oEPA
              UniMdSt
              Environmental Protection
              Agency
           Oflice of
           Solid Waste and
           Emergency Response
DIRECTIVE NUMBER:  9444.05(81)
TITLE:  Pesticides Containing a 261.33(e) Compound

APPROVAL DATE:  9-16-si
EFFECTIVE DATE:  9-ie-ai
ORIGINATING OFFICE: office of Solid Waste
09 FINAL
D DRAFT
 LEVEL OF DRAFT
   DA  Signed by AA or OAA
   D B  Signed by Office Director
   D C  Review & Comment
REFERENCE (other documents):
  OSWER     OSWER      OSWER
VE   DIRECTIVE   DIRECTIVE    Dl

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PART 261  SUBPART D - LISTS
                                                DOC:  9444.05(81)
Key Words:    Pesticides, Dilution

Regulations:  40 CFR 26i.33(e), 262.51-
Subject:

Addressee:

Originator:


Source Doc:

Date:

Summary:
Pesticides Containing a 261.33(e) Compound

Reed Sato, Enforcement Division, Region IX

David Friedman, Manager, Waste Analysis Program, Hazardous
Industrial Waste Division

#9444.05(81)

9-16-81
     A material containing a 261.33(e) compound as its sole ingredient is a
hazardous waste when discarded even though the original product has been diluted
by the user.  Disposal of a diluted solution of a pesticide (P070) is considered
to be disposal of the product itself.  (It is important to note the "former
exemption" in 262.51).

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                                                                     9444.05 (81)
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C.  20460

                          OFFICE OF SOLID WASTE

                             >cP  !  6
                                                              OFFICE OF
u_  o ~J e j_                                      SOUIO WASTE AND EMERGENCY RESPONSE
Mr. Reed sato
Enforcement Division, Region DC
U.S. Environmental Protection Agency
215 Franont Street
San Francisco, California  94105

Dear Mr. Sato:

    I am writing in response to vour letter of Julv 23, 1981  (S-5-3;
K81-RCSAH379) requesting clarification of 40 CFR 261.33(e)..

    You are correct in your interpretation that a material containing a
compound listed in 261.33(e) as its sole active ingredient is a hazardous
waste when discarded even though the original product has been diluted by.,the
user.  Thus if a person purchases a concentrated solution of the pesticide
Aldicarb (P070) and then dilutes .it to an application strength solution; disposal
of the application strength solution is considered to be disposal of the product
itself.  A literal reading of the regulations would mean that even  if the
amount of chemical product prior to dilution was less than 1 kilogram, disposal
of more than 1 kilogram/month of the application strength solution would require
management as a hazardous waste.

    It is important to keep in mind, however, the applicability of  the "farmer
exemption" discussed in 262.51.  A commercial applicator working for a fanner
may mix, apply, rinse and dispose of pesticide rinsate or unused pesticide
solution.on the farmers property if done so in accordance with the  instructions
on the pesticide label.  This exemption would not apply if the pesticide were
being applied to more than one farmer's property and disposal only, occurred at
one farm,  or if the waste was shipped off the farmers's property for disposal.
    I trust that this explanation clarifies the issue for you.
any further questions, please feel free to give us a call.

                                       Sincerely yours,
If you have
                                       David Friedman
                                          Manager
                                    Waste Analysis Program
                            Hazardous & Industrial Waste Division  (WH-565)
cc: Fred Lindsey (WH-565)
    A. Corson (WH-565)
    D. Friedman (W3-565)
    M. Straus (WH-565)
    Amy Schaffer, Enforcement  (WH-562-M)
    Susan Brcmm (WH-564)
    Filomena Chau (W3-562)
    .RCRA Hotline

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                     UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                          RGON IX
                                      215 Fremont Street
                                   San Francisco. Ca. 94105  jyj_  3  |gg

                                                    In Reply:  E-5-3
                                                    Refer To:  IX.-81-RCRA-079

Mr. David Friedman, (WH-565)
Manager of Waste Analysis
Waste Characterization Branch
Environmental Protection Agency
401 M Street, SW
Washington, D.C.  20460

Re:  Request for Policy Statement regarding 261.33(e)  of
     Title 40 of the Code of Federal Regulations
                                h
Dear Mr. Friedman:

EPA  Region 9  is  currently  engaged  in  an enforcement  action which
involves an interpretation of 261.33(e) of Title 40, Code of Federal
Regulations.

It is our  contention  that  a  pesticide containing a listed 261.33(e)
chemical product  as its sole  active  ingredient which  is diluted to
application strength  is a-  hazardous waste   if discarded.  We contend
that such  applications-strength pesticide  is  a hazardous  waste  even
where the chemical product prior to dilution is less than 1 kilogram.
Therefore,  so  long as  an  applicator  generates  1 kilogram  of waste
pesticide  residues  per month he  is  required to notify  as a generator
pursuant to section 3010 of RCRA.

Within  our own technical  section  there has been  some  dispute_as to
whether the preceding  analysis  is correct.  In order co obtain guidance
on this matter  I  contacted your office on July 20, 'and explained our
position to'Mr.  Matthew Straus.   Mr.  Straus  stated that Region 9's
interpretation of 261.33(e) is correct.

Furthermore, Mr.  Straus indicated that  if the applicator tanks  were
rinsed, that rinsate could be considered hazardous waste  as well.'

I  am writing  to  obtain, a  written  statement  from your office which
confirms Mr. Straus1 conclusions.  Such a statement will  greatly assist
us in the successful conclusion of our enforcement action.  If you have
any  questions regarding this request please call me at FTS 556-8000.

Thank you  for your  assistance.

Sincerely  yours,
Reed Sato
Attorney-Advisor
Enforcement Division

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