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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
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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
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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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