage. We are impressed
that even some lead recycling industry
^members accept the need for regulation,
of spent battery storage. We also note
.that many states regulate various
aspects of spent battery recycling
(including, in many cases, storage by
battery reclaimers),40 confirming a need
for regulation. Damage cases cited in the
April 4 preamble provide further
corroboration.
The Agency is continuing to
investigate whether regulation of
intermediate collection sites is
appropriate. These battery collection
sites are managed, for the most part, by
the same persons who operate scrap
metal pollection sites, and scrap metal
and spent batteries are usually
accumulated by these persons at the
• same sites. We therefore will address
this issue as part of our study of
hazardous scrap metal storage.
G. Recyclable Materials Exempt from
Regulation
1. Section 261.6(aj(3)(i): Reclaimed
Industrial Ethyl Alcohol. Industrial ethyl
alcohol can become contaminated
during use, and may then.be returned to
a distillery for redistillation. Spent
industrial alchol exhibits the
characteristic of ignitability.
EPA has decided to exempt industrial
ethyl alchol that is reclaimed from any
RCRA regulation because the entire
reclamation operation already is
regulated by the Bureau of Alcohol,
Tobacco and Firearms from point of
spent ethyl alcohol generation to point
"The States of Pennsylvania, South Carolina,
Texas, Missouri, New Yprk, California, Oklahoma,
Oregon and Indiana regulate various aspects of
spent battery recycling. See Comments of General
Battery Corporation to Proposed Effluent
Limitations and Standards for Nonferrous Metals
Manufacturing, August IS, 1983.
of redistillation. These regulations
require operating permits for individual
industrial ethyl alcohol distilleries and
users. These permits must address
(among other things) ethyl alcohol
storage (including storage of spent ethyl
alcohol), plant security, and
recordkeeping. See 27 CFR 19.156,
19.159,19.166, and 19.271-19.281
(requirements for distillers) and
§§ 211.41-211.50, and 211.91-211.96
(requirements for users). Tracking from
the generator to the distiller likewise is
controlled. Id. |§ 211.217.-211.219. There
is also incentive to avoid loss of alcohol
because there is tax liability of $10.50
per gallon of spent ethyl alcohol, and
this tax is imposed, and ordinarily not
remitted, hi the event of loss. Id.,
§§ 19,561-19.563. In light of this
.comprehensive cradle-to-grave existing
regulatory system, further RCRA
regulation would be redundant.
2. Section 261.6(a)(3)(ii): Used
Batteries Returned, to a Battery
Manufacturer for Regeneration. This
exemption is identical to the one
proposed. See 48 FR 14496/2. (In
response to comment, we also note that
returning an unused battery for
regeneration would not involve waste
management, because the battery would
be a commercial product being recycled.
Se'e § 261.33.) In essence, the practice
involves returning a commercial product
for regeneration, an activity not
ordinarily regulated. All comments on
this issue supported the proposal. (We
note, in response to a comment, that
used battery cells returned to a
manufacturer for regeneration also are
covered by this exemption.)
3. § 261.6(a)(3)(iii): Used Oil
Exhibiting a Characteristic of
Hazardous Waste. This temporary
exemption was discussed in Section II.E.
above.
4. § 2616.(a)(3)(iv): Scrap Metal. The
Agency has determined not to regulate
(for the time being) hazardous scrap
metal that is being reclaimed. This is an
interim measure. We are continuing to
study which types of scrap metal may
be hazardous.41 We also are continuing
to study the modes of scrap
management by collection centers and
by end reclaimers, and are also studying
marketing arrangements in the industry.
Other on-going work deals with the
impacts (both environmental and
economic) of possible regulation, the .
feasibility of enforcement if regulation
should be necessary, and whether
41 Preliminary results of Agency studies indicate
that most scrap metal is not hazardous, although
some types exhibit EP toxicity.
-------
650
Federal Register / Vol. SO. No. 3 / Friday. January 4, 1985 / Rules and Regulationa^
tailored regulations can or should be
developed for hazardous scrap metal.
The Agency expects to determine
from this investigation which types of
scrap metal are hazardous, whether the
regulation of transportation and storage
is necessary, and what an appropriate
regulatory regime might be for those
types of scrap metal that are hazardous.
Since we do not yet have answers to
these questions, we are deferring
regulation.
We are not deferring regulation of
non-scrap metal-bearing hazardous
wastes that are reclaimed. The Agency
already has made a determination that
these wastes are hazardous, that
regulation is necessary to protect human
health and the environment, and what
appropriate regulatory standards should
be. Thus, such metal-bearing wastes as
spent batteries, spent mercury, and
spent acids and caustics are subject 1o
§ 201.6 (or Part 268) regulatory
standards under today's rule.
H. Section 261.6(b) and (c):
Requirements for Generators,
Transporters, and Storage Facilities
1. The Generally Applicable
Standards. These provisions state that
persons generating, transporting, or
storing recyclable materials, who are
not explicitly addressed in § 261.6(a),
are subject to all of the applicable
requirements of Parts 262, 263, 284 and
265 of the regulations, as well as to
applicable permit requirements. Thus,
hazardous wastes that are to be
reclaimed are covered by these
provisions. Hazardous wastes that are
accumulated speculatively also are
covered.** As noted, these provisions
44 As we noted in the April 4 preamble, persons
who overaccumulate wastes are subject to
regulation as storage facilities when a year elapses
without sufficient turnover of material. (However,
as noted in the rule, and in Section ILF.S.b. of Part 2
of the preamble, materials that are stored in a unit
covered by S 261.4(c) are not covered by the
overaccumulation provisions.) These persons have a
six-month period to come into compliance with
applicable storage requirements or to ship all
accumulated hazardous wastes to a Subtitle C
facility. 48 PR 14499/Zr3. Persons accumulating
hazardous wastes speculatively are subject to
immediate regulation as generators (if they generate
the wastes) or as storage facilities (if they store
anoter person's wastes, if they store their own
wastes In piles or in impoundments, or if they store
their own wastes in tanks and containers for longer
than 90 days or for less than 90 days without
complying with the provisions of 5 282.34).
will apply to most of the activities that
would have been conditionally exempt
under the proposal, as well as to
situations (such as reclamation by an
independent reclaimer selling reclaimed
products to the general public) that we
already proposed to regulate fully.
The following chart compares the
extent of coverage under the May 19,
1980 regulations (40 CFR 261.6(b)> with
today's final regulation for those
recyclable materials not regulated under
the special standards in Part 266—
namely recyclable materials being
reclaimed or accumulated speculatively.
For wastes being reclaimed, the
principal extension of regulation is to
spent materials oxhibiting a
characteristic o* hazardous waste.
Sludges that are not listed as hazardous
wastes, however, are no longer
regulated when reclaimed. In addition,
unlisted by-products and spent
materials are now subject to regulation
when accumulated speculatively (he.
without sufficient amounts being shown
to be recycled). Commercial chemical
products listed in 40 CFR § 261.33 are
not subject to regulation when recycled
in any of these ways.
BIU1KG CODE 6560-SO-M
-------
Federal Register / Vol. 50, No, 3 / Friday, January 4,1985 / Rules and Regulations
- 160 •• -
TABLE 12: Comparison of Regulation Under May 19, 1980 Regulations
and Under Amended $261.6 for Recyclable Materials Not
Subject to Regulation Under Part 266 Standards
Reclamation
May 19 Final Rule
Spent Materials
Listed in
§§261.31 or 261.32
Spent Materials
Exhibiting a
Characteristic of
Hazardous Waste
Sludges Listed in
§§261.31 or 261.32
Sludges Exhibiting
a. Characteristic
of Hazardous Waste
By-products Listed
in IS261 .31 or
261.32
By-products Exhibi-
ting a Character-
istic o'f Hazardous
Waste
Scrap metal
Commercial Chemi-
cal Products
Listed in S26U33
yes
no
yes
yes
yes
no
no
no
.
'
•
yes
yes
yes
no
yes
no
no
no
;
Acumulation Without
Sufficicent Amounts
" Being Recycled
May 19 Final Rule
:
yes
no
yes
yes
yes
.
no
no
no
, •
yes
yes
yes
yes
yes
yes
no
no
Accumulation
Without A Known
Recycling Market
May 19 Final Rul
yes
yes
yes
yes
yes
yes
yes
no
yes
yes
yes
yes
yes
yes
yes
no
Yes - Subject to regulation under Parts 262-265
No - Not subject to regulation
wuirta CODE «sso-so-c
-------
652 Federal Register / Vol. 50, No. 3 / Friday, January 4, 1985 / Rules and Regulations
2, Conforming Amendments to
§§201.5,264,1, and 285.1. EPA proposed
that hazardous wastes that are exempt
from regulation when they are to be
recycled are not included in the small
quantity generator calculation. 48 FR at
14493 n. 38. This proposal was a
conforming amendment to existing
5 265.1(c), which already embodies this
principle. We are promulgating this
amendment in final form today. Since
there are fewer conditional exemptions
than at proposal, however, fewer
recycled hazardous wastes will be
excluded from the small quantity
generator calculation. As at proposal,
spent lead-acid batteries that are to be
reclaimed are excluded from the small
quantity generator calculation because
they are not subject to regulation in the
hands of the generator."
The amendments to §§ 264.1 and 265.1
nlao are conforming. They indicate that
these sections do not apply to activities
that are conditionally exempt or
excluded from regulation, or that are
regulated under a Part 266 standard.
{The Part 2B8 standard may, of course,
meke reference to a Part 264 or 265
standard.)
3 .levision of §260,10: Definition of
"DesignatedFacility". In response to
comment, the Agency also is adopting a
rule relating to manifesting of hazardous
wastes to recycling faculties that
introduce the wastes directly into the
recycling process without prior storage.
These recycling facilities are not
required to obtain storage permits under
the May 19,1980 rules (§ 261.6(b); see
also 48 FR at 14498/2 to the same effect},
nor under the rules adopted today. This
is because the Agency does not regulate
the actual process of recycling, but only
generation, transportation, and storage
occurring before actual recycling. 45 FR
33093/1 [May 19,1900). However,
generators sending hazardous wastes to
those facilities, and transporters
carrying these wastes, are required to
deliver the wastes to "designated
facilities" and to include the name,
address, and EPA identification number
of these facilities on the accompanying
manifest. A "designated facility" is
defined as a facility with a Part 264
permit or operating pursuant to interim
status {§ 260.10).
These rules consequently are in
conflict because recycling facilities that
do not store are not "designated
facilities" (they do not have permits or
interim status), and, under a literal
reading of the present rules, are unable.
to receive wastes for recycling. This
obviously was not the Agency's
intention. Accordingly, the Agency is
amending the definition of designated
facility so that recycling facilities that
do not store before recycling can receive
hazardous wastes.
The amendment states that facilities
regulated under § 261.6(c)(2) of the
regulations are also to be considered
designated faculties. Section 261.6(c)(2),
in turn, states that recycling facilities
that do not store are required to notify
the Agency under Section 3010
(obtaining an identification number in
the process), and to comply with
manifest requirements under §§ 265.71,
265.72, and 265.76.
The Agency stresses that this
amendment is an interim one and is
designed to solve the immediate conflict
between different regulations. We are
not making a final decision that these
facilities require only minimal
regulation. In fact, we are considering
whether these faculties should be
subject to additional requirements to be
implemented through individual permits.
We also stress that very few facilities
recycle wastes without first storing
them. In this regard, we note that tanks
or containers in which some incidental
settling occurs but which are used
primarily for storage are subject to
regulation under the storage facility
permit »tandard8,4*rhis is in keeping
with the policy of the current regulation
that only the actual process of recycling
is to be left unregulated. Examples of
recycling processes that occur without
prior storage are where spent batteries
are introduced directly to a battery
shredding machine without prior
storage, or when spent solvents are
placed in a distillation unit without prior
storage.
L Variances
EPA is adopting several variance
provisions in the final rule. One of these
provisions results in increased
regulation (and so is a variance from
otherwise applicable standards or
exemptions), while the others result in a
determination that materials recycled in
certain ways are not solid wastes. These
provisions are described below.
,1. Case-by-Case Regulation, a. The
Substantive Standard. EPA proposed
that various recycling activities
conditionally exempt from regulation be
"Precious metal wastes are to be included when
making Ilia small quantity generator calculation
bteauia thoso wutet are subject to regulation In
(Jis band* of the generator.
44 For purposes of this point, pilee and
impoundments are rarely considered to be an
integral part of the hazardous waste recycling
process because wastes are not secure from loss,
and because recovery from them [if any) is
inefficient. Piles and impoundments at non-exempt
hazardous waste recycling facilities consequently
are subject to regulation.
subject to case-by-case regulation if
they accumulated, stored, or burned
hazardous wastes in a manner
insufficient to protect human health and
the environment, to be determined
based on criteria enumerated in the rule.
Proposed | 261.6(g), 48 FR 14510. We
believed this provision necessary in
order to regulate individual unsafe
operations, while maintaining an
otherwise appropriate exemption.
Many comments supported this
provision, but other commenters
objected. They complained that the
Agency was giving with one hand but
taking back with the other, that, the
provision vested too n.iuch discretion in
the Regional (or authorized State)
Administrator becaase decision-making
standards were toe. broad, and that this
type of provision teprived facilities of
needed certainty. (Many of these same
commenters argued that the Agency
should vest Regional Administrators
with authority to grant individual
variances, based upon standards far
broader than in the case-by-case
regulatory provision.)
The Agency has determined to adopt
most of the provision as proposed,
except that we are not promulgating a
case-by-case provision for boilers and
industrial furnaces burning hazardous
waste for energy recovery. We note that
the provision has less significance than
at proposal, because it applies only to
wastes utilized for precious metal
reclamation. Applicability at proposal
was to other types of conditionally
exempt operations, which now will be
fully regulated. We believe this type of
provision remains needed in spite of its
reduced applicability, to guard against
mishandling of precious metal- ,
containing waste. Indeed, we know that
damage incidents have occurred at these
facilities. The caso-by-case regulatory
provision also alknvs the Agency to
control individual facilities without fully
regulating the entire class.
The Agency also does not accept the
argument that the regulatory standard is
too broad. Regional officials must find
that the wastes are not being contained,
or that incompatible wastes are being
stored together. Relevant factors are the
type and quantity of waste accumulated,
the mode and length of accumulation,
and the type of hazard posed by the site.
The Agency not only believes that these
standards are sufficiently clear, but'
notes they are modelled on long-
standing provisions in the Agency's'
National Pollutant Discharge
Elimination System permit regulations
providing authority for regional officials
to require case-by-case regulation of
-------
653
facilities holding general permits. (See
48 FR 14494 n.40.J
We have e number of reasons for not
promulgating the case-by-case provision
for boilers and industrial furnaces. Most
important, the Agency already is well on
the way to establishing standards for
these facilities. We will propose to ban .
burning of hazardous wastes in non-
industrial boilers, and shortly will
propose permitting standards for
remaining boilers and industrial
furnaces. These standards should either
be effective, or be close to being
effective, by the time an enforcement
action could be brought, decided, and a
permit issued under the case-by-case
provision. Furthermore, the Statement of
Enforcement Policy (see Section II.D.2.a.
of Part 2 of the preamble) remains in
force and serves as a partial safeguard
against abusive situations until the
permit standards become effective. In
light of these considerations, it does not
seem worth the resources necessary to
implement the case-by-case provision
for boilers and industrial furnaces.
One commenter argued that the
Regional Administrator must show an
"imminent threat to human health and
the environment" before case-by-case
regulation could be invoked. We
disagree. This standard, similar to that
in Section 7003 of RCRA, may be more
stringent than required for issuing a
RCRA permit (see Section 3004); Since
the case-by-case provision amounts to a
determination that an individual facility
requires a RCRA permit (or must comply
with Part 262 accumulation standards),
the suggested standard is inappropriate.
As a matter of organization, we are
codifying the substantive standards for
case-by-case regulation in § 260.40.
These standards are thus grouped with
other provisions that are individual in
application and effect, such as delistings
and variances. Procedures for case-by-
case proceedings are found in new
§260.41.
b. Procedures for Case-by-Case
Determinations, We are adopting the
procedures that we proposed. Upon
deciding that precious metal-containing
waste at a particular location should be
regulated, the Regional Admimnstrator
(or authorized state) will issue a notice
to the person storing the waste stating
why the waste is considered to be
improperly contained (for instance,
because contaminated runoff from a pile
of tha waste is seeping into soil, surface
water or ground water). If the person is.
accumulating the material on-site for
less than 90 days and the material is
being held in tanks or containers, the
notice will require compliance with the
provisions of Subparts A, C, B. and E of
Part 262. (These generators already are
required to comply with subpart B (the
manifest requirements) of Part 262. See
§ 266.70(b)(2).) The notice becomes final
within 30 days, unless^ the person
accumulating requests a" hearing, in
which case a public (non-evidentiary
legislative) hearing will be held. EPA
will provide notice of the hearing to the
public, and allow public participation at
the hearing. The Regional Administrator
will issue a final order after the hearing
stating whether or not compliance with
Part 262, Subpart A, C, D, and E is
required. The order becomes effective 30
days after service of notice of the •
decision unless a later date is specified
or unless review the Administrator is
requested. The order may be appealed
to the Administrator by any person who
participated in the public hearing. The ,
Administrator may then choose to grant
or deny the appeal. Final Agency action
occurs when a final order is issued and.
Agency review procedures are
exhausted. (Cf. § 124.19 where
analogous procedures are used for
appeals from RCRA permits.) Judicial
review, in our view, should be in a Court
of Appeals since the Agency's decision
and implementing procedures are,
analogous to those used in issuing a
permit. (See RCRA Section 7006(b),
indicating that review of RCRA permit
issuance decisions are in a Court of
Appeals.) ;
If the person is storing the material for
longer than 90 days, storing in a pile or
impoundment, or storing off-site, the
notice will require him to apply fora
storage permit within 60 days to six
months of being notified, the precise
date for applying to be specified by the
Region or authorized state.** Permit
applicants normally have six months to
submit a Part B permit application. (See
40 CFR 270.10(e)(4).) We are providing
the authority to request a shorter time
period because facilities subject to this
provision ordinarily will be causing
actual harm or have the potential to
cause immediate harm. The person can
challenge the determination that he is
storing a hazardous waste through the
permitting process, either in the public
hearing, or in comments filed on the
draft permit, or on the notice of intent to
deny the permit. The fact sheet
accompanying the permit would specify
the reasons for the Agency's
determination. (As noted in the
proposal, these procedures are identical
to those in 40 CFR 124.52 (case-by-case
permitting of facilities otherwise subject
to general permit standards under the
Clean Water Act).)
Several commenters urged that a
separate hearing be afforded before
requiring the facility to submit a storage
permit application. We think the
procedures we have chosen strike a
proper balance between public and
private interests. The Agency's interest
in having a single proceeding is strong.
EPA will invoke this provision when a
facility is storing wastes in a manner
that is insufficient to protect human
health and the environment. There may
be actual (and certainly threatened)
release of hazardous wastes. It will be
important, in such situations, that the
facility manage the wastes in
compliance with Part 264 standards as
soon as possible. Substantial delay
could result in increased harm or
increased risk of harm. A separate
initial proceeding (potentially followed
by judicial review) to determine whether
the facility should be required to obtain
a permit could well result in lengthy
delay, substantially prejudicing the
public interest.
Furthermore, the facility will be
engaging in conduct—storage of
hazardous waste—that by statute
normally requires a permit. They
probably will be engaging in conduct
which is an abuse of the regulatory
exemption for precious metal-containing
wastes. The government's interest again
is strong that the abuse cease, and that
the normally-mandated statutory
scheme—issuance of a permit—be
implemented without delay.
Finally, the government has an
administrative interest in avoiding
successive proceedings. As we noted in
adopting § 124.52. "(t)o allow (a x%
separate hearing before requiring afc^ ;'
permit application) would produce long- :t
delays and a potential for two
consecutive hearings on closely related
issues." 48 FR 32879 (June 7,1979).
A facility's interest in having a
separate hearing is its ability to
challenge the determination that a
storage permit is required before being
required to submit a permit application.
We think the facility's interest in
avoiding this cost4S is outweighed by the
public interests outlined above.
Moreover, EPA would allow the
applicant to comment on the
determination throughout the permitting
process. We note also that EPA's
procedures allow the facility to remain
"EPA proposed that persons submit permit
applications within 60 days of being notified. We
are giving the Region or state the option of
specifying up to six month); to submit applications
to a!!ow room for procedural flexibility.
. "The estimated cost of completing a tank and
container permit application is approximately
$10,000 (assuming 75 drum capacity or 5,000 gallon
capacity). Pope-Reid Associates Inc., Unit Cost
Analysis of Part 264 and Part B Tank and
Containers Storage Analysis (April 1983).
-------
Federal Register / Vol 5fe Mp> 3 / Friday,, fimuagy 4, 1985 /Rules and1 Regulations
operating while It applies for a permit If
the procedure in the rule were
unavailable, the Agency might seek
more draconian relief against a facility
under Section 7003- of RORA. which.
could entail cessation of. facility waste
handling operations.
2. Variances from Classification af.ai
Solid Waste. EPA did not propose any
variance provisions, but did solicit
comment* as to whether general or*
specific types of variances were-
justlfUd. See 4aFR14-J99-500. Industry
commenterr generally supported th*
idea o£ variances* but were* not specific.
about substantive standards' far granting;
or denying them.
EPA continues- ta think that variance*
for broad classes of recycled wastes-ace
unwarranted} because the variances
wpuld too easily become surrogate
permits* Thus, we reject toe notion of
granting variance* because recycled.
wastes are being stored solely.
We do believe^EoweveivtSatcertaftj.
discrete variances are warranted, and
we ara adbpttcg. thesa &i the roles.
promulgated1 today. There ate three such.
provisions covering situations where
there can be a question of whether the
material fs a waste. A. variance,, if
granted, would, state that the material ia
not a. waste. We describe Befow what
theao activities are, and the substantive;
and procedural" standards for granting, or
denyiiig a variance.
B. Ma teriahAcciwiafatEcf Without
SuffMontAmanats of Materials Being,
Recycled As- explained" earlier fsee
Section H.F.S.Fof Part IT of me
preamble}, thia provision was proposed"
on April 4» aWrough- it was not formally
called & Varianca'. It states- that persons
whofiriJto tonr over 75 percent of their
accumulated1 waste? in & year cam
petition thrKegfonal- AJ«aihistrator|or
th» state far air authorized! stattej to
declare that me material is not s waste,
in spite of ftp failure to recycle 75
percent The-provisibn-now. appears- m.
1 260.30 pnatetrd of f26I-.0aar proposed.
Standards' roc granting a variance are
contained fat f 260.». TheyawvfrtuHlry-
ihdsame as-tfiose-we- proposed", except
thrt varfencescouMcorrtinne-tcrbe-
granted beyond- »tvro»-year
conditions' precedent on- the amount to
be recycled before applying for a
variance.
Ptoctdurw ftp granting or denying
this variance- are contained' m< S 26&3K
Thes* procedures- (Identical to those- for
the other variances) are discussed in,
Section S below.
b. Mtttsriofoi That Ate Reclaimed1 And*
Then-naaaecfWjthfa Tfie Origfnot
Primary Process foWfticIiTIwy Were
Generated EPA propascd' that- materiala
that are reclaimed and then reused
within, the original production process in-
which- they were generated are not solid:
wastes. Aa explained m Section H.H.2.
of Part II of the preamble, we have
decided that the proposal was-too broad
and we have narrowed the- provision to
apply only to materials- returned to the
original primary production process
without first being reclaimed.
We nevertheless-, bettere that there
may bet some- situations- where a
material can b* wclaimd before being
reused within: tte original primary
production proeesa* and not be a solid
waafc. Although the principle-10 not
invariably true,, there can be occasions
wheatiHB type of recycling la an. adjunct
tfftfae original primary process*
constituting & closed ibopi See & FR--
. 14443^ We ftuff ace allowing for these-
sitaations bymeans «f'» varianee.
The standaEds for granting-a variance
are contained in 5 aeasifjb}* The
Regional Admihistratar (fir- a-ithocized!
state) isstbidecidfl wfesthei'tha-
pjext of the primary prodactkmiprQcesai.,
The fioHewicg: criteria; bear OB- ffiet
decisions
• How economically viable the,
pfoductioitffroeess would' bs if it were:
to use; virgin matefjala alone,. The more
significant the coat saviagy, the mare- fee
situation is like one single production;
pcpcBSBLFor example,, tfee Kiafi paper
process eanHD* be operated)
economically withaut aemfi.reeovery
and rscjreling of black liquor,
section L in Pact 2 above!)
practice an cat industrg-wid&haais. The;
more wide-spread the, practice,, the mo^e;
likely it ia to be a praductien proeesff;
• The.extentto which kanfttmgoftM'
material before it is reclaimed is
designed to minimize loss of material.
Materials utilized, in production-
processes should be. stored in a way- that
minimizes loss.,47 Thus, the/ more.
precautions, that are taken to> afore a
material! before, reclaiming itr the more
the situation is like a production
process. Situationa where, materials; are,
storedbefcre reeTaraationJn o-pen .
unlined pifes^ nnlinBJ impoundments,, or>
leaking tanks and drums, conaequently
are less likely to be granted thia
variance.
• The time periods between^
generation of the material and £3,
reclamation,, and between, iteclanaatibn,
and reuse in the original process; The
longer the elapsed time between each of
these steps, the: teas likely the operation
is1 to be viewed as a single process.
(Operations that are cyclical, or require
long- accumulation time to be viable,
could still be eligible, however.)"
• Ttie location of the reclamation.
operation in relation to the production.
process. We are expanding this criterion
beyond the proposal, where we limited
the provision to reclamation operations.
conducted' at the same plant site.. We
are not including this as a condition
precedent to, granting of this variance,, in
response to, comments diatelbsed-IojQp
recycling situations saa extend beyond
a plant boundary. However.; the more
physically close, fte reclamation
operation- fa ta tib'i production process,,
the more likely 'he situation is to, be
viewed as, closed-Iaon pe&ycBhg,.
• Whether the- reclaimed material is,
used fan its. original purpose when- it. is.
returned to: the original primary
production praeess* and whether it is:
returned ia substantially its. original
fornL. Operations/ are, most like a 'cloaed-
loop operation when the reclaimed
material is returned to, the original
production: process in substantially, ita-
original form, fos its- erigkial pHrpoae>
47 See, for example, the many comments to thi*
effect from industry commenters in the record-to-
this rulemaking. See aluo.oommentfrrromivanbua.
Industry comraentsra. supportingthe* Agency's-rute^—
found taJ28ll3(a)(
The.> Regional Ad&iiniatoa tor caa rely
on any or et& of these1 erMeria, and care
weigh tivem as he d&sms appropriate;
We: alsa note thai there ace a mimte-r of
conditions; an applicant mu&t meet-
before he is eligible- for this- variance.,
Fisst, the material must be returned as
feedstock tote "original primary?
production; proeeHs?'^ "€haginall pidmaiy/
productifira pfffflcess?' has: fee same
meaaiag: aa in, § 28&3$e){m}, anrii fes
disaiBsscf.feSfa!tianIf.H.2. of FactHeS'
the preamble. (Xn. response to: coroisenSi
we note feat il a plant were1 to- generate
the same secondasy material from'
different processes, commingle the
secondary- materiel: and reclaim il; and
return tbs se-GlaJmed' materials- for reuse
in the original processes1,, the operatibn-
coul'df be.- eligible' for this variance even-
though tlis reclaimed materiials Rav«>
become commingles!-. The commingling!
doewnoe so alter tftenatore af ffie '
transaction: as- to vitiate^ the und'erlyihg-
policy of this ctesed-lbop variariEeiJiTfie
material' tliat1 is- returned1 alscr must' be-
"reusedf * when- returned1 to the> original
pre-sess, We mean- by this- that' the-
material: mus* eonteibute1 directly t& ffie
produe§oiT' process' as! an' ihgFed5enth
reactant, or an aSemative-feedktoefe
Secondfery mBteriafa: Fetumed to a
smelling furnace are an example:
Sofyente reclaimed andi utilfeed1 for'
wastewater from, tin mixture nils premimptiait.
-------
Federal Register / VoL 50, No. 3 / Friday, January 4. 1985 i
Relations
655
reclaimed solvents are not contributing
to the production process."Finally, the
reclamation and reuse must both be
conducted by the same "person",
although not necessarily at a single
plant site. ("Person" is defined in
§ 260.10 and in RCRA as including
among others, single corporations and
other legal entities.)
c. Materials That Have Been
Reclaimed But Must Be Reclaimed
Further Before Recovery Is Completed.
The final variance from being a solid
waste is for materials that have been
reclaimed but must be reclaimed further
before recovery is completed. We
indicated in the proposal that
reclamation processes are not
completed until the end-product of the
process is recovered, giving as an
example, recovery of lead from spent
batteries, which can require two
operations—cracking and smelting—to
be complete. 48 FR14499 n.57. The
_material being reclaimed thus remains &
waste until reclamation is finished.
We think this principle is generally
sound, but that there may be some
exceptions where the initial reclamation
step is so substantial that the resulting"
material is more commodity-like than
waste-like even though no end-product
has been recovered. Possible examples
are processes producing fluxes similar in
composition to virgin ore concentrates.
We consequently are allowing the
Regional Administrator to grant a
variance for materials that have been
reclaimed, not completely recovered, but
after initial reclamation are commodity-
like in spite of having to be reclaimed
further.
The criteria for making this decision
are:
• The degree of processing that the
material has undergone and the degree
of further processing required. The more
substantial the initial processing, the
more likely the resulting material is to
be commodity-like. Conversely, the
more substantial the processing that is
yet to occur, the less likely the initially-
reclaimed material is to be commodity-
like. For example, a spent solvent sent
to an initial reclaimer who settles out
debris and then sends the solvent to be
distilled would not be eligible for this
variance.
• The value of the material after it
has been reclaimed. Obviously, the
more valuable a material is after initial
processing, the more likely it is to be
commodity-like.
• The degree to which the initially-
reclaimed material is like an analogous.
"The second example on p. 14488/2 of the
proposal contained an erroneous implication in this
regard.
raw material. If the initially-reclaimed •
material can substitute for a virgin
material, for instance as feedstock to a
primary process, it is more likely to be
commodity.ilike. %* ..,.•
• The extent to which an end market ,
for the reclaimed material is
guaranteed. If the applicant can show
that'there is an existing and guaranteed
end market for the initially-reclaimed
material (for instance, value, traditional
usage or contractual arrangements], the
material is more likely to be commodity-
like.
• The extent to which the reclaimed
material is handled to minimize loss.
The more carefully a material is
handled, the more it is commodity-like,
» Other, relevant factors.
The Regional Administrator (or an
authorized state) may weigh these
factors as she sees fit, and may rely on
any or all of them to reach a decision. In
addition, the variance applies only to
wastes after they have been initially
reclaimed. Applicable regulatory
requirements for the waste before initial •
reclamation are unaffected. The initial ,
reclaimer will thus be a RCRA storage
facility, and have to obtain a permit to
store the wastes before reclaiming them.
If a variance should be,granted, ..
however, the recovered material is not a
waste and the subsequent reclaimer is
not a RCRA facility.
3. Variance to be Classified as a
Boiler. As discussed in I.B. of Part 2 of
the preamble above, EPA a'so is
adopting a variance provision to allow
the Regional Administrator to classify
certain enclosed flame combustion
devices as boilers even though they do
not otherwise meet the definition of
boiler contained in § 260.10. See
§ 266.32. The Regional Administrator is
to consider how nearly the unit meets
the definition of boiler, considering:
• The extent to which the uniMias
provisions for recovering and exporting
energy in the form of steam, heated
fluids, or heated gases;
• The extent to which the combustion
chamber and energy recovery equipment
are of integral design;
« The efficiency of energy recovery,
calculated in terms of the recovered
energy compared with the thermal value
of the fuel;
• The extent to which exported
energy is utilized;
• The extent to which the device is in
common and customary use as a
"boiler" functioning primarily to
produce steam, heated fluids, or, heated
gases; and
• Other factors, as appropriate.
4. Procedures for Variances. We are
promulgating a new § 260.33 which
contains procedures for granting or
denying the four types of variances just
described. In" essence, an applicant mvst
submit a written application to the
appropriate EPA Regional Office (or
authorized state). If a recycling
transaction is conducted in more than
one Region or state (i.e. the generator is
in one region and the recycler is in
another), the application should be
submitted to the region or state in which
the recycling activity occurs.'The
application should address the.standard
and criteria applicable to the particular
variance, and state generally why grant
of a variance is justified. The Regional
Administrator will consider the
application and will issue a written draft
notice tentatively granting or denying
the variance, and giving reasons for this
action. (In many cases, an inspection
probably is necessary to rule on an
application.) Notification of this .
tentative decision will be provided by
newspaper advertisement and radio
broadcast in the area where the
recycling facility is located. The
Regional Administrator will accept
comment on the tentative decision for 30
days, and may also hold a public
hearing upon request or at his
discretion. Any hearings will be
nonadjudicato'ry. The Regional
Administrator will issue a final decision
after receipt of comments and after the
hearing (if any), and this decision may .
hot be appealed to the Administrator.
5. Should EPA Adopt a Variance for
Batch Tolling Agreements. EPA
proposed that hazardous wastes
reclaimed pursuant to batch tolling
agreements would be conditionally
exempt from regulation. A batch tolling
agreement is a contract between
generator and reclaimer whereby a
generator retains ownership of the
waste, sends the waste to a reclaimer,
and receives back ttie reclaimed portion.
The proposal further specified that: (1)
The generator had to send the wastes to
a reclaimer within 180-days of
generation, (2) the Wastes had to be
reclaimed and returned within 90 days
of receipt by the reclaimer; and (3) the
reclaimer could not commingle wastes
being reclaimed under a batch tolling
agreement with wastes of another
generator. In addition, the reclaimer had
to be paid according to the amount of
reclaimed material returned to the
generator, and paid more as the amount
of material returned increased [i.e. the
reclaimer would not be paid a flat fee
regardless of the amount of reclaimed
material returned).
As discussed above, EPA is not
finalizing most of the proposed
conditional exemptions because, the risk
of damage from spills and leaks
-------
656
Federal Register / Vol. 50, No. 3 /Friday, January 4.
and
iadicates that regulation is necessary to
protect human health and the
environment. We are soliciting further
comment, however, as to whether
reclaimers who reclaim pursuant to
batch tolling agreements should be
eligible for a conditional variance. (The
conditions would be that records be
kept to document existence of the type
of batch tolling contracts described
above.)
The aspect of the batch tolling
contract that might create sufficient
incentive to avoid loss is that the
reclaimer be paid more as the amount of
material returned to the generator
increases. EPA-can see that under
certain circumstances a reclaimer would
no longer be able to make a profit (or
even •recover fully allocated costs) if too
much waste is lost before reclamation.
1 However, the point at which this occurs
will vary for each reclaimer, and
potentially for each transaction. EPA is
seeking comment as to the type of
showing necessary to demonstrate that
the batch toUhig contract would become
unprofitable unless spills and leaks are
avoided. Commenters should address
the type of economic data that would be
presented, trad also should address how
thlBlrifonnation could Tie presented in a
form amenable'to administrative
resolution. Tlie administrative
proceeding the Agency has in mind is an
individual variance proceeding where
the reclaimer has the burden of showing
that the.con tract creates sufficient
incentives against loss to obviate the
need for a storage permit.
The Agency also would like
comraenters to address whether any
reclaimers would apply for this type of
variance. The Agency's information is
that few reclaimers operate exclusively
in the ebatch tolling mode (see 48 FR
14495, and n.47), so these reclaimers are
likely to require a permit in-any event. It
is not worth the resources to create an
elaborate administrative mechanism if it
lacks practical significance.
We note finally that any variance for
batch tolling would apply only to the
reclaimer, not to the waste generator.
The tolling contract's provision that
payment increase as the amount of
material returned increases does not
create any additional incentives against
loss for the generator. Commenters
therefore should also address whether a
variance mechanism applying only to
reclaimers would have practical
significance.
Part IV: Economic, Environmental, and
Regulatory Impacts
L State Authority
A. Applicability in Authorized States
Under Section 3006 of RCRA. EPA
may authorize qualified States to
administer and enforce their State
hazardous waste management programs
in lieu of EPA operating the Federal
program in those States. (See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Authorization, either interim or final,
may be granted to State programs that
regulate the identification, generation,
and transportation of hazardous wastes
and the operation of facilities that
manage hazardous waste.
Today's announcement promulgates
standards for certain hazardous wastes
under the Federal hazardous waste
management program. With some
exceptions not .relevant here, upon
authorization of the State program, EPA
suspends operation .within the State of -
those parts of the Federal program for
which the .State is authorized. Therefore,
today's promulgation would be
applicable only in those States which
have not been granted authorization.
It should be noted that 40 CFR 271.9
. requires States to control all hazardous
wastes controlled under 40 CFR Part 281
in order for their program to be
considered-equivalent to the Federal
program for purposes of Section 3006.
EPA is indicating in this regulation that
certain types of recycled hazardous
secondary materials are not RCRA solid
or hazardous wastes for, in the case of
materials subject to variance provisions,
need not be wastes). States may choose
to regulate these materials as wastes
pursuant to State law; Section 3009 of
RCRA allows states to impose stricter
requirements than those in the Federal
program. Such states are considered
equivalent for purposes of State
authorization. See § 271.1(i).
B. Effect on State Authorization
The rules promulgated under this
rulemaking will not apply in authorized
states until the state either (1) receives
final authorization on the basis of
providing controls for hazardous wastes
that are equivalent to or more stringent
than EPA's or (2) after final
authorization, revises its program to
include controls for hazardous wastes
that are equivalent to, or more stringent
than EPA's. The procedures and
schedule for state adoption of these
regulations is described in 40 CFR
271.21. See 49 FR 21678 (May 22,1S84).
Applying § 27i:21(e)(2), states that
have final authorization must revise
their programs within a year of
promulgation of EPA's regulations if
only regulatory changes are necessary,
and within two years of promulgation if
statutory changes are necessary. These
deadlines can be extended in
exceptional cases. See 40 CFR
271.21(e)(3).
States that submit official applications
for final authorization less than 12
months after promulgation of these
regulations may be approved without
including standards equivalent to those
promulgated. However, once authorized,
a state must revise its program to
include standards equivalent to or more
stringent than EPA's within the time
period discussed above.
Interim authovization for these
requirements s-jtider the Hazardous and
Solid'Waste amendments of 1984 is not
allowed. Today's rale is not a
requirement deriving from the 1984
amendments; thus, .under section
3006(g), interim authorization is not
available as a substitute for adopting
equivalent regulations.
//. RegulatoryImpact
Under Executive Order 12291, EPA
must judge whether a regulation is
"major" and thus requires a Regulatory
Impact Analysis. Based on our analysis,
we have determined that this rule is not
a major mle because it will not: (1) Have
an affect on the economy of $100 million
or more, (2) significantly tecrease costs
or prices to industry, or (3) diminish the
ability of U.S.-ba8ed enterprises to
compete in domestic or export markets.
This assessment is based on a study
prepared for EPA which evaluated the
cost impact on the regulated community
fortiie change to the definition of solid
waste and accompanying management
standards.This study48 describes the
changes in regulatory requirements, the
populations affected by the change, and
then summarizes the resulting changes
in costs.
The report first identifies those
secondary materials and recycling-
activities which would be subject to
different regulatory requirements,...,
comparing the existing regulations with
those promulgated today. This analysis
indicated the following:
• Use constituting disposal.—Non-
listed spent materials and non-listed by-
products would be subject to increased
requirements for generators,
transporters, and storers; all secondary
«• See report entitled, "Cost and Impact Analysis
for Final Rule: Change in the .Definition of Solid
Waste and Accompanying Management Standards
for Wastes Which Are Recycled," Industrial
Economics Inc., December, 1984.
-------
7 Fridav- January 4, 1985 / Rules and Regulations
&yii'impairiM •MJ,vnwrht-i*u*»*w*< ..i'^'^^^^
657
materials (including § 261.33 commercial
chemical products) would also be
subject to increased requirements for
the actual recycling activity.50
• Use/reuse 51.—All listed wastes and
non-listed sludges would be subject to
decreased requirements for generators,
transporters, and storers.
• Reclamation.—Non-listed spent
materials would be subject to increased
requirements for generators,
transporters, and storers; non-listed
sludges would be subject to decreased
requirements for generators,
transporters, and storers; all listed
wastes and non-listed sludges that are
sent for precious metal reclamation
would also be subject to decreased
requirements for generators,
transporters, and storers.
The report then identified those
industrial categories which are involved
in recycling that will be affected by this
rulemaking. The primary source for this
information was the National Survey of
. Hazardous Waste Generators and
Treatment, Storage, and Disposal
Facilities. This survey included
questions on the various recycling
activities. Results were reviewed to
determine where affected activities
were occuring. In some cases, the actual
survey responses were reviewed to
determine the accuracy of these results.
Two other sources were also used to
collect this information. One was the
JRB report on affected populations that
accompanied the proposal to the
definition of solid waste S2 while the
other source was provided by an
industry trade group who reported on
the recycling activities of their members.
Based-on this information, we
determined that:
• Approximately 128 establishments
would have their requirements under the
hazardous waste management
regulations reduced;
• Approximately 87 establishments
that use or reuse secondary materials or
reclaim certain secondary materials
otherwise considered hazardous wastes
would be completely excluded from
regulation;
50 The Agency is deffering regulation on use
constituting disposal activities for commercial'
products that contain hazardous wastes. Therefore,
requirements for the use constituting disposal
activity applies only for wastes applied directly to .
the land {/.e..use "as-is") or applied after mixing
that allows its components to be separated by
physical means.
81 Secondary materials that are used to produce
waste-derived products that are applied to the land
or that are used to produce a fuel are not included
under this provision.
MSee report entitled "Impact on the Regulated
Community of Possible Changes in the Definition of
Solid Waste: Use, Reuse. Recycling. Reclamation,"
JRB Associates, February. 1983.
• Approximately 2,171 establishments
would have their requirements under the
hazardous vyaste management
regulations increased;
• Approximately 380 establishments
that recycle hazardous wastes would be
newly subject to regulation.
These findings show that a significant
number of persons will have increased
regulatory requirements under the final
rule. However, most of these persons
already are subject to regulation under
the hazardous waste management
- regulations; in addition, most of these
persons will be regulated as generators
rather than as storers of hazardous
waste. Therefore, the increased impact
is relatively modest. The regulatory
impact on persons using or reusing listed
hazardous wastes and sludges or who
reclaim certain secondary materials—
namely, non-listed sludges and listed
hazardous wastes and hazardous
sludges that are sent for precious metal
reclamation—would be reduced. These
presently regulated activities would not
be regulated at all or regulated
minimally under the final rule.
The report then analyzes what these
changes will actually cost the regulated
community. The study applies the
appropriate unit cost populations 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 final rule will decrease
compliance costs by an estimated $1,8
million (costs shown are annualized
after-tax costs).53 This figure represents
the sum of increases and decreases in
annualized costs for all affected
establishments, including:
• An estimated decrease in costs of
$8.5 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
$6.7 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 final rule, there
would be no significant cost increases or
other adverse affects on competition,
employment, or investment.
53 The proposal to the definition of solid waste -
reported a reduced compliance cost of
approximately $24 million. This estimate, however,
was based on different population estimates as well
as different unit cost estimates. Therefore, this cost
is not directly comparable with the compliance cost
derived for th^ rule promulgated today.
Finally, it should be noted that many
of the assumptions made in the report
were conservative. Thus, we believe
that our estimates understate the
decreased regulatory impact for the final
rule. Moreover, a number of provisions
, that would have reduced requirements
could not be completely quanitified (i.e.,
reclamation of non-listed sludges), even
though we know the costs will be
reduced. Therefore, because this final
rule is not a major regulation, no
Regulatory Impact Analysis is being
conducted.
This final rule was submitted to the
Office of Management and Budget
(OMB) for review, as required by
Executive Order 12291.
///. 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
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
rules impact on small (i.e., small
businesses, small organizations, and
small governmental jurisdications). This
analysis is unnecessary, however, if the
Agency's Administrator certifies that the
rule will not have a significant economic
impact on a substantial number of small
• entities.
EPA and its contractor performed an
analysis to determine whether the final
rule to the definition of solid waste and
the accompanying management
standards will impose significant costs
on small entities. The resulting report
(see footnote 50) indicates that in none
of the industry categories would this
rule have a significant economic impact
on small entities (as this is defined
under the criteria that this final rule will
not have a significant economic impact
on a substantial number of small entities
and therefore, does not require a
regulatory flexibility analysis.
IV. Paperwork Reduction Act
There are no information collection
requirements directly associated with
this rule. However, this rule indirectly
affects other information collection
requirements that have been approved
by the Office of Management and
Budget (OMB) under the provisions of
the Paperwork Reduction Act of 1980,44
U.S.C. 3501 et seq. These affected
requirements have been assigned the
following OMB control numbers 2050-
0028, 2000-0061, 2000-0404, 2050-0012,
20-5C-0008, 2050-0011, 2050-0013, 2050-
0009, 2000-0445, and 2050-0024. The
appropriate changes to these
-------
658
Federal Register / Vol. 50, No. 3 /Friday, January 4, 1985 / Rules and Regulations
requirements are now being submitted
to OMB for approval.
Lists of Subjects
40 CFR Part 26O
Administrative practice and
procedure, Hazardous materials. Waste
treatment and disposal.
4O Cm Part 261
Hazardous materials, Waste
treatment and disposal, Recycling.
40 CFR Part 264
Hazardous materials! Packaging and
containers. Reporting requirements,
Security measures, Surety bonds; Waste
treatment and disposal/
40 CFR Part 265
Hazardous materials, Packaging and
containers, Reporting requirements,
Security measures, Surety bonds, Waste
treatment and disposal, Water supply.
40 CFR Part 266
Hazardous materials.
Dated: December 20,1984.
Alvin L. Aim,
Acting Administrator.
APPENDIX A.—SUMMARY OF DAJWGE INCIDENTS RESuttfrse Fftdw RECYCLING OF HAZARDOUS WASTES
Type* of recycling operation. wastes present, damage* caused, or hazards posed
Source of 'intemation
1. R«*otve. Inc. (looatod In N. Dartmouth, Mass) stored spant sorvent Srfflation bottoms In uMned lagoons prior to reclamation.
Substantial oroondwater contamination has resulted.
2. The Gold Coax Oi FactHy (located in Miami) fs a aofverrt andpetat thinner redamatfon operatton. It also Obtained drums of other
mbceiweouj wastes containing phenols, metals and other organic compounds. Neatly 3,000 of those drums have accumulated
wttioot Hi* corrtonts being recycled, hi edaWon. sSl bottoms fromJbe solvant reclamation operation were oTspossd of improperly
Substantial contimlMtfen o( a drinking water aentccumu!ated invsntory
and evtn)uo»y csuod operation, leaving over 60,000 drums of one-half mfflfen gaXoM of bulk waste. Wastes are toxic igritabte, and
conosrr*. Ground and surface water contamination resulted, and them ado to danger of fire or explosion.
S. A Wesi* processing company (located in New Jersey) operated «n d recycling plant which purchased waste oil for reclamation.
Watte oJ, some of X PCD contaminated, was stored to unSnod setffing lagoons. Fitter day from the setting operation was also used
10 buSd a road e BridSJfOrt BerM and t» Servlcea aHe Oocatod In Bridgeport, Mew Jersey) stored waste oil in an unBrffid togeon prior to
ncyetng H. The waste oil is known to be contaminate) with benzene, vinyl chloride, methylene chloride, trichldttthy&ne and toluene.
OverHcw and leaching from the lagoon has been documented; groundwater heed et« human drinking water source from nearby
wets-IscenlsreinEted
8. CfttOTitti MeUis lodusates (localadin Marylaad) engaged In the reddmatlon«f precious metals primarily from various afcjciroptaSng
weatej.-so we« a* ottwr spent chemical reprocessing. Most materiela were tefcon pursuant to tolling egreanwnls. Waste materiels
wars aceurnciilsd »topp«y. retuUmo In soils of acid-and nwtaMiearing waste*. The tacittty later was abandoned; .teauing over 1,500
drum* of unrecUlraed xnutoe, maoycorroded or leaking. Over $350,000 in *edoraJ, ^ta arid municipal fljnds has tesn aapandsd to
daM on dearHip.
C. Tea) Onmicti* and Uintrils 'RedamBHon Company (located In Cleveland) acted ex * waste broker, roa&.-ing fiamnabla ocganlcs,
t&jKU, and Mtina.prior to racycSng or oieposal. A nweaVe fire resulted fronvunsate accumuMon of these metetiEJa. The facility
deeed sftor the Bra, leaving waste lovenkxy (over 1,600 drums) for clean-up. '
10, Tn* Ucrwest SoKwit Recovery Company, • solvent reclaimer located in Gary, Indiana,-stored spent solvents improperly In drums,
t*okv*od open-pits. These materials were often flammable, ki many casee incompatible (acids and cyanass, for exErnpia), and
VMra Udry ovenccumulaled. A fff of "tremendous size" {«84 F. Supp. at 140) broke out «t the reclamation site, and burned for a
ww*bof«» RcouW be exfiogubhod. The company continued to operate fofa.wmber^ years aftortt>e fire without «ny Change ki
ptac;f«,'SoJI«od groondwder contsroinalion haue occurred. A'preKnanaiy Injundian ordering ctean-up was eventually entered in the
jsWovnenVa Imminent hazard action.
11.ik)fMrnrUcxA-sry'Sorvic»'(locitodTn Connecticut) obtained • variety of chlorinated solvonts for reclamation. These solvents were
stantf Improperly In leaking drums. Wattes were also Disposed in «lagoon on the (Me. Aquifer corusmination lias resadtad end the
local drtnkino walw suppV .has been aUected.
1J, Andover SIM* (located In Andover, Mkxi.) are a group of five sKea which operated as waste brokers. They accepted metal-bearing
wiltsi, tofnnis, wade ob, pairHe, -ink*, end glue*. A recycling market we* found for some of this material but a great deal
OrWaceumulaled. Somn ofJhte motoriai was uftimaMy dumped or burned improperly. Many drums still remaki Ground snd surface
wafer have been contaminatad by metais and organic contaminants.
13. Frftt Industries (in Walnut Ridge, Arkansas) obtained' surfate and other wastes from generators and used them ss an Ingrodtent In
fenKzer production. The** materials, along with other process Ingredients, are stored In large, exposed Bttea. An enormous fire
occurred vrheo the piiea ot wattee IgnHed: runoff from water used to fight the fire contaminated soil and surface waters.
14. The fiMKh Carofna. Recycing and Disposal Company was a waste broker accepting volatile wganic wastes and waste oils. These
fnaMtk w«:» aceunulo!»d imorooenV prior to redareation or disposal Among the compounds .preeem ere eotventj, waste oils,
•ce'jiijriyia, methyl acetale, cyanuric add.-ethrlene cMorohydrin, acetone eyanohydrin. trichloroethyfene, mixed acids, sulfurfc acid,
nvwajrtc c*J« yoBow, and other -caustics *nd acids. Massive overaocumultrfon, fire hazard and actual fires, and groundwatsr
eonun*t*fen new drinking walar nls wsutted.
16. (* * *J accepts sleel mM flua dust. piciJ* Bqoors, sorvents, and add* for regeneration and material recovery. Some cf these
mtteriti* sfso*«ra used as Ingredients In fertSzen. The faa'Sty used surface impoundments and piles for storage. These storage
fceWkti wore unsacun and leaked heavy metals and chlorinated sofvents. The facility also bams waste oil, spant solvents, and
solvent otstSKaUon bottom* M fuel*, cresting air pollution problems. A local Air PoUutkm Control Agency has initiated action against
KM company to require monitoring of Incoming wastes and of boiler flue gas emissions.
t fll PCS «r,Uminitedw»s^ .oil was Btored prior to recycling or road application. No market developed and the facfflty operator was
unable to dispose of -the eontaminared oit Over 24,000 galena are accumulated, and the State probably will have to pay disposal
COftf.
17, TheitttUn-QflMnhouu and Waste Oil Co. (located in Jefferson, Ohio) accepted waste ol •and spent sotvsr^s for fliorage prior to
utttf Ante or lor road oiling. MKons of gallons accumulated without being/ recycled, resulting in a substantial hozird. The boilers In
which the watte ol wu,burnt were Incapable of destroying the contained contaminants (including PCB's) resulting in sir pollution.
AppionimsWy SI.7 m3Bon has already been expended; additional funds are to be allocated.
19, TN«J*ci«ty (located In ffinols) engaged In pefrdeum reclamation from waste oil, and £lso reclaimed metal hydrexide sfudges, spent
adds and'Ctuittcs, end reisceeaneoue sludg**. These materials overaceumuiated In pits, lagoons, and tanks. PCB's, phenol, ami
PAH** are found In the watte 08. Chromium, cadmium, end toad are also present, as are benzene, totuone, and tricfilofoettiylero.
Lstctting and drainage to surface wfflers has caused extensive damage. Over $300,000 has been spent on desi-up to data.
Superfund Interim Priority Site.
Superfund Interim Prt-sfty Site.
Sups-fund .Interim Priority Site.
Seymour RecycSrtB Corp. (N.O. feul.) (RCHA J7f»3
action); Sapeiturd Interim P-riorily Site.
Superfund Inienm PiioriJy Site (Known as Sumt Fly
Bog).
U.S. v. Cham-Dyne, Inc. (§7003 end Supsrfund
action); Superfund Interim Priority Sits; Hazardous
Waste Report, Deoemfaar 44,1981, p. is.
Supsrfund Interim Priority Site; U.S. v.
fientst and Off Ssn/cea (§7003 actions).
Suparfund Interior Priority Site: Hazardous Waste
Report, January 25, 1962, p. 4.
U.S. v. Chamicals and Mnsta/s RsdamaNon 17003
«cac>n); SuparfuiKl InSefim Priority-Site. ' '-
U.S. Midwest Solvent Raeoveiy Inc. (17003 action).
U.S. v. Solvent Raeovwy Setvfca of V&e England
(17003 action).
iuparfund Interior Priority Site.
Suparrund Interim Priority Site.
/£. f. South Carolina Recycling and Disposal Compa-
ny (Bluff Roads); (§ 7003 action); Superfund Interim
Priority Sits. . " •-•'-
Damages and Threats From Hazardous Malarial Sites,
EPA/4SO/9-60/004, p. 251; foNowtip phone conver-
sations with representatives of Ecology and Environ-
ment {EPA Superfund contractors); Superfund Inter-
im Priority Site.
Damages and Threats From Hazardous Material Sites,
(1.103.
US. laskln Gresnhousa .and Waste (XI Co. 15 7003
action); Hazardous Waste Report, January 25,1982,
pp. 5-6, Superfund Interim Priority Site.
U.S. v. AAF MeteriUi Co. ($-7003 Action) Supsifund
Interim Priority Sfte.
-------
660
Federal Segister / VoL 50. No. 3 / Friday, January 4, 1985 / Rules and Regulations
APPENDIX A.—SUMMARY OF DAMAGE INCIDENTS RESULTING FROM RECYCUWG OF HAZARDOUS WASTES—Continued
Typa* of recycling operation, wastos pmsant, damages caused, or hazeris posed
Source of Information
64. (•••)« N*w Jtruy tacSiy ncyclnq organo-tin compounds, presently stores apprairriatelj 500 drums in poor c :. oitton. A
_po!s*rW*e iKurd aho «dit* 4nd sl!a security is inadequate.
54, (* * ') « N*w JerMy facility, operated in ofl/sorvant reclamation facility. Tho sits was abandoned, leaving hazardous .'asiss for
* ') t New j«My drum racondkbnar, wont out of business leaving approximately 3000 drums en iha sita. Thar* is extensive
sol eooUreirnaon .and runoff Wojjnjtdjacant drainage ditch.
57. Qu*nt«, Inc. (tocatod in New Jenay) received tainted waste oils and spent solvents which R bfcreted Mo fuels. The firai IBES sold
to apartment buiWoos for bming. PCS*. matafa, bromoform, and halogeruttsci solvonis are peasant at toe arts and In the fuels. The
•ft* now ha* been abandoned.
SS, The Ferguson stM (located In Rock WH, South CaroSrta) stored spent solvents prisf to rademaSon. Tho sctertts we.-s stored to
conodad and leaking drum*. «nd laakage from the drums contamd wiltwut cleanup,
SS, York Oi Co, (Jocaled In Moira, New York) is an abandoned waste oil recycling facility. Lagoons used '*< the recovery of waste on
«fK&srg*d Into «d(«cool wattandc. Th« laooons and wetlands rameln contaminated vflh PCB-containing o».
69, EnvKc-Chtfli, a hazardous west* wcycSng faoBty In Indians, was invest^atad by Stats officials after an emptoyse dfad in a tank of
(yowtfcut w»ta. Ilw oifc^s fcxwd 21.000 berrais of tuzzrdaus toeta £t tte site. Tiig fei-Sy lisa bson ordered to closa down due
10 (*8ur» to rcmova skidgs and osaUkminatad sol from a pit. eaSure to proas ,ada^ra» concrste pads for 14,000 bs^sfs of
hazardous *«-:» bt,>g stored on A* ground at tha siia, snd faiilure to store hezstdous mctsfisfo in comptisnc? mth State Sra '
tntnhal rum and rsgiiitliona.
97. Amtriein RaccvtHy, acbomicat we^a repracsodng facility (Joomtad Jn the BsJSrr.cra area) hes suffered a mmibar of fires caused by
«>$telbn* d »ccwnult'.*J wntta*. Tha faciSty also was fined for violation of various state reguiatory requirements.
EPA, Region II officials.
EPA, Region II officiate.
EPA, Region II officials. .
EPA, Region I! officials. (This site was also the subject
of ABC's "20/20" broadcast on waste oil).
U.S. EPA, fJemsdiel Actions at Hazardous Waste
Sites, Sun&y end Cost Studies, EPA 430/9-81-05.
Report of the Housa Committee on Energy and Com-
merce (May 1982).
EPA, Rsfjion VII officials.
New Jorsay Hcmardouf Waste News, April 1982. Con-
varsations wH?i Ne»' Jersay atste officials.
Transcript of staid eritofcsment proceedings.
Documants fron Illinois Environmental Protection
Agancy.
Supsrfund Interim Prtority Site.
Supsriund Interim Priority Site.
EPA, Region V officials.
EPA, Rsglon III officials.
— Sorrcwte il 57C03 ac$oc« an basad on f"
boso provsa In cMna 4r>ci>> aSoostona. vm ans not sa^.
oJ (MM trte*. and HM Aae
,. j vwfffEd eempteinte. The courts hearing these must dscWs uftimatBly whether these allegations have
. _~ , w outcome of thesa actions. At !he same time, thsse statements reflect the results of the Government's investigation
t(%>ncy EeSavos «i* statements to *a accurate. In many esses, we are cilirHj ihess ailegatlons to demonstrate that there is a need for regulation in this area, not to
Tr» A«Y'fusk"fa'c» tourc* data report rj a confidentlil compBation of Inspecfcns of damags SHes by Federal and Stats Officials. It also contains reports of some § 3007 inspections
" r or not ihe *is» wcr» eausiog dsrt;«.
APPENDIX B.—DEFINITION OF A SOLID WASTE DAMAGE INCIDENTS—ADDITIONS LIST
Damaja Incident
Source
1. New CnUt Sttel (N«w Caitl* County, Doltwaro) racydra electric furrocs dust Run-off fro™ the site a) contaminated and there is potential for contaminaticn of
ground water.
t. Th« Arrcom Corp. (Rnthdrura, Idaho) recydod waste o2i corrtainfng aolvsnta, prior to abandoning tha alia in January 1982. 'Remaining on-eiia ara 17 partially
Hod Moraga tanlo, th« conttnts of which ramain larger/ undetermined. Chloroform has baen found in a son sample. Wastes processed at the site may hava
lodudid PCS*. EPA has ooSsdad soH umpfes 4o documantteakafje on sisa.
3. Th* Creta Brolhan PftJ RacycSng (Pembrok* Township, Bfcofe) recydad,palls and drums at the sits beiiwen 1061 and 1930. Tha .operation involved burning
* C« p34 md drum racidu* ming htzardoua wsste servants as fuel, and than sand-biajSrg tBd^Kiatiog. During thasa opstitioro. soil and ground water tjacssws
contanAvlod. InveatlstioM by tha State dbcoverad over 10,000 S-galbn pails (mostly avpty), 10 acrsa of ccntcmimied soil, at least 10 covered trenches d
unfcncwrl utsles, and a pJurn* of oontminatad ground watar loa-yft-.g the sKs.
4. Tb* USiSs El»«ricil Lr!2Cct SKa (LaSals. USnort) manulscUjTod captcitc.-s using PCBs from tha late 1S40s to lats 1973. The company reportedly used waste
ob from tfia proota to control dust in tha parlOng lot unH 1663. Moos than 1,000 ports par million PCBs remin in tire soil throughout the sita.
S. Tf>» Old Ingar « Rufi.-io.-y Srf* (Darrow, LoUslKia) radalmad oil from refinery wastes In 1976. A spill In 1978 contaminated a lares surface area. In 1S81,
laUbBfMl offldaJSy dadoed tt» *• "abandoned." It has rtn» 08 stcraga tanks, which have overflowed into nearby holding ponds and a swamp. Ground water
aod ton an contirraotlad by organic eh«mlcala. This la the top priority sKa In Louisiana.
A !»• P®3 R**surC!W SUt (Pabiuc. Massachusetts) formerly avned by Phililps Resouroas, lac., hoWe 34,000 gallons of waste. Tha inactive facility reclaimed
ttW.* o» from Msnachutett* coCccSon pokua. These producte wen than boat treated and sold as a bass for lubricating oil, road spray 08, and fuel. Aftor &
K* In An* 1662, EPA dbcovarad several los&ing tanks end contalnrcent dikes, fa wall a* saturated sot's. Surface waters, wetlands, and ground water are
OtWf tmMoAd by Ih* wast*. Trlchiorctteno and PCBs hava boon Identified in an adjacent swamp.
7. York OI Co. (MoVt. New York) hxmBflV«cycl«d waste oKs. Befara th» «i!e was abandoned, ft consul cl eight steal sutrnga tanks, two buildings, snd ihrea
ttgoon. Th* bwma of th* kgoona b»v» fsited In the pest, disctia/ging PCS-contaminated oil Into tne adjacent wat&nciis ihtS'.iiain into Lawronos Brook.
AmVtei Incicai* £0 p*«i par rrffisn (pom] df PCS in lagoon walore, over 500 pom in legoon sMge, up to 26 pacts per billion (ppb) in-graund v/star; and up io
"3SO ppm In co&la.
•. Tha Arcsnum Iron 1 Ma'-il SHa (Osrfie County. Ofito) has been in tha scrap rro!al/racyciir.a fcu.iT.aM tirtco tte-sarfy 1890s. It now recycles lead batteries.
l*rg* p»n ol batiary casings, lead, and toad codde» ara on ma property, as wad ss standhio pools of acid wastes. VteW o»st1lo« from this operation has kiltod
tom bit and wgetuion In P*intarCc*sk. downstream of the sita.
«. Th* Ma'-sl BirAs Sit* (Phtete'^^a, Panraylv&nie) proceaead tmratomBrs and oil corttsmineted with PCBs them fsf a ftumtor of yaara until closing the
op*f»*w h 1972. In 1977. EPA daiarmlnad that periodte 08 sCoka found In the Delaware Rhrar gdjzcsnt io tha sita wen conterninatoti v,«h PCBs. The site was
KititsquMdy UenWed a* th» aoum of Ih* stcka. A U.S. Coast Guard study revealed that up to 20,000 gallons of PCB-ccnternlnsted OH were In the ground
tttkr undtr In* til* and W«M leiuung Into in* Dolawara River.
10. m 1970, S* road through Qu«« Run MobSa Manor (Z mi!ss -east of Gray Summit, Missouri) was sprayed with £5 bsrrefs of diorin coniarrdnsted Wfista oil. In
1674. *oi WM txsxxttd to * depth of 2 loot from or» toad in tha part. This was deposited in thai area befcman ate road satd a Isgoon. On February 2,1883,
EPA IdwCSsd dkxdn tt th* site. Analyst of aoB samples detected 1.4 parts per billion (ppb), 14 ppb, and 23 ppb of dioxin. Additional sampling on March a,
1M3, nMO«a * rang* c/1**!* ffom 6 ppb Io 1.100 ppb.
11. Tha Sand Spring* Petrochemical CompteK (n»«r Sand Springs, Oklahoma) consteSs of threa adjacent areas on tha abandoned OM Sinclair Refinary, including a
waitt CD ncycSns <*dity. * aatttnt* recycling facility, and th* Skids* Rstlnety add pits—an original pert of the Old Sinclair Refiner. The two recycling
txnp*ni*i h*v* bssn In butirxtt* sicf* th* mid-1970*. Ovar th» yean, hazardous nAstancas were storsd or disposed of in drums, isnlra, and unBned pits, or
wtr* simply burtad on-«ft». That* rjbdanew indud* volatBa and nonvoiaHe organics, acids, caustics, chicfinatsd sotvsnts, and sludges containing heavy
mMad, Poor ooaaBcn* Iwn ccr--i.ri-j^d Iocs) gound water, end there is the potential for contaminants to laava ths sita in run-off.
12. Wut* Reuareh & Raclamatlon Co. (Eau Oake, Wlteonctn) has ncycted oH and scivsnts from imtestrisl sources sincd 197S. Tru techniques used to tiandla
met Mort drum* «Jbw*d w«W» to sp* on the sHo. flurMiff from -vmsta procaaeing has been coltocifld in unanod impoundnxsms. Organic servants from tha site
con*jmi%a'.« ground water.
National Priorities list Aug.
1883.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
Do.
National Priorities ! ist
Update, Juiy 1384.
Do.
Do,
-------
Federal Register / Vol. 50, No. 3 / Friday, January -4, 19S5;/ Rides and Regulations
^a%!mi"i^B^sg3aaBg3BBaaEaaaa^^ : jj^-^a-^fc^ffirfir^^
APPENDIX B.—DEFINITION OF A SOLID WASTE DAMAGE INCIDENTS— ADDITIONS LIST— Continued
Damage Incidant
13. The ML Industries site (Salem County, New Jersey) recovers lead from spent automotive batteres ana ssparates the plastic from the rubber casings As a
result ot improper storage of batteries on the site and other factors relating to their processing, grour,d water. Surface water, and soils are extensively
Source
; 1 Naw Jo'88*' '^covered v,d rec,«l«) v*rtou» rt». >:_•=.; ,/aatet. As a rssull of a State Order, the company
ceased operations in 1960. About 375,000 gallons of hazardous substances are stored on the .*;•„ «. :siks. drums, and tank trailers. Soils are extensively
contaminated, run-off from tha site is contaminated, and ground water contamination is likely. '.•.''
15. In 1983, the State of Indiana filed suit against Norman Peer, an individual who contracted with Inmont Corporation to purchase what he was told was paint and
solvent in an attempt to recycle them to produce tow grade paint. Whon Mr. Poer was unabla 10 Mil or owe' away the paint, he abandoned it on a 5-acre field
ns owned «i Jackson Township. Indiana. Ground water samples indicate mat me wall on site co.itacns hazardous levels of arsenic aiid'lead In addition further <
tests nave indicated that the paint waste nas elevated levels of lead and chromium and that the ijnttBtaNty ol the waste classifies it as hazardous The'barrels i
remain on site, leaking contents onto the ground. ' |
National Priorities List Aug.
1983.
National Priorities List
Update, July 1984.
For the reasons set out in the
preamble, T'flr 40 of the Code of Federal
Regulation* .„ tended as follows:
PART 26G~-HAZAi ?DOUS WASTE
MANAGEMENT 3Y,'TE-'; 3NERAL
1. The authority citf' or Part 260
reads as follows:
Authority: Sees. 1006 3001 through
3007, and 3010 of the Sc _ite Disposal
Act, as amended by the •,'source
Conservation and Recovery Act of 1976, as
amended [42 U.S.C. 6905, 6912fa), 6921
through 6927, and 6930],
2. Section 261.10 is amended by
adding new definitions for "Boiler" and
"Industrial Furnace" to appear
alphabetically and by revising the
definitions of "Designated facility" and
"Incinerator."
§ 260.10 Definitions
* * * * *
"Boiler" means an enclosed device
using controlled flame combustion and
having the following characteristics:
[1] (i) The unit must have physical
provisions for recovering and exporting
thermal energy in the form of steam,
heated fluids, or heated gases; and
(ii) The unit's combustion chamber
and primary energy recovery sections(s)
must be of integral design. To be of
integral design, the combustion chamber
and the primary energy recovery
section(s) (such as waterwalls and
superheaters) must be physically formed
into one manufactured or assembled
unit. A unit in which the combustion
chamber and the primary energy
recovery section(s) are joined only by
ducts or connections carrying flue gas is
not integrally designed; however,
secondary energy recovery equipment
(such as economizers or air preheaters)
need not be physically formed into the
same unit as the combustion chamber
and the primary energy recovery
section. The following units are not
precluded from being boilers solely
because they are not of integral design:
process heaters (units that transfer
energy directly to a process stream), and
fluidized bed combustion units; and
(iii) While in operation, the unit must
maintain a thermal energy recovery
efficiency of at least 60 percent,
calculated in terms of the recovered
energy compared with the thermal value
of the fuel; and
(iv) The unit must export and utilize at
least 75 percent of the recovered energy,
calculated on an annual basis. In this
calculation, no credit shall be given for
recovered heat used internally in the
same unit. {Examples of internal use are
the preheating of fuel or combustion air,
and the driving of induced or forced
draft fans or feedwater pumps); or
•{2) The unit is one which the Regional .
Administrator has determined,
case-by-case basis, to be a boiler, aite*
considering the standards in § 260.32.
"Designated facility" means a
hazardous waste treatment, storage, or
disposal facility which has received an
EPA permit (or a facility with interim
status] in accordance with the
requirements of Parts 270 and 124 of this
•Chapter, a permit from a State
authorized in accordance with Part 271
of this Chapter, or that is regulated
under § 261.6(c)(2) or Subpart F of Part
266 of this Chapter, and that has been
designated on the manifest by the
generator pursuant to | 262.20.
* * * * *•''••
"Incinerator" means any enclosed
device using controlled flame
combustion that neither meets the
criteria for classification as a boiler nor
is listed as an industrial furnace.
"Industrial furnace" means any of the
following enclosed devices that are
integral components of manufacturing
processes and that use controlled flame
devices to accomplish recovery of
materials or energy:
(1) Cement kilns
(2) Lime kilns
(3) Aggregate kilns
(4) Phosphate kilns
(5) Coke ovens
(6) Blast furnaces
(7) Smelting, melting and refining
furnaces (including
pyrometallurgica! devices such as
cupolas, reverberator furnaces,
sintering machine, roasters, and
• foundry furnaces)
.(8) Titanium dioxide chloride process
oxidation reactors
(9) Methane reforming furnaces
(10) Pulping liquor recovery furnaces
(11) Combustion devices used in the
recovery of sulfur values from spent
sulfuric acid
(12) Such other devices as the
Administrator may, after notice and
comment, add to this list on the
; basis of one or more of the
! following factors:
(i) The design and use of the device
primarily to accomplish recovery of
material products;
(ii) The use of the device to burn or
reduce raw materials to make a material
product;
(iii) The use of the device to burn or
reduce, secondary materials as .effective
substitutes for raw materials, in
processes using raw materials as
principal feedstocks;
(iv) The use of the device to burn or
reduce secondary materials as
ingredients in an industrial process to
make a material product;
(v) The use of the device in common
industrial practice to produce a material
product; and
(vi) Other factors, as appropriate.
ft * it , * A
3. In Subpart C of Part 260, add the
following § 260.30:
§ 260.30 Variances from classification as a
solid waste.
In accordance with the standards and
criteria in § 260.31 and the procedures in
§ 260.33, the Regional Administrator
may determine on a case-by-case basis
that the following recycled materials are
not solid wastes:
(a] Materials that are accumulated
speculatively without sufficient amounts
being recycled (as defined in
§ 261.1(c)(8)(B) of this Chapter);
(b) Materials that are reclaimed and
'then reused within the original primary
production process in which they were
generated;
-------
662
Federal Register / Vol. 50,. No. ,3 /..Friday, January 4, 1985 /Rules arid Regulations
(c) Materials that have been reclaimed
but must be reclaimed further before the
materials are completely recovered.
4. In Subpart C of Part 260, add the
following § 260.31:
§ 260.31 Standards and criteria for
variance* from classification as a solid
wait*.
(a) The Regional Administrator may
grant requests for a variance from
classifying as a solid Waste those
materials that are accumulated
speculatively without sufficient amounts
being recycled if the applicant
demonstrates that sufficient amounts of
tho material will be recycled or
transferred for recycling in the following
year. If a variance is granted, it is valid
only for,the following year, but can be
renewed, on an annual basis, by filing a
new application. The Regional
Administrator's decision will be based
on the following standards and criteria:
(1) Ther manner in which the material
Is expected to be recycled, when the
material is expected to be recycled, and
whether this expected disposition is
likely to occur (for example, because of
past practice, market factors, the nature
of the material, or contractual
arrangements for recycling);
(2) The reason that the applicant has
accumulated the material for one or
more years without recycling 75 percent
of the volume accumulated at the
beginning of the year;
(3) The quantity of material already
accumulated and the quantity expected
to ba generated and accumulated before
the material is recycled;
(4) The extent to which the material is
handled to minimize loss;
(5) Other relevant factors.
(b) The Regional Administrator may
grant requests for a variance from
classifying as a solid waste those
materials that are reclaimed and then
reused as feedstock within the original
primary production process in which the
materials were generated if the
reclamation operation is an essential
part of the production process. This
determination will be based on the
following criteria:
• (1) How economically viable the
production process would be if it were
to use virgin materials, rather than
reclaimed materials;
(2) The prevalence of the practice on
an industry-wide basis;
(3) The extent to which the material is
handled before reclamation to minimize
loss;
(4) The time periods between
generating the material and its .
reclamation, and between reclamation
and return to the original primary
production process;
(5) The location of the reclamation
operation in relation to the production
process;
(6) Whether the reclaimed material is
used for the purpose for which it was
originally produced when it is returned
to the original process, and whether it is
returned to the process in substantially
its original form;
(7) Whether the person who generates
the material also reclaims it;
(8) Other relevant factors.
(c) The Regional Administrator may
grant requests for a variance from
classifying as a solid waste those
materials that have been reclaimed but
must be reclaimed further before
recovery is completed if, after initial
reclamation, the resulting material is
commodity-like (even though it is not
yet a commercial product, and has to be
reclaimed further]. This determination
will be based on the following factors:
(1) The degree of processing the
material has undergone and the degree
of further processing that is required;
(2) The value of the material after it
has been reclaimed;
(3] The degree to which the reclaimed
material is like an analogous raw
material;
(4) The extent to which an end market-
for the reclaimed material is guaranteed;
(5) The extent to which the reclaimed
material is handled to minimize loss;
(6) Other relevant factors.
5. In Subpart C of Part 260, add the
following § 260.32:
§ 260.32 Variance to be classified as a
bolter.
In accordance with the standards and
criteria in § 260.10 (definition of
"boiler"), and the procedures in § 260.33,
the Regional Administrator may
determine on a case-by-case basis that
certain enclosed devices using
controlled flame combustion are boilers,
even though they do not otherwise meet
the definition of boiler contained in
§ 260.10, after considering the following
criteria:
(a) The extent to which the unit has
provisions for recovering and exporting
thermal energy in the form of steam,-
heated fluids, or heated gases; and
(b) The extent to which the
combustion chamber and energy
recovery equipment are of integral
design; and
(c) The efficiency of energy recovery,
calculated in terms of the recovered
energy compared with the thermal value
of the fuel; and
(d) The extent to which exported
energy is utilized; and
(e) The extent to which the device is
in common and customary use as a
"boiler" functioning primarily to
produce steam, heated fluids, or heated
gases; and
(0 Other i'acfors, as appropriate.
8. In Subpart G of Part 260, add the
following § 280.33:
§ 260.33 Procedures for variances from
Classification as a solid waste or to be
classified as a boiler.
The Regional Administrator will use
the following procedures in evaluating
applications for variances from
classification as a solid waste or
applications to classify particular
enclosed flame combustion devices as
boilers:
(a) The applicant mnist apply to the
Regional Administrator in the region
where the recycler ir located. The
application must address the relevant
criteria contained : .1 § 260.31 or § 260.32
of this Part.
(b) The Regional Administrator will
evaluate the application and issue a
draft notice tentatively granting or
denying the application. Notification of
this tentative decision will be provided
by newspaper advertisement and radio
broadcast in the locality where the
recycler is located. The Regional
Administrator will accept comment on
the tentative decision for 30 days, and
may also hold a public hearing upon
request or at his discretion. .The
Regional Administrator will issue a final
decision after receipt of comments and
after the hearing (if any}, and this
decision may not be appealed to the
Administrator.
7. In Subpart C of Part 260, add the
following § 260.40:
§ 260.40 Additional regulation of certain
hazardous waste recycling activities on a
case-by-case basis.
(a) The Regional Administrator may
decide on a case-by-case basis that ;;
persons accumulating or storing the
recyclable materials described in
§ 261.6(a)(2)(iv) of this Chapter should
be regulated under § 261.6 (b) and (c) pf
this Chapter. The basis for this decision
is that the materials are being
accumulated or stored in a manner that
does not protect human health and the
environment because the materials or. -
their toxic constituents have not been
adequately contained, or because the
materials being accumulated or stored
together are incompatible. In making
this decision, the Regional
Administrator will consider the
following factors:
(1) The types of materials
accumulated or stored and the amounts
accumulated or stored;
(2) The method, of accumulation or
storage;
-------
/ Friday, January 4. 1995 / Rules and Regulations
663
(3) The length of time the materials
have been accumulated or stored before
being reclaimed;
(4) Whether any contaminants are
being released into the environment, or
are likely to be so released; and
(5) Other relevant factors.
The procedures for this decision are
set forth in §260.41 of this Chapter.
8. In Subpart C of Part 260, add the
following § 260.41:
§260.41 Procedures for case-by-case
regulation of hazardous waste recycling
activities.
The Regional Administrator will use
the following procedures when
detarmining whether to regulate
hazardous waste recycling activities
described in § 261.6(a)(2)(iv) under the
provisions of § 261.6 (b) and (c), rather
than under the provisions of Subpart F
of Part 266 of this Chapter.
(a) If a generator is accumulating the
waste, the Regional Administrator will
issue a notice setting forth the factual
basis for the decision ana statm6 that
the person must comply with the
applicable requirements of Subparts A,
C. D, and E 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 receiving such a request,
the Regional Administrator will hold a
public hearing. The Regional
Administrator will provide notice of the
hearing to the public and allow public
participation at the hearing. The
Regional Administrator will issue a final
order after the hearing stating whether
or not compliance with Part 262 is
required. The order becomes effective 30
days after service of the decision unless
the Regional Administrator specifies a
later date or unless review by the
Administrator is requested. The order
may be appealed to the Administrator
by any person who participated in the
public hearing. The Administrator may
choose to grant or to deny the appeal.
Final Agency action occurs when a final
order is issued and Agency review
procedures are exhausted.
(b) If the person is accumulating the
recyclable material as a storage facility,
the notice will state that the person must
obtain a permit in accordance with all
applicable provisions of Parts 270 and '
124 of this Chapter. The owner or
operator of the facility must apply for a
permit within no less, than 60 days and
no more than six months of notice, as
specified in the notice. If the owner or
operator of the facility wishes to
challenge the Regional Administrator's
decision, he may do so in his permit
application, in a public hearing held on
the draft permit, or in comments filed on
the draft permit or on the notice of
intent to deny the permit, The fact sheet
accompanying the permit will specify
the reasons for the Agency's
determination. The question of whether
the Regional Administrator's decisipn
was proper will remain open for : :
consideration during the public " / •
comment period discussed under
§ 124.11 of this Chapter and in any
subsequent hearing. '-.-'•'••
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
9. The authority citation for Part 261
reads as follows:
Authority: Sees. 1006, 2002(a). 3001, and
3002 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and
Recovery Act of 1976, as .amended [42 U.S.C.
6905,6912(a), 6921, and 8922].
10. In § 261.1, paragraph (c) is added
and paragraph (b) is revised to read as -'
follows:
§261.1 Purpose and scope.
* * * * • *, • '••'•.••''•
(bj(l) The definition of solid waste
contained in this Part applies only to
wastes that also are hazardous for
purposes of the regulations -'
implementing Subtitle C of RCRA. For '
example, it does not apply to materials
(such as non-hazardous scrap, paper,
textiles, or rubber) that are not
otherwise hazardous wastes and that.
are recycled. , ,
(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 in 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 belieye 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 the case of Section 7003, the
statutory elements are established.
(c] For the purposes of Sections 261.2
and 261.6:
(1) A "spent material" is any material
that has been used and as a result of
contamination can no longer serve the
purpose for which it was produced
without processing;
(2) "Sludge" has the same meaning
used in § 260.10 of this 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. Examples are process residues
such as slags or distillation column
. bpttonns.; The term does not include a co-
, product that is produced for the general
public's us? and is ordinarily used in the
form it is produced by the process.
(4) A material is "reclaimed" if it is
processed to recover a usable product,
or if it is regenerated. Examples are
recovery of lead values from spent
batteries and regeneration of spent
solvents.
(5) A, material is "used or reused" if it
is either:
(i) Employed as an ingredient
(including use as an intermediate) in an
industrial process to make a product (for
example, distillation bottoms from one
process used as feedstock in another •
process), However, a material will not
satisfy this condition if distinct
components of the material are
recovered as separate end products (as
.when metals are recovered from metal-
containing secondary materials); or
(ii) Employed in a particular function
or application as an effective substitute
for a commercial product (for example,
spent pickle liquor used as phosphorous
preqipitant and sludge conditioner in
wastewater treatment).
(6) "§crap metal" is bits and pieces of
metal parts (e.g.,) bars, turnings, rods,
sheets, wjre) on metal pieces that may
be combined together with bolts or
soldering (e.g., radiators, scrap
autoniobiles, railroad box cars), which
when worn or superfluous can be
recycled.
(7) A material is "recycled" if it is
used, reused, or reclaimed.
(8) A material is "accumulated
speeulatiyely" if it is accumulated
before being recycled. A material is hot
accumulated speculatively, however, if
the person accumulating it can show
that the material is potentially
recyclable and has a feasible means of
being recycled; and that—during the
calendar year (commencing on January
l>~the amount of material that is
recycled, or transferred to a different
site for recycling, equals at least 75
percent by weight or volume Of the
amount of that material accumulated at
the beginning of the period. In
calculating the percentage of turnover,
the 75 percent requirement is to be
applied to ea,ch material of the same
type [e.g., slags from a single smelting
process) that is recycled in the same
way (/.«., from which the same material
is recovered or that is used in the same
lyay), Materials accumulating in units
that would be exempt from regulation
under § 26t.4(c) are hot be included in
making the calculation. (Materials that
are already defined as solid wastes also
are not tp be included in making the
-------
664
Federal Register / Vol. 50;' No; 3 / Friday. January 4, 1985 / Rules and Regulations
calculation.) Materials are no longer in
this category once they are removed
from accumulation for recycling,
however.
. 11. Section 201.2 is revised to read as
follows:
§ 261.2 Definition of solid waste.
(a)(l) A solid waste is any discarded
material that is not excluded by
§ 261.4(a) or that is not excluded by
variance granted under §§ 260.30 and
260.31.
(2) A discarded material is any
material which is:
(i) Abandoned, as explained in
paragraph (b) of this section; or
(ii) Recycled, as explained in
paragraph (c) of this section; or
(iH) Considered inherently waste-like,
as explained in paragraph (d) of this
section.
(b) Materials are solid waste if they
are abandonedby being:
(1) Disposed of; or
(2) Burned or incinerated; or
(3) Accumulated, stored, or treated
(but not recycled} before or in lieu of
being abandoned by being disposed of,
burned, or incinerated. ,
(c) Materials are solid wastes if they
are recycled—or accumulated, stored, or
treated before recycling—as specified in
paragraphs (c)(l) through (c)(4) of this
section.
(1) Used in a manner constituting
disposal, (i) Materials noted with, a "*"
in Column 1 of Table I are solid wastes
when they are:
(A) Applied to or placed on the land
in a manner that constitutes disposal; or
(B) Contained in products that are
applied to the land (in which case the
product itself remains a solid waste).
(ii) However, commercial chemical
products listed in § 261.33 are not solid
- wastes if they are applied to the land
and that is their ordinary manner of use.
(2) Burning for energy recovery, (i) •
Materials noted with a "*" in column 2
of Table 1 are solid wastes when they
are:
(A) Burned to recover energy;
(B) Used to produce a fuel;
(C) Contained in fuels (in which case
the fuel itself remains a solid waste).
(ii) However, commercial chemical
products listed in 5 261.33 are not solid
wastes if they are themselves fuels.
(3) Reclaimed. Materials noted with a
"*" in column 3 of Table 1 are solid
wastes when reclaimed.
(4) Accumulatedspeculatively.
Materials noted with a "*" in column 4
of Table 1 are solid wastes when '
accumulated speculatively.
TABLE 1
Spent Materials ; , , ,
Sludges (listed in 40 CFH Part 261.31 or .32)
Sludge^ exhibiting B characteristic of hazardous waste
By-products (listed In 40 CFH Part 261.31 or 261.32)
By-products exhibiting a characteristic of hazardous waste
Commercial chemical products listed In 40 CFR §£61 33
U»
constituting
disposal
(261.2(00))
W
("1
O
<•>
(*)
(")
{•>
*
Energy
recovery/
fuel
(26t.2(c)(2))
(2)
(*)
<*>
(*)
(*)
<•>
•
Reclaim*
(261.2(o)(3))
(3)
(*)
(*)
(*)
t'\
Speculative
accumula-
tion
(261,2(c)(4J)
14)
(*)
(*)
O
O
C)
<*)
Note.—The terms "spent materials", "sludges", "by-products," and "scrap metal" are defined in § 281.1.
(d) Inherently waste-like materials.
The following materials are solid wastes
when they are recycled in any manner:
(1) Hazardous Waste Nos. F020, F021
(unless used as an ingredient to make a
product at the site of generation], F022,
F023, F026, and F028.
(2) The Administrator will use the
following criteria to add wastes to that
list: ,
(i)(A) The materials are ordinarily
disposed of, burned, or incinerated; or
(B) The materials contain toxic
constituents listed in Appendix VIII of
Part 261 and these constituents are not
ordinarily found in raw materials or
products for which the materials
substitute (or are found in raw materials
or products in smaller concentrations)
and are not used or reused during the
recycling process; and
(ii) The material may pose a ,"
substantial hazard to human health and
the environment when recycled.
(e) Materials that are not solid waste
when recycled, (i) Materials are not
solid wastes when they can be shown to
be recycled by being:
(i) Used or reused as ingredients in an
industrial process to make a product,
provided the materials are not being
reclaimed; or
(ii) Used or reused as effective
substitutes for commercial products; or
(iii) Returned to the original process
from which they are generated, without
first being reclaimed. The material must
be returned as a substitute for raw
material feedstock, and the process
must use raw materials as principal
feedstocks.
(2) The following materials are solid
wastes, even if the recycling involves
use, reuse, or return to the original
process (described in paragraphs (e)fl)
(i)-(iii) of this section:
(i) Materials used in a manner
constituting disposal, or used to produce
products that are applied to the land; or
(ii) Materials burned for energy
recovery, used to produce a fuel, or
contained in fuels; or
(iii) Materials accumulated
speculatively; or
(iv) Materials listed in paragraph
(d)(l) of this section.
(f) Documentation of claims that
materials are not solid wastes or are
conditionally exemptjrom regulation.
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
conditionally exempt from regulation,
must demonstrate that there is a known
market or disposition for the material,
and that they meet the terms of the
exclusion 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. In addition, owners or
operators of facilities claiming that they
actually are recycling materials must
show that they have the necessary
equipment to do so.
12. Section 261.3 is amended by
revising paragraph (c)(2) to read as
follows:
§ 261.3 Definition of Hazardous Waata.
*****
(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 leachate (but not including
precipitation run-off), 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 unless the
reclaimed material is burned for energy
recovery or used in a manner
constituting disposal.)
* * * * *
13. Section 261.4 is revised by adding
paragraphs (a)(6) and (a)(7) to read as
follows:
-------
Register / Vol. 80, No. 3 / Friday, January 4. 196S / Rules and Regulations
SOS
Bseiu&tens.
(a)
* *
*
(6) Black liquor that is reclaimed in a
Kraft pulping liquor recovery furnace
and then reused in the Kraft paper
process, unless it is accumulated
specula lively as defined in § 281.1(c) of
this Chapter;,*
(7) Spent sulfuric acid used to produce
virgin sulfuric acid, unless it is
accumulated speculatively as defined in
-1 26jl.i(c) of this Chapter.
* : A * * A
14. Section 261.5 is amended by
revising paragraph (c) to read as
follows:
§ 2i1.S SpedrsJ nH|ulr*nMntft for
(c) Hazardous %vaste that isreeycled
and that is excluded from regulation
under || 261.B (a){2)(iii) and (v), (a){3),
or 268.36 is not included in the quantity
determinations of this section and is not
subject to any requirements of this
flection. Hazardous waste that is subject
to the requirements of §§251.8 {b) and
(c) and Subparts C and D of Part 288 is
included in the quantity determination
of this section and is subject to the
requirement* of this section.
* * ft A " *
15. Section 261.6 is revised to fead M
follows
.t ftequtofiMnt* far rscycteiJls
(a}(i) Hazardous wastes that are
recycled are subject to the requirements
for generators, transporters, and storage
facilities of paragraphs {b) and [c) of this
section, except for the materials listed in
paragraphs (aj(2} and (a}(3) of this
section. Hazardous wastes that are
recycled willbe known as "recyclable
materials."
(2) The following recyclable materials
are not subject td the requirements of
this section bwl are regulated under
Subparts C, through G of Part 266 of this
Chapter and all applicable provisions in
Part* 2*0 and 124 of this Chapter:
(i) Recyclable material* used in a
manner constituting disposal (Subpart
C);
lit) Hazardous wastes burned for
energy recovery in boilers and industrial
furnaces that ara not rsgtilatad under
Subpart O of Part 2M or 26S of this
Chapter {Subpart D):
(w) [Reserved for used oil];
(iv) Recyclable materials from which
precious metals ars reclaimed (Subpart
F);
(v) Speiit bad-acid batteries that are
being reclaimed (Subparf G),
(3} The following recyclable materials
are not subject to regulation under Parts
262 through 266 or Parts 270 or 124 of
this Chapter, and are not subject to the
notification requirements of Section 3010
of RCRA:
(i) Industrial ethyl alcohol that is
reclaimed;
(ii) Used batteries (or used battery
cells) returned to a battery manufacturer
for regeneration;
(Hi) Used oil that exhibits one or more
of the characteristics of hazardous
waste; or
(iv) Scrap metal. '
(b) Generators and transporters of
recyclable materials are subject to the
applicable requirements of Parts 262 and
263 of this Chapter and the notification
requirements under Section 3010 of
RCRA, except as provided in paragraph
{a) of this section.
(c)(l) Owners or operators of facilities
that store recyclable materials are
regulated under all applicable
provisions of Subparts A through L of
Parts 264 and 285 and Parts 270 and 124
of this Chapter and the notification
requirement under Section 3010 of
RCRA, except as provided in paragraph
(a] of this section.
(2} Owners or operators of facilities
that recycle recyclable materials
without Storing them before they are
recycled are subject to the following
requirements, except as provided in
paragraph (a) of this section:
(i) Notification requirements under
section 3010 of RCRA;
(ii) Sections 265.71 and 26S.72 (dealing
with the use of the manifest and
manifest discrepancies) of this Chapter.
18. Section 261.31 is amended by
revising the hazardous Waste listings
F007, F008, F009, FOlO, F011, and F012 to
read as follows:
f 361.31 Hassrdeut! waste from non-
speelfte sources.
Industry end
EPA
hazardous
v»3Kte No.
(Sahata
FOOT
FOB*
roto
Haamteus tfi.An
Spent eysnWs ptittng Bath solu-
tions frsffl cteSfoplSiing opw-
Sth residues from Bra
bottom e! pttfng baths from
slactropistlftj Cj»ra8sna where
eyeinkiss «ne «#Nl in »« !>roc-
and clsarrir.g bath
(mm siaclropi.lting op
tiv r«$&k&ft from vft
bsft.-i ttinn metcl heat trsaling
oparatSon* *han» eysnWes SrS
ussrel in >l»r pr«*«3,
cede
Industry and
EPA
hazardous
waste No.
F011
F012
Hazardous waste
-Spent cyanlda solutions from salt
bath pot cleaning from metal
heal treating operations.
Qu&ncn!n$ waste water treatment
sludges from metal heat beating
operations where cyankJas fire
used in the process:
Hazard
code
(B.T)
cn
17. Section 261.33 is amended by
revising the introductory text to read as
follows:
§ 2S1.33 Discarded commsreisl ehemieaS
products, eff-spsclficKtion spsclss,
conteinsr residues, and spili reaiiJuss
The following materials or items are
hasardous wastes when they are
discarded or intended to be discarded
as described in f 261.2(a}(2)(i), 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, when they are applied to
the land in lieu of their original intended
Use, or when they are contained in
products that are applied to the land in
lieu of their original intended use,
-PAftt 2S4~StANDARDS FOR
OWNERS AH0 OPERATORS OF
HAZARDOUS WASTE f REAt^EfflV
&T08AC»E, AMD DISPOSAL,
FACILSTiES
IB. 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.
8905, 6912(a), 6924, and 6925).
19, In § 264.1, paragraph (g)(2) is
revised to read as follows:
(8) * * '
(2) The oWner or operator of a facility
managing recyclablfe materials
described in | 261,6(a) (2) and (3) of this
Chapter (except to the extent that
requirements of this Part are referred to
in Subparts C, D, F, or G of Part 266 of
this Chapter).
is * A * *
20, Section 264.340(a) is revised to
read as follows:
§§34.340 Applicability.
(a) The regulations in this Subpart
apply to owners or operators of facilities
that incinerate hazardous waste, except
-------
666
Federal Register / Vol..50,, No. 3 / Friday,January 4, 1985 / Rules and Regulations
at § 26-1.1 provides otherwise. The
following facility owners or operators
are considered to incinerate h.r/anious
waste;
(1) Owners or operators of hazardous
waste Incinerators (as defined in
§ 200,10 of this Chapter); and
(2) Owners or operators who bum
hazardous waste in boilers or In
industrial furnaces in order to destroy
the wastes.
PART 265-INTERIM STATUS
STANDARDS FOR OWNERS AND
OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE AND
DISPOSAL FACILITIES
21. 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 1970. as amended (42 U.S.C.
0905,6621(0), 6924, and 6925).
22. In | 265.1, paragraph (c)(6) is
revised to read as follows:
f
{ 265.1 Purpose, Scope, and Applicability.
(6) The owner and operator of a
facility managing recyclable materials
described in § 261.6 (a) (2) and (3) of this
Chapter (except to the extent that
requirements of this Part are referred to
in Subparts C, D, F, or G of Part 266 of
this Chapter).
• • * * *
23. Section 2G5.340(a) is revised to
read as follows:
8265.3X0 Applicability.
(a) The regulations in this Subpart
apply to owners or operators of facilities
that Incinerate hazardous waste, except
as § 264.1 provides otherwise. The
following facility owners or operators
are considered to incinerate hazardous
waste:
(1) Owners or operators of hazardous
waste incinerators (as defined in
I260.10 of this Chapter); and
(2) Owners or operators who burs;
hazardous wastes in boilers or In
Industrial furnaces in order to destroy
the wastes.
* * • * *
24. Section 265.370 is revised to read
as follows:
§ 265.370 Other thermal treatment
The regulations in this Subpart apply
to owners or operators of facilities that
thermally treat hazardous waste in
devices other than enclosed devices
using controlled flame combustion,
except as § 265.1 provides otherwise.
Thermal treatment in unclosed devices
using controlled flame combustion is
subject to the requirements of Subpart 0
if the unit is an incinerator,
25, Part 268 is added to read as
follows:
PART 266-^STANDARDS FOR THi
MANAGEMENT OF SPECIFIC
HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE
MANAGEMENT FACILITIES
Subparts A-B-^Ressrved]
Subpart C— Recyclable Materials Used in a
Manner Constituting Disposal
Sec. *
268.20 Applicability.
266.21 Standards applicable to generators
and transporters of materials used in a
manner that constitute disposal.
208.22 Standards applicable to storers of
materials that are to be used in a manner
that constitutes disposal who are not the
ultimate users.
268.23 Standards applicable to users of
materials that are. used in a manner that
constitutes disposal.
Subpart D— Hazardous Want* Sumed for
Energy Recovery
266.30 Applicability.
266.31 Prohibitions. [Reserved]
266.32 Standards api.»ka5.dab!» Materials Utlii2*d
for Prfeiiaus Metal Race-vary
266.70 Applicability ahd requirements).
Subptrt G — Spent Lead-acid Batteries
Beteg Reclaimed
i'ko.30 Applicability and requirements.
Authority: Sec. 1006. 2002(a), and 3004 of
the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act
of W76. 39 amended (42 U.S.C. 690S. 6912(3),
and 0924).
Subparts A-0— [Reserved]
Subpart C— Recyclable Materials Used
In * Manner Constituting Disposal
§ 266.20 Applicability.
(a) The regulations of this Subpart
apply to recyclable materials that ate
applied to or placed on the land:
(1) without mixing with any other
substance(s); or
(2) after mixing with any other
substance(s), unless the recyclable
.i! unrlorgooa a chemical reaction
so us to become inseparable from the
other substance(A) by physical means; or
(3) aftur combination with any flirt*?
substances) if the reauhisg combined
material is not produced for ths g«ft«?*sl
public's use. These materials will t«
referred to tkfoughout this Subpart as
"materials used in a manner that
constitutes disposal."
(b) Products produced for the general
public's usa that are used in a manner
that constitutes disposal and that
contain recyclable materials are not
presently subject to regulation if the
recyclable materials have undergone a
chemical reaction in the course of
producing the product so as to become
inseparable by physical means.
Commercial fertilizers that are produced
for the general public's use that contain
recyclable materials also are not
presently subject to regulation.
§ 366.21 Standard* appiieab!* So
generators and lrsnijso»1«rs of materials
used In a manner that constitute ellsposfil.
Generators and transporters of
materials that are used, in a manner that
constitutes disposal «re subject to the
applicable requirements of Parts 262 and
263 of this chapter, and. the notification
requirement under Section 3010 of
RCRA.
S 265.22 Standard* apptasbJa to stows
of materials that are to fe* use* hi * manner
that constitutes disposal who are not the
ultimate usera,
Owners or operators of facilities that
stor@ recyclable materials that are to be
used in a manner that constitutes
disposal, but who are not the ultimate
users of the materials, are regulated
under all applicable provisions of
Subparts A through L of Parts 264 and
265 and Parts 270 and 124 of this chapter
and the notification requirement Under
Section 3010 of RGR A.
§ 266.23 Standards applteabla to users of
materials that are used In a manner that
constitutes disposal.
Owners or operators of facilities that
use recyclable materials In a manner
that constitutes disposal are regulated
under all applicable provisions of
Subparts A through N of Parts 264 arid
265 and Parts 270 and 124 of this chaptef
and the notification requirement under
Section 3010 of RCRA. (These
requirements do not apply to products
xvhich contain these recyclable
materials under the provisions of
§ 266.20(b) of this chapter.)
-------
Federal Register / Vol. 50, N>J. 3 / Friday, January; 4,: 198£ / Rules' and
667
Subpart D—Hazardous Waste Burned
for Energy Recovery
§266.30 Applicability.
(a) The regulations of this Subpart
apply to hazardous wastes that are
burned for energy recovery in any boiler
or industrial furnace that is not
regulated under Subpart O of Part 264 or
265 of this chapter, except as provided
by paragraph (b) of this section. Such
hazardous wastes burned for energy
recovery are termed "hazardous waste
fuel". However, hazardous waste fuels
produced from hazardous waste by
blending or other treatment by a person
who neither generated the waste nor
burns the fuel are not subject to
regulation at the present time.
(b) The following hazardous wastes
are not regulated under this subpart:
(1) Used oil burned for energy
recovery that is also a hazardous waste
solely because it exhibits a
characteristic of hazardous waste
identified in Subpart C of Part 261 of this
chapter. Such used oil is subject to
regulation under Subpart E of Part 266
rather than this subpart; and
(2) Hazardous wastes that are exempt
from regulation under the provisions of
§ 261.4 of this Chapter and hazardous
wastes that are subject to the special
requirements for small quantity
generators under the provisions of
§ 261.5 of this Chapter.
§ 266.31 Prohibitions. [Reserved]
§ 266.32 Standards applicable to
generators of hazardous wast® fuel.
(a) Generators of hazardous waste
fuel are subject to the requirements of
Part 262 of this chapter except that
§ 266.36 exempts certain spent materials
and by-products from these provisions;
(b) Generators who are marketers also
must comply with § 266.34;
(c) Generators who are burners also
must comply with § 266.35.
§ 266.33 Standards applicable to
transporters of hazardous waste fuel.
(a) Transporters ofnazardous waste
fuel from generator to marketer, or from
a generator to a burner are subject to
the requirements of Part 263 of this
Chapter, except that § 266.36 exempts
certain spent materials and by-products
from these provisions.
(b) Transporters of hazardous waste
fuel from marketers to burners are not
presently subject to regulation.
§ 266.34 , Standards-applicable to
marketers of hazardous waste fuel.
Persons who market hazardous waste
fuel are called "marketers". Marketers
include generators who market
hazardous waste fuel directly to a
burner, and persons who receive
hazardous waste from generators and
produce, process, or blend hazardous
waste fuel from these hazardous wastes.
Persons who distribute but do not
process or blend hazardous waste fuel
are also marketers, but are not presently
subject to regulation. Marketers (other
than distributors) are subject to the
following requirements: Prohibitions:
(a)-(b) [Reserved] . , . ...•
(c) Storage. (1) Marketers, who are
generators are subject to the
requirements of § 262.34 of this chapter,
or to Subparts A through L of Parts 264
and 265 and. Parts 270 and 124 of this
chapter, except as provided by i 266.38
of this Subpart for certain spent
materials and by-products;
(2) Marketers who receive hazardous'
wastes from generators, and produce,
process, or blend hazardous waste fuel
from these hazardous wastes, are
subject to regulation under all
applicable provisions of Subparts A
through L of Parts 264 and 265 and Parts
270 and 124 of this chapter, except as ,
provided by § 266.36 of this subpart for
certain spent materials and by-products.'
§266.35 Standards applicable to burners
of hazardous waste fuel. •
(a) [Reserved] .
(b) Notification. [Reserved]
(c) Burners that store hazardous waste •
fuel prior to burning are subject to the
requirements of § 262,34 of this chapter,
or to all applicable requirements in. •
Subparts A through L of Part 264 or Part
265 of this chapter with respect to such
storage, except as provided by § 266.36
of this subpart for certain spent
materials and by-products.
§266.36 Conditional exemption for spent
materials and by-products exhibiting •
characteristic of hazardous waste.
(a) Except as provided in paragraph
(b], hazardous waste fuels that are spent
materials and by-products and that are
hazardous only because they exhibit a
characteristic of hazardous waste are
not subject to the notification
requirements of Section 3010 of RCRA,
the generator, transporter, or storage
requirements of Parts 262 through 265,
270 and 124 of this chapter. .
(b) This exemption does not apply
when the spent material or by-product is
stored in a surface impoundment prior
to burning. . •
Subpart i—[Reserved]
Subpart F—Recyclable Materials
Utilized far Precious Metal Recovery
§ 266.70 Applicability and requirements.
(a] The regulations of this subpart
apply to recyclable materials that are
reclaimed to recover economically
significant amounts of gold, silver,
platinum, paladium, irridium, osmium,
rhodium, ruthenium, or any combination
of these,,
(b) Persons who generate, transport,
or store recyclable materials that are
regulated under this Subpart are subject
.to the following requirements:
(1) Notification requirements under
Section 3010 of RCRA;
(2) Subpart B of Part 262 (for
generators), §§ 263.20 and 263.21 (for
transporters), and §§ 265.71 and 265.72
(for persons who store) of this chapter;
. (c) Persons who store recycled
materials that are regulated under this
Subpart must keep the following records
to document that they are not
accumulating these materials
speculatively (as defined in § 261.1(c) of
this chapter);
(i) Records showing the volume of
these materials stored at the beginning
of the calendar year;
(U) The amount of these materials
generated or received during the
calendar year; and
(iii) the amount of materials remaining
at the end of the calendar year.
(d) Recyclable materials that are
regulated under this Subpart that are
accumulated speculatively (as defined
in § 261.1(c) of this chapter) are subject
to all applicable provisions of Parts 262
through 285,270 and 124 of this chapter.
Subpart fit—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 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 262 through 266
or Parts 270 or 124 of this Chapter, and
.also are not subject to the requirements
qf Section 3010 of RCRA.
(b) Owners or operators of facilities
that store spent batteries before
reclaiming them are subject to the
following requirements.
(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 i 264.71 or
S 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. P, E (but not §265.71 and
-------
668
Federal Register / Vol. 50, No. 3 / Friday, January 4, 1985 / Rules and Regulations
§ 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
270 and 124 of this chapter.
[FR Doc. 85-3 Filed 1-0-85; 8:45 am]
Bit UNO COM «SW-«MI
-------
-------
United State*
Envtonnwntai Protection
W*»*>flton DC 20460
P«»Hyf
-------