oEPA
                United SB
                Environmental Protection
                Agency
            OHice of
            Solid Waste ana
            Emergency Respons*
DIRECTIVE NUMBER: 9441.19(84)
TITLE: Mineral Processing Residuals Generated by Com-
     bustion Units Burning Hazardous Waste Fuel
                 APPROVAL DATE: 8-15-84
                 EFFECTIVE DATE: 8-15-84
                 ORIGINATING OFFICE: Office of Solid Waste
                 (3 FINAL
                 D DRAFT
                   LEVEL OF DRAFT
                     DA — Signed by AA or OAA
                     D 8 — Signed by Office Director
                     D C — Review & Comment
                 REFERENCE (other documents):
  OS WER       OS WER       OS WER
VE    DIRECTIVE    DIRECTIVE    Dl

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PART 261  SUBPART A - GENERAL                                 DOC:  9441.19(84)


Key Words:    Mining Waste, Cement Kiln, Burning and Blending

Regulations:  40 CFR .261.4(b)(7), 261.6, 261.3(b)/(c)/(d), 261.3(a)(2)(10)(A)

Subject:    ~"  Mineral Processing Residuals Generated by Combustion Units Burning
              Hazardous Waste Fuel

Addressee:    Conrad Simon, Director, Air and Waste Management Division

Originator:   John H. Skinner, Director, Office of Solid Waste

Source Doc:   #9441.19(84)

Date:         8-15-84

Summary:

     A facility generates shale fines sludge as a result of the thermal expansion
of shale in two rotary kilns that are fired by listed hazardous waste fuels.
The shale fines sludge is regulated as follows:

     o  The sludge produced as a result of beneficiation or processing is exempt
        under Subtitle C, §261.4(b)(7) which excludes solid waste from the
        exploration, mining, milling, smelting, and refining of ores and
        minerals, which include residuals from mineral processes, including air
        emission control wastes.  The use of hazardous waste fuels as the total
        or partial energy source does not change the status of the waste as
        beneficiation or processing waste.  The exclusion, however, does not
        apply to solid wastes such as spent solvents, pesticide wastes, and
        discarded commercial chemical products that are not uniquely associated
        with the mining and allied processing industries.  If the facilty mixes
        its shale fines sludge with nonexcluded listed hazardous waste, the
        resulting waste is subject to the mixture rule in §261.3(b)(2).

     o  Similarly, cement kiln dust generated during a cement manufacturing process
        that employs hazardous waste fuels as an energy source is exempt from
        Subtitle C by §261.4(b)(8).  However, under HSWA §204, cement kilns
        burning hazardous waste in municipalities with populations greater than
        500,000 must meet Part 264 incinerator standards.

     o  The shale fines sludge derived from the treatment of hazardous wastes
        (i.e., solvents that are used as fuel) is not covered under the beneficial
        reuse exemption provided by §261.6.  The beneficial reuse exemption
        applies to the beneficial reuse process only, and not to any wastes that
        may be generated as a result of such processes.  The exemption applies
        solely to hazardous wastes prior to and during legitimate recycling.

     o  The shale fines sludge is not exempt under the wastewater exemption
        contained in §261.3(a)(2)(IV(A).  The provision does not apply to
        sludges that are mixed or otherwise commingled with wastewater, or to
        sludges that generate a wastewater through the setting of solids from
        the sludge.  It applies only if solvents are commingled with process
        wastewater as part of routine housekeeping procedures.

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY     944^l9 (84)
                          AIJG  15 1984
MEMORANDUM


SUBJECT:  Regulatory Interpretation on Mineral Processing
          Residuals Generated by Combustion Units Burning
          Hazardous Waste Fuel

   FROM:  John H. Skinner, Director
          Office of Solid Waste (WH-562)

     TO:  Conrad Simon, Director
          Air and Waste Management Division (2AWM)


     I am writing in response to your memorandum of May 25, 1984,
in which you requested a regulatory interpretation regarding mineral
processing residuals generated from the thermal expansion of shale
in rotary kilns that are fired with hazardous waste fuels.  The
issue is whether these mineral processing residuals, i.e., shale
fines sludge, which would otherwise be exempt from Subtitle C of
RCRA under the mining "extraction, beneficiation, and processing"
exclusion of 40 CFR S261,4(b)(7), are subject to regulation as a
hazardous waste due to the use of listed hazardous waste as a fuel
source for the process.  This letter responds to the questions
that you raised in your request, and also addresses the points
that Norlite Corporation has made in response to the Region's
complaint against them.

     In response to one of your questions, we are not aware of any
explicit precedent or policy that has been established regarding
the applicability of either the mining waste exemption or the
cement kiln dust exemption where waste solvents are employed as
fuels.  Therefore, we have consulted with the Office of General
Counsel and the Office of Waste Programs Enforcement in developing
the following responses.


Background

     Norlite Corporation, located in Cohpes, New York, mines shale
and thermally expands it to produce a lightweight aggregate that
is used in construction products.  The thermal expansion takes
place in two rotary kilns that are fired by listed hazardous waste
fuels (hazardous waste nos. F001-F005, according to Norlite) that
are purchased from waste generators and fuel blenders.  Before

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entering the stack, the kiln gases are scrubbed with an alkaline
aqueous slurry.  The shale fines captured by the scrubber are
collected in surface impoundments from which they are subsequently
dredged at a rate of 40,000 tons year.  The shale fines sludge
dredgings are accumulated in waste piles at Norlite's facility.


     Question It  Is Noriite's shale fines sludge exempt from
                  regulation under Subtitle C of RCRA by virtue
                  of the mining waste exclusion in $261,4(b)(7)?

     Answer;      Yes, the waste is currently exempt.

Discussion;

     Section 261.4(b)(7) provides an exemption from Subtitle C
control for "Solid wastes from the extraction, beneficiation, and
processing of ores and minerals...".  In the preamble to the rule
providing this exemption, the Agency said we would interpret the
exclusion to include solid waste from the exploration, mining,  -
milling, smelting, and refining of ores and minerals (see 45
Federal Register 76618-76619, November 19, 1980).  This interpre-
tation includes residuals from mineral processing, including air
emission control wastes.

     The process that Norlite uses involves heating shale to produce
a lightweight aggregate, thus enhancing its value.  This approach
is analogous to many other thermal processes used to dry, smelt,
or otherwise upgrade an ore or mineral.  Therefore, the Norlite
process would be considered beneficiation or processing, and the
wastes from, that process fall within EPA's current interpretation
of the $261.4(b){7) exclusion.  The use of hazardous waste  fuels
as the total or partial energy source does not, in our opinion,
change the status of the waste as beneficiation or processing
waste.  EPA made it clear in the November 19, 1980, preamble that
the exclusion does.not apply to solid wastes, such as spent solvents,
pesticide wastes, and discarded commercial chemical products, that
are not uniquely associated with the mining and allied processing
industries.  The solvents that we were addressing in the 1980
notice are those that might be generated as a result of equipment
maintenance or some other general plant operations, but not as a
result of extraction, beneficiation, or processing operations.

     We arrive at the same conclusion for cement kiln dust  waste
that may be generated during a cement manufacturing process that
employs hazardous waste fuels as an energy source.  Cement  kiln
dust waste is currently exempt from Subtitle C by S261,4(b)(8).
The use of hazardous waste fuels in this process would not  negate
the exclusion.

     We emphasize that this interpretation of the mining waste
exclusion does not necessarily exclude all solvents from regulation

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'under  Subtitle C.  As described above, wastes  that are not generated
 from extraction, beneficiation, or processing  operations, e.g.f
 spent  solvents generated during equipment maintenance, are not
 excluded  from Subtitle  C regulation.  Therefore,  if  Norlite mixes
 its shale fines sludge  with  nonexcluded  listed hazardous waste,
 the resulting waste  is  subject to the "mixture rule"  in S261.3(b)(2).

     The  Office of Solid Waste is currently reviewing its 1980
 interpretation of the mining waste exclusion to define more
 accurately the wastes that Congress intended to exclude from  Sub-
 title  C pending completion of the mining waste study. We will
 keep you  advised on  the progress of the  reevaluation  and the
 supporting studies.


     Question 2;  Is Norlite's shale  fines sludge exempt under
                  the beneficial reuse exemption  provided for
                  by $261.6?

     Answer;      No.   Wastes resulting  from a beneficial reuse
                  process are not covered by the  $261.6 exemption.
              »
 Discussion;

     Sections 261.3(c)  and  (d) state  that any  solid  waste generated
 from the  treatment  (which includes some  recycling),  storage,_or
 disposal  of hazardous waste, including any sludge or emission
 control dust, is a hazardous waste until the generator proves
 otherwise. In  the case of a waste that  is derived  from a listed
 hazardous waste, the solid waste is considered hazardous unless
 and until.it  is delisted  in  accordance with $$260.20 and 260.22.
                    .M
     In the case of^Norlite  Corporation, the shale  fines sludge  is
 considered to be derived  from the treatment of hazardous wastes,
 i.e.,  the solvents that are  used as fuel.  Burning  of hazardous
 wastes, albeit  for legitimate energy  recovery, is still considered
 treatment. If  the shale  fines sludge had not  been  considered a
 beneficiation or processing  waste under  $261.4(b)(7) , and therefore
 excluded  from regulation, it would be classified  as  listed  hazardous
 waste.

     The  beneficial  reuse exemption contained  in  §261.6 applies  to
 the beneficial  reuse process only, and not to  any wastes that may
 be generated  as a result  of  such processes.  This exemption thus
 applies solely  to hazardous  wastes prior to and during  legitimate
 recycling.

     It should  be noted that listed hazardous  wastes, such  as the
 solvents  that Norlite uses,  are subject  to certain  transportation
 and storage requirements  prior to reuse. These requirements are
 contained in  $261.6(b).  I assume that Norlite's  tanks  used for
 storage of these listed hazardous wastes prior to firing  in the
 kiln are  subject to  these provisions.      t

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     Question 3;  Is Norlite's shale fines sludge exempt under
                  the wastewater exemption of $261,3(a)(2)(iv)?

     Answer;      No, this exemption does not apply to the shale
                  fines sludge.

Discussion;

     The wastewater exemption contained in £261.3(a)(2)(iv)(A)
applies only if solvents are commingled with process wastewater as
part of routine housekeeping procedures (e.g., minor release of
solvents during degreasing operations that would collect in  the
wastewater sewer).  The provision has no applicability to sludges
that are mixed or otherwise commingled with wastewater, or to
sludges that, in effect, generate a wastewater through the settling
of solids from the sludge.


     You expressed concern that the mining waste and cement  kiln
dust exclusions could lead to burning hazardous waste fuels  with
high levels of toxic organic or metals constituents, resulting in
the generation of hazardous residues.  We are presently developing
standards to regulate burning of hazardous waste in boilers  and in
cement and aggregate kilns, and intend to require that these units
generally meet the same performance standards applicable to incin-
erators.  The residues from burning hazardous waste in these units
may contain high levels of toxic compounds, particularly metals.
Consequently, if we find through our research that aggregate kiln
residuals or cement kiln dusts pose a substantial hazard, we will
consider eliminating their respective exemptions under Part 261,
and subjecting the wastes to regulation under Subtitle C of PCPA.

     Your letter and Ncrlite's response to the Region's complaint
necessitated this lengthy response.  However, it has enabled us to
develop a position on a highly complex regulatory interpretation
issue.  I trust that our response can be used by the Region in
resolving the Norlite case, as well as providing advice to similar
waste fuel/mineral processors that you mentioned.  John Heffelfinger
of my staff has discussed our findings on this issue with Bob-
Harris, of your office.  You may contact him at FTS-3P2-7923.
For further information on the subject of burning arid blending
hazardous waste fuels and our regulatory development efforts,
please contact Bob Holloway at FTS-382-7936.


cc;  Solid v;aste Branch Chiefs
     Regions I-X
     w/attachment (Region II Itr. dated 5/25/84)

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