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DIRECTIVE NUMBER:
9493.00-1A
                   TITLE: EPA's Interpretation of the HSWA Prohibition on the
                     Use of Hazardous Waste asva Dust Suppressant
                   APPROVAL DATE:   5/85

                   EFFECTIVE DATE:   5/85

                   ORIGINATING OFFICE:  csw

                   Q FINAL
                   D DRAFT

                     STATUS:
               [  ]  A- Pending OMB approval
               [  ]  B- Pending AA-OSWER approval
               [  ]  C- For review &/or comment
               [  ]  D- In development or circulating

REFERENCE (other documents):        headquarters
T     DIRECTIVE    DIRECTIVE    D

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                    UNITED STATES ENVIRONMENTAL PROTECTION AGEN£$( POLICY 0:;N
                                                     949 3 •00- 1A
      Mr. Pill Poss
      Commissioner
      Alaska Pepartment of
        Environmental Conservation
      Pouch "0"
      Juneau , Alaska  99811

      Pear Mr. Poss:
           Thank you for your correspondence of May 7, 1985.  As  I
      understand the matter , you are concerned that the dust suppression
      regulations Alaska has promulgated may conflict with the Hazardous
      and Solid Waste Amendments (HSWA) of 1984.  I do not think  there
      is a conflict.  The HSWA prohibits the use of hazardous waste as
      a dust suppressant.  EPA's regulations in 40 CFP Part 261 define -
      what materials are solid and hazardous wastes.  Alaska is free to
      impose its own regulations on dust suppressants that are not
      hazardous wastes.  With respect to used oil, probably the most
      common dust suppressant, the HSWA prohibition only applies  to
      those used oils that are themselves hazardous waste or mixed with
      other hazardous waste identified or listed under the current
      Part 261 definition.

           In response to the four specific Questions you asked:
           (1)
      for used
      described above , the
      a dust suppressant.
      as a hazardous waste
      toxicity, defined by
      the extract from a solid
      procedure, contains lead
 Federal Jaw does not presently set a maximum lead  level
oils, waste oils, or any other dust suppressant.  As
            HSWA prohibits the use of hazardous waste as
            One way that a solid waste may be identified
            is if it exhibits the characteristic of FP
            5261.24 (and Appendix II of Part 261).  When
                waste, obtained through the EP toxicity
                at a concentration greater than 5 ppm,
      it then is a hazardous waste and therefore is subject  to  the HSWA
      prohibition.  Used oil, because of its often viscous nature, does
      not always exhibit FP toxicity even if relatively high concentra-
      tions of lead are present.

           (2)  If a guestion arises as to whether a person  is  violating
      the HSWA prohibition ,"analyzing the extract from a sample of the
      road oil using the FP toxicity procedure would be necessary to
      determine compliance with federal law.  However, neither  EPA
      regulations nor the HSWA reguire a State to set up an  analysis
      program for road oilers.
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                                                   9493  • 00- 1A
     (3)  EPA need not issue any formal rules to enact the HSWA
prohibition; it became effective when the President signed the
HSWA (November""?, 1984).  EPA will, in the very near future,
issue rules codifying and explaining certain HSWA requirements,
including the dust suppressant ban.    •               "'

     (4)  With respect to "guidance and expertise," EPA  is plan-
ning to regulate used oil management under special standards to
be proposed later this year.

     Later this year, FPA will also propose to list all  used oils
as hazardous waste.  A final listing determination will  not be
promulgated until the fall of 1986.  If you need more information
on the status of the proposals, contact David Sussman (202-382-7927)
of my office.  EPA Peg ion X can , of course assist you if necessary
in interpreting current EPA regulations.

                                  Sincerely ,
                                  John H. Skinner
                                  Director
                                  Office of Solid Waste (WH-562)
cc:  Lisa Friedman , Associate General Counsel , EPA
     Kenneth Feigner , EPA Region X

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            UNITED STATES ENVIRONMENTAL PROTECTION      "0

                        W«H,NSTON.O.C.»«0
                            MAR 2 0 1935
MEMORANDUM                      -     /;•>». v  '-  ' -  -


SUBJECT:  Interpretation of Section 3004(1),  the
          Dust Suppression Prohibition

FROM:     John H. Skinner, Director
          Office of Solid Waste (WH-562)
                                        (                  /2.
TO:       Kenneth D. Feigner, Chief                       7
          Waste Management Branch (M/S 530)
          Region X


     The following is OSW's position on the dust suppression ban
mandated by Section 3004(1) of PCPA, as amended.

     (1)  Used oil (or any other material)  that has been mixed
with a listed hazardous waste, including wastes generated by
small quantity generators , must not be used as a dust suppressant.
However, the mere presence of hazardous constituents (for example,
trichloroethylene or toluene) is not sufficient proof that the
material has been mixed with hazardous waste.  EPA bears the
burden of proof to show that mixing has occurred.1

     (2")  Used oil that exhibits a characteristic (other than
ignitability) must not be used as a dust suppressant.2  YOU should
know that although OGC feels this is a strong position, it is not
a direct reading of Section 3004 (-1) (which speaks of "mixtures").
In the soon-to-be-proposed Federal Reg is te r notice codifying parts
of the Hazardous and Solid Waste Amendments of 1984, EPA will
propose the interpretation that the prohibition applies to all
hazardous waste (except those hazardous only due to ignitability) ,
not just mixtures.
  As a point of information , we have proposed  [50 FP 1691-1692,
  January 11 , 1985] that for used oil used aj3 fuel , a total
  chlorine content exceeding 4000 ppm is presumptive evidence of
  mixing with hazardous waste.

  This does not necessarily conflict with Alaska's 300 ppm lead
  limit.  Due to the properties of used oil , a given quantity of
  used oil may be high in lead, and yet not exhibit EP toxicity.

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                                2                9493-00-1A


     (3)  The prohibition does not apply to mixtures of charac-
teristic hazardous waste and non-hazardous materials where the
resultant mixture no longer exhibits a characteristic.   This
interpretation-is based on the following logic:

     0    Section 3004 applies only to-hazardous waste; and

     0    Paragraphs (c) and (d)  of 40 CFR §261.3 provide, that
          a mixture of characteristic waste and  other material
          is hazardous waste only if the resultant mixture
          exhibits a characteristic.

     Finally, you should be aware that OSW is  working on a proposal
to list used oil as a hazardous waste.  That rulemaking , following
the logic that the prohibition is meant to apply to all hazardous
wastes, would also propose to prohibit the use of used  oil as a
dust suppressant.  When the EPA rule is promulgated, any rule by
Alaska allowing up to 300 ppm lead in used oil used as  road oil
would be superseded by the Federal prohibition.   However, Alaska
could still regulate other "waste oils" besides  used oil using a
lead limit.
cc:  Mark Greenwood, OGC
     Regional Hazardous Waste Division
       Directors , Regions I-X

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        U.S.  ENVIRONMENTAL  PROTECTION  AGENCY

                              REGION  X                	"'L-

                          ,.200  S.XTH AVENUE           ft A O 3  . 0 0 -  1 A
       5              SEATTLE, WASHINGTON 98101      jf ** »/ "   v
       r

                                     ...AR   1 1985


    = M/S 530

MEMORANDUM
SUBJECT:   Interpretation ofJ/aste Oil Regulations
FROM:     Kenneth D.'
          Waste Management Branch  (M/S 533)

TO:       John H. Skinner, Director
          Office of Solid Waste  (WH-562)
     Currently, the Alaska Department of Environmental Conservation is
proposing to amend their regulations to prohibit the use of oil for
surface oiling or as a dust suppressant if that oil contains lead in
concentrations of 300ppm by weight or greater.

     The state has requested EPA comments, particularly regarding whether
their proposal is consistent with existing or emerging Federal
requirements, including the new statuatory provision reguarding dust
suppressants. A copy of their letter and proposal is attached.

Section 3004 (1), the ban on dust suppression states:
          "The use of waste or used oil or other material which is
   ._  contaminated or mixed with any other hazardous waste identified or
     listed under Section 3001 (other than waste identified solely on
     ignitability), for dust suppression or road treatment is prohibited".

     We are interpreting this to mean that the 40 CFR 261.3 mixture rule
does not apply in this case. That is, a waste oil which has been mixed
with a character i s ti c wa s te i s proh ibvted__f^r_ u^e_ji^ j_jujt suppressarit
regardless of whether or not the resultant mixture exhibits a'
c7te£acterf-stic.  Also, the us~e of a waste oil as a dust suppressant is
proirTbitecMf it exhibits a characteristic but has not been mixed with
other hazardous waste.  And furthermore, it is prohibited if it contains
listed hazardous waste constituents (e.g., chlorinated solvents), unless"
the owner/operator "carT demanstrTtJe" that the source of the constituents did
not come from hazardous waste.

     We are requesting OSW's position on the application of this provision
and ask for your response as soon as possible given that the comment
period on the state's proposal closes March 1.
Attachment

    'Michae
    Keith Kelton, ADEC
cc.-^Michael Petruska (WH565A)

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DEPT. OF ENVIRONMENTAL CONSERVATION        Telephones?)
                            USC                     Address:
    OFFICE OF THE COMMISSIONER                /
    POUCH 0,  JUNEAU,  ALASKA  99811               (907) 465-2600
                           » ~i_;
                            r>,
                                                OftVcS HOUCV DIRECTIVE ft&
          __            	May  7,  1985      Uit'L

                                              9493-00-****


Mr. John H. Skinner, Director
Office of Solid Waste   —--
WH-562, Room M2804    --.--. i:'
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C.  20460

Dear Mr. Skinner:

As you know, the new road oiling  regulations  of the Alaska
Department of Environmental  Conservation  (ADEC)  became
effective on May 2, 1985.  These  regulations  allow waste  oil
to be used as a dust suppressant  if it contains lead  concen-
trations less than 300  ppm.  The  State does not require the.
E7 hoxicity method of testing in  the required waste oil
c -alysis.

In your March 20 memorandum  to  EPA, Region X, you stated
several propositions which left us  uncertain  about how to
proceed with the implementation of  our regulations.  You
referenced the 1984 amendments  to the  Resource  Conservation
and Recovery Act as the basis for your positions.   However,
you^weht on to say that this did  not mean ADEC's new  regula-
tions 'were inconsistent with the  amendments.  Hence,  I am
having trouble interpreting  your  memorandum.

Since we received your  memo  on  April 24, EPA  has given ADEC
differing and conflicting -verbal  positions on the applica-
bility of the 1984 amendments to  Alaska's road  ciling permit
program and the methods of analysis for determining lead
content in waste oil.  -JC would  like clarification on  several
issues; —


      Does federal law  prohibit the use of  waste oil
      on roads as a  dust suppressant  if it contains
      lead levels equal to or greater  than 5  ppm?

      If so, is it mandatory that  the  State  use the
      EP toxicity testing  method to determine  if a
      liquid road oil  meets the  federal  5  ppm  lead
      standard?
                                                         •U.S.I

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                                                              ruuU UlKtCilVt i»U.


                                                        9493•00- 1A
             Also,  if  the  1984  Amendments  do  indeed prohibit
             the  use of waste oil with  lead  concentrations
             of  greater than  5 ppm,  does EPA need  to
             promulgate  formal  rulemaking in order  to
             implement this prohibition?

             If waste  oil  cannot be used on  the roads as  a
             dust —suppressant and the  majority of  states
             allow  road  oiling,  what guidance and expertise
             will EPA  offer the States  to  manage  this new
             potential hazardous waste management  problera?-

       I would appreciate  receiving  your response  to these questions
       as soon as possible.   I  want  to resolve these differences
       quickly so that we  can determine  if the State or road oilers
       are potentially liable under  federal law for damages result-
       ing from road oiling operations in  the State conducted after
       this date.   Please  contact me if  you would  like to  discuss
       this matter  further.
                                       Sincerely,
                                       Bill  Ross
                                       Commissioner
       B-R:PO:mt
       cc:  Lisa Friedman, Associate  General Counsel,  EPA,
            Kenneth  Feigner,  EPA,  Region X
            Ronald Kreizenbeck,  EPA,  Alaska Operations Office
Form 1320-T (12-70)                                              	
                               "~      ^     -^ —.--_.  OFF,CJAL FIU-COPY
                                                              «u.s. <

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                                                   OSNUER POLICY u;.»^


                                                  0493-00-1A
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460

                             JUL  12 1385
                                                        OFFICE OF
                                               SOLID WASTE AND EMERGENCY RESPONSE
                                                    /  ~*
MEMORANDUM
SUBJECT:  Prohibition on Use of Hazardous Waste  for  Dust
          Suppression or Road Treatment  (Your memo dated  6-25-85)

        J                           /
FROM:   /L John H. Skinner,  Director/^
        Y Office of Solid Waste (WH

TO:     *  Charles E. Findley, Director
          Hazardous Waste Division  (M/S  529)
          Region X


     Based on the legislative history to Section  3004(1),  and
on the structure of the statute and EPA's current regulatory
policy, we believe that the ban in Section 3004(1) applies only
to materials that are themselves hazardous wastes.   The provision
will be codified in Part 266, a subpart reserved  for hazardous
waste uses constituting disposal.

     The language of Section 3004(1) does not specify whether
the mixture of used oil and hazardous waste must, itself,  be a
hazardous waste in order for the ban to apply.   However,  the
conference report to the Hazardous and Solid Waste Amendments
of 1984 explains that Congress intended for the  ban  to apply to
the use of "dioxin contaminated wastes or any other  hazardous
waste as a dust suppressant" (H.R. Rep. No. 1133, 98th Cong.,
2d Sess. 88" (1984)).  [Emphasis added.]

     In addition, Congress placed the prohibition on dust
suppression in Section 3004 of RCRA, where regulatory juris-
diction is generally limited to hazardous wastes  identified or
listed under Section 3001.  Congress, if so inclined, could
have expressly extended the prohibition to used oils or other
materials that are not hazardous wastes.  For example, the
prohibition could have been placed in Section 3014(a) of  RCRA,
which applies to all used oils that are recycled, whether or
not the used oils are hazardous waste.

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                                                  OSWER POLICY DIRECTIVE MO.

                                                9493 .00- 1A
     In Section 3001 of RCRA, Congress gave EPA the authority to
define in regulations the hazardous wastes subject to regulation
under Subtitle^ C.  Section 261.3(a)(2)(iii) provides that if a
mixture of a solid waste and a characteristic waste no longer
exhibits any of the characteristics,  it is not a hazardous waste
and is no longer subject to Section 3004.   This is not an exemp-
tion but rather is part of EPA's definition of hazardous waste.
Absent a clear indication in the statutory language or legislative
history that Congress intended to override EPA's current regulatory
policy relating to the definition of  hazardous wastes, we believe
that the policy should apply in this  case.

     Based on the above rationale, our position remains as stated
in the June 6 memorandum.
cc:  Waste Management Division Directors, Regions I - IX
     Mark Greenwood, OGC

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I
                                          OSWER POLICY DIRECTIVE NO.


UNITED STATES ENVIRONMENTAL PROTECTION AGEN&4 9 3  .00-
            WASHINGTON, D.C. 20460
                                 JUN 6   1985
                                                            OFFICE OF
                                                   SOLID WASTE AND EMERGENCY RESPONSE
     MEMORANDUM
     SUBJECT:   Prohibition on Use of Hazardous Waste for
               Dust Suppression or Road Treatment

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

     TO:        Waste Management Division Directors
               Regions  I - X


         The  Hazardous and Solid Waste Amendments of 1984 (HSWA) ban .
     the  use of hazardous waste and materials mixed with hazardous
     waste  as  a dust suppressant.  This memorandum explains how EPA
     interprets the new provision.


     THE  HSWA

         Section 213(1) of the HSWA amended Section 3004 of RCRA by
     adding a  new paragraph (1) to read as follows:

         "(1J  Ban on dust suppression.   The use of waste or used oil
     or other  material  which is contaminated or mixed with dioxin or
     any  other hazardous waste identified or listed under Section 3001
     (other than a waste identified solely on the basis of ignitability)
     for  dust  suppression or road treatment is prohibited."

         EPA recently amended (in the Codification Rule, signed by the
     Administrator April 20, to be published in the next two "weeks)
     §266.23,  the-standards for persons using hazardous waste in a
     manner constituting disposal, to include verbatim the prohibition.
     In addition ,.5261.33 (setting out  requirements for discarded com-
     mercial chemical products) has been amended to provide that the
     materials and items listed in §261.33 are hazardous wastes when
     they are  mixed with waste oil or used oil or other material and
     applied to the land for dust suppression or road treatment.  In
     effect, this conforming change provides that the requirements of
     Section 3004(1)  will apply to any  §261.33 product that is mixed
     with .waste oil or  used oil or other material and used for dust
     suppression or road treatment.

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                                                  OSWEh FOUJy u/i-;-„..,.

                                                9493 •  00-1A
STATUTORY INTERPRETATIONS
     Several questions may arise as you implement this prohibition.
EPA interprets Section 3004(1) to impose the following requirements

     0   Any material used as a dust suppressant is af- least
         potentially subject to the prohibition.  Although
         "used" or "waste" oil is the most common material
         used for dust suppression, the Act's language
         includes the term "...or other material..."

     0   The prohibition applies when a material is mixed with
         any listed hazardous waste including a waste listed
         for ignitability.1  This means a mixture containing
         hazardous waste from small quantity generators ,
         otherwise exempt under S261.5, is subject to the
         prohibition nonetheless.2

     0   The Agency interprets the prohibition to apply to .
         hazardous waste (whether or not it is part of a mix-
         ture).  Under this interpretation used oil exhibiting
         EP toxicity, for example, must not be used as a dust
         suppressant.^

     0   For the prohibition to apply, the material being used
         for dust suppression must actually be a hazardous waste.
         For example , a characteristic waste that is blended
         with petroleum so that the resultant mixture no longer
         exhibits any of the characteristics would not be subject
         to the prohibition.
!_/ The statutory language makes it clear that the provision
   exempts from the prohibition any material that is mixed with
   a waste hazardous solely because it'exhibits the ignitability
   characteristic.  Materials mixed with any listed wastes are
   subject to the ban.

£/ The mere presence of constituents identified in Appendix VIII
   of Part 261 is not alone sufficient proof that any mixing has
   occurred.  EPA continues to bear the burden of proof in any
   individual case to show that mixing has occurred.  As a point
   of information , EPA proposed on January 11 , 1985 , that used
   oil used as fuel with a chlorine content exceeding 4000 ppm
   total chlorine would be presumed to be mixed with hazardous
   waste. [See 50 FR 1691-1692.]

_3/ In contrast, used oil that contains hazardous constituents but
   has not been mixed with hazardous waste and does not exhibit a
   characteristic may be used as a dust suppressant.  This is
   because used oil is not presently listed as a hazardous waste.

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                                                  OSWER POLICY DIRECTIVE HI

                                                9493 • 00- 1A
     0   Because the ban applies to hazardous waste and
         materials mixed with hazardous waste , a mixture
         coataining dioxin is subject to the prohibition
         only_when the dioxin comes from a hazardous waste
         or when the material is otherwise a hazardous
         waste. . [As stated in footnote 2, the presence of
         a hazardous constituent .is not alone sufficient
         proof that mixing has occurred.]


USED OIL LISTING

     The HSWA requires EPA to propose a listing determination for
used car and truck crankcase oil by November 8, 1985, and to make
a final listing determination on all used oils by November 8, 1986.
[Section 3014(b) of the amended RCRA.]  Under the interpretations
discussed above, any used oils eventually listed as hazardous waste
would be prohibited from use as a dust suppressant.


cc:  Mark Greenwood , OGC

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                                                                     PQUCY DIRKnVE NO.

                                                              9493.00-iA
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                     REGION 10
*'
                    Hazardous Waste Division  (M/S 52^)   ~* ^

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

              One of the interpretations in your June 6. 1885, subject memorandum
  • ^- is  of  concern.  Specifically, the concern is that the interpretation may
 "*•      encourage the mixing of characteristic hazardous waste to be "disposed"
        through  use  as a dust suppressant.  We fail to understand the basis for
        the interpretation listed as the fourth bullet on page 2 of the subject
        memorandum.   The statutory language clearly states that any waste,  used" -
        oil, or  other material which is contaminated or mixed with any hazardous
        waste  identified or lis- y: under Section 3001 cannot be used for dust
        suppression  or read tre. *r.jnt.

              Any solid waste exhibiting a characteristic is a hazardous waste
        under  Section 3001.  If waste, used oil, or any other material is
        contaminated (i.e. contains) or is mixed with such characteristic
        hazardous waste (unless the only characteristic exhibited is ignitability)
        then that waste, used oil, or material cannot be used for dust"suppression
        or  road  treatment—irrespective of whether it exhibits the
        characteristic.  We fail  to understand how any other interpretation of the
        statutory language can be made.

              The interpretation in your memo, ;in fact, would tend to encourage
        mixing of characteristic hazardous waste with waste, used oil, or other
        material and hence avoid regulation if the resulting mixture no longer
        e>hibits the characteristic.  The mixture rule under §261.3 allows  such an
        "exemption"  with respect to the Subtitle C regulations.  The statutory
        amendment does not provide such an exemption for such mixt'jr^s with
        respect  to the ban as a dust suppressant.

              The interpretation (fourth bullet) in your memo concludes that
        "...thematerial being used for dust^suppression must actually be a_
        hazardous wasteji  That conclusion a"ppear*s to b6 contradictory to the
        statutory language.  We assume the interpretation in your memo is based on
        first  applying the mixture rule of §261.3, then determining if the
        resultant mixture is a hazardous waste.  The statutory language would not
        appear to allow the regulatory mixture rule to be applied as a means to
        avoid  the ban.

              We strongly urge reconsideration of the interpretation.

        cc:   Waste  Management Division Directors, Regions 1-9
              Mark Greenwood, OGC

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