United States       Solid Waste and        EPA/530-R-97-004I
             Environmental Protection Emergency Response       December 1996
             Agency          (OS-343)
^ c o A    RCRA Permit Policy
vxtrA   ^          ,.
             Compendium
             Volume 9
             9486.1987-9498.1996

             TSDF Technical Requirements
             (Parts 264 & 265)
             • Land Treatment
             • Landfills
             • Incinerators
             • Miscellaneous Units

             Standards for Managing Specific Hazardous
             Wastes (Part 266)
             • Recyclable Materials
             • Waste Burned for Energy Recovery
             • Used Oil Burned for Energy Recovery
             • Recyclable Materials for Precious Metal
              Recovery
             • Spent Lead-Acid  Batteries
             • Boilers and Industrial Furnaces
                                           ATKl/3590/10 kg

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DISCLAIMER

The compilation of  documents in this Compendium, as well
as the policies, procedures and interpretations outlined
in the documents themselves,  is intended solely for the
guidance  of   employees   of   the   U.S.   Environmental
Protection Agency.   This compilation may not include all
documents discussing Agency views on particular subjects.
In addition,  these  documents are  not intended and cannot
be  relied upon to create any  rights, substantive  or
procedural,  enforceable by any party in litigation with
the  United  States.    The  views  expressed  in  these
documents do not necessarily reflect the current position
of  the  Agency,  and EPA  reserves  the  right to  act  at
variance with these views or  to change them at any time
without public notice.

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          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY           9487.1987(01
                                  10 IS67
Dr. Suellen Pirages
Director
Institute of Chemical Waste
  Management
1730 Rhode Island Avenue, N.W.
Suite 1000
Washington, D.C.  20036

Dear Dr. Pirages t

     Thank you for your December 15, 1986, letter concerning
the Institute's review of the Agency's guidelines developed
for the management of bulk liquid hazardous wastes.  You
raise two specific concerns, and I will address them in the
order in which they were presented.

     A value of 50 pounds per square inch (psi) for the uncon-
fined compress ive strength test was selected for a number of
reasons.  A minimum allowable strength was needed as a measure
of adequate bonding level in a chemically stabilized waste.
Our analysis indicates that 50 psi is characteristic of a
bonding level in excess of that achieved with only absorbents.
As you know, the Resource Conservation and Recovery Act
(RCRA) Section 3004(c)(l) prohibits disposal of bulk liquids
treated with only absorbents.  I have enclosed a copy of
Exhibit 2 as it appears in our bulk liquid guidance document.
As can be seen in Exhibit 2, stiff clays have an unconfined
compress ive strength of 14 to 28 psi, while very stiff clays
are in the 29 to 57 psi range.

     In your letter you state that currently available pro-
cesses do not meet this high strength level (i.e. , 50 psi).
You reported that compressive strength data obtained from
the Institute's members who solidify wastes and sludges
indicate "a range from 10 to 45 psi depending on setting
time."

     Exhibit 3 (also attached) in our guidance document
indicates the type of unconfined compressive strengths that
can be achieved with the addition of 3 or 5% cement or lime
to a soil sample.  Another Environmental Protection Agency
(EPA) guidance document, "Guide to the Disposal of Chemically
     \ \9»A
                                     na i r»n hia arhiairari on
                                                        Ki.s. GPO  118'.-:»»-1:

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actual wastes.  Table 3-5 of the latter document shows that
wastes treated with a lime-based pozzolan product yielded
corapressive strengths from 26.2 to 169 psi, with all but one
value being above 50 psi.  Table 4-1 of the same guidance
lists results of physical properties achieved by sludge stabi-
lization vendors; these values range from 0.014 psi to 3046
psi, with 6 of the 9 reported values greater than 50 psi.  I
believe that these data indicate that compressivc strengths
above 50 psi can be routinely achieved by conventional waste
chemical stabilization technology.

     In addition, moreover, I think it is important to remem-
ber the role of the unconfined compressive strength test as
explained in the bulk liquid guidance.  The unconfined com-
pressive strength test is to be used when the regulatory
agency is uncertain whether unacceptable treatment has occurred
(i.e., solely by absorption) as opposed to an acceptable method
(i.e., chemical stabilization).  When a landfill owner or
operator demonstrates to a permit writer that the treatment
method for the bulk liquids is not solely by the addition of
an absorbent but rather by a chemical stabilization method,
the unconfined compress!ve strength test need not be used.

     Your second concern deals with generator and landfill
owner/operator responsibility/liability.  You state that the
"intent of RCRA clearly gives generators responsibility for
the fate of their wastes."  The bulk liquid management require-
ments are contained in the land disposal facility management
standards section of RCRA (i.e., Section 3004).  These stan-
dards are enforceable against only the owner or operator of
the facility, and not against a waste generator who is a
client of such a facility*  Consequently, the owner or operator
is responsible for ensuring that the treatment of bulk liquids
does not occur solely by the use of absorbents.  While commer-
cial landfill owners or operators may have private contractual
agreements with generators regarding the use of absorbents,
such agreements in no way relieve the landfill owner or operator
from compliance with the facility management standards of RCRA.

     If you should have any additional questions, please feel
free to contact Paul Cassidy, in our Land Disposal Branch,
at 382-4682.

                              Sincerely,
                               J. Winston Porter
                               Assistant Administrator

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                                                    9487.1988(01)
February 3, 1988
MEMORANDUM
SUBJECT:  Stabilization of PCB-Contaminated Wastes

FROM:     Marcia E. Williams, Director
          Office of Solid Waste

          Charles Elkins, Director
          Office of Toxic Substances

TO:       William J. Muszynski, P.E.
          Deputy Regional Administrator
          Region 2


     This is in response to your letter of December 24, 1987,
concerning the stabilization and disposal of PCB-contaminated
lagoon sludges and metal hydroxide sludges at the SCA Chemical
Services facility in Model City, New York.  Your specific issue
concerns whether, under RCRA, a minimum unconfined compressive
strength of 50 psi is required before placement of stabilized
bulk liquids in a hazardous waste landfill.  The issue arises due
to the January 16, 1987 Policy for Managing Leachate at PCB
Landfills (pg. 8) referencing the OSWER Policy Directive
#9487.00-2A, June 11, 1986.

     Briefly, the January 16, 1987 Policy states that any PCB-
containing treatment residue (sludges or slurries) or PCB-
containing phases, which are not incinerated, be stabilized in
accordance with the OSWER guidance on the "Liquids in Landfills
Ban" prior to being placed in chemical waste landfills.  OTS
referenced the OSWER Policy Directive as guidance to the TSCA
permit writer on methods that can be used to determine whether a
material is a non-liquid and, therefore, may be landfilled.

     Some history concerning the development of the OSWER 50 psi
unconfined compressive strength criterion is in order.  Section
3004(c)(1) of HSWA prohibits the direct placement into a landfill
of bulk liquids that have been solely treated by the addition of
an absorbent (or adsorbent, according to the OSWER policy
        This has been retyped from the original document.

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                               -2-

directive mentioned above.)   Therefore,  bulk wastes that are
treated solely by the addition of an absorbent or adsorbent are
prohibited from being placed in a landfill unless further
treatment is performed.  Bulk wastes to which no absorbents or
adsorbents have been added are required to be tested by the Paint
Filter Liquids Test (PFLT) .   If the bulk waste passes the PFLT
(i.e., it is a solid)  it is allowed to be disposed of in a
landfill.  If the bulk waste fails, then additional treatment,
without the use of absorbents or adsorbents, is necessary before
the waste can be landfilled.

     The issue of 50 psi arises when further treatment is
performed on the bulk waste.  One acceptable form of treatment is
chemical solidification/stabilization.  It is acceptable because
it is not a treatment technology that solely involves the
addition of an absorbents or adsorbent material.  When reviewing
a solidification/stabilization process,  if it is not obvious that
a chemical reaction has taken place (i.e., if there are any
concerns that stabilization is occurring primarily due to the
addition of sorbents),  then it is recommended that representative
samples of the treated waste pass the unconfined compressive
strength test with a minimum value of 50 psi.

     The policy directive, however, is quite clear that meeting
the 50 psi value is neither a requirement nor a condition that
must be applied in all cases.  It should be noted that the
guidance states that if an owner/operator using his/her data
demonstrates to the permit writer that something more than
absorption or adsorption is occurring, then this is acceptable
and the 50 psi issue should not arise.  One way to demonstrate a
chemical solidification/stabilization process is to demonstrate
an increase in strength over time for the treated waste.  This
increase in strength would not have to reach a 50 psi value.  For
example, a day-one value of 3 psi for the treated waste and a 28-
day value of 37 psi would be an acceptable increase in strength
over time.  In some cases, more data (i.e., various waste to
reagent recipes) may be required in order for the permit writer
to agree that an increase in strength over time has occurred.

     In regard to the SCA facility, if a decision is reached that
the previous treatment of the leachate did not involve the
addition of absorbents or adsorbents,  then the wastes (i.e., the
salts and sludges)  are only required to be tested using the Paint
Filter Liquids Test.  If they pass, the wastes are allowed to be
disposed of in a landfill.  If they fail, then additional
treatment that does not solely involve the addition of an
absorbent or adsorbent is required in order for the sludges to be
bulk disposed.
        This has Jbeen retyped from the original document.

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                               -3-

     If the decision is reached that previous treatment has
solely involved the addition of an absorbent or adsorbent, then
further treatment must be performed before the wastes are allowed
to be bulk disposed.  An acceptable form of treatment is chemical
stabilization/solidification, as discussed above.

     In order to determine that an "appropriate recipe" has been
developed and followed by the owner or operator for
stabilization/solidification, some data collection would still be
necessary.  This data collection would enable the permit writer
to determine that the wastes will be "effectively encapsulated in
the stabilized matrix."  Data collection is necessary to
determine this "effective encapsulation in the stabilized matrix"
because a sufficient mixture of reagent to waste must be used to
achieve an acceptable increase in strength over time, as
discussed above.

     If you should seek help in determining whether any previous
treatment solely involved the addition of an absorbent or an
adsorbent, then you should talk with the following people who can
help make that determination.  Carlton Wiles, of EPA ORD in
Cincinnati, Ohio at FTS 684-7795 or John Cullinane of the Army
Corp of Engineers in Vicksburg, Mississippi at 601/542-3723.

     The discussion above relates to the OSWER policy directive
mentioned in the first paragraph.  One point to consider is that
if the Region's sole intent is to provide SCA with a draft RCRA
Section 3008(h) order, this type of activity allows the Region to
impose any type of response measures to protect human health and
the environment.  If the Region were to decide that the salts and
sludges were not subject to the bulk liquids ban (i.e., Section
3004(c)(1) does not apply since no absorbent or adsorbent have
been added and the wastes pass the PFLT), additional controls
through the Section 3008(h) order could be imposed.  If the salts
and sludges pass the Paint Filter Liquids Test, but do not have
sufficient strength to support a final cover that would be placed
over the landfill, then additional treatment of the salts and
sludges could be undertaken to increase their strength so that a
final cover will not experience settlement and subsidence.
        This has been retyped from the original document.

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                               -4-

     If you should have any general questions concerning this
memo, please call Paul Cassidy of the Land Disposal Branch at
FTS-382-4682 or Denise Keehner of the Office of Toxic Substances
at FTS-382-3835.
cc:  Carlton Wiles, ORD
     John Cullinane, USAE
     Denise Keehner, OTS
     Paul Cassidy, OSW
     Dave Eberly, PSPD
        This has been retyped from the original document.

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON. D.C.  20460
                                                      9487.1993(01)



                            OCT I 5 1993                 OF,1CCO,.
                                              SOLID WASTE ANDevEPCENUv RESPONSE
Mr. Frederick J. Scheffler, Director
Coalition of Organic Absorbent Producers
c/o Absorption Corporation
1808 Eagle Harbor Lane
Bainbridge Island, WA 98110

Dear Mr. Sheffler:

     Thank you for forwarding to  ne Laidlaw Environmental Services
Inc.'s letter to you  concerning  EPA's recent rule on disposal of
sorbed materials in hazardous waste landfills.  I am writing to you
to  correct Laidlaw's  interpretation  of the  rule's  effect and
explicitly  to clarify  that  pozzolanic  stabilization  of   sorbed
materials may constitute adequate  treatment under the rule.

     Laidlaw is correct  in its understanding that EPA's sorbents
rule,  which  can be  found at  40  CFR 264.314(e),  applies  to all
wastes  —  including  non-hazardous  wastes   — disposed   of  at
hazardous  waste landfills.    Thus,  liquid  wastes  treated with
"biodegradable"  sorbents  (as defined  in  the  rule)   cannot  be
directly disposed of in a hazardous waste landfill.  However, both
in the preamble to the sorbents rule  and in Richard Guimond's
May 5, 1993 letter to you, EPA emphasized that wastes sorbed with
"biodegradable"  sorbents  could  be  placed   in landfills  after
appropriate treatment. The letter  stated that "such treatment will
generally  remove  the biodegradable  components  or render them
unavailable to the environment or  will remove the liquid."

     In  EPA's  view,  chemical  reagents  (including   pozzolanic
materials,  as  well  as  thermoplastic  or  organic  binders)  are
appropriate non-biodegradable sorbents  (see 57 Fed.  Rea.  54456
(November 18, 1992)) and therefore treatment with these materials
is appropriate  and  adequate  additional treatment for purposes of
compliance  with the  final rule  (provided,  of  course,  that the
stabilization is successful and the resultant material  passes the
paint  filter  test).   These  processes  are  acceptable,  not only
because they  often involve a  sorption  process, but also  because
they provide additional treatment  by  chemical stabilization.

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                               -2-
     The above clarification addresses only compliance with 40 CFR
264.314(e).  As you are well aware, hazardous waste disposed of in
landfills must also meet applicable land disposal standards under
40 CFR Part 268.  In many cases, pozzolanic stabilization may not
be sufficient to meet these standards. It is reasonable to assume,
however,  that  treatment  that  meets  Part  268  standards  will
generally also meet section 264.314(e).

     I hope this letter responds to your  concerns.  If you have any
questions, please  contact  Matthew Hale  of my  staff.   He  can be
reached at 703-308-8404.
                                        Sincerely yours,
                                                Oenit
                                        Act&rfg Director
                                        Office of Solid Waste

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                  RCRA
 1.  The Liquids in Landfills Prohibition
    and Sorbed Free Liquids

    EPA prohibits the direct placement in a
 hazardous waste landfill of liquid hazardous
 waste or hazardous waste containing free
 liquids (40 CFR §§264/265 J14(b)). The
 Agency also prohibits the placement in a
 hazardous waste landfill of containers holding
free liquids, except for lab packs, very small
 containers (i.e., ampules) and containers
 designed to hold free liquids for use other
 than storage (i.e., batteries) (§264J14(d)(2),
 (3), and (4) and §265J14(cX2), (3), and (4)).
 On November 18.1992 (57 ££. 54454), the
 Agency retained the Paint Filter Liquids Test
 (PFT) as the required test to determine if
 hazardous wastes hold free liquids. If the PFT
 demonstrates that a waste to which sorbents
 have been added.no longer contains free
 liquids, may the waste be placed in a landfill,
 or is additional treatment required?

    EPA's criteria for the use of sorbents to
 treat wastes containing free liquids vary
 according to whether the wastes will be  .
 disposed of directly or will be placed in a
 container phor to disposal. EPA allows the
 use of sorbents to remove free liquids from
 "containerized" wastes. If the PFT
 demonstrates that a containerized waste to
 which sorbents have been added contains no
 free liquids, the waste may be disposed of in a
 hazardous waste landfill (40 CFR
 §264.314(d)(l)(ii) and §265.314(c)(l)(ii)),
 provided that it meets all applicable land
 disposal restriction (LDR) treatment
 standards. As a precaution against the use of
 inadequate sorbents. EPA regulations require
 that sorbents used to ""»at free liquids prior to
 land disposal be nonbiodegradeable (40 CFR
 §264.314(e) and §265.314(0).

    EPA.prohibits trie use of sorbents to treat
 liquid hazardous waste or hazardous waste
 containing free liquids that will be disposed of
 directly (e.g., without first being placed in a
 container) in a landfill  Free liquids in such
 "bulk or noncontainerized" hazardous wastes
 must be "chemically, thermally, physically, or
 biologically  treated without the use of
 absorbents" before the wastes may be
 landfilled (OSWER Directive #9487.00-2A).
To demonstrate that chemical stabilization
 rather than absorption or adsorption is
occurring, the bulk or noncontainerized
hazardous wastes should undergo an indirect
chemical stabilization test (also known as an
unconfined compressive strength test). The
indirect chemical stabilization test ensures
that, prior to direct disposal, liquid hazardous
wastes or hazardous wastes containing free
liquids wastes have been adequately treated
through some means other than the addition of
sorbents.

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           MONTHLY HOTLINE  REPORT
          ./ .;:;V,'.v V  .•>.•: ••..'• July 1996.  _-.••••    .      '     '
                                        '               9487.1996(01)
 1.  Regulation of Leachate Collection
    Sumps

    Section 3004(o) ofRCRA requires that
 owners/operators of new, replacement, and
 lateral expansions of hazardous waste
 landfills equip the  units with two or more
 liners, a leak detection system, and a leachate
 collection and removal system (LCRS) above
 and between the liners. The LCRS between
 the liners must be equipped with a sump to
 collect the leachate that has percolated
 through the unit, and a liquid removal device,
 such as a pump, to move the leachate to a
 'storage 'unit (40 CFR §264.301(c)(3)(v)). Is
 this leachate collection sump considered a
 tank subject to the  hazardous waste tank.
 regulations of Part 264/265, Subpart J?
                         1 •.
    No, a sump used to collect leachate io a
 landfill is not a hazardous waste tank subject
 to the tank standards in Part 264/265, Subpart
J. Although most sumps meet the definition
of a tank, leachate collection sumps do not.
EPA changed  the definition of "sump" in the
January 29, 1992, Federal Register to reflect
 this distinction. Leachate collection sumps are
defined differently because, unlike other
sumps, they are an integral part of the unit's
 liner system, surrounded by layers of liners;
additional containment is often impracticable
and unnecessary, and would yield little
environmental benefit (57 FR 3471;
 January 29, 1992).
Only the actual collection sump is excluded
from the federal definition of tank. Any unit
subsequently used to manage the leachate may.
be regulated. For. example, when a facility
pumps the hazardous waste leachate from the
collection sump into a storage tank, that tank
is subject to full regulation under Part 2647
265, Subpart J.

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Incinerators (Subpart O)
                                        v©

                                        £
                                        oo

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9488 - INCINERATORS
Parts 264 & 265 Subpart O
                     ATKl/l 104/46 kp

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASHINGTON, D.C. 20460
                                                  9488.1988(02)


  ....  I O IQQO                                           OFFICE OF
  JAN  I O ."OO                                   SOLID WASTE AND EMERGENCY PESPONS6


MEMORANDUM

SUBJECT:  Request for Guidance  in Designating  POHC's

FROM:     Marcia Williams, Director  VhsSJ^-
          Office of Solid Waste  (WH-363)

TO:       Conrad Simon, Director
          Air and Waste Management Division
          Region II


     This memorandum is in response to your December 9,  1987,
memorandum requesting guidance  in designating  POHC's, particularly
with respect to use of the Thermal Stability at Low Oxygen
incinerability ranking system under development.  I agree with your
proposed interim policy for designating POHC's.  Following are
responses to the outstanding issues you raised as well as some
comments on your proposed approach.

     First, contrary to the comments which you have received,
current guidance does not preclude use of methods of incinerability
ranking other than heat of combustion.  Although the 1983 Guidance
Manual for Hazardous Waste Incinerator Permits presents  a method of
POHC selection based on heat of combustion, it states that other
parameters may be used to establish an incinerability hierarchy. EPA
is currently providing funds to the University of Dayton Research
Institute to develop an Appendix VIII ranking  based on thermal
stability at low oxygen (TSLo02).  Preliminary comparisons with
field data have shown a fairly  good correlation with the thermal
stability ranking/ as compared  with a poor correlation between heat
of combustion and field data.   We have plans to conduct  a directed
field validation program, as well as a technical peer review, prior
to issuing guidance specifically recommending  use of the thermal
stability -IfitJex.

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    In the interim, your proposed approach of selecting POHC's bast
on both of the methodologies is acceptable.  Additional
considerations which can be applied to POHC selection include
concentration of the constituent in the waste stream (the higher the
concentration, the more likely the compound is to be chosen as a
POHC), toxicity  (choosing a particularly toxic compound in the waste
to be sure it is destroyed), and compound structure (choosing  a
compound to represent each of the structural classifications of
compounds, such as aromatics and chlorinated compounds, in the
waste).  These criteria reflect the general consensus of the
Incinerator Permit Writers' Workgroup at its November 17-19, 1987
workgroup meeting.

     Incinerability indices other than heat of combustion can  be
used without a regulatory change since the regulations do not
mention any specific incinerability hierarchy.  This was done  in
order to allow flexibility in POHC selection.  At the time OSW  .
developed the current regulations, we recognized that thinking might
change as new data became available.  The preamble to the upcoming '
proposed incineration amendments will discuss the thermal stability
ranking being developed and will include a copy of the current
version of the index.

     When the thermal stability ranking is used, it is recommended
that POHCs be chosen from those compounds for which actual
experimental data exists.  Since the ranking will be changing  as
additional laboratory testing is done, compounds fairly close
together in the ranking should not be considered significantly
different with respect to incinerability.  Therefore, when there are
testing or availability problems with the preferred POHC, it would
be reasonable to choose another POHC from the same class.

      Some of the compounds in Class I of the TSLo02 ranking
present sampling and analysis problems.  For example/ reactive
compounds such as hydrocyanic acid and cyanogen, and water soluble
compounds such as acetonitrile, would require either special
sampling techniques or choice of alternative POHC's.  Sampling and
analysis problems should not be encountered with compounds such as
chlorinated benzenes. We are currently evaluating the applicability
of present methods to the compounds high on the thermal stability
ranking and will keep you informed as this information becomes
available.  As you progress with choosing POHCs for trial burns/
please keep in touch with us so that we may keep you up to date on
our currents-knowledge.  Future sampling and analysis methods
development' and validation work will concentrate on priority POHCs
identified through this process.

     Regarding your question on availability of compounds for use as
surrogates/ some Regions have mentioned problems with availability
of surrogate compounds such as hexachlorobenzene at an economically
feasible price.  Availability of the compounds should be evaluated
on a case-by-case basis.

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     You also inquired how  the new approach will impact in-house
trial burn plans or completed trial burns.  Guidance on use of the
thermal stability  index will be  issued when further field validation
and peer review of the index'are completed.  In this guidance, we
plan to recommend  that once the  trial burn plan for a facility is
approved, the new  index or  any changes to the index only be
incorporated with  the agreement of the facility.  In the interim,
until the guidance, is issued, I agree with your proposed policy of
amending trial burn plan proposals to incorporate thermal stability
considerations where possible (i.e., where it would not pose major
obstacles)  and also considering completed trial burns based on heat
of combustion to be valid.

     Please keep in mind that any incinerability hierarchy is only
approximate and that the thermal stability ranking will be updated
periodically as additional data comes in.  The goal should be to
work with the best data available at the time the trial burn is
planned.  Attached is the most current version of the ranking.  If
you have any comments on our tentative policy of using the trial
burn plan approval date as a cut-off date,.or any questions on
incinerability and POHC selection, feel free to contact Sonya
Stelmack of my staff at FTS 382-4500.

Attachment

cc:  Bruce Weddle
     Elizabeth Cotsworth
     Deb Martin
     Sonya Stelmack
     Bob Holloway
     Incinerator Permit Writers'  Workgroup

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APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING
HAZARDOUS ORGANIC COMPOUND

HYDROCYANIC ACID (HYDROGEN CYANIDE}
CYANOGEN {ETHANEDINITRILE}
CHLOROBENZENE**
ACETONITRILE (ETHANEN1TRILE}**
CHLOROMETHANE (METHYL CHLORIDE}**
CYANOGEN CHLORIDE (CHLORINE CYANIDE}
DICHLOROBENZENE (1,2-DICHLOROBENZENE}
DICHLOROBENZENE(1,3-DICHLOROBENZENE}**
DICHLOROBENZENE (1,4-DICHLOROBENZENE}
TRICHLOROBENZENE (1,2,4-)**
ACRYLONITRILE (2-PROPENENITRILE}
TETRACHLOROBENZENE (1,2,4,5-)**
BENZENE (CYCLOHEXATRIENE}**
METH ACRYLONITRILE (2-METHYL-2-PROPENENITRILE}
METHYL BROMIDE (BROMOMETHANE}**
PENTACHLOROBENZENE**
CHLOROANILINE (CHLOROBENZENAMINE}
RANKING CLASS 1
1-24
1
2
3
4-6
4-6
4-6
7-9
7-9
7-9
10
11,12
11,12
13-16
13-16
13-16
13-16
17
                        Tins document has been retyped from the original.

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   APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING
      HAZARDOUS ORGANIC COMPOUND
RANKING
         ANILINE {BENZENAMINE}**
           HEXACHLOROBENZENE
   TRIFLUOROCHLOROMETHANE (FREON 13}
         DICHLOROBENZIDINE (3,3'-)
 {[l,r-DIPHENYL]-4,4'-DIAMINE,3,3'-DICHLORO-}
AMINOBIPHENYL (4-) {[l,l'-BIPHENYL]-4-AMINE}
   BENZIDINE{[l,l'-BIPHENYL]-4,4'-DIAMINE}
          TETRACHLOROETHENE* *
  DIPHENYLAMINE {N-PHENYLBENZENAMINE}
   PHENYLENEDIAMINE {BENZENEDIAMINE}
TETRACHLORODIBENZODIOXIN (2,3,7,8-) {TCDD}
          DICHLOROETHENE (1,1-)**
         DICHLOROPROPENE (1,1-)**
     PROPIONITR1LE {ETHYL CYANIDE}**
            TRICHLOROETHENE* *
      FORMIC ACID (METHANO1C ACID}
  18,19
  18,19
   20
   21

   22
  23,24
  23,24
  25-27
  25-27
  25-27
  28,29
  28,29
  30,31
  30,31
  32,33
CLASS 2
 25-56
                        Tltis document has been retyped from the original.

-------
     APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING
        HAZARDOUS ORGANIC COMPOUND
RANKING
       PHOSGENE (CARBONYL CHLORIDE}
           CHLORONAPHTHALENE (2-)
             FLUOROACETIC ACID
        CHLOROMETHYL METHYL ETHER
         {CHLOROMETHOXYMETHANE}
      FORMALDEHYDE {METHYLENE OXIDE}
      MALONONITRILE {PROPANEDINITRILE}
METHYL CHLOROCARBONATE (CARBONOCHLORIDIC
             ACID, METHYL ESTER}
  METHYL ISOCYANATE {METHYLCARBYLAMINE}
         TOLUENE {METHYLBENZENE}**
   ISOBUTYL ALCOHOL {2-METHYL-l-PROPANOL}
           bis(CHLOROMETHYL)ETHER
         {METHANE-OXYbis[2-CHLORO-]}
  DICHLOROMETHANE {METHYLENE CHLORIDE}**
  DIMETHYLBENZIDINE (3,3'-) {[l,l'-DIPHENYL]-4,4'-
           DIAMINE,3,3'-DIMETHOXY-}
            FLUOROACETAMIDE (2-)
  32,33
  34,35
  34,35
  36-41

  36,41
  36-41
  36-41

  36-41
  36-41
   42
  43-47

  43-47
  43-47

  43-47
                         This document has been retyped from the original.

-------
      APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING
         HAZARDOUS ORGANIC COMPOUND
RANKING
      PROPYN-1-OL (2-) {PROPARGYL ALCOHOL}
             ACROLEIN {2-PROPENAL}
          ACRYLAMIDE {2-PROPENAMIDE}
          CROTONALDEHYDE {2-BUTENAL}
DDE{l,l-DICHLORO-2,2-BIS(4-CHLOROPHENYL) ETHYLENE
             DICHLOROETHENE (1,2-)**
     DIMETHYL-2-PHENETHYLAMINE (alpha, alpha-)
       {ETHANAMINE,l,l-DIMETHYL-2-PHENYL-}
   METHYL METHACRYLATE (2-PROPENOIC ACID, 2-
            METHYL-, METHYL ESTER}
         n-PROPYLAMINE {1-PROPANAMINE}
                  NAPHTHALENE
       FLUORANTHENE {BENZO[j,k]FLUORENE}
 BENZO[j]FLUORANTHENE {7,8-BENZOFLUORANTHENE}
 BENZO[b]FLUORANTHENE {2,3-BENZOFLUORANTHENE}
    BENZANTHRACENE (1,2-) (BENZ[a]ANTHRACENE}
  43-47
  48-56
  48-56
  48-56
  48-56
  48-56
  48-56

  48-56

  48-56
  48-56
   57
   58
   59
   60
CLASS 3
 57-92
                           This document has been retyped from the original.

-------
       APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

	HAZARDOUS ORGANIC COMPOUND	RANKING

         CHRYSENE {1,2-BENZPHENANTHRENE}                  61
 INDENO(l,2,3-cd)PYRENE {1,10-(1,2-PHENYLENE)PYRENE}           62
      ACETYL CHLORIDE (ETHANOYL CHLORIDE}              63-67
AURAMINE {BENZENAMINE,4,4'-CARBONIMIDOYLbis[N,N'-         63-67
         DIMETHYL-,MONOHYDROCHLORIDE}
             DICHLOROPROPENE (cis-1,3-)                      75-83
            DICHLOROPROPENE (trans-1,3-)                     75-83
     PRONAMIDE {3,5-DICHLORO-N-[l,l-DIMETHYL-2-             75-83
              PROPYNYL] BENZAMIDE}
              DICHLOROPROPENE (2,3-)                       84-85
      DIFLUORODICHLOROMETHANE {FREON 12}**              84-85
       ACETOPHENONE {ETHANONE,1-PHENYL-}                86-92
                    ALFATOXINS                            86-92
              CHLOROACETALDEHYDE                       86-92
              DICHLORO-2-BUTENE (1,4-)                       86-92
            DICHLOROPROPENE (trans-1,2-)                     86-92
       FLUOROTRICHLOROMETHANE {FREON 11}               86-92

                            This document has been retyped from the original.

-------
APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING
   HAZARDOUS ORGANIC COMPOUND
RANKING
 THIOACETAMIDE (ETHANETHIOAMIDE}
  86-92
BENZOQUINONE{1,4-CYCLOHEXADIENEDIONE}
HEXACHLOROBUTADIENE** {1,1,2,3,4,4-HEXACHLORO-1,3-
BUTADIENE}
METHYL ETHYL KETONE {2-BUTANONE}**
NAPHTHOQUINONE (1,4-) {1,4-NAPHTHALENEDIONE}
ACETONYLBENZYL-4-HYDROXYCOUMARIN(3-alpha-)
{WARFARIN}
MALEIC ANHYDRIDE {2,5-FURANDIONE}
METHYLLACTONITRILE (2-) {PROPANENITRILE,2-
HYDROXY-2-METHYL}
CHLORAL {TRICHLOROACETALDEHYDE}
CYANOGEN BROMIDE (BROMINE CYANIDE}
DIMETHYL PHTHALATE {1,2-BENZENEDICARBOXYLIC
ACID, DIMETHYL ESTER}
DIHYDROXY-ALPHA-[METHYLAMINO]METHYL BENZYL
ALCOHOL (3,4-) {ADRENALINE} {EPINEPHRINE}
93-96
93-96
93-96
93-96
97-99
97-99
97-99
100-102
100-102
100-102
103
                                                                   CLASS 4
                                                                    93-117
                      This document has been retyped from the original.

-------
       APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

	HAZARDOUS ORGANIC COMPOUND	RANKING

           BENZENETfflOL {TfflOPHENOL}**                    104
               DIMETHYLPHENOL (2,4-)                      105-106
           PHENOL {HYDROXYBENZENE}**                  105-106
           RESORCINOL {1,3-BENZENEDIOL}                    107
                CHLOROPHENOL (2-)                         108
      DIBROMOMETHANE {METHYLENE BROMIDE}             109-113
               DICHLOROPHENOL (2,4-)                      109-113
               DICHLOROPHENOL (2,6-)                      109-113
DIMETHOATE (PHOSPHORODITHIOIC ACID, 0,0-DIMETHYL       109-113
       S-[2-(METHYALMINO)-2-OXYETHYL]ESTER}
        NITROANILINE {4-NITROBENZENAMINE}               109-113
    BENZYL CHLORIDE {CHLOROMETHYLBENZENE}**          114-117
        CHLOROETHANE (ETHYL CHLORIDE}**               114-117
              HYDRAZINE {DIAMINE}**                     114-117
 MELPHALAN (ALANINE,3-[p-bis(2-CHLOROETHYL)AMINO]        114-117
                    PHENYL-,L-}
                            This document has been retyped from the original.

-------
       APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING
          HAZARDOUS ORGANIC COMPOUND
RANKING
 ARAMITE (SULFUROUS ACID, 2-CHLOROETHYL-,2-[4-(l,l-
 DIMETHYLETHYL) PHENOXY]-1-METHYLETHYL ESTER}
    CHLOROCRESOL {4-CHLORO-3-METHYLPHENOL}
                 NITROBENZENE**
            TRICHLOROMETHANETHIOL
             TRICHLOROPHENOL (2,4,5-)
             TRICHLOROPHENOL (2,4,6-)
PROPANE SULFONE (1,3-) {1,2-OXATHIOLANE,2,2-DIOXIDE}
   BENZAL CHLORIDE {DICHLOROMETHYLBENZENE}
       BUTYL-4,6-DINITROPHENOL (2-sec-) {DNBP}
 CARBON TETRACHLORIDE {TETRACHLOROMETHANE}**
        CYCLOHEXYL-4,6-DINITROPHENOL (2-)
    NITROTOLUIDINE (5-) {BENZENAMINE,2-METHYL-
                     5-NITRO-}
           TETRACHLOROPHENOL (2,3,4,6-)
  BENZOTRICHLORIDE{TRICHLOROMETHYLBENZENE}
 118-123

 118-123
 118-123
 118-123
 118-123
 118-123
   124
 125-130
 125-130
 125-130
 125-130
 125-130

 125-130
 131-133
CLASS 5
 118-156
                            This document has been retyped from the original.

-------
  APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

     HAZARDOUS ORGANIC COMPOUND	RANKING

 BROMOACETONE {l-BROMO-2-PROPANONE}              131-133
  DIOXANE (1,4-) (1,4-DIETHYLENE OXIDE}**              131-133
  CHLORAMBUCIL (BUTANOIC ACID,4-[bis](2-                134
     CHLOROETHYL)AMINO]BENZENE-}
        DICHLORO-2-PROPANOL (1,1-)                      135
 DIFLUOROCHLOROMETHANE (FREON 22}**              136-146
            DINITROBENZENE                         136-146
          DIN1TROTOLUENE (2,4-)                       136-146
          DINITROTOLUENE (2,6-)                       136-146
 FLUORODICHLOROMETHANE {FREON 21}**              136-146
HEXACHLOROPHENE {2,2'-METHYLENEbis[3,4,6-            136-146
           TRICHLOROPHENOL]}
  METHYL PARATHION (0,0-DIMETHYL 0-[4-              136-146
    NITROPHENYL]PHOSPHOROTHIOATE}
 N,N-BIS(2-CHLOROETHYL)2-NAPHTHYLAMINE             136-146
           {CHLORNAPHAZINE}
            NITROPHENOL (4-)                         136-146
 SAFROLE {l,2-METHYLENE-4-ALLYLBENZENE}             136-146
                       This document has been retyped from the original.

-------
      APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING
         HAZARDOUS ORGANIC COMPOUND
RANKING
     TRINITROBENZENE{1,3,5-TRINITROBENZENE}
    MUSTARD GAS {bis[2-CHLOROETHYL]-SULFIDE}
NITROGEN MUSTARD (2-CHLORO-N-[2-CHLOROETHYL]-N-
              METHYL ETHANAMINE}
 DICHLOROPROPANE (1,2-) (PROPYLENE DICHLORIDE}**
           CHLOROPROPIONITRILE (3-) (3-
             CHLOROPROPANENITRILE}
             PENTACHLOROPHENOL**
DINITROCRESOL (4,6-) {PHENOL,2,4-DINITRO-6-METHYL-}
               DINITROPHENOL (2,4-)
      HEXACHLOROCYCLOHEXANE {LINDANE}**
     HEXACHLOROCYCLOPENTADIENE {1,2,3,4,5,5-
        HEX ACHLORO-1,3-C YCLOPENT ADIENE}
ISOSAFROLE {l,2-METHYLENEDIOXY-4-ALLYLBENZENE}
   ALDRIN {l,2,3,4,10,10-HEXACHLORO-l,4,4a,5,8,8a,8b-
HEXAHYDRO-endo,exo-l,4:5,8- DIMETHANONAPHTHALENE}
    DDD {DICHLORODIPHENYLDICHLOROETHANE}
 136-146
 147-148
 147-148

   149
   150

   151
 152-156
 152-156
 152-156
 152-156

 152-156
 157-165

 157-165
CLASS 6
 157-201
                           This document has been retyped from the original.

-------
      APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

	HAZARDOUS ORGANIC COMPOUND	RANKING

    DDT {DICHLORODIPHENYLTRICHLOROETHANE}            157-165
D1CHLOROETHANE (1,1-) (ETHYLIDENE DICHLORIDE}**         157-165
    DIELDRIN {l,2,3,4,10,10-HEXACHLORO-6,7-EPOXY-            157-165
      l,4,4a,5,6,7,8,8a-OCTAHYDRO-endo,exo 1,4:5,8-
            DIMETHANONAPHTHALENE}
   HEPTACHLOR EPOXIDE {4,7-METHANO-lH-INDENE-           157-165
    l,4,5,6,7,8,8-HEPTACHLORO-2,3-EPOXY-3a,4,7,7a-
                  TETRAHYDRO-}
  HEPTACHLOR (4,7-METHANO-lH-INDENE-l,4,5,6,7,8,8-          157-165
       HEPTACHLORO-3a,4,7,7a-TETRAHYDRO-}
    ISODRIN (l,2,3,4,10,10-HEXACHLORO-6,7-EPOXY-             157-165
       l,4,4a,5,8,8a-HEXAHYDRO-endo, endo-l,4:5,8-
            DIMETHANONAPHTHALENE}
           TETRACHLOROETHANE (1,1,1,2-)                   156-165
     METHOXYCHLOR (l,l,l-TRICHLORO-2,2'-bis(p-               166
            METHOXYPHENYL) ETHANE}
     CHLORO-2,3-EPOXYPROPANE (1-) {OXIRANE,2-             167-168
                 CHLOROMETHYL-}
           ETHYLENE OXIDE {OXIRANE}**                    167-168

                            Tliis document has been retyped from the original.

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     APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

	HAZARDOUS ORGANIC COMPOUND	RANKING

           TRICHLOROPROPANE (1,2,3-)                      169
 DICHLOROETHANE (1,2-) (ETHYLENE DICHLORIDE}            170-174
        DIMETHYLCARBAMOYLCHLORIDE                  170-174
   GLYCIDYALDEHYDE {l-PROPANOL-2,3-EPOXY}              170-174
             HEXACHLOROPROPENE                       170-174
  PHENACETIN {N-[4-ETHOXYPHENYL]ACETAMIDE}            170-174
           DICHLORO-1-PROPANOL (2,3-)                     175-177
           DICHLORO-2-PROPANOL (1,3-)                     175-177
            DICHLOROPROPANE (1,1-)                       175-177
  CHLORDANE (ALPHA AND GAMMA ISOMERS) {4,7-             178
METHANOINDAN,l,2,4,5,6,7,8,8-OCTACHLORO-3,4,7,7a-
                 TETRAHYDRO-}
           TRICHLOROETHANE (1,1,2-)                       179
      CHLOROFORM {TRICHLOROMETHANE}                 180
       BROMOFORM {TRIBROMOMETHANE}                  181-185
             HEXACHLOROETHANE**                       181-185
 METHAPYRILENE {2-[(2-DIMETHYLAMINO)ETHYL]-2-           181-185
            THENYL-AMINOPYRIDINE}
                          This document has been retyped from the original.

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      APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

	HAZARDOUS ORGANIC COMPOUND	RANKING

                    PYRIDINE**                            181-185
           TETRACHLOROETHANE (1,1,2,2-)                   180-185
               METHYL HYDRAZINE**                         186
 TRICHLOROETHANE (1,1,1-) {METHYL CHLOROFORM}**           187
        BENZ[c]ACRIDINE {3,4-BENZACRIDINE}                188-190
       METHYLENE BIS(2-CHLOROANILINE) (4,4-)               188-190
   {BENZENAMINE,4,4'-METHYLENEbis-[2-CHLORO]-}
         PICOLINE (2-) {PYR1DINE,2-METHYL-}                 188-190
 CHLOROBENZILATE (BENZENEACETIC ACID,4-CHLORO-         191-195
  ALPHA-(4-CHLOROPHENYL)-ALPHA-HYDROXY-ETHYL
                     ESTER}
      DIEPOXYBUTANE (1,2:3,4-) {2,2'-BIOXIRANE}              191-195
  ETHYL CARBAMATE {URETHAN} (CARBAMIC ACID,           191-195
                  ETHYL ESTER}
     ETHYL METHACRYLATE (2-PROPENOIC ACID,             191-195
             2-METHYL-,ETHYL ESTER}
                            This document has been retyped from ihe original.

-------
       APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING
          HAZARDOUS ORGANIC COMPOUND
RANKING
  LASIOCARPINE (2-BUTENOIC ACID, 2-METHYL,7-[(2,3-
    DIHYDROXY-2-(l-METHOXYETHYL)-3-METHYL-l-
   OXOBUTOXY}METHYL]-2,3,5,7a-TETRAHYDRO-lH-
              PYRROLIZIN-1-YL ESTER}
        AMITROLE {lH-l,2,4-TRIAZOL-3-AMINE}
    DIBENZ[a,h]ACRIDINE {1,2,5,6-DIBENZACRIDINE}
    DIBENZ[a,j]ACRIDINE {1,2,7,8-DIBENZACRIDINE}
            DIETHYLSTILBESTEROL (4,4'-
STILBENEDIOL,ALPHA,ALPHA-DIETHYL,bis[DIHYDROGEN
                  PHOSPHATE,(E)-}
     MUSCIMOL {5-AMINOMETHYL-3-ISOAZOTOL}
               PENTACHLOROETHANE
 191-195
BUTYLBENZYL PHTHALATE {1,2-BENZENEDICARBOXYLIC
        ACID, BUTYL PHENYL METHYL ESTER}
          DIBROMO-3-CHLOROPROPANE (1,2-)
    DIBROMOETHANE (1,2-) (ETHYLENE DIBROMIDE}
        DIBENZO[c,g]CARBAZOLE (7H-) (3,4,5,6-
                DIBENZCARBAZOLE}
 196-201
 196-201
 196-201
 196-201

 196-201
 196-201
   202

 203-204
 203-204
 205-207
CLASS 7
 202-233
                            This document has been retyped from the original.

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       APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

	HAZARDOUS ORGANIC COMPOUND	RANKING

   TRICHLOROPHENOXYACETIC ACID (2,4,5-) {2,4,5-T}           205-207
 TRICHLOROPHENOXYPROPIONIC ACID (2,4,5-) {2,4,5-TP}         205-207
                      {SILVEX}
          IODOMETHANE {METHYL IODIDE}                   208
     DICHLOROPHENOXYACETIC ACID (2,4-) (2,4-D>             209-210
              DICHLOROPROPANE (2,2-)**                     209-210
DIETHYL PHTHALATE (1,2-BENZENEDICARBOXYLIC ACID,          211
                  DIETHYL ESTER}
    BRUCINE {STRYCHNIDIN-10-ONE,2,3-DIMETHOXY-}             212
          bis(2-ETHYLHEXYL)PHTHALATE (1,2-                   213
BENZENEDICARBOXYLIC ACID,bis(2-ETHYLHEXYL)ESTER}
  DI-n-BUTYL PHTHALATE {1,2-BENZENEDICARBOXYLIC           214
               ACID, DIBUTYL ESTER}
  DI-n-OCTYL PHTHALATE {1,2-BENZENEDICARBOXYLIC         215-218
               ACID, DIOCTYL ESTER}
            DIMETHYLHYDRAZINE (1,1-)**                    215-218
            DIMETHYLHYDRAZINE (1,2-)**                    215-218
   N,N-DIETHYLHYDRAZINE {1,2-DIETHYLHYDRAZINE}          215-218

                             This document has been retyped from the original.

-------
       APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING


	HAZARDOUS ORGANIC COMPOUND	RANKING


      DIMETHYL-l-(METHYLTHIO)-2-BUTANONE, 0-             219-221
       [(METHYLAMINO)-CARBONYL]OXIME {3,3-}
         MALEIC HYDRAZINE (l,2-DIHYDRO-3,6-                219-221
                 PYRIDAZINEDIONE}
  tris(2,3-DIBROMOPROPYL)PHOSPHATE (1-PROPANOL,2,3-         219-221
               DIBROMO-,PHOSPHATE}
 PARATHION (0,0-DIETHYL 0-[p-NITROPHENYL] ESTER OF          222
                 PHOSPHORIC ACID}
 BROMOPHENYL PHENYL ETHER (4-) (BENZENE, 1-BROMO-          223
                    4-PHENOXY-}
      DIHYDROSAFROLE  {l,2-METHYLENEDIOXY-4-               224
                 PROPYLBENZENE}
 ETHYL METHANESULFONATE {METHANESULFONIC ACID,          225
                   ETHYL ESTER}
  METHYL METHANESULFONATE {METHANESULFONIC            226
               ACID, METHYL ESTER}
 SACCHARIN {l,2-BENZOISOTHIAZOLIN-3-ONE,l,l-DIOXIDE}          227
    METHYL-2-(METHYLTHIO)-PROPIONALDEHYDE-0-           228-229
           (METHYL-CARBONYL)OXIME (2-)


                            This document has been retyped from the original.

-------
APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING
   HAZARDOUS ORGANIC COMPOUND
RANKING
METHYOMYL (ACETIMIDIC ACID,N-
[(METHYLCARBAMOYL)OXY]TfflO-,METHYL ESTER}
DIALLATE (S-(2,3-DICHLOROALLYL)DIISOPROPYL
TfflOCARBAMATE}
ETHYLENEIMINE {AZIRIDINE}
METHYLAZIRIDINE (2-) {1,2-PROPYLENIMINE}
PENTACHLORONITROBENZENE {PCNB}
DIMETHOXYBENZIDINE (3,3'-)
KEPONE {DECACHLOROOCTAHYDRO-1,3,4-METHANO-2H-
CYCLOBUTA[c,d]PENTALEN-2-O]NfE}
tris(l-AZRIDINYL) PHOSPHINE SULFIDE
DIPHENYLHYDRAZINE (1,2-)
0,0-DIETHYLPHOSPHORIC ACID, 0-p-NITROPHENYL ESTER
0,0-DIETHYL-0-2-PYRAZINYLPHOSPHOROTHIOATE
CITRUS RED No. 2 (2-NAPHTHOL,l-[(2,5-
228-229
230-233
230-233
230-233
230-233
CLASS 8
234 234-269
235
236
237
238
239
240-241
       DIMETHOXYPHENYL)AZO]}
                      This document has been retyped from the original.

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     APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

         HAZARDOUS ORGANIC COMPOUND                 RANKING
  DIMETHYLAMINOAZOBENZENE (N,N-DIMETHYL-4-           240-241
           [PHENYLAZOJBENZENAMINE}
    CHLOROETHYL VINYL ETHER (2-) (ETHENE,[2-              242
                CHLOROETHOXY]-}
 DISULFOTON {0,0-DIETHYL S-[2-(ETHYLTHIO)ETHYL]           243-246
             PHOSPHORODITHIOATE}
    ENDRIN (l,2,3,4,10,10-HEXACHLORO-6,7-EPOXY-             243-246
     l,4,4a,5,6,7,8,8a-OCTAHYDRO-endo,endo-l,4:4,8-
           DIMETHANONAPHTHALENE}
   0,0-DIETHYL S-[(ETHYLTfflO)METHYL]ESTER OF             243-246
       PHOSPHORODITHIOIC ACID {PHORATE}
TRYPAN BLUE {3,3'-[3,3'-DIMETHYL(l,l'-BIPHENYL)-4,4'-          247
DIYL(AZO)]bis(5-AMINO-4-HYDROXY-2,7-NAPHTHALENE
                DISULFONIC ACID}
       DIISOPROPYLFLUOROPHOSPHATE {DFP}                248-249
        (PHOSPHOROFLUORIDIC ACID,bis[l-
              METHYLETHYLJESTER}
0,0,0-TRIETHYL PHOSPHOROTHIOATE (0,0,0-TRIETHYL          248-249
          ESTER PHOSPHOROTHIOC ACID}
                           This document has been retyped from the original.

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      APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

          HAZARDOUS ORGANIC COMPOUND                RANKING
     bis(2-CHLOROETHOXY)METHANE {ETHANE, 1,1'-            250-252
         [METHYLENEbis(OXY)bis[2-CHLORO-]}
   bis(2-CHLOROETHYL)ETHER {ETHANE,!,l'-OXYbis[2-          250-252
                    CHLORO-]}
bis(2-CHLOROISOPROPYL)ETHER (PROPANE,2,2'-OXYbis[2-        250-252
                    CHLORO-]}
  PARALDEHYDE {2,4,6-TRIMETHYL-l,3,5-TRIOXANE}**            253
  PHTHALIC ANHYDRIDE {1,2-BENZENEDICARBOXYLIC            254
                 ACID ANHYDRIDE}
METHYLTHIOURACIL{4-lH-PYRIMIDINONE-2,3-DIHYDRO-        255-256
               6-METHYL-2-THIOXO-}
PROPYLTHIOURACIL {UNDECAMETHYLENEDIAMINE,N,N'-        255-256
      bis[2-CHLOROBENZYL]DIHYDROCHLORIDE}
         OCTAMETHYLPYROPHOSPHORAMIDE                257-258
         {OCTAMETHYLDIPHOSPHORAMIDE}
        TETRAETHYLDITHIOPYROPHOSPHATE                257-258
 (DITHIOPYROPHOSPHORIC ACID, TETRAETHYL ESTER}
         STRYCHNINE {STRYCHNIDIN-10-ONE}                   259
                            This document has been retyped from the original.

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      APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

          HAZARDOUS ORGANIC COMPOUND                RANKING
           CYCLOPHOSPHAMIDE (2H-1,3,2-                   260-263
  OXAZAPHOSPHORINE,[bis(2-CHLOROETHYL)AMINO]-
              TETRAHYDRO-2-OXIDE}
 NICOTINE {(S)-3-[l-METHYL-2-PYRROLIDINYL]PYRIDINE}        260-263
  RESERPINE {YOHIMBAN-16-CARBOXYLIC ACID,11,17-          260-263
  DIMETHOXY-18-[(3,4,5-TRIMETHOXYBENZOYL)OXY]-
                 METHYL ESTER}
TOLUIDINE HYDROCHLORIDE (2-METHYL-BENZENAMINE        260-263
                 HYDROCHLORIDE}
           TOLYLENE DIISOCYANATE (1,3-                     264
          DIISOCYANATOMETHYLBENZENE}
  BUTANONE PEROXIDE (2-) (METHYL ETHYL KETONE,          265-266
                    PEROXIDE}
  DAUNOMYCIN {5,12-NAPHTHACENEDIONE, [8S-cis]-8-          265-266
 ACETYL-10-[(3-AMINO-2,3,6-TRIDEOXY)-ALPHA-L-LYXO-
  HEXOPYRANO-SYL)OXY]-7,8,9,10- TETRAHYDRO-6,8,11-
            TRIHYDROXY-1-METHOXY-}
NITROGYLCERINE **[{TRINITRATE-1,2,3-PROPANETRIOL}          267
      ETHYLENEbisDITHIOCARBAMIC ACID {1,2,-                268
       ETHANEDIYLbisCARBAMODITHOIC ACID}

                            This document has been retyped from the original.

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       APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING
          HAZARDOUS ORGANIC COMPOUND
RANKING
              TETRANITROMETHANE**
   269
       ACETYL-2-THIOUREA (1-) {ACETAMIDE,N-
             [AMINOTHIOXOMETHYL]-}
     CHLOROPHENYL THIOUREA (1-) {THIOUREA, [2-
                CHLOROPHENYL]-}
                N-PHENYLTHIOUREA
       NAPHTHYL-2-THIOUREA (1-) {THIOUREA, 1-
                 NAPHTHALENYL-}
TETRAETHYLPYROPHOSPHATE (PYROPHOSPHORIC ACID,
                TETRAETHYL ESTER}
            THIOUREA {THIOCARBAMIDE}
   ETHYLENE THIOUREA {2-IMIDAZOLIDINETHIONE}
             URACIL  MUSTARD {5-[bis(2-
           CHLOROETHYL)AMINO]URACIL}
 DITHIOBIURET (2,4-) (THIOIMIDODICARBONIC DIAMIDE}
 THIOSEMICARBAZIDE  {HYDRAZINECARBOTHIOAMIDE}
 THIURAM {bis[DIMETHYLTHIOCARBAMOYL]DISULFIDE}
 270-275

 270-275

 270-275
 270-275

 270-275

 270-275
 276-277
 276-277

 278-280
 278-280
 278-280
CLASS 9
 270-304
                            This document has been retyped from the original.

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     APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

        HAZARDOUS ORGANIC COMPOUND                 RANKING
   AZASERINE {L-SERINE,DIAZOACETATE [ESTER]}            281-284
HEXAETHYL TETRAPHOSPHATE {TETRAPHOSPHORIC          281-284
            ACID, HEXAETHYL ESTER}
          NITROGEN MUSTARD N-OXIDE                    281-284
          NITROQUINOLINE-1-OXIDE (4-)                    281-284
CYCASIN (beta-D-GLUCOPYRANOSIDE, [METHYL-ONN-           285
                AZOXY]METHYL-}
STREPTOZOTOCIN (D-GLUCOPYRANOSE,2-DEOXY-2-[3-           286
          METHYL-3-NITROSOUREIDO]-}
     N-METHYL-N'-NITRO-N-NITROSOGUANIDINE              287-301
       N-NITROSO-DI-ETHANOLAMINE {[2,2'-                 287-301
           NITROSOIMINO]bisETHANOL}
N-N1TROSO-DI-N-BUTYLAMINE {N-BUTYL-N-NITROSO-1-          287-301
                 BUTANAMINE}
      N-NITROSO-N-ETHYLUREA (N-ETHYL-N-                287-301
              NITROSOCARB AMIDE}
     N-NITROSO-N-METHYLUREA {N-METHYL-N-              287-301
              NITROSOCARB AMIDE}
                          Tltis document has been retyped from the original.

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      APPENDIX 4.  UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING

	HAZARDOUS ORGANIC COMPOUND	RANKING


     N-N1TROSO-N-METHYLURETHANE {CARBAMIC            287-301
        ACID,METHYLN1TROSO-,ETHYL ESTER}
       N-NITROSODIETHYLAMINE (N-ETHYL-N-               287-301
              NITROSOETHANAMINE}
N-N1TROSODIMETHYLAMINE {DIMETHYLN1TROSAM1NE}        287-301
    N-N1TROSOMETHYLETHYLAMINE {N-METHYL-N-           287-301
              NITROSOETHANAMINE}
    N-NITROSOMETHYLVINYLAMINE (N-METHYL-N-           287-301
              NITROSOETHENAMINE}
              N-N1TROSOMORPHOLINE                     287-301
              N-NITROSONORNICOTINE                     287-301
       N-NITROSOPIPERIDINE (HEXAHYDRO-N-               287-301
                NITROSOPYRIDINE}
              N-NITROSOSARCOSINE                      287-301
             NITROSOPYRROLIDINE {N-                     287-301
          NITROSOTETRAHYDROPYRROLE}
     DI-n-PROPYLNITROSAMINE (N-NITROSO-DI-n-               302
                  PROPYLAMINE}


                           This document has been retyped from the original.

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       APPENDIX 4. UDRI THERMAL STABILITY-BASED INCINERABILITY RANKING


          HAZARDOUS ORGANIC COMPOUND                 RANKING
OXABICYCLO[2,2,l]HEPTANE-2,3-DICARBOXYLIC ACID (7-)          303
                    {ENDOTHAL}
          ENDOSULFAN (5-NORBORNENE,2,3-                    304
DIMETHANOL,1,4,5,6,7,7-HEXACHLORO-,CYCLIC SULFITE}
                            This document has been retyped from the original.

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               UNITED STATES ENVIRONMENTAL P          '"
                             WASHINGTON. D.C. .                      9488.1989(03)
                                                                          t Or

                                                         SGi-iO V.ASTC AND EMERGENCY RESPONSE
Mr. Eliot Cooper
V. P. Environmental Operations
Waste-Tech Services, Inc.
1 8400 W. 10th Avenue
Golden, Colorado 80401

Dear Mr. Cooper

       This is in response to your September 13, 1989, letter in which you expressed
several concerns about the hazardous waste incinerator metals emissions controls that
permit writers are applying based on recommended guidance from this Office. ! want to
address each of your concerns in turn.

Health-Based Limits Mav Be Too Restrictive

       I believe that the recommended acceptable ambient levels are not overly restrictive.
In this regard, the use of the health-based limits ensures that corrective measures are
required only when emissions may pose an unacceptable health risk. These levels for
carcinogens are based on Agency-approved unit risk values.  The values for
noncarcinogens are based on Agency-approved oral reference doses (RfDs) convened to
inhalation RfDs. Although issues arise when converting oral RfDs to inhalation RfDs, we
believe that this interim approach is reasonable and comports with acceptable procedure.
As the Agency's Inhalation RfD Work Group develops specific approved inhalation RfDs,
we will revise our guidance accordingly.

       Overall, I believe, this approach provides a reasonable balance that assures
environmental protection but which should minimize the impact of the controls on the
regulated community.

Risk Assessment Methodology Is Inconsistent With Other Regulations

       You correctly noted that the guidance recommends control of carcinogenic metals at
a 10*5 risk level while the Agency's proposed standard for benzene emissions is based on a
10*4 risk level. Agency policy is that the appropriate risk level for a regulation will be
determined on a case-by-case basis depending on factors such as statutory mandate, nature
of the pollutant, control alternatives, fate and transport of the pollutant in the environment,
and potential human exposure.  The risk level that triggers a regulatory action need not be
the same for all regulations.
       After considering a risk level for the metals controls in the range of 10"4 to
we selected the 10*5 risk level. We did not consider a 10*4 risk level to be acceptable for
these controls because: (1) the total annualized cost of the controls at a 10*5 risk level is

-------
not substantial ($6 million or an average of $26,000/facility) - thus, the margin of safety is
cost effective; and (2) indirect exposure from the metals is not considered in the risk
assessment methodology. We considered limiting the risk to 10*6 but determined that it
would result in setting risk levels for individual carcinogens on the order of 10~7 given that
the risk from each carcinogen must be added to determine the summed or aggregate risk.
We believe that limiting individual metals to levels that would result in (on the order of) a
10~7 risk level would be unnecessarily conservative considering the relatively low projected
cancer incidence (total population cancer risk) posed by metals emissions from hazardous
waste incinerators.

Risk Assessment Approach Is Difficult To Implement

       I appreciate your concerns about the difficulty in conducting a trial burn that
demonstrates conformance with the metals controls while allowing operating flexibility
during the life of the permit, and in complying with permit conditions that limit the feed
rates of metals. We certainly do not have all the answers.  We believe that our permit
writers are working with permit applicants to address issues as they arise and to develop
reasonable solutions to them.

      You may be aware that we have retained a contractor. Energy and Environmental
Research Corporation, to help permit writers and applicants to use the best available
information to develop an appropriate test bum plan, to interpret the test results, and to
develop reasonable permit conditions. Dr. Randy Seeker and his staff nave assisted permit
writers at the site-specific level on three occasions to date.

All Chromium Is Assumed To Be Hexavalent

      The recommended guidance assumes all chromium is in the highly potent
hexavalent state unless the applicant documents otherwise. As you know, the guidance
takes this conservative position because, until recently, we did not have a reliable sampling
and analysis  technique for hexavalent chromium emissions. The Agency has nearly
completed successful validation tests of a hexchromium technique - Sampling and
Analytical Methodology for Measurement of Low Levels of Hexavalent Chromium from
Stationary Sources (copy enclosed).  Applicants may now use this methodology to
determine  hexchromium emissions.
                              >
Health-Based Standards Can Be Met By Increasing Stack Height Rather Than Emissions
Control

      We agree that one implication of health-based standards is that a facility can comply
with ambient limits on pollutants by increasing stack height to provide increased dilution
rather than by removing pollutants from the stack gas. To address this shortcoming, we
are limiting to 65 meters the height of the stack that can be considered for compliance
purposes.  The Agency uses this same approach to implement controls promulgated under
the dean Air ACL

Stringent Paniculate Standard Is Better Than Health-Based Standards

       Although health-based standards require corrective measures only when public
health is likely to be adversely affected, we share a number of your concerns about the
implications of health-based standards ~ they can be difficult to implement and a facility
may be able  to comply using means other than emissions controls. Moreover, emissions

-------
standards cannot be developed when there are not enough health data to establish acceptable
ambient levels (e.g., for selenium).

       On the other hand, even a paniculate standard as stringent as 0.02 gr/dscf may not
be adequately protective in cases where metal-bearing wastes are incinerated and toxic
metals may comprise a relatively large fraction of emitted paniculates.

       We are considering developing a revised paniculate standard for proposal in the
future. However, we are not now prepared to propose or recommend as guidance to
permit writers any such revisions at this time. We need additional information to pin down
performance levels and to investigate the impact on the regulated community.

New Capacity Is At An Economic Disadvantage

       You expressed concern that new facilities are at an economic disadvantage because
existing facilities are not required to meet the metals controls. Only  about  80 incineration
facilities of the approximately 200 existing facilities were issued permits before permit
writers began to apply the metals controls.  I am advised that permit writers intend to add
metals controls as necessary to those 80 permits when they are renewed.

       I hope this information is helpful.  If you have further questions or comments,
please feel free to contact Bob Holloway, Chief of our Combustion  Section.  Bob can be
reached on (202) 382-7936.

                                        Sincerely,  .     /"
                                        Sylvia K. Lowrance, Director
                                       . Office of Solid Waste
Enclosure

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      -        UNITED STATES ENVIRONMENTAL PROTECTION AGE  9488.1990(01)
      V                   WASHINGTON. D.C. 20460
                            MAR 29 1990
                                                           OFFICE OF
                                                  SOLID WASTE AND EMERGENCY
MEMORANDUM

SUBJECT: Interpretation of How the Residues from Pfizer's Trial
         Burn Should Be Handled                A
                                       " >    (s i 0
PROM:    Lionel Vega, Chemical Engineer)/\  ',^jj\I^"5^
         Alternative Technology and S**ggort Section

TO:      Gerard Sotolongo, Chief
         CT Waste Regulation Section

     This is in response to your February 28, 1990, memorandum
seeking our interpretation on how the incinerator residues from
Pfizer's trial burn should be handled.  After consulting with
Mitch Kidvell of our Characterization and Assessment Division
(CAD), we believe that residues generated during Pfizer's trial
burn will be considered hazardous wastes since they are derived
from the treatment of F003, U211, and U037 listed hazardous
wastes (see 261.3(c)2(i)).

     As described in your memo, Pfizer  will spike their normal
waste (F003) with a mixture of carbon tetrachloride and
chlorobenzene.  The key question in this case is whether or not
the spiking mixture would be considered an U211 and U037 listed
hazardous waste.  Commercial chemical products are hazardous
wastes if and when they are discarded or  intended to be discarded
by being incinerated (see 261.33, 261.33(f),  261.2(a)(2)(i) and
261.2(b)(2)).  Since the spiking mixture will be specifically
prepared for the purpose of testing Pfizer's  incinerator system,
even before the carbon tetrachloride and  chlorobenzene chemical
products are blended there is an intention to discard these
materials.  Therefore, the spiking mixture is considered a listed
hazardous v»tes carrying the U211 and  U037 wastes codes.

     If you have any further question on  this matter, please do
not hesitate to call me at FTS 475-8988.

cc: Mitch Kidwell, CAD
                                               FILE COPY

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                                                    9488.1990(02)
                              APR I 9 1990


MEMORANDUM

SUBJECT: Chlorine Emissions from Hazardous Waste Incinerators

FROM:    Matthew  Hale, Acting Director
         Permit and State Programs Division (OS-343)

TO:      William Honker, Chief
         RCRA Permits Branch (6H-P)
         Region VI


     This is in response to your March 13, 1990, memorandum
suggesting the need to control chlorine emissions from hazardous
waste incinerators and requesting interim guidance on chlorine
emission control and measurement.

     As mentioned at the last Incinerator Permit Writers
Workgroup Meeting, EPA is requesting comments on a proposal to
amend 264.343(b) so that the existing 99% removal standard would
apply to both hydrogen chloride  (HCL) and free chlorine.  EPA is
also proposing to require a health-based check to ensure that the
technology-based standard for free chlorine is protective.
Accordingly, the applicant would be required to demonstrate that
the Maximum Exposed Individual (MEI) is not exposed to free
chlorine emissions exceeding the proposed annual average
reference air concentration (RAC) of 0.4 micrograms per cubic
meter.  This amendment is included in the proposed incinerator
regulations signed by the Administrator on April 9, 1990.  A copy
of that proposal was sent to your Division Director under
separate cover.

     As indicated in the proposed incinerator regulations,
compliance with the health-based chlorine standard would be
demonstrated by:  (1) emissions testing and dispersion modelling;
(2) emission testing and conformance with the chlorine emission
screening limits; or (3) waste analysis and conformance with
chlorine feed rate screening limits.  The emission and feed rate
screening limits for chlorine can be determined by multiplying
1.33 times the corresponding limits established for mercury in
Appendix E of the boiler/furnace supplemental notice  (see  54  FR
*i .3 / *i j j •  XI. ^Qi-iSo^GTi^^C^oi^

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Method for Determination of HCL Emissions from Municipal and
Hazardous Waste Incinerators" should be used  (see attachment).

     As with the proposed controls for metals and HC1, the permit
writer can exercise his authority under Section 3005(c)(3) of
RCRA to develop permit requirements as may be necessary to ensure
that chlorine emissions do not pose unacceptable health risk to
human health and the environment.  If you have any further
questions on this matter, please contact Lionel Vega of my staff
at FTS 475-8988.

Attachment

cc: Elizabeth Cotsworth
    Sonya Stelmack
    Lionel Vega
    Shiva Garg

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                                METHOD
                MIDGET IMPINGES HC1/C1,  EMISSION SAMPLING TRAIN
     This method ha* b«en drafted based on the results of laboratory and field
studies carried out under contract to the Source Branch of the Quality
Assurance Division. Atmospheric Research and Exposure Assessment Laboratory
(QAD/AREAL), United States Environmental Protection Agency (U.S. EPA).  The
method is still under investigation and is subject to revision.
                                     D-2

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                                METHOD 	

             '   MIDGET IMPINGES HC1/C1,.EMISSION SAMPLING TRAIN


1.0  SCOPE AND APPLICATION

     1.1  This method describes the collection of hydrogen chloride (HC1, CAS
Registry Nuaber 7647-01-0) and chlorine (C12. CAS Registry Number 7782-50-5)
in stack gas emission samples from hazardous waste incinerators and municipal
waste combustors.  The collected samples are analyzed using Method XXXX.  This
method is designed to collect HC1/C12 in their gaseous forms.  Sources, such as
those controlled by wet scrubbers, that emit acid particulate matter (e.g.. HC1
dissolved in water droplets) must be sampled using an isokinetic HC1/C12
sampling train (see Method XXXX).

2.0  SUMMARY OF METHOD

     2.1  An integrated gas sample is extracted from the stack and passes
through a particulate filter, acidified water, and finally through an alkaline
solution.  The filter serves to remove particulate matter such as chloride
salts which could potentially react and form analyte in the absorbing solu-
tions.  In the acidified water absorbing solution, the HC1 gas is solubilized
and forms chloride (Cl*) ions.  The C12 gas present in the emissions has a very
low solubility in acidified water and passes through to the alkaline absorbing
solution where it undergoes hydrolysis to fora a proton (H*). Cl*, and
hypochlorous acid (HC10).  The Cl* ions in the separata solutions are measured
by ion chroaatography (Method XXXX).

3.0  INTERFERENCES

     3.1  Volatile materials which produce chloride ions upon dissolution
during sampling are obvious interferences in the measurement of HC1.  One
interferent for HC1 is diatomic chlorine (C12) gas which disproportionates to
HC1 and hypochlorous acid (HOC1) upon dissolution in water.  C17 gas exhibits a
low solubility in water, however, and the use of acidic rather than neutral or
basic solutions for collection of hydrogen chloride gas greatly reduces  the
dissolution of any chlorine present.  Sampling a 400 ppa HC1 gas stream
containing 50 ppm Cl, with this method does not cause a significant bias.
Sampling a 220 ppm HC1 gas streaa containing 180 ppa C13 results in a positive
bias of 3-^X In the HC1 measurement.

4.0  APPARATUS AND MATERIALS

     4.1  Sampling Train.  The saopling train is shown in Figure 1 and
component parts are discussed below.

          4.1.1  Probe.  Borosilicate glass, approximately 3/8-in.  (9-ma)
     inside diameter, with a heating system to prevent condensation.  When the
     concentration of alkaline particulate natter in the emissions is high, a
     3/8-in. (9-ma) inside diameter Teflon elbow should be attached to  the
     inlet of the probe: a 1-in. (25-mm) length of Teflon tubing with  a 3/8-in.

                                    XXXX - 1                 Revision  	
                            •"Draft August 1989***          Date  	
                                     D-3

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                4.1.8.2. Pump.  Leak-free diaphragm pump,  or equivalent,  no pu
          gas  through  train.  Install a small surge tank  between the pusp ar.d
          the' rate  meter to eliminate the pulsation effect of the diaphragm
          pump on the  rotameter.

                4.1.8.3  Rate meter.  Rotameter. or equivalent,  capable of
          measuring flow rate to within 2 percent of selected flow rate of 2
          liters/min.

                U.I.8.4  Volume meter.  Dry gas meter, sufficiently accurate
          measure the saaple volume within 2 percent, calibrated at the
          selected  flow rate and conditions encountered during sampling, and
          equipped  with a temperature gauge (dial thermometer or equivalent)
          capable of measuring temperature to within 3°C (S.^T)-
               4.1.8.5  Vacuum gauge.  At least 760 ma Hg (30 in. Hg) gauge to
          be used  for leak check of the sampling train.

     4.2  Saaple Recovery.

          4.2.1  Wash bottles.  Polyethylene or glass. 500 ml or larger, two.

          4.2.2  Storage bottles.  Glass, with Teflon-lined lids. 100 ml. to
     store impinger samples (two per sampling run).
     5.1  Reagent grade chemicals shall b« used in all tests.  Unless otherwise
indicated, it is Intended that all reagents shall conform to the specifications
of the Committee on Analytical Reagents of the American Cheaical Society, where
such specifications are available.  Other grades may be used, provided it is
first ascertained that the reagent is of sufficiently high purity to permit its
use without lessening the accuracy of the determination.

     5-2  ASTM Type II Water  (ASTM 01193-77 (1983)).  All references to water
in the method refer to ASTM Type II unless otherwise specified.  It is
advisable to analyze a blank  saaple of this reagent prior to saapling. since
the reagent blank value obtained during the field saaple analysis must be less
than 10 percent of the saaple values (see Method XXXX).

     5-3  Sulfurlc acid (0.1  N). H,S04.  Used as the HC1 absorbing reagent.  To
prepare 100 aJL, slowly add 0.28 aL of concentrated H,SO% to about 90 mi. of
water while stirring, and adjust the final volume to 100 oL using additional
water.  Shake well to mix the solution.  It is advisable to analyze a blank
sample of this reagent prior  to saapling, since the reagent blank value
obtained during the field saaple analysis must be less than 10 percent of the
sample values (see Method XXXX).

     5-4  Sodium hydroxide (0.1 N), NaOH.  Used as the C12 absorbing reagent.
To prepare 100 mL, dissolve 0.40~g of solid NaOH in about 90 mL of water and
adjust the final volume to 100 mL using additional water.  Shake well to mix

                                    XXXX - 3                 Revision 	
                            "•Draft August 1989***          Date 	
                                     0-5

-------
          7.1.1.2  Past-test calibration check.   After each field  tes-
     series. conduct a calibration check as in Section 7-1.1.1 above.
     except for the following variations: (a) the leak check is not to  be
     conducted, (b) three or more revolutions of the dry gas meter aay  be
     used, (c) only two independent runs need to be made.  If the
     calibration factor does not deviate by more than 5 percent from the
     initial calibration factor (determined in Section 7.1.1.1), the dry
     gas meter voluaes obtained during the test series are acceptable.   If
     the calibration factor deviates by more than 5 percent, recalibrate
     the metering system as Section 7.1.1.1. and for the calculations,
     use the calibration factor (initial or recalibration) that yields the
     lower gas volume for each test run.

     7.1.2  Thermometer(s).  Prior to each field test, calibrate against
mercury-in-glass thermometers at ambient temperature.  If the thermometer
being calibrated reads within 2°C (2.6°F) of the mercury-in-glass
thermometer, it is acceptable.  If not. adjust the thermometer or use an
appropriate correction factor.

     7.1.3  Rate meter.  The rate meter need not be calibrated, but should
be cleaned and maintained according to the manufacturer's instructions.

     7.1.4  Barometer.  Prior to each field  test, calibrate against a
mercury barometer.  The field barometer should agree within 0.1 in. Hg
with the mercury barometer.  If it does not, the field barometer should be
adjusted.

7.2  Sampling.

     7.2.1  Preparation of collection train.  Prepare the sampling train
as follows: The first or knockout impinger should have a shortened stem
and be left empty to condense moisture in the gas stream.  The next two
midget impingers should each be filled with  15 mL of 0.1 N H2SOa. and the
fourth and fifth impingers should each be filled with 15 mL of 0.1 N NaOH.
Place a fresh charge of silica gel, or equivalent, in the Mae West
impinger (or the drying tube). Connect the impingers in series with the
knockout impinger first, followed by the two impingers containing the
acidified reagent and two impingers containing the alkaline reagent, and
the Mae West impinger containing the silica gel.  If the moisture will be
determined, weigh the impinger assembly to the nearest ^ 0.5 g and record
the weight.                                            ~"

     7.2.2  Leak check procedures.  Leak check the probe and  three-way
stopcock prior to inserting the probe into the stack.  Connect  the
stopcock to the outlet of the probe, and connect the sample line  to the
needle valve.  Plug the probe inlet, turn on the sample  pump,  and  pull a
vacuum of at least 250 ma Hg (10 in. Hg).  Turn off the  needle valve,  and
note the vacuum gauge reading.  The vacuum should remain stable for at
least 30 seconds.  Place the probe in the stack at the sampling location.
and adjust the filter heating system to 250°F and the probe and stopcock
heating systems to a temperature sufficient  to prevent water  condensation.
Connect the first impinger to the stopcock,  and connect  the sample line  to
                               XXXX - 5                  Revision
                       •••Draft August  1989***          Date 	
                               0-7

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     7.^  Calculations.  Retain at least one extra deciaal figure beyond ti-.ose
contained in the available data in intermediate calculations,  and round off
only the final answer appropriately.

          7-^.1  Nomenclature .

             •  Bw§ = Water vapor in the gas stream , proportion by volume.

                Mw « Molecular weight of water. 18.0 g/g-mole
                     (18.0 Ib/lb-mole).

              P6-r » Barometric pressure at the exit orifice of the dry gas
                     meter, mm Hg (in. Hg) .
               (td
                   * Standard absolute pressure. 760 mm Hg (29-92 in. Hg) .
                 R • Ideal gas constant. 0.06236 ma Hg-«J/°K-g-mole
                     (21.85 in. Hg-ftV°R-lb-mole).

                TB • Average dry gas meter absolute temperature, °K (°R).

               (td * Standard absolute  temperature. 293° K  (528oR).

               Vle « Total volume of liquid collected in impingers and silica
                     gel, oL (equivalent to the difference in weight of  the
                     impinger train before and after sampling.  1 mg » 1  aL) .

                V. » Dry gas volume as  measured by the dry gas  meter, dca
                     (dcf ) .
           v«(«td> " Dry *** volu8* measured by the dry gas meter, corrected
                     to  standard conditions, dson  (dscf ) .

           V₯<«td> * Volume of water vapor in  the  gas sample,  corrected  to
                     standard conditions, sea  (scf ) .

                 Y « Dry gas meter calibration factor.

                pw • Density of water. 0.9982  g/aL (0.002201  Ib/mL) .

          7.4.2  Sample  volume, dry basis, corrected to standard conditions.
     Calculate as described below:
                  Y
                      *..«
J^Y^-^                         (1)
     where:
        > 0.3858°K/mn Hg for metric units.
        « 17. 6^° R/ in. Hg for English units.
                                    XXXX - 7                  Revision
                             •••Draft August 1989***          Date 	
                                     D-9

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U. S.  Environaental  Protection Agency.  40  CFK  Part  60.  Appendix  A.  Me-
                            XXXX - 9                  Revision
                     '••Draft  August  1989***          Date 	

                             D-ll

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                                METHOD
                        PROTOCOL FOR ANALYSIS  OF SAMPLES
                     FROM HC1/C1, EMISSION SAMPLING TRAINS
     This Mthod has b««n drafted based on the results of laboratory and field
studies carried out under contract  to  the Source Branch of the Quality
Assurance Division. Atmospheric Research and Exposure Assessment Laboratory
(QAD/AREAL). United States Environmental Protection Agency (U.S. EPA).  The
method is still under  investigation and is subject to revision.
                                     D-13

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     ^.3  Ion Chromatograph.   Suppressed or non-suppressed,  with a conductivity
detector and electronic integrator operating in the peak area node.   Other
detectors, a strip chart recorder,  and peak heights may be used provided the
5 percent repeatability criteria for sample analysis and the linearity criteria
for the calibration curve can be met.

5.0  REAGENTS

     5.1  Reagent grade chemicals shall be used in all tests.  Unless otherwise
indicated, it is intended that all reagents shall conform to the specifications
of the Committee on Analytical Reagents of the American Chemical Society, where
such specifications are available.  Other grades may be used, provided it is
first ascertained that the reagent is of sufficiently high purity to permit its
use without lessening the accuracy of the determination.

     5.2  ASTM Type II Water (ASTM D1193-77 (1983)).  All references to water
in the method refer to ASTM Type II unless otherwise specified.

     5-3  Sulfuric acid (0.1 N). Ii,SOt.  To prepare 100 mL. slowly add 0.28 mi.
of concentrated H,S04 to about 90 mL of water while stirring, and adjust the
final volume to 100 mL using additional water.  Shake well to mix the solution.

     5.4  Sodium hydroxide (0.1 N). NaOH.  To prepare 100 mL. dissolve 0.40 g
of solid NaOH in about 90 mL of water and adjust the final volume to 100 mL
using additional water.  Shake well to mix the solution.

     5.5  Haagent blank solutions.  A separate blank solution of each sampling
train reagent used and collected in the field (0.1 N H,S04 and 0.1 N NaOH)
should be prepared for analysis with the field samples.  For midget""impinger
train saaple analysis, dilute 30 mL of each reagent with rinse water collected
in the field as • blank to the final volume of the samples; for isokinetic
train sample analysis, dilute 200 mL to the saee final volume as the field
samples also using the blank sample of rinse water.

     5.6  Sodium chloride. NaCl. stock standard solution.  Solutions containing
a nominal certified concentration of 1000 ag/L NaCl are commercially available
as convenient stock solutions fro* which working standards can be made by
appropriate volumetric dilution.  Alternately, concentrated stock solutions may
be produced from reagent grade NaCl that ham been dried at 110° C for two or
more hours and then cooled to roosi temperature in a desiccator immediately
before weighing.  Accurately weigh 1.6 to 1.7 g of the dried NaCl to within 0.1
mg, dissolve in water, and dilute to 1 liter.  The exact Cl* concentration can
be calculated using the equation:

               ug cr/«L . g of NaCl x 103 x 35.453/58.44

Refrigerate the stock standard solutions and store no longer than one month.

     5.7  Chroaatographlc effluent.  Effective eluents  for non-suppressed ion
chromatography using a resin- or silica-based weak ion  exchange column  are a
4 mM potassium hydrogen phthalate solution, adjusted to a pH of 4.0  using a
saturated sodium borate solution, and a mM 4-dydroxy bemoata  solution.

                                    XXXX - 2                 Revision 	
                            •••Draft August 1989***          Date 	
                                     0-15

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          7-2.3  After injecting the standards the first tine, determine r.u.e
     peak area or height for each standard.  Using linear regression,  detersir.e •
     the equation for the calibration curve.  Compare the known concentraticr.
     of each standard to its concentration predicted by the calibration
     equation; the percent error as calculated below should be less than or
     equal to 7 percent.

             •' % Error - Predicted Cone. - Known Cone. x 1QQ%               (1)
                                  Known Cone.

          7.2.4  Following analysis of the quality control sample, the reagent
     blanks, and the field saaples. the calibration standards are injected a
     second tioe.

          7.2.5  Using the average of the Initial and final injections of the
     standards and linear regression, determine the formula* for the
     calibration curve to be used to calculate the field sample concentrations.

     7.3  Saaple analysis.  Between injections of the series of calibration
standards, inject in duplicate  the reagent blanks and the field saaples.
including a matrix spike sample.  Measure the areas or heights (same as done
for the calibration standards)  of the Cl' peaks.  Each response (peak height or
area) for a duplicate injection should be within 5 percent of the average
response.  Use the average response to determine the concentrations of the
field samples, matrix spike, and reagent blanks using the linear calibration
curve.  The results for a reagent blank shall not exceed 10 percent of the
corresponding value for a field sample.

     7.4  Calculations.  Retain at least one extra decimal figure beyond those
contained in the available data in Intermediate calculations, and round off
only the final answer appropriately.

          7.4.1  Total ug HC1 per sample.  Calculate as described below:

                    «HC1 -  (S-B) x V. x 36.46/35-453                         (2)


          where:    •__. • Mass of HC1 In  sample, ug.

                       S « Analysis of sample, ug Cl'/aL.

                       B « Analysis of reagent blank,  ug Cl*/mL.

                      V, » Volume of  filtered and diluted  sample.  mL.

                   36.46 • Molecular  weight of HC1,  ug/ug-mole.  and

                  35.453 • Atomic weight of Cl.  ug/ug-mole.

          7.4.2  Total ug C12 per sample.   Calculate as described below:

                    MC1- "  (S"B) * V« * 70-90/35-45                         (3)
                                    XXXX - 4                  Revision
                               'Draft August 1989***          Date 	
                                     0-17

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respectively.  The method does not exhibit any bias  for  HC1  when saapiir.g at
Clj concentrations less than 50 ppa.

REFERENCES

1.   Steinsberger. S. C. and J. H. Margeson. "Laboratory and Field Evaluation
     of a Methodology for Determination of Hydrogen Chloride Emissions from
     Municipal and Hazardous Waste Incinerators," U. S.  Environmental
     Protection Agency, Office of Research and Development,  Report No. 	.
     	. 1989-

2.   State of California. Air Resources Board, Method 421. "Determination of
     Hydrochloric Acid Emissions from Stationary Sources." March 18, 1987.

3.   Entropy Environmentalists. Inc., "Laboratory Evaluation of a Sampling and
     Analysis Method for Hydrogen Chloride Emissions from Stationary Sources:
     Interim Report." EPA Contract No. 68-02-4442. Research Triangle Park.
     North Carolina. January 22, 1988.
                                    XXXX - 6                  Revision
                            •'•Draft August  1989*"           Date 	
                                     0-19

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             UNITED STATES ENVfROMMEWTAL PROTECTIOM AGENCY    0/00 nn ,  %
                                                        9488.1991(01)
                          FEB   5 1991
 Mr.  James Buckert, Manager
 Technical Support Unit, Permits Section
 Division of Air Pollution Control
 Illinois Environmental Protection Agency
 P.O.  Box 19276
 Springfield, IL  62794-9276

 Dear Mr. Buckert:

      This is in response to your January 7, 1991 letter on POHC
 selection for a RCRA hazardous waste incinerator trial burn.  You
 inquired whether 1,2,3-trichlorobenzene would be acceptable to
 use  as a solid POHC, considering that this compound is not listed
 in 40 CFR Part 261, Appendix VIII.

      My understanding from your letter and discussions with you
 and  Mike Davidson is that you believe that, on a technical basis,
 1,2,3-trichlorobenzene would be a good choice as a POHC because
 1) it is a solid at ambient conditions and .thus could be mixed
 with solid waste feed; 2) with respect to incinerability, 1,2,3-
 trichlorobenzene is .expected to perform similarly to 1,2,4-
 trichlorobenzene, an Appendix VIII compound which is in Class I
 of the Thermal Stability at Low Oxygen (TSLo02) ranking (This is
 based on input from Dr. Barry Dellinger,  University of Dayton
 Research Institute, as relayed by Larry Johnson, EPA Office of
 Research and Development); and 3) the compound is readily
 available and can be sampled and analyzed by standard EPA methods
.and  procedures.

      Thus,  your inquiry primarily focused on whether the fact
 that 1,2,3-trichlorobenzene is not on Appendix VIII would
 eliminate this compound as a potential POHC.  As I mentioned to
 you  in our telephone conversation, this issue was addressed in an
 April 27, 1990 EPA proposal to amend the hazardous waste
 incinerator regulations.  EPA believes that there are situations
 where compounds not on Appendix VIII may be more suitable as
 POHC's than Appendix VIII compounds (due to concerns such as
 availability,  toxicity, etc.).  For this reason, we proposed to
 amend §264.342(b)(1) and §270.62(b)(4) to specifically state that
 POHC's need not be listed in Appendix VIII or be present in the
 normal waste feed provided the applicant demonstrates that the
 f+fvmv\f\i\v\A i n_. a en \ + afrO ^ ^ ttfl J^/^aj£_Aig^^v£^^^MHT\l^_apgQ—i*LJ_feh——fch^
•otandard•

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     Therefore, your proposal to use a non-Appendix VIII compound
as a POHC is considered acceptable in terms of our most up-to-
date thinking on POHC selection.  Further, since it is planned
that the trial burn will include two additional POHC's which are
Appendix VIII compounds, the proposed set of POHC's would also be
consistent with the current wording of the RCRA incinerator
regulations.


     If you have any further questions on this issue,  feel free
to contact me at (202) 382-3132.


                              Sincerely,
                              Sonya M. Sasseville, Chief
                              Alternative Technology Section
cc:  Y.J. Kim, Region V
     Lionel Vega
     Larry Johnson
     Elizabeth Cotsworth

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                                                    9488.1991(02)
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                            JUN-6B9I
Mr. Samuel I. Gutter
Sidley & Austin
1722 Eye Street, N.W.
Washington, D.C.  20006

Dear Mr. Gutter:

     This is in response to your May 1, 1991, letter requesting
clarification of the regulatory status of an industrial furnace
burning hazardous waste under the boiler and industrial furnace
(BIF)  regulation if the furnace ceases making product or halts
the industrial activity and burns hazardous waste for purposes of
destruction only.  You indicated that you had discussed this
issue with Steve Silverman and that he agreed with your
understanding that in these situations the furnace could continue
to burn hazardous waste under the BIF regulations.  However, you
noted that Bob Holloway in a recent Chicago meeting had stated a
contrary opinion.

     Bob Holloway of my staff has resolved this question with
Steve Silverman.  This letter confirms the answer which
Mr. Holloway has already verbally provided to you.  Although an
industrial furnace may burn hazardous waste solely for the
purpose of destruction under the BIF rule after the owner or
operator submits a certification of compliance as required by
Section 266.103(c), the device must continue to meet the
definition of an industrial furnace.  If the facility no longer
meets the definition of an industrial furnace, then it would
typically be subject to regulation as an incinerator.  For
example, if the owner of a cement facility operating in interim
status under the BIF rule determined that it was more profitable
to cease making cement and focus the business on destroying solid
and liquid hazardous wastes, the device would no longer meet the
definition of a cement kiln.  The facility would have to cease
burning hazardous waste until it obtained an operating permit as
an incinerator under Subpart 0, Part 264.  If the facility was
operating under a RCRA operating permit as a cement kiln, then it
could not burn hazardous waste without producing marketable

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


                              - 2 -
cement product until the permit was modified  to  classify the
device as an incinerator  (and, most likely, increase  the
hazardous waste burning capacity).

     If you have further questions or comments,  please  feel  free
to contact Bob Holloway at  (703)  308-8461.

                                         Sincerely,
                                         Sylvia  K.  Lowrance
                                         Director
                                         Office  of  Solid Waste

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                                                        9488.1991(03)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                            ^3  199!
                                              SOLID WASTE AND EMERGENCY RESPONSE
 Honorable Alex McMillan
 House  of Representatives
 Washington,  D.C.   20515

 Dear Mr. McMillan:

     Thank you for your letter of August 2,  1991, regarding
 Rexham Industrial's and Richard McClintocJc's concerns about
 the recent regulations for burning hazardous wastes  in boilers
 and industrial furnaces (BIFs).  You requested  information on how
 the BIF regulations and the  recently amended Clean Air Act would
 affect the operation of Rexham's boiler.

     The Environmental Protection Agency (EPA)  published  the
 BIF regulations on February  21, 1991  (copy enclosed).  These
 regulations  require facilities that burn hazardous wastes to
 monitor the  combustion for high efficiency and  to control any
 pollutants in the  flue gases that might pose a  threat to  human
 health and the environment.  EPA developed these regulations over
 a period of  four years and requested public  comments on them on
 two different occasions.  After giving the industry  opportunity
 to submit comments, EPA responded to all comments and
 accommodated many  of them by revising the proposed regulations.

     In his  letter, Mr. McClintock indicated that he is not sure
 whether the  spent  solvents he has been burning  as fuel are
 actually regulated as hazardous waste.  The  BIF rule applies to
 boilers only if they burn hazardous waste.   Although I suspect
 that the spent solvents are  hazardous wastes, the state of North
 Carolina can assist Mr. McClintocJc in making a  final
 determination.

     Mr. McClintocJc also indicated that the  spent solvents are  a
 cleaner fuel than  No. 2 fuel oil.  In developing the final BIF
 regulations, EPA was aware that some hazardous  waste fuels have
very low levels of toxic organic or metal constituents and may  be
hazardous only because they  are ignitable and pose a fire or
explosion hazard.  Accordingly, the BIF regulations  exempt
boilers burning such low-hazard waste from many of the emissions
 standards (e.g., particulate matter limits and  emissions  testing
 for organics and toxic metals).  These exemptions are

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implemented, however, under the permitting process established by
the regulations.  Thus, although a boiler burning "low-risk
waste11 may be exempt from certain emission standards, it would
still need a Resource Conservation and Recovery Act  (RCRA)
permit.

     Regulations that EPA will promulgate under the recently
amended Clean Air Act are not likely to affect the burning of
hazardous waste in boilers.  Amended Section 112 requires EPA to
establish standards for toxic pollutants representing maximum
achievable control technology.  Although boilers are a source
category that EPA will consider in developing regulations,
amended Section 112 explicitly requires EPA to consider existing
RCRA regulations in determining whether additional controls are
necessary.  Given that EPA believes that the BIF regulations
adequately control emissions from boilers that burn hazardous
waste, additional controls under Section 112 may not be needed to
address waste burning in boilers.

     Thank you for your interest in the safe and effective
management of hazardous waste.

                                   Sincerely yours,
                                   Don R. Clay
                                   Assistant Administrator
Enclosure

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY     9488- ^91 (04)
                       3 0 1991
 SUBJECT:   Response to Region VI Inquiry on Regulatory
           Classification of Quantum Tech Plasma Arc Unit

 FROM:      Sylvia K.  Lovrance,  Director
           Office of Solid Waste

 TO:        Allyn M.  Davis,  Director
           Region VI Hazardous Waste Management Division


     This  memorandum is in response to your August 14,  1991,
 memorandum requesting guidance on whether the Quantum Tech plasma
 arc unit falls  within the February 21,  1991,  revised definition
 of incinerator,  even though the unit has no afterburner.

     The language of the February 21 revised definition of
 incinerator unintentially includes all plasma arc and infrared
 units,  rather than just those with afterburners.   However,  the
 regulatory status of such devices does not immediately  change in
 authorized States.   Thus,  at present,  the state would make a
 determination on the regulatory classification of this  device
 based on the definitions currently in effect in the state.  To
 prevent problems in the future,  we plan to make a technical
 correction to the revised definition of incinerator.  Following
 is a more  detailed description of our interpretation and planned
Jfol low-up.


 Classification  under Suboart O vs. Suboart X

     On February 21,  1991,  along with the BIF (boiler and
 industrial furnace)  rule,  EPA published modifications to the
 definition of incinerator.   One modification specifically added
 plasma  arc and  infrared devices to the definition.   The reasons
 for this modification were,  as stated at 56 FR 7204,  that "(1)
 although these  devices use nonflame sources of thermal  energy to
 treat waste in  the primary chamber,  they invariably employ
 controlled flame afterburners to combust hydrocarbons..."
 (emphasis  added); and "(2)  the incinerator standards are workable
 and protective  for these units."

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     EPA was unaware at the time the definition was being
developed, and commenters on the proposed rule did not indicate,
that there were plasma arc units without afterburners, as
indicated by the above preamble language.  Therefore, the
presence of an afterburner was not specifically included as a
criterion in the new definition.  Under revised §260.10, plasma
arc incinerator is defined as "any enclosed device using a high
intensity electrical discharge or arc as a source of heat and
which is not listed as an industrial furnace."  Since there is no
mention of afterburners in either the plasma arc incinerator or
incinerator definitions, the revised definition of incinerator
does not exclude plasma arc units which do not have afterburners.
This is also the case for infrared units.

     Since the Regions are now aware of two such devices without
afterburners, we plan to make a technical correction to the
February 21 rule to only include plasma arc and infrared units
with afterburners in the definition of incinerator.  Considering
a plasma arc or infrared device without an afterburner as an
incinerator is clearly not consistent with the intent of the
regulation.  In addition, the types of operating conditions and
other performance requirements for incinerators may not make
technical sense to apply to a non-combustion device.  For
example, carbon monoxide is a measure of combustion efficiency
and therefore may not be a meaningful operating parameter for a
non-combustion device.

     Permitting these devices under Subpart X will allow more
flexibility to address the specific operating and emissions
characteristics of the units.  Parts of Subpart 0 which do "fit"
these devices can still be applied under Subpart X.


Rule Does Not Impact Authorized States Immediately

     The revision to the incinerator definition is a non-HSWA
rule and therefore does not take effect in an authorized state
^intil the state becomes authorized for the rule change.  Thus,
assuming that plasma arc (and infrared) units have not been
considered in the past to be incinerators under the authorized
Texas program, they will continue to be outside the incinerator
definition until Texas adopts the February 21 provisions.  Our
goal is to complete the technical correction well before
authorized states adopt the new rule.


Recycling Exemption

     You also requested clarification on whether the Quantum Tech
unit may be an exempt recycling device.  While incinerators (and
boilers and industrial furnaces) cannot be considered exempt
recycling units, other recycling devices can potentially be
considered for the recycling exemption.  Since plasma arc units
would not presently be classified as incinerators in authorized

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states, Texas will need to make a determination on whether the
Quantum Tech unit is a recycling unit.  If Texas determines that
the unit is not an exempt recyling device, then we agree that it
would be subject to permitting under Subpart X for miscellaneous
units.  Attached is a memorandum which provides criteria for
determining whether a unit is engaged in recycling.  You may wish
to provide this to Texas to assist them in this effort.
     In summary, plasma arc (and infrared) units without
afterburners were unintentionally included in the revised
definition of incinerator.  Our goal is to make a technical
correction to the rule before this provision is adopted by
authorized states.  In the meantime, the February 21 rule would
not affect the regulatory status of these devices in authorized
states, and Texas will need to determine whether the Quantum Tech
unit is an exempt recycler.

     We would like to remind you that if the facility has other
units which will be receiving a RCRA permit, the plasma arc unit
will be subject to the air emissions standards under Part 264,
Subpart BB, even if it is determined to be a recycling device.
It may also potentially be subject to the Phase II air emissions
rule proposed on July 22, 1991, when this rule is promulgated.


     We will keep you informed through the Incinerator and
Subpart X Permit Writers' Workgroups of the progress on the
technical correction.  If your staff have any further questions,
they may feel free to contact Sonya Sasseville at FTS 260-3132.

Attachment

cc:  Devereaux Barnes
     Elizabeth Cotsworth
     Incinerator Permit Writers' Workgroup
     Subpart X Permit Writers' Workgroup

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                                                                              9488.1991(05)
                       RCRA/SUPERFUND HOTLINE MONTHLY  SUMMARY

                                       OCTOBER  1991
 1.  Application of the Sham Recycling
    Policy to Certified Boilers and Industrial
    Furnaces

    The February 21,1991, Federal Revisier (56
 FJL 7134) promulgated regulations for hazardous
 waste boilers and industrial furnaces (BIFs) in 40
 CFR Pan 266, Subpan H. The preamble (page
 7183) to the rule explains that prior to certification
 of compliance with the emissions standards under
 Section 266.103(c), BIFs (other than BIFs burning
 waste solely as an ingredient or solely for material
 recovery) must comply with EPA's sham recycling
 olicy published in the March 16,1983, Federal
 .eyister. (48 FJ&11157) This policy requires
 burners of hazardous waste who claim that their
 burning activities constitute legitimate recycling to
 demonstrate that the waste has a heating value of
 5,000 Btu/lb or more. How does the sham
 recycling policy apply to BIFs which have certified
 compliance with the Section 266.103(c) air
 emissions standards under the BIF rule?
   r*'
   Certified BIFs are no longer required to prove
 that the wastes they are burning have an as-
 generated heating value of 5,000 Btu/lb or more.
The requirement thai burning be protective of
human health and the environment is now satisfied
 through compliance with emissions standards.  The
February 21,1991, BIF rule states that the sham
recycling policy stays in effect (except for wastes
fed solely as an ingredient or solely for material
recovery) until an existing facility certifies
compliance with the emissions standards of
 Section 266.103(c). (56 £R 7149)
The 5,000 Btu/lb policy was intended to prevent
the burning of hazardous wastes for destruction
purposes (i.e., incineration) rather than for energy
recovery in units which do not meet incinerator
standards. Wastes going to boilers which are not
legitimately burning for energy recovery are
likely to vent hazardous contaminant^ to the
atmosphere as unburned or partially burned
combustion products, presenting a risk to human
health and the environment By requiring burners
to demonstrate that a waste's heating value is
greater than or equal to 5,000 Btu/lb, the Agency
is able to assure a high enough temperature and
long enough residence time in the boiler to
destroy hazardous constituents at a rate which is
protective of human health and the environment
After certification of compliance, however,
protection of human health and the environment
will be achieved through the new air emission
standards.

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                                                   9489.199UUU
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C.  20460
                                   I 5 1991

Francis S.  Blake, Esq.
Swidler & Berlin                              SOL'° WASTE AND EM"GENC*
3000 K Street, N.W.
Suite 300
Washington, D.C.  20007-3851

Dear Mr. Blake:

     This letter responds to your January  18,  1991 correspondence
requesting  a follow-up response to the October 28, 1990 meeting
between representatives of Texas Industries,  Inc.  (TXI) and  EPA.
The meeting focused on TXI's use of hazardous  wastewaters  as
quenchwater in the production of cement, as well as on the use of
such wastewaters as a slurrying agent in the production process.

     The Agency presented its position under current  regulations
on the use  of hazardous wastewaters as slurry  water used in  the
production  of cement in the final rule regulating the burning of
hazardous'waste in boilers and industrial  furnaces (BIF rule)
which was promulgated December 31, 1990.   Basically,  EPA has
ruled that  the practice of using hazardous wastewaters in  this
manner is a form of waste management that  is subject  to
regulation  as treatment, rather than a recycling activity  that is
exempt from regulation.  (I note that there may be cases for
which a hazardous wastewater could legitimately be used in this
manner, but such a determination would be  case-specific.)  The
main consideration in this determination is that, in  general, the
hazardous constituents in the wastewater are not necessary to the
operation of the production process, but are being treated in the
process.

     While  the preamble to the BIF rule did not specifically
address the use of hazardous wastewaters as a  quenchwater  in the
production of cement, the determining factors  would be the same
as in all such regulatory determinations regarding the use of a
hazardous secondary material as an ingredient  in a production
process, or as a substitute for a commercial product.  To  the
extent that the hazardous constituents in  the  wastewater are not
also present in the analogous raw material or  product that the
wastewater  is replacing and are also not necessary to the
production process, but are being destroyed or otherwise treated
in the process (or incorporated into the product), the process
itself would be regulated as a treatment process.  The Agency
agrees that the use of the wastewaters as  a quenchwater in the
hot end of the kiln may be conducted in an environmentally safe
manner, provided that adequate controls are in placo.  The BIF
rules will ensure that the process is, in  fact, saf.j.  However,
the fact that the hazardous wastewater may adequately serve  as a
                                                          Printed on Recycled Paper

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quenchwater and that the hazardous constituents are efficiently
destroyed in the process without detrimental effect to the
product does not, in itself, demonstrate that such use of the
wastewater is legitimate recycling, unregulated under the current
Federal requirements.  The destruction of hazardous constituents
without any significant benefit to the process or the product
identifies the process as hazardous waste treatment, subject to
regulation under Subtitle C of RCRA.

     As you noted in your letter, the Agency is currently
reevaluating the regulatory provisions applicable to the
recycling of hazardous wastes.  The discussion of regulatory
determinations regarding the use of the hazardous wastewaters
presented in this letter reflects the application of the current
regulations.  While EPA is continuing to explore possible
alternative regulatory approaches to encourage environmentally
sound hazardous waste recycling, we are unable to state with
certainty at this time whether the answer to the question you
pose would be different under a new regulatory scheme.  In the
meantime, of course, the existing regulations are applicable.

     I hope this letter has answered your questions regarding the
factors used to determine the regulatory status of using
hazardous wastewaters as a quenchwater and as a slurrying agent.
If you have any further questions, feel free to contact me at
(202) 382-4637.

                                   Sincerely,
                                   David Bussard
                                   Director
                                   Characterization and
                                     Assessment Division

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                                                       9488.1992(01)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. O.C.  20460
                                 2 2 !fi

MEMORANDUM
                                                       OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT:  Assuring Protective Operation of Incinerators  Burning
          Dioxin-listed Wastes

FROM:     Sylvia K. Lowrance, Direct,
          Office of Solid Waste

TO:       Waste Management Division Directors
          Regions I - X


     I would like to call your attention to, and provide guidance
on, an issue which was brought to our attention recently related
to incineration of wastes containing low levels of dioxins.  A
recent case, and review of incinerator data in general,  indicates
that a well-operated incinerator meeting the regulatory
Destruction and Removal Efficiency (DRE) on a harder-to-burn
surrogate compound may have difficulty in achieving high DREs  on
dioxin itself due to the low levels at which the dioxin  is
normally present.  Although we believe a well-operated
incinerator is capable of destroying dioxin to below risk-based
levels, we are recommending site-specific testing and risk
assessment to confirm protectiveness at individual sites in view
of the level of concern over dioxin.

     We believe this issue may arise at other sites where it is"
proposed to burn dioxin-listed wastes.  The following is a
discussion of the technical aspects of this finding, our
interpretation of the RCRA regulations as they relate to this
issue, and our recommendations on how this issue should  be
addressed if encountered.
Technical Background

     The low dioxin DRE in this recent case was consistent with
our current body of incinerator performance data, which show a
very clear trend of decreasing DRE for hazardous constituents
with decreasing incoming concentration of the constituents in the
waste feed.  (That is, the lower the constituent concentration in
the waste, the lower the DRE.)  The data show that a properly
operating incinerator, which reached 99.99% DRE  (four nines) on
higher concentrations of POHCs, will often achieve less than- four
nines when the concentration of a POHC (principal organic
                                                         Printed on Recycled Paper

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                               -2-

hazardous constituent) in the waste is less than 1,000 ppm.  At
this time, vo have not determined a definitive scientific
explanation for this phenomenon.  There appears to be some small
level of constituents that remain in the emissions even from
well-operated incinerators, possibly due to reformation of these
compounds as products of incomplete combustion (PICs).  It should
be noted, however, that even though the measured DRE decreases at
lower POHC concentrations, emission rates of, and thus the risks
associated with, these compounds stay relatively constant or
decrease at trace levels.


Regulatory Interpretation

     The regulations at 40 CFR 264.343(a)(2) require that an
incinerator burning hazardous wastes F020,  F021,  F022, F023,
F026, or F027 achieve a ORE of 99.9999% (six nines) for each POHC
in its permit, and that this performance be demonstrated in a
trial burn on POHCs that are more difficult to incinerate than
specified dioxins and furans.  The regulations do not
specifically set a ORE standard for dioxins and furans
themselves.  Thus, an incinerator which demonstrates six nines
DRE on harder-to-burn POHCs complies with the ORE performance
standard applicable to dioxin-listed wastes, even if six nines is
not actually achieved on low levels of dioxin present in the
waste.  Dioxin itself is not likely to be chosen as a POHC
because it would normally not be present in the waste at high
enough levels to assure sound sampling and analysis, and an
accurate six nines DRE calculation.

     To assure detection of POHC compounds in the stack to enable
the DRE calculation to be performed, and to override any effects
of PIC formation on calculated DREs, POHCs are normally spiked
into the trial burn waste at high concentrations.  We believe
that this approach is a sound way of assuring a good test of POHC
destruction and removal, which in turn assures that an
incinerator is operating at an optimum level of performance.  (We
believe that PICs should be addressed directly, separate from
DRE, as explained below.)  However, spiking of dioxin itself to
higher levels is not desirable due to its toxicity.

     Estimates of risk to public health resulting from PICs based
on available emissions data indicate that these emissions do not
pose significant risks when incinerators are operated at optimum
conditions.  Nonetheless, to ensure that emissions of total
residual organic .compounds, that is, trace levels of unburned
organic compounds in the waste plus organic compounds generated
during combustion as PICs, do not pose a significant risk, we
recommend following the relevant portions of the PIC approach
presented in the Boiler and Industrial Furnace (BIF) Rule
(56 FR 7134, February 21, 1991), and, when updated, the guidance
on addressing PIC emissions from incinerators.  This approach

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                               -3-

involves setting a maximum carbon monoxide or hydrocarbon level
to assure that overall PIC emissions are low.  The BIF approach
also requires testing for dioxin and furan emissions and
performing a risk assessment at facilities operating under
specific conditions considered to be conducive to production of
dioxins and furans as PICs, to be sure these compounds are not
present at levels of concern.


Recommended Approach for Dioxin-liated Wastes

Risk assessment:

     Given the public concern over dioxin-listed wastes, we
believe that it is necessary to perform a site-specific risk
assessment as an additional check at facilities proposing to burn
such wastes, to demonstrate that the ORE and PIC controls will
control emissions of chlorinated dioxins and furans to levels
that will not pose a hazard to human health and the environment.
The preamble to the January 14, 1985 (50 FR 1978), promulgation
of the management standards for dioxin-containing wastes F020,
F021, F022, F023, F026, and F027 discusses risk assessments
performed over a range of incinerator sizes, dioxin
concentrations, and DREs, and appears to indicate that the risk
assessments supporting the final dioxin incineration standards
assumed six nines as the ORE for dioxin.  Since the concentration
of dioxins in dioxin-listed wastes is normally very low, the data
indicating lower DREs at low concentrations lends uncertainty to
the six nines assumption.

     For this reason, the risk assessment calculations performed
in the course of the dioxin rulemaking may not be representative
in some cases.  Thus, we believe that it is appropriate to
perform site-specific risk assessments for incinerators proposing
to burn such wastes with low levels of dioxins, to demonstrate
that the performance standards are protective of human health and
the environment.  Such a site-specific risk assessment should use
actual chlorinated dioxin and furan emissions data obtained while
the incinerator is burning the low-concentration dioxin wastes.

Testing:

     We also believe that in most cases where a facility is
applying to burn dioxin-listed wastes, the incinerator should be
tested on non-dioxin wastes first to demonstrate six nines ORE on
harder-to-burn POHCs prior to testing it on actual dioxin-listed
wastes, to assure that the incinerator is operating at optimum
performance before dioxin is burned.  One situation where burning
dioxin-listed wastes may not, in itself, warrant this approach
would be where the dioxin concentrations in the waste are so low
that, even assuming zero ORE, the stack gas concentrations of
dioxin would be nondetectable.  In such a situation, the need for

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                               -4-

dioxin testing would be determined on the basis of whether it is
likely to be formed as a PIC.  Until the PIC guidance is updated,
the BIF rule and the Office of Solid Haste can be consulted for
assistance in making this determination.  Such testing, if
needed, could be done simultaneously with the ORE testing.

     To implement the recommended testing approach for a
commercial incinerator applying to burn dioxin-listed wastes,
dioxin wastes need not be "imported" prior to permitting the
incinerator.  The trial burn for the incinerator could be used to
demonstrate six nines ORE on POHCs more difficult to burn than
dioxin.  If successful, these data could be used as a basis for
the permit.  The permit would require that the facility notify
the permit authority and test for dioxin emissions when it burns
its first shipment of dioxin-listed wastes.

Design and operation:

     We would also like to emphasize the importance of assuring
that incinerators burning dioxin wastes are designed and operated
in a manner to maximize ORE of dioxin and minimize its formation
as a PIC.  For example, studies on municipal waste combustors
have identified a temperature range for particulate matter
control devices that is associated with the potential for
elevated levels of chlorinated dibenzodioxins and dibenzofurans.
The BIF preamble at 56 £E 7162-4 (February 21, 1991) provides a
discussion of this issue.  We recommend that this factor be taken
into account in reviewing or developing specifications for
incinerator designs and test plans.

     In closing, we would like to note that we believe that well-
operated incinerators are capable of meeting the performance
standards and destroying dioxin to below risk-based levels.
Further, none of our data from hazardous waste combustion devices
shows dioxin formed as a PIC at levels of concern.  However,
given the degree of concern over dioxin, we believe a site-
specific evaluation is warranted to demonstrate protective
operations at individual sites where dioxin wastes are to be
burned.

     We discussed this issue with the Waste Combustion Permit
Writers' Workgroup during its February, 1992, meeting and on the
April, 1992, conference call.  We will continue to evaluate data
related to this issue and will keep the Workgroup, including OERR
contacts, informed.  If you need additional guidance on how to
address this issue at an individual site, feel free to contact
Sonya Sasseville of my staff at (202) 260-3132.

cc:  Henry Longest
     Bruce Diamond
     Waste Combustion Permit Writers' Workgroup

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                               -5-
bcc: Dev Barnes
     Matt Hale
     Denise Keehner
     Jim Michael
     Matt Straus
     Gary Clifford
     Joanne Griffith
     Debbie Dietrich

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                                                         9488.1992(02)
 J"x
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                            WASHINGTON. D.C  20460
                          NOV I 7 1992
MEMORANDUM
SUBJECT:  Guidance on Using Alternative Risk Assessment
FROM:
TO:
          Approaches in Determ
          Limits
                          Incinerator Metals Emission
Sylvia K.
Office of Solid
William E. Muno, Acting Director
Waste Management Division
Region V
     This memorandum is in response to your request for guidance
on the issue of a flexibility in allowing hazardous waste
incineration and BIF facilities to apply alternate risk
assessment approaches to those provided in the standard "Tier
III" metals/HCl approach in the incineration guidance and BIF
rule.

     In your September 14, 1992 memorandum, you commented that
the February 21, 1991 BIF rule preamble at 56 £B 7171 states that
the option of site-specific assessment, using more realistic and
less conservative assumptions, is available.  We would like to
clarify that the discussion was referring to use of screening
dispersion models versus site-specific dispersion models.  That
discussion does not mention, and we did not contemplate, relaxing
the reference air concentration (RAC) or risk-specific dose (RSD)
values when a site-specific risk assessment is conducted for a
BIF.  Nonetheless, since metals standards for incinerators are
being applied under authority of the "omnibus" provision of HSWA
rather than under specific regulations, there is room for
flexibility with respect to the risk assessment methodology.  We
want to be sure, however, that the metals controls are
implemented on a consistent basis across the nation to the
greatest extent possible.  In addition, because many issues and
comments were considered in developing the metals controls for
incinerators and because the BIF rule requires the use of those
controls, we believe that there should be a supportable reason
for any deviations from the national approach.

     Regarding your proposal to conduct indirect exposure
assessment, we believe that such an assessment would be
appropriate and desirable.  However, we believe it would not be

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appropriate to "back off" on the RACs and RSDs (i.e., to allow
higher ambient concentrations) solely because an indirect
exposure assessment is added.  As you are aware,  we established
the RACs for noncarcinogenic metals (other than lead) at 25% of
the reference dose for these metals.  For lead, we adjusted the
National Ambient Air Quality Standard by a factor of one-tenth.
We applied these apportionment factors to account for background
levels of these pollutants from other sources, as well as for
indirect exposure pathways from the incinerator (or BIF) in
question.

     Thus, a multi-exposure pathway risk assessment would still
need to account for the ambient levels of these pollutants
resulting from other sources.  Although emissions from multiple
on-site hazardous waste combustion sources can readily be taken
into account, accounting for background levels contributed by
non-RCRA and off-site sources is more complex because of the
numbers of pollution sources involved, because emissions levels
are unknown, and because of the possibility of new sources being
constructed over "-ire   Any risk assessment which does not use
the generic apportionment factors built into the RACs would need
to take into account present and future background levels
contributed by non-RCRA and off-site sources, in addition to
indirect exposure.

     Further, it is important to note that the RSDs for
carcinogens do not incorporate apportionment factors to account
for background or for indirect exposure.  Therefore, it would not
be appropriate to raise the RSD even if an indirect exposure
assessment and assessment of background levels from other sources
were added.  An apportionment factor is not used for carcinogenic
compounds because the Agency assumes that there is a health risk
at any dose — there is no dose below which there would be a zero
risk of cancer.  Thus, our risk assessment methodology for
carcinogens estimates the increased cancer risk from exposure to
metals emissions from the source in question via direct
inhalation.  Consideration of indirect exposure as well simply
provides a more accurate picture of the risk posed by the source.

     Regarding your question about application of the CERCLA Risk
Assessment Guidelines, we are in the process of reviewing these
guidelines and will get back to you shortly with our evaluation.
In the meantime I hope that these comments will be of assistance
in determining the appropriateness of other risk assessment
approaches.

     If your staff have any questions or comments they may call
Sonya Sasseville at (703) 308-8648.

cc:  Dev Barnes
     Matt Straus
     Jim Michael
     Waste Combustion Permit Writers' Workgroup

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                                                    9488.1993(01)
 nrp  c '<->.-!•;                                               OTFICEOF
 •J"-1-  U                                              SOLID WASTE AND EMERGENC*
                                                          RESPONSE

Mr. Michael McGuire
Project Coordinator
Rostoker Inc.
3333 East 143rd Street
Burnham, IL  60633

Dear Mr. McGuire:


     This is in response to your October  22,  1993,  letter
requesting confirmation that smelting, melting,  and refining
furnaces handling secondary materials are industrial furnaces
under EPA's definitions for purposes of complying with the Boiler
and Industrial Furnace  (BIF) Regulations.

     You are correct that  smelting, melting,  and refining
furnaces engaged in legitimate  recovery of metal values  from
secondary materials that are generated either on-site or off-site
meet the Agency's definition of industrial furnace  at 40 CFR
260.10.  Further, if a  smelting, melting,  and refining furnace
processes hazardous waste  solely for the  purpose of metal
recovery (i.e., and not partially  for energy  recovery or to
destroy organic compounds  (see  40  CFR 266.!00(c)),  the furnace
would be exempt from the permit and emissions standards  of the
BIF rule.  The furnace  would be, however,  subject to
notification, waste sampling and analysis, and recordkeeping
requirements to document eligibility for  the  exemption.

     Please note that we are not making a determination  that your
high temperature metals recovery process  is,  in fact, a  smelting,
melting, or refining furnace engaged  in the legitimate recovery
of metal values.  That  determination would require  additional
information, would be made on  a case-by-case basis, and  would
consider factors such as whether the wastes contain economically
viable amounts of metals to recover.   For further information on
this point, sea 56 FR 7143 (February  21,  1991), and 53 FR "22
(January 8, 1988).

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<=<=•'  Bob Holloway
     G^ry Victorine, Region v
 Sincerely,
Michael Shapi
Director
Office of solid Waste

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Miscellaneous Units (Parts 264,
Subpart X, Part 265, Subparts P,
QandR)
                                      00
                                      so

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9489 - MISCELLANEOUS
UNITS	
Part 264 Subpart X
Part 265 Subparts P,Q,and R
                     ATKl/1104/84kp

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<£
r
   \        UNITED STATES EN VIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. O.C. 20460
                                      OSWER Directive  9489.00-2

                      APR •'£ ::?"
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE


MEMORANDUM

SUBJECT:  Issues Relating to MiscellajiepusriUnits

FROM:     Sylvia K. Lowrance, Di
          Office of Solid Waste

TO:       RCRA Division Directors,
          Regions I to X

    The purpose of this memorandum is to provide implementation
guidance on the newly promulgated Subpart X regulations for
miscellaneous units published in the Federal Register
(52 FR 46946, December 10, 1987).   A more detailed explanation
of these issues will be contained in an upcoming Federal Regis-
ter correction notice to the December 10th rule.  This memoran-
dum will briefly cover the major points to be clarified.

Regional Authority to Implement Miscellaneous Units Standards
(Subpart X) in RCRA Authorized States

    There has been confusion about EPA's authority to implement
Subpart X in authorized states.  This issue was originally
discussed in section VII(b) of the preamble to the December
10th rule.

    As you know, Subpart X requirements are not HSWA require-
ments.  Therefore, we are not relying on HSWA authority to
support EPA implementation in authorized states.  Rather, other
RCRA authority exists for direct EPA implementation.  The Agen-
cy is making use of the authority provided under
40 CFR 264.1(f)(2) to implement the Subpart X program in all
states at the sane time, regardless of their authorization
status.  This authority was created to avoid a gap during which
permits could not be issued in those states which had obtained
RCRA program authorization but had not been authorized  for  new
Part 264 standards for specific facility/unit types (such  as
Subpart X).  The Regions will, therefore,  implement the program
and issue Subpart X permits until the states revise their  pro-
grams in accordance with 40 CFR 271.21.

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                                      OSWER Directive 9489.00-2


    In this regard, EPA's authority to issue permits extends
both to new and existing facilities.  Prior to Subpart X,  many
existing miscellaneous units had interim status and operated
under 40 CFR 265, Subpart P for thermal treatment,  and Subpart
Q for chemical, physical, and biological treatment units.
These interim status units will now be subject to EPA permit
authority to apply Subpart X standards until the state receives
authorization to permit these types of units.

Permitting Deadlines for Subpart X facilities

    The 1984 HSWA Amendments in section 3005(c) contain the
statutory permit deadlines applicable to Subpart X facilities.
The permit application deadline of November 8, 1988 and the
permit issuance deadline of November 8, 1992, are relevant to
Subpart X units.  The only Subpart X facilities subject to the
permit application filing and permit issuance deadlines of
section 3005(c), however, are those that had interim status by
November 8, 1984.  Furthermore, the permit application due by
November 8, 1988 need only cover those units that were
identified in (or that needed to be identified in) the Part A
as of November 8, 1984.  Submission of the Part B application
for these units by November 8, 1988 will secure the
continuation of interim status for the unit in the event that
the Agency is not able to make a final determination on the
application by November 8, 1992.  Note that any unit added
during interim status after November 8, 1984 or any  facility
receiving interim status after that date, is not subject to the
1988 Part B application deadline.  Note also that any  final
determination by November 8, 1992 on the application may take
the form of a partial permit, since the determination  only has
to cover units under interim status on November 8,  1984.

    None of the foregoing requires the Regions to  initiate a
call-in of Part B applications for Subpart X.  The  upcoming
Federal Re
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                                      OSWER Directive 9489.00-2
    Since Open Burning/Open Detonation (OB/OD)  is one of the
most common miscellaneous units, OSW is working on a guidance
document for OB/OD of military waste explosives.  A separate
guidance for commercial explosive waste is under initial devel-
opment.

Technical Corrections to Subpart X

    Several mistaken citations of regulations have been detect-
ed in the December 10th final rule. They are on page 46965 of
the Federal Register, and should be corrected as follows:

     i) in 270.14(b)(5): change the citation "264.194" to
        "264.193(i) and 264.195", and,

    ii) in 270.14(b)(13): the citation should read "the
        post-closure plan required by 264.112, 264.118 and
        264.197".

    These issues will be discussed in more detail in the upcom-
ing correction notice in the Federal Register. If you have any
questions, please contact Nestor J. Aviles at FTS 382-2218,
Chester Oszman at FTS 382-4499, or Frank McAlister at
FTS 382-2223.

cc:  RCRA Branch Chiefs, Regions I to X
     RCRA Permit Section Chiefs, Regions I to X
     Bruce Weddle, OSW
     Susan Bromm, OSW
     Elizabeth Cotsworth, OSW
     Suzanne Rudzinski, OSW
     Matt Hale, OSW
     Frank McAlister, OSW
     George Garland, OSW
     Fred Chanania, OGC
     Kent Anderson, OSW
     Ana M. Aviles, OSW
     Tim Kasten, OWPE
                                -3-

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           umieu i^fcJES ENVIRONMENTAL PROTECTION A^^NCY           9439.1985(01
                   ^    *                      * ^\
                        SE? 20
SUBJECT!  Performance and Pernitting Standards Relating to
          Section 3004(b), the Prohibition of the Placement
          of Hazardous wasta in Salt Domes
FROM:   ^TarciJTr/rmamsV Director
          Office of Solid 'Jaste (WH-562B)

TO:       Allyn M. Davis, Director
          Air and Waste Management Division (6AW)
     This is in response to your June 27, 1985, memorandum
concerning a permit application fron United Resource Recovery,
Inc. (URR) to the Texas Department of water Resources (TDWR)
that involves the injection, through a well, of hazardous
waste into a salt dome.

     Section 3034(b) of the Resource Conservation and Recovery
Act (UCRA) contains strict controls on the placement of
hazardous waste in underground formations (i.e., salt dome
formations, salt bed formations, underground mines and caves).
The requirements of Section 3004(b) that are applicable to
the URR proposal depend on whether the hazardous waste falls
into on* of two categories.

     Section 3004(b)(l) states that the placement of noncon-
tainerized (or bulk) liquid hazardous waste into underground
formations) of these types is prohibited untilt  (1)  the
Environmental Protection Agency (EPA) has determined, after
notice and opportunity for hearings on the record in the
affected areas, that such placement is protective of human
health and the environment* (2) EPA has promulgated  performance
and permitting standards for such  facilities under Subtitle
C; and (3) a RCRA permit has been  issued for the facility.
Section 3004(b)(2) states that the placement of containerised
liquid hazardous waste and all nonliquid hazardous waste  in

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these underground formations is prohibited until a RCRA permit
has been issued for the facility.  Congress intended the
term "placement" to cover all types of hazardous waste handling,
including the use of salt domes for disposal, temporary
storage or as treatment chambers.  See 129 Congressional
Record !ld!39 (daily ed. Oct. 6, 1987T~~( sect ion-by-section
analysis of 3reaux amendment);  id. at 38141 (statement of
Rep. Forsythe).

     Therefore, the determination of whether the wastes
chat URR proposes to inject  into salt dome caverns are either
liguid or nonliquid is of critical importance.  We believe
that Congress intended the term "liquid"  in Section 3004(b)(l)
to include both liguids and  free liguids.  Based on the legislative
history regarding the term "placement" cited above, we interpret
the prohibition on liguids to extend to wastes that are liguids
when placed into a salt done for further  treatment, including
solidification.

     The legislative history for Section  3004 indicates that
Congress intended CPA to develop a uniform definition of
•liguid* and to prescribe a  tost for liguids and free liguids
that is applicable regardless of the method of placement of
Hazardous waste.  See S. Rep. No. 284, 98th Cong., 2d Sess.
22 (1983)1 129_ Congressional Record H8139 (daily ed. Oct. 6,
1983)  (sectionby-section analysis of Breaux amendment); id.
at H8141 (statement of Rep.  Forsythe).

     On April 30, 1935, we published a final rule  including
a methodology for determining the presence of free liquids
in hazardous wastes.  This methodology is known as the paint
filter liquids test (Method  9095).  The preamble to the
April 30, 1985, rule identified several uses for the paint
tilter test within the Federal hazardous  waste regulatory
program.  Although the use of the paint filter test for
determining the presence of  noncontainerized or bulk liguid
hazardous waste for the purposes of compliance with Section
3004 (b) was not referred to  in  that preamble, based on the
language end legislative history of Section 3004,  we believe
that the paint filter test is entirely appropriate for this
purpose and recommend its use.

     Therefore, we believe that any noncontainerized or bulk
hazardous waste that does not pass the paint filter test
(i.e., it is a liquid due to the presence of free  liquids)
is prohibited by Section 3004(b)(l) from  being placed in a
salt dome cavern.  This prohibition is in effect until EPAi
(1) has determined, following notice and  hearings, that such
placement is protective of human health and the environment,
(2) has issued performance and  permitting standards for such
facilities, and (3) has issued  a permit.

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     For hazardous wastes other than noncontainerized or bulk
 liquid hazardous wastes (as determined using the paint filter
 test), Section 3004(b)(2) allows placement in a salt dome or
 other underground formation provided that a RCRA permit has
 been issued.  With reference to the URR proposal, the waste
 stream must pass the oaint filter test at the ooint just
 prior to its being injected underground.

     At present, EPA has permitting rules for underground
 injection wells (Part 144) that can potentially be used for
 permitting the injection of certain hazardous wastes into
 salt dome caverns that are below all underground sources of
 drinking water (USDW).  An Underground Injection Control
 (UIC) Program permit, under Part 144, for a Class I underground
 injection well is considered to be a RCRA permit by rule,
 provided the conditions of 40 CFR $270.60 (which was amended
 on July IS, 1985) are met.  However, tne underground injection
 rules apply only to the injection of "fluids."  A fluid is
defined in Part 144 as "any material or substance which
 flows or moves whether in a semisolid, liquid, sludge, gas,
or any other form or state." Therefore, for the purpose of
 permitting tne placement of fluid,  non-liquid, hazardous
wastes in salt dome caverns below all USDWs, the UIC regulations
can potentially be used at this time.  Under EPA regulations
 (40 CFR §144.13), and under Section 7010 of RCRA, injection
of hazardous waste into or above a USDW is prohibited.
Thus, any salt dome into which hazardous waste is injected
 must underlie the lowermost USDW.

     Currently, it is not clear whether the Agency has permit-
 ting regulations that are fully applicable to the placement
of nonfluid or containerized liquid hazardous wastes in
 salt domes or other underground formations.  However, we are
 currently developing rules that will create a new Subpart X
of Part 264 that could be used for permitting practices,
 other than underground injection, that involve the placement
 of hazardous waste in any form in salt donee and other under-
 ground formatlone.  We expect to promulgate the Subpart X
 regulations in the fall of 1986.

     In summary, EPA, and State* that are authorized to issue
 Class I UIC permits, are able to proceed with consideration
 of permit applications for the placement of only fluid,
 nonllquid, hazardous wastes via injection wells  into salt
 domes and other underground formations.  Therefore, if URR
 intends to inject only fluid, nonliquid, hazardous wastes,
 tnen TDWR is authorized to issue a UIC permit that also
 meets the requirements of 5270.60.  The UIC permit will

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address th« facility from the well head down, including the
injection zone.  Of course, a RCRA permit is required for any
surtace hazardous waste management units, such as tanks or a
container storage area, at the facility.

     I hone that this information has answered your questions
on this matter.

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                                                          9489.1987(02)
 JUL 22S87

MBMORAHIDUM

SUBJECTt  Regulatory Requirement* fox fixe Txaining Pit*

PROWi     Maxcia E. tfilliaas, Dixectot/O/A\ *J p»* *
          Office of Solid Masts       //

TOi       Kenneth D. Feigner, Chief
          Waste Hanagaaent Bxanch
          EPA Region X


     This is to addxees the issues and questions xaised in youx
June 24, If87, Maoxeadua concexning buxning of ignitable material*
as pext of fixe txaining exexeises.  The two Mia issues concern*
(1) the xegulstoxy status of the buxoing itself; «ad (2) the
status of AStexiels that seep into the gxouad duxing the exercieee-

     1.  Open buxninq.  Undex 40 CTR $265.982, open buxning of
         hasaxdoue waste (except fox detonation of waste explosives)
         is pxohibited.^/ When a waste is eithex listed ox if it
         exhibits one of the chaxactexistics, it cannot be buxoed
         in a pit as this would be open buxning.  Material* such
         as chaxactexistic used oil and spent solvents could not
         be buxned in this aannex.£/ Coeaexcial fuels such as
         kexosene, qaaoline, and even jet fuel, however, could be
         used in these exexeises•  These vatexials axe noxaally
         used as fuels and theix being buxned in tire fighting
         exexeises would appear to be within notsal use.  A
         xule-of*thuab to distinguish cosmercial fuels fxon
         wastes is that when a Mtexial is conaercially available
         to the public as a fuel, buxning the aatexial would not
         be considered waste •anageaent.
I/ The MSB fxc* Kaxen waltex to Michael S*ndexson thac you
~  sent ion states this kind of haxaxdous waste burning is thexaal
   txeataeot, subject to Part 265, Subpext P.  Uote, however,
   one pxovision in Subpaxt P is the open buxning
2/ You should note that  buxning spent attexiala  in this aannex  is
~  not a fox» of recycling because no enexgy recovery  xs  involved

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                               -2-
     2.  Contaminated soils.  In the caas whaxs hazaxdous wastes
       ~ axa burned in pits and wast* ssepe into euxxounding soils,
         ths contaminated soils may contain hazaxdous vasts.  If
         listsd wastss axs burned,  soil containing any amount of
         ths wasts (ot a wast* constitusnt) would be xsgulatad as
         ths hazaxdous wasts until ths wasts is xssovsd.  If
         chaxactsxistic wastss axs buxned, ths contaminated soil
         is only subjsct to xegulation if it exhibits ons of ths
         chax act sxi sties.  In eithsx caas, ths xslsa,ss of hacaxdous
         wasts into soil is a fox* of disposal.  Unless ths
         facility is pxopsily psxaittsd (ox has intsxis, ststus),
         ths xslsass into soil would be illagal.

     You should note that svsn when rosaexcial fuels axs used
in thsss sxsxcises, a soil contaminatioa pzoblss. aay develop.
Ths xslsass of a satexial that is either listsd in $261.33 ox
that sxhibits ons of the chaxactsxisties (s.q«» igaitabllity) ~
onto ox into land ox watsx is hacaxdous wasts disposal.  Anyone
wishing to conduct thsss sxsxcisss with ignitable aatexial then*
would be advised to conduct ths buxn in a tank ox a lined pit to
pxsvent illegal disposal.

cct  Wasts ManagsBsnt Division Dixsotoxs (Regions I-X)
     Solid Masts Branch Chiefs (Regions 1-x)

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                                                         9489.1988(01)
            UK  .0 STATES ENVIRONMENTAL PROTECT .„* AGENCY
     81988
MEMORANDUM

SUBJECT:  Morton Thiokol Thermal Treatment Units

FROM:     Sylvia K. Lovrance, Director
          Office of Solid Waste  (WH-562A)

TO:       Robert L. Duprey, Director
          Hazardous Waste Management Division
          Region VTII

    This is in response to your April 13, 1988 memorandum
requesting a clarification concerning the scope of Subpart X as-
related to thermal treatment, and the interaction of Subpart £
standards and the land ban restrictions  for mixed solvents.  J
would liJce to address your concerns in the same order as
discussed in your memorandum.

What is the scope of units comprising Subpart X?

    Subpart X covers miscellaneous units not regulated  under
the standards for specific types of treatment, storage, and
disposal units in Part 264, Subparts I through O, or Part 146.
Likewise, Subpart X will not supersede or replace any specific
restrictions on activities contained in  another subpart of the
regulations, nor provide a vehicle for escaping from these
restrictions.
licmid vaatevater containing reactive
                                            a  into the nit or
    The tin units which are  operated by (1)  depositing liquid
wastewater, containing varying amounts of reactive wastes,
directly in unlined pits,  (2)  allowing the liquid to
evaporate/percolate, and then  (3)  igniting the residue, are
surface impoundments.  The described pits are specifically

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                              - 3 -

(See 40 CFR 265.382.)   More information is needed to make a
final determination on the potential to detonate (e.g., exact
concentration of explosive or ratio of materials is not known).
However, from the description of the solvent burning pit, we do
not think the explosive contamination concentration justifies
the open burning of the 1,1,1-trichlorethane or any other
solvent.


wastes?  Can the solvents be opened burned and do the land ban
requirements apply to the solvents?

    All of the land disposal restriction requirements,
including those at 40 CFR 268.4, are applicable to the
management of solvents in the situation you outlined.  As
stated above, the solvents, as described by your memorandum,
should not be open burned.

    If you have a question regarding these clarifications or
would like to discuss the issues in more detail, please contact
Chester Osznan (382-4499).

cc:  Hazardous Waste Branch Chiefs, Regions I-X
     Lisa Reed, Region VIII
     Fred Chanania, OGC
     Kent Anderson, OSW
     Chester Oszman, OSW

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                                                   9439.1988(01)
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON. D.C. Z0460
                         MAY  | 8 1988
                                                     OFFICE OF
                                            SOLIOWASTF. AND EMEHOTNCV ncSt'ONSE
MEMORANDUM

SUBJECT:  Morton Thiokol Thermal Treatment Units
                                       <.  .   [,-\/
FROM:     Sylvia K. Lowrance, Director r/Vi^-  r--
          Office of Solid Waste (WH-562A) &

TO:       Robert L. Duprey, Director
          Hazardous Waste Management Division
          Region VIII

    This is in response to your April 13, 1988 memorandum
requesting a clarification concerning the scope of Subpart. X as
related to thermal treatment, and the interaction of Subpart X
standards and the land ban restrictions  for mixed solvents..  I
would like to address your concerns in the same order as
discussed in your memorandum.

What is the scope of units comprising Subpart X?

    Subpart X covers miscellaneous units  not regulated under
the standards for specific types of treatment, storage, and
disposal units in Part 264, Subparts I through O, or Part  146.
Likewise, Subpart X will not supersede or replace any specific
restrictions on activities contained in  another subpart of the
regulations, nor provide a vehicle-for escaping from these
restrictions.

Specifically, are the units which are operated by placing  the
liquid wastewater containing reactive wastes into the pit  or
surface impoundment and then allowing evaporation and
percolation of the liquid prior to burning,  regulated as
thermal treatment units, surface impoundments, or both?

    The ten units which are operated by  (1)  depositing  liquid
wastewater, containing varying amounts of reactive wastes,
directly in unlined pits,  (2) allowing the liquid to
evaporate/percolate, and then  (3)  igniting.the residue, are
surface impoundments.  The described pits are specifically

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                              - 2 -

included in the definition of surface impoundment in 40 CFR
260.10 (that is, aeration pits).  Being such, the units will
require permrCs based on Part 264 Subpart K.  40 CFR 264.220
states that Subpart K applies to facilities that use surface
impoundments to treat, store, or dispose of hazardous waste.
However,  the permit applicant can be required to supply
additional information as required in 40 CFR 270.23 (i.e., for
miscellaneous units) if the Subpart K standards do not provide
adequate protection for human health and the environment.  For
example,  the Regional Administrator may write permit conditions
based on the Subpart X standards which would protect the air or
surrounding soils during the burning phase of the treatment
process.

What land disposal deadlines and restrictions are applicable to
the units as defined bv the answer to the above question?  Must
the units meet the November 8. 1988. retrofit deadline or
close?

    The Agency has concluded that open burning/open detonation
(OB/OD) of waste explosives in a Part 265, Subpart Q,  or a Part
264, Subpart X, OB/OD unit does not constitute land disposal ..'
because it is treatment, not disposal (52 FR 46592).  This is
true except in cases where the residuals from the OB/OD
operation remain a hazardous waste.  Therefore, OB/OD
activities are not automatically subject to the land disposal
restrictions.

    As we indicated above, the treatment pits are properly
classified as surface impoundments; therefore, all land
disposal deadlines and restrictions and the surface impoundment
retrofit deadline remain applicable.  Furthermore, a unit is an
OB/OD unit under Parts 264 and 265 when it is not a surface
impoundment and when it open burns/detonates waste explosives.
AS mentioned in §265.382, non-military waste explosives can be
open burned/detonated only when they have the potential to
detonate.  According to the information we have on Morton
Thiokol's treatment pits or impoundments, wastewater that does
not have the potential to detonate is placed in a pit and is
treated by dewatering and subsequent burning.

Does the burning of solvents which are contaminated with
reactive material constitute a violation of 40 CFR 265.382
hazardous waste open burning prohibition?  Does the solvent
mixed waste meet the Subpart X burning requirements?

    The open burning of solvents is strictly prohibited. Only
waste explosives that have the potential to detonate,  and bulk
military propellants which cannot be safely disposed of through
other modes of treatment,.can be open burned in a Part 264
Subpart X, or Part 265, Subpart Q, ur.it.  (See 40 CFR 265.382)
If the waste solvent is a waste explosive that has the
potential to detonate, then it can be open burned provided that

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                              - 3 -

the unit fits the appropriate criteria.  The descriptive
information, on unit #11 is not definitive but we suspect that
"trough" refdfred to in your memorandum may be a tank, and
therefore, also does not qualify as a 264, Subpart X, or Part
265, Subpart Q unit.

    More information is needed for us to make a final
determination on the potential to detonate (e.g., exact
concentration of explosive or ratio of materials is not known
nor is its fulfillment of the definition of "detonate" in
265.382 fully known). However, we do not think the open burning
of the 1,1,1-trichlorethane or any other solvent will prove to
be proper when this information is provided.

What land ban requirements are applicable to the solvent
wastes?  Can the solvents be opened burned and do the land ban
requirements apply to the solvents?

    Because disposal of the solvents is not likely to qualify
as OB/OD in a Subpart X or Subpart Q unit, all of the land
disposal restriction requirements, including those at 40 CFR
268.4, would appear to be applicable to the management of
solvents in the situation you outlined.  In such event, the
solvents cannot be open burned.

    If you have a question regarding these clarifications or
would like to discuss the issues in more detail, please contact
Chester Oszman (382-4499).
          /
cc:  Hazardous Waste Branch Chiefs, Regions I-X
     Lisa Reed, Region VIII
     Fred Chanania, OGC
     Kent Anderson, OSW
     Chester Oszman, OSW

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                                                   9489.1988(02)
                                                          Off'CE CP
 11 vs   I  ,xw^«                                       »OUO WASTE A.NO EMERGENCY
 AUG   I
MEMORANDUM

SUBJECT:  Mountain Home Air Force  Base  Fire Training  Pits

FROM:     Sylvia K. Lowrance, DirectorA,
          Office of Solid Waste  (WH-562A

TO:       Charles E. Findley, Chief
          Hazardous Waste Division, Region 10

    This is in response to your June  17,  1988 memorandum
requesting:   (1) confirmation that fire training practices as,
described in your June 24, 1987 memo, constitute land disposaf
(2) suggestions for interim operation of these units;  and  (3
development of a national strategy or policy.
                                                             1
    I want to assure you that  open  burning  of  any hazardous
waste (other than the open burning  of  explosives  as provided in
section 265.382) is prohibited.   Only  commercial  fuels  may be
burned, consistent with the  normal  use of such fuel.  For
example, burning of kerosene,  gasoline,  or  jet fuel would be
considered normal use of the fuel.   However, when commercial
fuels are used  in fire training  exercises,  a soil contamination
problem may develop.  The release of material  that exhibits one
of the characteristics (e.g.,  ignitability) onto  or into the
land or water is hazardous waste disposal.

    In light of the fact that  in the past RCRA listed wastes
(i.e., solvents) were placed in  the pit and allowed to  seep
into the ground, soil containing any amount of waste (or a
waste constituent) would be  considered hazardous  waste  until
the waste is removed.  As stated in Marcia  Williams'  memo of
July 22^1987,  unless the facility  is  properly permitted (or
has interim status), the release into  the soil is illegal
disposal'."  Your actions to close the fire training pit, seek
proper clean up of the unit, and pursue enforcement against the
facility appear to be entirely appropriate.

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                              - 2 -
    In thi* interim (i.e., until corrective action is completed
for the unlined training pit), the unlined pit should remain
closed and an alternative unit or area should be used to burn
commercial fuels in future training exercises.  The Mountain
Home Air Force Base should continue to be advised to prevent
the release of any additional fuels to the soils, or surface or
ground water.

    Lastly, you asked us to consider development of a national
strategy to alert DOD facilities of their potential liabilities
in operating unlined fire training pits.  We are in regular
communication with representatives from DOD regarding this and
other military activities (like opening burning of waste
explosives) that are affected by RCRA requirements.  We have
recently urged DOD to increase its efforts to alert individual
facilities and component agencies of their RCRA
responsibilities.

    If you have a question regarding these clarifications or
would like to discuss the issues in more detail, please conte
Elizabeth Cotsworth (8-381-3132)  or Chet Oszman (8-382-4499)

cc:  Bruce Weddle, OSW
     Elizabeth Cotsworth, OSW .
     Matt Hale, OSW
     Jim Berlow, OSW
     Chet Oszman, OSW
     Steve Hooper, OWPE

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                                                  9489.1990(01)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                                                      OFFICE Of
                                              SOLID WASTE AND EMERGENCY
Mr. Douglas MacMillan, Director
Hazardous Waste Policy
National Solid Wastes Management Association
Suite 1000
1730 Rhode Island Ave., N.W.
Washington, D.C. 20036
Dear Mr.
llan:
     This is a follow-up to our letters  of July 31 and August 8,
1990, that responded to all but one of the questions raised  in
your letter of June 13, 1990.  This letter responds to the
remaining question, question 43, concerning capacity variances
and underground injection.  We worked with the Office of Water to
answer question 43.

     Question 43 asked, for a commercial facility that is using
injection to handle on-site clean up wastes, how does the on-site
capacity variance apply?  The Agency will evaluate the generation
of wastes disposed of at commercial injection facilities on  a
case-by-case basis.  Any underground injection capacity variance
would most likely apply if the facility  was generating the
injected waste as a result of treatment  (for example, scrubber
blowdown wastewater generated by an incinerator and then deep-
well injected would receive any appropriate capacity variance).

     Multi-source leachate wastewater that is deep-well injected
has been granted a two-year capacity variance whether it is
disposed of at a commercial (i.e., off-site) or on-site injection
facility.  A correction notice to the June l, 1990 publication of
the Third Third rule that clarifies this variance for Part 148
will be published shortly.

     In a practical sense, to the Agency's knowledge, all
commercial facilities with hazardous waste injection wells that
are disposing of on-site clean up wastes have applied for and
have already received final approval of  their no migration
petitions.  Having received an exemption, these facilities no
longer need any capacity variances.
                                                           Pruatd en RtcycUd P>

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     If you have any further questions in regard to underground
.njection, please contact Bruce Kobelsfci in the Office of Water
it (202)382-7275.  Other questions may be directed to Matthew A.
Straus of my staff at (202)382-6972.
                                   Sincerely,
                                   Sylvia'K. Lovrance, Director
                                   Office of Solid Waste

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY    9489.1991(02)
                          MAY  3 I  1991
MEMORANDUM

SUBJECT:  Drippage In Wood Preserving Storage Yards

FROM:     Sylvia K. Lowrance, Director
          Office of Solid Waste

TO:       Hazardous Waste Management Division Directors
          Regions I-X

     A question has arisen regarding the regulatory status of
drippage from treated wood that occurs in wood preserving plants'
storage yards.  The final rule requires that treated wood must be
held on process area drip pads until drippage ceases (see §§
264.572 (k) , 265.443 (k)).  Even so, infrequent and incidental
drippage may occur from the treated wood after its removal from
the drip pad.  Infrequent and incidental drippage may occur due
to the effects of weather, type of wood, or type of preservative.
EPA recognized in the rulemaking that the de minimis losses that
could occur would not require the storage yard to be equipped
with a drip pad (55 PR at 50456, December 6, 1990).

     We note further that this type of incidental drippage would
not constitute illegal disposal of a hazardous waste provided
that there is an immediate response to the discharge of the
drippage (§§ 264.1 (g)  (8) (i)  (A) and 265.1 (a) (11) (i) (A),
persons responding immediately to discharges of hazardous wastes
are not subject to regulatory standards for the response
activities, although the hazardous wastes become subject to
subtitle C regulation after they are removed).  Determination of
what constitutes an "immediate response" to storage yard drippage
would be a site specific determination.  Wood preserving
facilities should prepare a contingency plan which includes
measures to respond to drippage by removing the contaminated
media in a timely manner and documenting by appropriate records
the actions taken to respond to such drippage.  Once removed from
the drippage area, the contaminated media would be a hazardous
waste carrying the F032, F034 or F035 waste code and be subject
to subtitle C regulatory standards  (48 PR at 2510, January 19,
1983) .

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                                                              9489.1991(03)

             RCRA/SUPERFUND  HOTLINE MONTHLY  SUMMARY

                              JUNE 1991



1.  Administrative Stay for Wood Preserving Wastes

   On June 13,1991, EPA announced an administrative stay that extends the date by
   which owners and operators of facilities that manage F032, F034, and F035 wastes on
   drip pads are required to comply with the standards of 264/265 Subpart W. (56 FR
   27332)  How does this affect the management and disposal of wood preserving
   wastes?  *

         Three new listings for wastes generated by wood preserving processes, F032,
         F034, and F035, were finalized on December 6,1990. (55 £& 50450) Due to
         the inability of a significant portion of the affected facilities to comply with
         the new drip pad standards by the effective date of June 6,1991, EPA
         announced an administrative stay that postpones the applicability of the new
         listings to certain process areas and drip pads at facilities that "intend to
         comply with the Subpart W standards and that are willing to make bona fide
         efforts to do so during the stay period." (56 £& 27333)  In order to qualify for
         the stay, by August 6,1991, affected facilities must notify the appropriate
         authorized State or EPA Regional office of their intent to comply with the
         new regulations or to cease operation. (56 ES 27333) By November 6,1991,
         affected facilities must submit a second notification providing evidence that
         they expect to comply in good faith.

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    1.  Administrative Stay for Wood Preserving Wastes (Cont'd)

             Provided the facility gives proper notice, certain activities that would
             otherwise constitute disposal of F032, F034, or F035 wastes into a process area
             or onto an existing drip pad are not regulated during the stay. However, the
             removal or subsequent management of such wastes outside of the process
             area or drip pad, including soil contaminated with these wastes, would be
             considered generation of a hazardous waste and cause the waste to become
             subject to regulation under Subtitle C of RCRA. The scope of the stay is,
             therefore, limited and applies only  to those wood  preserving wastes managed
             in process areas or on existing drip pads. (56 FR 27333) In addition, any
             active management of previously unregulated wastes after the expiration of
             the stay would constitute generation of an F032, F034, or F035 waste.

             Although the administrative stay does postpone the effective date of the F032,
             F034, and F035 listings for certain wastes, these  wastes may already be
             regulated as hazardous if they exhibit the Toxicity Characteristic (TO.
             During the stay, wood preserving wastes which exhibit the TC  are subject to
             full Subtitle C regulation, and cannot be disposed  of on the land except in a
             properly permitted land disposal facility. According to 40 CFR 264.570(a)(
             and 265.440(a), Subpart W standards "apply to owners and operators of  *
             fadlities that use new or existing drip pads to convey treated wood drippage,
             precipitation, and/or surface water run-on* to an associated collection
             system". Therefore,  owners and operators who manage wood preserving
             wastes that exhibit the Toxicity Characteristic on drip pads can use pads to
             collect their wastes.

             See 55 FR 50470-71 (technical correction notice signed June 21,1991).

Source:      Ed Freedman, OSW                   (202)245-3657
Research:    Peter LeTourneau

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                          9489.1991(04)
                                AUG  2 1991
MEMORANDUM
SUBJECT:  Regulatory Status of Carbon Regeneration Units

FROM:     Sylvia K. Lowrance, Director
          Office of Solid Waste

TO:       Bruce P. Smith, Director
          Office of Hazardous Waste Programs
          Region III


     This is in response to your June 7, 1991 memorandum
requesting that we provide our interpretation of regulatory
situations involving carbon regeneration units in light of the
provisions on such units in the February .21, 1991 boiler and
industrial furnace (BIF) rule.  Below is a brief summary of the
rule's provisions related to carbon regeneration units, followed
by our responses to each of the scenarios and issues outlined in
your memo.

     The February 21 rule added a definition of "carbon
regeneration unit" to 40 CFR 260.10.  The preamble stated that
both flame and non-flame carbon regeneration units should be
permitted as hazardous waste thermal treatment units under Part
264 Subpart X and existing units should be regulated until then
under Part 265 Subpart P.   The rule also reopened until August
21, 1991, the period for existing carbon regeneration units to
obtain interim status under RCRA, due to the substantial
confusion among the regulated community, as well as permitting
authorities, as to whether these devices were exempt recycling
units or regulated treatment units.  Since the carbon
regeneration unit portion of the rule was promulgated under RCRA,
not HSWA, authority, it does not take effect in authorized states
until they adopt these provisions.


Regulatory Status of Existing Units

     We agree with your interpretation that the regulatory status
for an "existing" unit doespnaamptaanqe in an authorized State "
                Hetermineb^itscexifetinq jfiulfes/nazvejsufficient br,

-------
if they are not, makes the necessary regulatory change to ensure
equivalency with the Federal standards.  We would like to clarify
that, in either case, the change would not become effective until
EPA approves the rules and interpretation as consistent with the
§260.10 definitions.  In the meantime, a State may continue to
regulate the facility consistent with the policy and regulations
in effect at the time of authorization.

     If the State determines that the carbon regeneration unit
provisions of the BIF rule can be implemented in the State under
its authorized State program without a regulatory change, the
State Attorney General would need to certify that the existing
State authorities are equivalent to the Federal requirements set
out in the February 21 rulemaking.  EPA could then authorize the
State for this portion of the rule.  If the State, or EPA,
determines that a regulatory change is required, these provisions
would not become effective in the State until the State modifies
its program and is authorized to implement the rule in lieu of
EPA.  (However, States may adopt and implement comparable rules
under State authority prior to authorization by EPA.)  In either
case, in adopting the new regulatory approach for carbon
regeneration units, the State could provide a "window" similar to
that established by EPA in the February 21 preamble for existing
units to qualify for interim status.

     We also agree that the status of residues is not affected by
the February 21 rule.  Residues, such as scrubber blowdown,
continue to be regulated as hazardous wastes if they result from
processing listed hazardous wastes, or if they exhibit a
hazardous waste characteristic.

     In cases where the authorized State is not yet authorized
for the new provisions, you also proposed to impose conditions on
the carbon regeneration unit, if determined necessary to protect
human health and the environment, when issuing a permit to
another TSD process at the facility.  We would not recommend EPA
imposing Subtitle C requirements while the carbon regeneration
units remain unregulated by the State.  The February 21 notice
was explicit that the new carbon regeneration unit provisions
would not take effect in authorized States until the states pick
up the new provisions.  We feel that regulating these units prior
to the State becoming authorized for these provisions would work
against our goal in the February notice to finally end the
confusion on the regulatory status of these units. In addition,
if we took this approach, there would be substantial question as
to whether we provided affected facilities with adequate notice


Units not "in existence" as of August 21. 1991

     We disagree with your interpretation that because the State
is not authorized to issue Subpart X permits, units which are not
"in existence" as of August 21, 1991, must obtain a Subpart X
permit from EPA before constructing.  Section 264.1(f)(2) gives

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the Agency authority to issue Subpart X permits in States that
are not authorized for the Subpart X regulations.  However, this
section simply gives EPA authority to permit regulated
miscellaneous units in authorized states; it does not authorize
EPA to permit unregulated units.  The definitions and
interpretations related to carbon regeneration units in the
February 21 rule do not go into effect in an authorized state
until the state becomes authorized for those new provisions.
Until that time, as you correctly observed in the first issue you
raised, the regulatory status of carbon regeneration units in the
state does not change, but rather is determined by the
regulations and policies currently in effect in the state.

     Thus, the effective date of the authorized state's approved
redefinition of carbon regeneration unit, rather than the
effective date of EPA's rule, determines when new carbon
regeneration units become subject to regulation, including
Subpart X permitting.


Effect of February 21 rule on past management of waste in carbon
regeneration units

     Although we did state in the BIF rule preamble that direct
controlled flame carbon regeneration units have met the
definition of incinerator and were subject to regulation as such,
we also stated that we believe there has been legitimate doubt as
to these units' regulatory status.  Thus, we did not intend to
provide basis for enforcing against past operation of such units
without interim status or permits, but rather to address the
prospective regulation of these devices.  (See 56 FR 7200-7201.)

     According to §270.10(e)(2), the Administrator may extend the
date by which owners and operators of specific classes of
existing hazardous waste management facilities must submit Part A
of their permit applications if he finds that there has been
substantial confusion as to whether the owners and operators of
such facilities were required to file applications and that the
confusion is attributed to ambiguities in the regulations.  The
Agency made such a finding of "substantial confusion" as to the
regulatory status of carbon regeneration units.  Therefore, since
the date for obtaining interim status was extended, the Agency
should enforce only prospective compliance with the regulations
for carbon regeneration units.

     Authorized States, however, would determine compliance based
upon their current regulations and policies.  Therefore, we
disagree with your proposal to rely upon the August 21, 1991 date
to treat all carbon regeneration units as subject to RCRA.
Carbon regeneration units should be treated consistent with state
policies and regulations which have been in effect until the
State program is revised to reflect the §260.10 definition of
carbon regeneration unit and revised incinerator definition.
Thus, in an authorized state which has considered carbon

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regeneration units to be unregulated, these devices should be
treated as "newly regulated" as of the effective date of the
§260.10 definition changes in that state, which will likely be
later than August 21, 1991.  In contrast, there may be authorized
states that have always considered carbon regeneration units as
incinerators or thermal treatment units, and therefore will not
be treated as "newly regulated" in the future.


Carbon regeneration units managing TC wastes

     We also disagree with your interpretation that all carbon
regeneration units managing toxicity characteristic (TC) wastes
are subject to regulation by EPA as of August 21, 1991.  In an
authorized state which has not yet picked up the TC listing, the
waste is regulated by EPA, and EPA applies Federal regulations
rather than issuing permits based on State laws.  However, EPA
does not have authority to issue permits to types of units which
are exempt from regulation.  The applicable RCRA program, which
in this case would be the authorized State program, determines
which classes of units are RCRA-regulated.  Thus, EPA would not
regulate the treatment of TC waste in a carbon regeneration unit
until such units are regulated under the approved state program.

     Thank you for raising these issues.  They are nationally
significant for effective program implementation.  While we could
not agree with all the recommended solutions that Region III put
forward, the careful thinking that was put into framing the
issues was commendable.  If your staff has further questions,
they may call Sonya Sasseville at FTS 382-3132 or Frank McAlister
at FTS 382-2223.

cc:  Subpart X Permit Writers' Workgroup
     Incinerator Permit Writers' Workgroup
     Permit Section Chiefs, Regions I - X

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                                                           9489.1991(05)
|

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
           WASHINGTON. D.C. 20460
                           FEE
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
 David Case
 General Counsel
 Hazardous Waste Treatment Council
 1440 New York Avenue, N.H.
 Suite 310  .
 Washington, D.C.  20005

 Dear Mr. Case:

     Thank you for your  letter of November  21,  1990,  regarding
 performance standards for disposal of hazardous waste in salt
 domes.

     Enclosed is a legal opinion from the Environmental
 Protection Agency's  (EPA's) Office of General  Counsel concerning
 a permit application for placing hazardous  waste in a salt dome,
 along with the remand in Natural Resources  Defense Council (NRDC)
 v. EPA. 907 F.2d 1146 (D.C. Cir.).  This opinion generally agrees
 that to lift the specific prohibition in Section 3004(b)(1)(B) of
 RCRA, EPA must promulgate specific regulations for placement of
 liquid hazardous waste in salt formations.   EPA further agrees
 that the placement of any hazardous waste in salt domes or other
 geological repositories  should be pursuant  to  appropriate
 standards consistent with the RCRA mandate  to  protect human
 health and the environment.

     To the extent that  this practice could now occur under
 Section 3004(b)(2), it would be limited to  non-liquid or
•containerized hazardous  waste subject to a  RCRA permit issued
 pursuant to 40 CFR Parts 264 and 270.  As you  are aware, a
 RCRA permit allowing such disposal may be issued only when human
 health and the environment are adequately protected.   For
 example, a Subpart X permit—which would be appropriate for
 disposal in salt domes—may contain any provisions needed to
 achieve this overall standard of protection, including those
 found in other parts of  the RCRA regulations,  or other relevant
 standards, such as those at 40 CFR Part 146 implementing the
 Underground Injection Control  (UIC) program.  Of course, a state
 authorized to implement  RCRA might also use some analogous
 standards when writing an environmentally protective RCRA permit
 for the disposal of hazardous waste in salt domes.  I believe
 that this comprehensive  approach can provide the type of
 environmental protection envisioned by Section 3004(b)(2) of
 RCRA.
                                                            Printed or "*•». •*? •'

-------
     Unlike RCRA Section 3004(b)(l), Section (b)(2)  does not, as
a prerequisite to receiving a permit, require promulgation of
specific performance or unique permitting standards for salt dome
formations.  Of course, any RCRA permit covering disposal in salt
domes would contain a full set of requirements to ensure
protection of human health and the environment.  Neither the NRDC
opinion nor any EPA statements in the Federal Register notice (53
FR 28118) that is the subject of the court opinion purport to
construe RCRA Section 3004(b)(2).  Thus, as explained above, EPA
or an authorized state can permit disposal in salt domes or other
geologic repositories under Section 3004(b)(2) using the existing
Subpart X permit standards found in 40 CFR Part 264, as well as
other appropriate state or federal standards.

     We will most certainly consider any rulemaking petition you
may wish to submit for hazardous waste disposal in salt domes, as
mentioned in your letter.  However, for the reasons discussed
above, we believe that existing RCRA permit procedures and
standards are fully protective of human health and the
environment.  Given EPA's limited resources and formidable
regulatory agenda in the RCRA area, I anticipate that, for the
near term, EPA or the authorized states will use existing
standards to regulate the disposal of containerized and non-
liquid wastes in the geological repositories covered by RCRA
Section 3004(b)(2).  If you have any suggestions on how to
improve the contents of such permits, or on RCRA's applicability,
please feel free to call Elizabeth Cotsworth at (202) 382-4206.
If you have further questions regarding UlC-related rulemakings,
please contact Francoise Brasier at  (202) 382-5530.

     I appreciate your continuing interest in this issue and your
concern for the safe management of hazardous waste.

                                   Sincerely yours,
                                   Don R. Clay
                                   Assistant Administrator
Enclosure

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                   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                               9489.1992(01)
                           ALJG 2 4 1992
      MEMORANDUM

      SUBJECT:  United States Military Academy at West Point,
                New York — Subpart X Determination

      FROM:     James Michael, Acting Chief
                Assistance Branch  (OS-343)

      TO:       Andrew Bellina, P.E., Chief
                Hazardous Waste Facilities Branch (2AWM-HWF)
           This is in regard to your memorandum of August  3,  1992  in
      which you asked our assistance in supporting your determination
      that the Open Burn Unit used for treating excess propellant
      generated from training activities at the United States Military
      Academy (USMA) is subject to the permitting requirements of  RCRA.
      Also, you provided us with a copy of your letter to  Colonel
      Richard M. Ely of the USMA which outlined the Region's  regulatory
      interpretation of the Academy's waste treatment practices.

           We agree with the interpretations the Region provided to
      Colonel Ely which reflect the Agency's current policies that
      define the difference between training and treatment activities.
      The five points laid out in the Region's letter are  an  excellent
      presentation of the Agency's current interpretation  of  the
      regulatory status of training.  However, I would like to note
      that these interpretations may be changed or fine-tuned in the
      future as the Agency explores the regulatory status  of  training
      activities in more detail.  The Subpart X Permit Writers'
      Workgroup is developing an issue paper on this subject  which
      should be ready for review by mid-September.  We will be looking
      forward to Region II's input as the Workgroup tackles these
      issues.

           Your memorandum also requested our input on whether the
      transport of excess powder affects its regulatory status.  The
      concept of transport of excess powder  (or other training waste)
      has played a role in establishing whether management of these
      materials is classified as treatment or as training.  In general,
      if these materials are moved from the range to a "common area"
      for treatment, we consider the materials to be solid wastes,  and
      their treatment to be RCRA-regulated.  However, the  transport
      criterion does not, in all cases, indicate that treatment is
      -fed
oould alco-
                                -moved to
      another training aroa  for
            One v
                                    my to
::ence is to examinle the amcjunt of material
SYMBOL
SURNAME
   Fom 1320-1 (12-70)
                             fiffl Printed nn Parvrlarl Pana,
                                                                OFFICIAL FILE COPY

-------
moved.  The amount moved for training (the maximum amount
necessary to conduct the training) would be relatively smaller
than if moved for treatment.

     For your information, I am attaching a Boston Globe article
sent by Region I recently, on the excess propellant burns at Camp
Edwards.  If you would like to further discuss these issues and
how they apply to your facilities, please feel free to give
Chester Oszman a call at (202) 26.0-4499.  We will keep you
informed of any changes in the regulatory status of training
units.

Attachment

cc:  Sonya Sasseville, OSW
     Chester Oszman, OSW
                              - 2 -

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                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
       „  A „-_                     REGION II
     AUG.03 1992

     United States Military Academy at
     West Point,  New York-Subpart X
FROM.  Andrew Bellina,
    '  Chief, Hazardous^WSfte Facilities Branch (2AWM-HWF)

  TO-.  James Michael,  Acting Chief
      Assistance Branch (OS-343)


      The U.S.  Environmental Protection Agency (EPA)  Region II seeks
      your assistance in supporting our determination that the Open
      Burn Unit used  for the open burning of excess propellant
      generated from  the training of cadets at the United  States
      Military  Academy (USMA) ,  at West Point,  New York,  is subject to
      the full  permitting requirements of the Resource Conservation and
      Recovery  Act (RCRA) .

      USMA submitted  a RCRA Subpart X permit application in
      November  1988 for the open  burning/open detonation activities
      being conducted at the facility which are associated with the
      education and training of undergraduate cadets.   These activities
      involve,  among  other things,  the firing of artillery shells.   The
      105-mm artillery shells contain five bags of propellant powder,
      of  which  only four are used in firing.   The excess powder is
      transported and thermally treated at the Open Burn Unit.

      Currently,  USMA contends  that the open burning  of excess
      propellant is exempt from RCRA requirements because  it is part of
      the overall training procedure given to its cadets.

      Region II,  as stated in the attached letter,  disagrees with USMA
      and is requiring a RCRA Subpart X permit for the Open Burn Unit.
      The letter was  developed  by my staff in consultation with Chester
      Oszman, of your staff. We  believe that the excess propellant i's
      a solid waste because the material is being discarded and a
      hazardous waste because the material may exceed the  Toxicity
      Characteristic  levels for arsenic (D004) ,  cadmium (D006) ,  and
      lead (0008)  and for exhibiting the characteristics of
      ignitability (D001)  and reactivity (D003) .

      It  would  be appreciated if  you could review this matter and
      submit to us a  written response as to the regulatory status of
      the excess propellant, within two weeks of the  above date.   In
      particular,  we  would value  your input on whether the transport of
      the excess powder affects its regulatory status.
     II FOPU 139O-1 fB/RKl

-------
                               -2-

If you or your staff have any questions or would like to discuss
this matter further, please contact Mr. Anthony Kahaly, of my
staff, at (212) 264-9401.

Attachment

cc:  Chester Oszman, OS-3.43 w/attach.

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JUN 04 1932

Colonel Richard M. Ely
Directorate of Engineering and Housing
Department of the Army
United States Military Academy
West Point, New York  10996-1592

Re:  EPA I.D. No.: NY8210020915; United States Military Academy
     at West Point, New York; RCRA Subpart X Application Review

Dear Colonel Ely:

This is in response to your letter to Ellen Parr-Doering dated
April 10, 1992, requesting a determination whether the Open
Burning/Open Detonation (OB/OD) activities conducted at the
United States Military Academy (USMA) at West Point, New York
would require a Subpart X permit under the Resource Conservation
and Recovery Act  (RCRA).

You stated in your letter that the primary mission of USMA is the
education and training of undergraduate cadets.  Training
activities that are a part of the USMA educational program
include range activities which involve the firing of various
artillery such as grenades, mortar, trip flares, star clusters,
hand ammunition, and artillery shells.

The artillery shells used for training include 60-mm, 80-mm,
90-mm, and 105-mm shells.  The unexploded 60-mm, 80-mm, and 90-mm
shells are open detonated "in place" or transported to the Open
Detonation Unit on Range 6 for open detonation by the Explosive
Ordnance Disposal  (EOD) team.  The 105-mm artillery shells
contain five bags of propellant powder, of which only four are
used in firing, due to the limited range at USMA.  The excess
powder is transported and thermally treated at an Open Burn Unit
on Range 2.  Such materials are hazardous wastes due to exceeding
the Toxicity Characteristic levels for arsenic (D004), cadmium
(D006), and lead  (D008) and for exhibiting the characteristics of
Ignitability (D001) and Reactivity (D003).

-------
                               -2-

Conceming the specific activities conducted at USMA,  the
following regulatory interpretation is provided:

1.   Current Environmental Protection Agency (EPA)  policy holds
     that ordnances used during training does not constitute
     treatment/disposal of solid or hazardous waste.   This is
     because the artillery is not meant to be discarded,  which is
     a necessary criterion to be met before a material can be
     considered a solid waste and subsequently a hazardous waste
     (40 C.F.R. § 261.3(a)).  Rather, the artillery is being used
     within the normal and expected use pattern of the product.
     This would also extend to the unexploded ordnances that fall
     to the ground during training exercises.  The normal use may
     result in a discharge to the soils.  This would constitute a
     discharge incident to normal product use and is not
     considered a hazardous or solid waste activity falling under
     the jurisdiction of RCRA.

     Since not all ordnances detonate when dropped, any
     unexploded ordnances are within the normal use pattern of
     training; subsequent "in place" detonation is not subject to
     RCRA.  On the other hand, if at any point unexploded       ;
     ordnances are collected and brought to a place other than  -
     the training range or to another training range to be open
     burned or open detonated, then that open burning/open
     detonation activity is subject to the full permitting
     requirements of RCRA.'

     EPA's policy, of exempting from RCRA ordnances used in
     training, is contingent upon the view that ordnances are
     product when used during training.  EPA's policy does not
     extend to wastes generated during training,  which includes
     the excess propellant not used for firing ordnances.
     Therefore, the excess propellant burned at the Open Burn  ,
     Unit is a solid waste and also a hazardous waste subject to
     RCRA permitting requirements.

2.   Range waste, such as dud rounds, unexploded small arms
     ammunition, excess propellant, and trip flares,  is commonly
     generated from military training.  These types of wastes
     were previously open detonated or open burned at the Open
     Detonation Unit or the Open Burn Unit and it appears that
     this activity is continuing.  It is USMA's responsibility to
     document the amount of range waste generated from military
     training that is collected for Open Detonation/Open Burning.
     If the amount of range waste exceeds 100 kilograms per
     month, then the management of range waste is subject to RCRA
     requirements.

3.   Your letter states that the Open Detonation Unit will no
     longer be used to manage hazardous waste.  Even if USMA did

-------
                               -3-

     not need to obtain a RCRA Subpart X permit for this unit for
     the destruction of range waste, previous use for hazardous
     waste treatment/disposal requires closure according to RCRA
     regulations.  Since the Open Detonation Unit is within the
     USMA military training impact zone, EPA agrees that it would
     be impractical to perform a "clean closure" or a "landfill
     closure".  Therefore, EPA would require USMA to cease
     treating hazardous waste in the Open Detonation Unit and
     undergo a partial closure.  The partial closure and the
     final closure plan for the Open Detonation Unit would be
     addressed in the RCRA Subpart X permit for the Open Burn
     Unit.  If USMA intends to use .the Open Detonation Unit to
     open detonate collected range waste, then a RCRA Subpart X
     permit is required.

4.  .With regard to an emergency permit, an Emergency Permit is
     only issued by the EPA after a facility has conducted an
     extensive search for alternative methods of disposal.  Also,
     the unit used for responding to an emergency situation which
     occurs periodically or repeatedly, or in which containment
     or treatment extends beyond the immediate response period is
     subject to full RCRA permitting.  Based upon available
     information provided by you and your staff, it appears that.
     USMA would require a RCRA permit for periodic
     treatment/disposal.

5.   If the RCRA Subpart X" permit is not issued by November 8,
     1992, EPA will not terminate interim status for any units
     subject to permit requirements, provided that USMA is
     proceeding in good faith to submit a complete Subpart X
     permit application.

If you have any questions or comments relating to this matter,
please contact Anthony Kahaly, of my staff, who can be reached
at (212) 264-9401.

Sincerely yours,
Andrew Bellina, P.E.
Chief, Hazardous Waste Facilities Branch
John L. Middelkoop, P.E.
Director, Bureau of Hazardous Waste Compliance
New York State Department of
  Environmental Conservation

cc:  Joseph Shandling, USMA
     John Middelkoop, NYSDEC

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                   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                             9489.1992(02)
                                 AUG 27 1992
      MEMORANDUM
       SUBJECT:  RCRA Regulatory Interpretation on Benzene Strippers at
                WRC  Refinery

       FROM:     Sylvia  K.  Lowrance,  Director
                Office  of  Solid Waste

       TO:       Robert  L.  Duprey,  Director
                Hazardous  Waste Management Division, Region VIII
           The purpose  of this memorandum is to respond to your request
      dated June  26,  1992 for a RCRA regulatory interpretation
      concerning  the  benzene strippers at the Wyoming Refining Company
       (WRC) refinery  in Region VIII.

           U.S. EPA Headquarters encourages the implementation of
      hazardous waste treatment such as benzene stripping in pursuit of
      the Agency's  overall waste minimization and pollution prevention
      goals.  Nonetheless, we have reviewed the attached information,
      and based upon  that information we agree that the WRC refinery
      benzene stripper  units are hazardous waste treatment units,
      rather than "ancillary equipment.11  As hazardous waste treatment
      units, they are potentially subject to Subtitle C requirements,
      including those for notification.

           As treatment units, the benzene strippers might be regulated
      in several  ways.   For example, they might be determined to
      require a RCRA  permit, in which case they would be required to
      comply with the applicable provisions of Part 264/265, including
      Subparts AA and BB.

           However, in  the past, U.S. EPA Headquarters has considered
      similar air and steam strippers to be exempt from permitting
      requirements.   There are two possible exemptions from RCRA
      permitting  that may apply if the units meet the definition of a
      "tank":  1) The benzene strippers are part of the wastewater
      treatment system  in connection with a FWPCA Section 402 NPDES
EPA Form \32ofl (12.70)
I. i Kf.V*t
-------
portions of the 40 CFR 265 Subpart J standards,  as provided in
§262.34(a)(1)(ii).

     Based on the information we have received,  EPA Headquarters
therefore would advise EPA Region VIII to use a case-by-case
approach in determining how these RCRA regulated treatment units
are addressed.   Because Region VIII personnel are more thoroughly
familiar with particular aspects of the WRC refinery,  we leave
the final determination to you.

     If you have any further questions on this issue,  please
contact Jim Michael, Acting Chief, OSW Assistance Branch at
(202)  260-1206.

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460

                                                    9489.1994(01)

                            FEB 23  1994


                                                          OFFICE OF
Mr. David D. Emery                                  SOLID WASTE AND EMERGENCY
President                                                 RESPONSE
Bioremediation Service, Inc.
P.O. Box 2010
Lake Oswego, Oregon 97035-0012

Dear Mr. Emery:

     This is in response to your December 21, 1993, letter
requesting clarification on the distinction between thermal
desorbers and incinerators.  In particular, you questioned
whether temperature was a criterion for distinguishing between
desorbers and incinerators and whether chlordane contaminated
soil can be effectively and safely  treated by thermal desorption.

     Under the Environmental Protection Agency's  (EPA's)
regulations, thermal treatment units  that are enclosed devices
using controlled  flame combustion and that are neither boilers
nor industrial furnaces are classified as incinerators subject to
regulation under  40 CFR Part 264, Subpart 0.  Definitions of
boilers, industrial furnaces, and incinerators are established in
40 CFR 260.10.  Thermal treatment units that do not use
controlled flame  combustion and that  are not industrial  furnaces
are classified as "miscellaneous units" subject to regulation
under 40 CFR Part 264, Subpart X.

     The use of "controlled flame combustion" determines  whether
EPA regulates a device used for thermal desorption as an
incinerator or a  "miscellaneous unit".  Consequently, a  thermal
desorber would be subject to regulation as an incinerator if  it
was equipped with a fired afterburner to destroy desorbed organic
compounds, or if  the desorption chamber was directly  fired,
irrespective of how the desorbed organics were controlled.  On
the other hand, if the desorption chamber was indirectly  heated
and the desorbed  organics were not  controlled using controlled
flame combustion  (e.g., no afterburner), the thermal  desorber
would be subject  to regulation as a "miscellaneous unit". Thus,
in response to your questions, temperature  is not a criterion
that is used to determine the  regulatory status of a  thermal
desorber.

     EPA's regulations  for miscellaneous units  are not
prescriptive given the  variety of devices  that  fall  into this
category.  Rather, the  regulations  require  the  permitting
                                                     Recycled/Recyciabi*

-------
official to establish permit conditions that are necessary to
protect human health and the environment.  For "miscellaneous"
thermal treatment units, permit writers will generally require
compliance with all of the Subpart 0 incinerator standards that
are appropriate for the technology and then determine if
additional controls are needed to ensure that emissions are safe.

     Please note that I have described EPA's regulatory
classification approach for thermal desorbers.  Under the
Resource Conservation and Recovery Act, EPA authorizes the States
to implement the hazardous waste management regulatory program.
State regulations may be more stringent or broader in scope than
EPA's.  Therefore, you should check with the State in which the
facility in question is to be located to identify any applicable
standards.

     With respect to your question as to whether chlordane
contaminated soil can be effectively and safely treated by low
temperature desorption, you should contact EPA's technical expert
on thermal desorption, Paul de Percin, Office of Research and
Development, for assistance.  Mr. de Percein can also be
consulted about TCOD conjugation but, without full thermodynamic
and kinetic data regarding the process involved, it may be
difficult to give you any definitive assistance.  He can be
reached at 513-569-7797.

     I hope that this information will be helpful.  If you have
further questions about the regulatory classification of thermal
desorbers, please contact Bob Holloway of my staff at
703-308-8461.

                                   Sincerely,
                                   Michael Shapiro
                                   Director
                                   Office of Solid Waste
cc:  Paul de Percin
     Bob Holloway

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      \       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
       ?                  WASHINGTON, D.C. 20460


                                                    9489.1994(02)

                           SEP  I 9 1994

                                                           OFFICE OF
                                                      SOLID WASTE AND EMERGENCY
                                                           RESPONSE

Randall W. Steger,  Manager
Operating Permits  Bureau,  Permits and Enforcement
Idaho Department of  Health and Welfare
1410 North Hilton,  Statehouse Mail
Boise, Idaho   83720-9000

Dear Mr. Steger:

     This letter is  in response to your request for a written
position paper concerning the primer neutralization unit "popping
furnace" located at  the Blount Industries, *CCI Operation in
Lewiston, Idaho.   Specifically, you asked if this unit is.exempt
from RCRA permitting requirements based on Blount's claim that it
is used for legitimate recycling operations.  We have determined
that this unit  is  not exempt,  and is subject to RCRA permitting
regulations.

     According  to  40 CFR 264.Kg) (2) and 40 CFR 261.6 (a) (2),
certain recyclable materials are regulated under Part 266 and not
Part 264 or Part 265.  However, this exemption from Part 264 and
Part 265 standards does not apply to incineration operations.
Any process that involves burning in an incinerator is regulated
as incineration whether or not some energy or material recovery
occurs.

     The Blount Industries'  popping furnace unit is classified as
an incinerator.  The unit uses controlled flame combustion, but
is neither a  "boiler" nor an "industrial furnace" as these terms
are defined in 40  CFR 260.10.   Since these rules provide for only
three types of  controlled flame combustion units (boilers,
industrial furnaces,  and incinerators),  the unit must be
classified as  an incinerator.

     EPA has consistently classified munitions popping furnaces
and military demilitarization furnaces as incinerators  (see
enclosed letters).   Material recovery in these devices is
secondary to the destruction of munitions and munitions
components.  These units are thus properly classified as
incinerators.   Burning hazardous waste in an incinerator is
always subject  to  Subpart 0 requirements under 40 CFR 264 or 40
CFR 265, and is never an exempt type of recycling.
                                                      R«cycl«d/R»cyclabl«
                                                      Printed wtth Soy/dnola In* on piper (h»l
                                                      contrira it lee* 10% recycled fiber

-------
     EPA explained its reasoning in the preamble to the April 4,
1983 proposed amendments to the regulations on recycling at 48 FR
14484: "Second, we wish to clarify that materials being burned in
incinerators or thermal treatment devices, other than boilers and
industrial furnaces, are considered to be abandoned by being
burned or incinerated under 40 CFR 261.2(a) (1) (ii),  whether or
not energy or material recovery also occurs...  In our view, any
such burning (other than in boilers and industrial furnaces) is
waste destruction subject to regulation under either Subpart 0 of
Part 264 or Subpart 0 and P of Part 265."  In the preamble to the
January 4,  1985 final rule at 50 FR 625, EPA reiterated that
"incinerators are built to destroy hazardous wastes, so wastes
burned in them are obviously being burned for the primary purpose
of destruction".

     Therefore, the popping furnace unit at Blount's CCI facility
is subject to the RCRA permitting regulations as an incinerator.
If you have any questions on this matter,  please contact Andrew
O'Palko at (703) 308-8646.

                                   Sincerely,
                                   Frank McAlister, Chief
                                   Assistance Branch
Enclosures
cc:  Waste Combustion Permit Writers' Workgroup
     Devereaux Barnes, OSW
     Matt Hale, OSW
     Matt Straus, OSW
     Fred Chanania, OSW
     David Bussard, OSW
     Mitch Kidwell, OSW
     Steve Silverman, OGC
     Larry Starfield, OGC

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  A  \      UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                     9494.1994(03)



                              JUN  - 7 894
                                                           OFFCEOF
                                                      SOUO WASTE AND EMERGENCY
                                                           RESPONSE
Mr. Curtis D. Lesslie
Environmental Engineer
Division of Environment
Bureau of Waste Management
Forbes Field Building 740
Topeka, Kansas 66620-0001

Dear Mr. Lesslie:

     This is in response to your March  10,  1994,  letter regarding
the Agency's sham recycling policy  as it  pertains to the Boiler
and Industrial Furnace  (BIF)  rule promulgated on  February 21,
1991.  You requested clarification  on the applicability of the
term "burning for legitimate  energy recovery" and on the land ban
requirements that apply to cement produced by a facility that has
certified compliance and is burning hazardous waste with a
heating value less than 5,000 Btu/lb.   In addition,  you asked
whether the heating value limit applies to the as-generated or
as-fired waste.

     It is true that the BIF  rule supersedes  the  Agency's sham
recycling policy for a facility that has  certified compliance
with the emissions standards  under  interim status or is operating
under a RCRA permit.  See 56  Federal Register 7183.   Thus,  a BIF
that has certified compliance may burn  hazardous  waste with a
heating value lower than 5,000 Btu/lb  (as-generated).   However,
if an industrial furnace burns a listed hazardous waste with a
heating value less than 5,000 Btu/lb and  the  facility does not
document that the waste is burned for legitimate  energy recovery,
then any product applied to or placed on  the  land in a manner
that constitutes disposal (e.g., cement)  would be a waste-derived
product subject to regulation as hazardous waste.   This waste-
derived product, however, could be  eligible for an exemption from
regulation as a hazardous waste by  compliance with the treatment
standards for land-disposed hazardous waste found in 40 CFR
268.42 - 268.44 and associated notification requirements (40 CFR
266.20(b)).
                                                      R*cycl«dfR»cydabl«
                                                                —

-------
     It is important to note that the "legitimate fuel"
determination is on an as-generated, not as-fired, basis.
Blending to augment the as-generated heating value cannot be used
to meet the "legitimate fuel" test  (i.e., either the waste must
have a heating value of 5,000 Btu/lb, or the facility must
document that lower heating value waste contributes significant,
useable energy).  However, the as-generated heating value of a
hazardous waste may be increased to meet the "legitimate fuel"
test by bona fide treatment  (e.g.,  decanting).

     I hope that this information will be helpful.  If you have
further questions or comments,  please feel free to contact Frank
Behan of my staff at 703-308-8476.


                         Sincerely yours,
                         Michael Shapiro, Director
                         Office of Solid Waste
cc:  John Smith, . EPA Region VII
     Gene Evans,  EPA Region VII
     Bob Kolloway
     Frank Behan

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
              •          WASHINGTON. D.C. 20460        "!
                                                   9489.1995(01)
    JAN 3 0 1995 ;
                                                          OFFICE OF
                                                     SOLD .WXSTE AND EMERGENCY
                                                         . -RESPONSE .  •
Mr. John .M.  Smith,  Director
Alabama Department  of Environmental Management
P.O. Box 301643
Montgomery,  AI,  36130-1463

Dear Mr. Smith:"            .   ,-.;..'."    •  - :'   .,'••''.".-..

     The purpose of this letter is to  respond to an inquiry
the Alabama  Department of Environmental  Management (ADEM) on the
U.S. Environmental  Protection.Agency's (EPA1s).position regarding
the  inclusion  of  emissions  from .open  burning/open  detonation
(OB/OD)  units  at  the Anniston  Army  Depot  in  the,health risk
assessment for'the  Anniston Chemical Agent Disposal Facility.

     On May  5,  1994,  the Office  of Solid Waste transmitted the
latest revision  to  the implementation 'guidance for conducting risk
assessments  at  RCRA hazardous  waste combustion units..  ~ In the
revised  guidance  EPA 'stated  that the. analysis  of  risks from
combustion units burning hazardous waste should ideally  address air
emissions  from  all  sources that  are an  integral, part  of --the
combustion   operation,  including- activities  such  as   storage,
blending, and handling of wastes fed to the combustion unit itself,
as well as storage  and handling of combustion residues.   '
                       •*'          •  -    •            '     '
    . After  discussions  with  ADEM  staff,   we have reached  the"
conclusion that  the OB/OD  units at the Anniston Army "Depot are not
an  integral  part of the combustion.operation associated with the
planned chemical agent disposal facility, nor are they  the type of.
activity we  would  expect  the health risk assessment to  address.
Therefore, in  our view, the  emissions from these  units  do  not need
to be included in the health risk assessment  for the  chemical agent
disposal facility.   Risks associated  from the operation  of OB/OD
units would  be addressed during the  permitting process for these
units.                                  ...
                                                     Recyclrt/Recydrtto    . .
                                                     MMM •» soy/ouwu »* on pcpv mat
                                                     oontttm « MM 50% ncycM ntav

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                              - 2 -
     If you have any questions, please do not hesitate to contact
James Michael of my staff.at  (703) 308-8610.
                                   Sincerely,
                                   Michael H. Shapiro, Director
                                   Office of Solid Waste
cc:  Gerald Hardy, State of Alabama
     James Michael, PSPD, OSW

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       .  WASHINGTON, D.C. 20460
                                               9489.1995(02!
                         AUG 02 1985                    OFFICE OP
                                    •          SOUD WASTE AND EMERGENCY RESPONSE
 Donald T.  Robertson,  PhD
 Delphi Research,  Incorporated
 701 Haines Avenue,  NW
 Albuquerque,  MM   87102

 Dear Dr.  Robertson:
       •

      Thank you for your letter describing Delphi Research's
 DETOX™ wet oxidation process.  Your letter requests a
 determination of whether the p.rocess would be regulated under 40
 CFR 264 Subpart X  (miscellaneous units)  or under Subpart O
 (incinerators), when used to manage hatardous wastes.
                               •     f  *
      Based on the information you provided regarding the DETOX*1
 wet oxidation process, it appears that,  when used to treat
 hazardous wastes, the process-would be regulated under the
 miscellaneous unit.standards of Subpart X, and not under the
 incinerator standards of Subpart 0.  We believe the miscellaneous
 unit standards would apply because the wet oxidation process does
 not involve direct flame combustion,  but uses heat provided by a
 hot oil heat exchanger .apparatus.

      Please note that Subpart X imposes environmental performance
 standards, and not unit specific standards as with other RCRA
 hazardous waste management units.  Permits for Subpart X units
 are to contain such terms and provisions, as necessary to protect
 human health and the environment.  Furthermore, please note that
 individual States may have bore', stringent standards than the
 Federal.program.  For site-specific requirements, you should
 contact the appropriate State regulatory agency.

      In your letter, you also asked whether someone from EPA
 Headquarters can act as a secondary stakeholder in your
 demonstration.  The Agency's Technology Innovation Office  (TIO)
 is interested in the DETOX*" technology and any demonstrations
 which may be forthcoming.  They, however, are not in a position
 to issue letters of acceptance or approval.  A contact for you
 within TIO is Jim Cummings, at  (703) 308-8796.

     . With respect to the proposed demonstration project at the
• Department of Energy - Morgantown 'Energy Technology Center, that
 you mentioned in your letter, please be' sure to work closely with
 the State of West Virginia and. EPA Region III before proceeding
 with any RCRA hazardous waste-management' activity.  Furthermore/
                                                           Printed on Recycbd Paper

-------
because West Virginia is not authorized for Subpart X permitting,
you would need to contact the EPA Region III office in
Philadelphia, PA regarding the permitting requirements.

     Again, thank you for your request:  If you have any
questions, please call me at  (703) 308-8655.

                    Sincerely,
                    Jeffrey t. Gaines, Environmental Scientist
                    Disposal Technology Section (5303W)
                    Office of Solid Waste

cc:  Frank McAlister, OSW
     Jim Michael, OSW
     Sonya Sasseville, OSW
     Jim Cummings, TIO
     Mary Beck, Region III
     Subpart X Permit Writers' Workgroup, Regions I-II, IV-X

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                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
         ?                      WASHINGTON. D.C. 20460
                                     FEB   8  1995
                                                                             OFFICE OF
                                                                      SOLID WASTE AND EMERGENCY
                                                                             RESPONSE.

                                                                         9489.1996(01)

Mr. Chris Wentz, Coordinator
N.M. Radioactive Waste Consultation Task Force
Energy, Minerals, and Natural Resources Department
State of New Mexico
P.O. Box 6429
Santa Fe, New Mexico 87505-6429

Dear Mr. Wentz:

       Thank you for your November 29; 1995 letter requesting a copy of a recent EPA letter to
Senator Larry Craig of Idaho. We hope the enclosed copy will clarify for you EPA's position
with regard to the applicability of the land disposal restrictions to WTPP-destined transuranic
mixed waste.

       In your letter you also ask EPA to explain several specific statements in our letter to
Senator Craig. First,  you ask for an explanation for the statement that"... a No-Migration
Variance is duplicative, because the WIPP is held by other statutes to a higher standard." You
will note as you read the enclosed letter that this statement is not in our letter to Senator Craig,
and we did not argue  that one set of standards wasjiigher or lower than the other. Our basic
point, rather, was that the RCRA no-migration determination would not significantly add to the
protection of human health and the environment if Atomic Energy Act and RCRA standards were
met.

       The second statement you cite — that"... a demonstration of no-migration of hazardous
constituents will not be necessary to adequately protect human health and the environment." —
was included in our letter to Senator Craig, and was the basis for the position we took in the
letter.  In our view, the greatest risk to human health and the environment associated with the
WIPP is posed by the radionuclide portion of the waste, and that by  compliance with the
comprehensive regulatory scheme under the Atomic Energy Act (40 CFR part  191), and the
extensive WIPP Compliance Criteria (40 CFR part 194),  human health and the environment will
be adequately protected from long-term releases of radionuclides and RCRA hazardous
constituents. Furthermore, to the extent that any risks during the operational phase (e.g.,
accidents) specific to hazardous wastes remain,  these can be addressed through RCRA permit
requirements (40 CFR part 264).

                                                                      Recycled/Recyclable
                                                                      Printed wtth Soy/Canola Ink on paper that
                                                                      contains «t least 50% recycled fiber

-------
       Our position can be better understood in light of the broad range of permit authority
delegated to the State of New Mexico under the RCRA permit regulations, including the 40 CFR
part 264 standards for "miscellaneous" units. These regulations contain performance standards
that allow the State of New Mexico to issue a single permit protecting human health and the
environment. For example, paragraph 264.601  of the subpart X standards require the permit to
protect against"...  any releases that may have adverse effects on human health or the
environment due to migration of waste constituents to the ground water or subsurface
environment..." Paragraph 264.601 further protects human health and the environment by
requiring "[prevention of any releases that may have adverse effects on human health or the
environment due to the migration of waste constituents in surface water, or wetlands or on the
soil surface..."

       Finally, you asked for documentation supporting EPA's position. Because the State must
issue a permit that provides adequate protection of human health and the environment (including
substantial equivalence to the no-migration demonstration should  the State deem that reasonable),
and because of the protection afforded by the comprehensive 40 CFR part  191 standards, EPA
did not find it necessary to perform a specific risk assessment or technical analysis on this issue
defending its position.

       Should you need additional information  please don't hesitate to contact Chris Rhyne of my
staff at 703-308-8658.
                                               Michael) H. Shapiro, Director
                                               Office 
-------
                                                                 ^gi^gaaa^^
                                     November 29, 1995     /,*3Z*J   A
                                                                            /~^~- \
                                                                            '  s \—1
 Mr. Michael Shapiro, Director
 Office of Solid Waste                                               p ^> &
 U.S. Environmental Protection Agency                               v  *'"
 401 M Street (MS #5301)
 Washington, D.C. 20460

"Dear Mr. Shapiro:

 Recently, Senator Larry Craig of Idaho introduced S.  1402, entitled the WIPP Land Withdrawal
 Amendment Act. In his statement on the Senate floor about the purpose and provisions of this
 legislation, Senator Craig noted the bill deletes the requirement for a No-Migration Determination
 and then referenced  a September 8, 1995, letter he received from EPA.

 He went on to say "...[EPA stated in the letter that] a No-Migration Variance is duplicative
 because the WIPP is held by other statutes to a higher standard."  Continuing, Senator Craig
 quoted the following from the referenced EPA letter:

       "A demonstration of no-migration of hazardous constituents [in the WTPP wastes]
       will not be necessary to adequately protect human health and the environment."

 Based on the preceding information, I am requesting your assistance in obtaining the following:

 1.  A copy of the September 8, 1995 letter from EPA to Senator Craig.

 2.  What specifically the author of the EPA letter was referring to when stating that WIPP "...is
 held by other statutes to a higher standard."  If the reference is to the disposal standards in 40
 CFR Part 191, where precisely is the duplication?

 3.  In reference to the statement by EPA that "...a demonstration of no-migration of hazardous
 constituents will not be necessary to adequately protect human health and the environment," any
 analyses, risk assessments, or other documentation supporting this contention.

 In light of hearings possibly being scheduled on the Craig bill in the near future, I would greatly
 appreciate anything you could do to expedite a response to the preceding request for information.
 Additionally, I respectfully request that your Office, as well as the Office of Radiation and Indoor
 Air, take the appropriate steps to ensure the  State of New Mexico is kept apprised of all such
 significant EPA correspondence concerning WIPP.  Thank you.
Sincerely,
Chris Wentz

Coordinator

N.M. Radioactive Waste Consultation Task Force

                    OfflCf Of THl iiCRtTARY - f>. O. BOX 6439 - SANTA H. NM 87505-6439 - (SO5) 837-S9SO
                 ADMINIJTWATTVtHRVICK DIVISION - P. O. BOX 6*29 - SANTA H. NM 875OS-6419 - (505)837-5915
            tNIRCY CONSERVATION AND MANACCMINT DIVISION - P. O. 6OX 64J9 - SANTA f I. NM 87505-6439 - (JOS) B37-59OO
            fORISTRY AND RfSOURCU CONSERVATION DIVISION - P. O. BOX 19«8  - SANTA H. NM 875O4-1948 • OO5) 8J7-583O
                  MININC AND MINERALS DIVISION - P. O. 8OXMJ9 - iANTA f 1. NM 875OJ-M19 - (5O5) 8J7-597O
                   OIL CONSERVATION DIVItlON - P. O. BOX 6439 - 4ANTA H. NM 87JO5-M19 - (5OS) 837-71J1
                  PARK AND RKREATION DIVISION • P. O. BOX 1147 • SANTA II. NM 875O4-1147 - (505)837-7465

-------
c:  Jennifer A. Salisbury, EMNRD Cabinet Secretary and Chair
    N.M. Radioactive Waste Consultation Task Force
   Mark Weidler, Task Force Member and Cabinet Secretary
    N.M. Environment Department
   Ramona Trovato, Director
    Office of Radiation and Indoor Air
    U.S. Environmental Protection Agency

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. D.C. 20460
                           .        .

                                                      9489.1996(02)
                            JUN I  0 1996
                                                       OFFICE OF
                                              SOLID WASTE AND EMERGENCY RESPONSE

Scott M. Churbock
Director, Environmental  Affairs
Envirotrol, Inc.
432 Green Street, P.O. Box 61
Sewickley, PA 15143-0061

Dear Mr. Churbock:

     Thank you for your  letter of February 9,  1996 in which  you
raised several issues regarding the  issuance  of a draft permit
for your Pennsylvania-based carbon reactivation facilities.   We
address each of your concerns  below.

     The key issue you raised  is  whether the  proposed use  of
Envirotrol's unit to treat filtration media comparable to
activated carbon (e.g.,  activated alumina) would be permitted as
a thermal treatment unit or as an incinerator.  In its 1991  rules
for boilers and industrial furnaces,  EPA amended the  definition
of "carbon regeneration unit" to indicate that these units  are
not incinerators, but are to be regulated as  thermal  treatment
units (56 FR at 7200, February 21, 1991).  The definition  of a
carbon regeneration unit is "any enclosed thermal treatment
device used to regenerate spent activated carbon."  Therefore,
your question is whether a device that regenerates spenb
activated carbon, but also is  used to regenerate other spent
materials, can remain a  "carbon regeneration unit" as  defined.

     EPA does not interpret the definition to require a
regeneration device to be used exclusively to regenerate spent
activated carbon.  The literal language of the definition
contains no such exclusivity requirement.  The purpose of  the
revised definition was to clarify that carbon regeneration units
were classified as other thermal  treatment units rather than as
incinerators, a 'purpose  which  would  not be well served by
interpreting the definition to require exclusive regeneration of
spent carbon, since this would result in more regeneration
devices being classified as incinerators.  Therefore, we believe
that a device which regenerates hazardous wastes other than  a
spent activated carbon can be  a carbon regeneration unit.


     However, the Agency further  interprets the provision  to
require that a carbon reactivation unit be used primarily  to
regenerate spent activated carbon, and that its other hazardous


                                                FaxBack* 11955

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 waste regeneration activities be similar.   Regeneration means
 restoring the hazardous waste material to its original use (for
 example, restoring spent activated carbon to a usable activated
 carbon) .  This interpretation is based on the language of the
 definition: the device, after all,  must be a carbon regeneration
 unit.

      We will recommend to the permitting authority that it review
 your proposed activity to determine if it may be classified as  a
 carbon regeneration unit under the above interpretation and
 thereby permitted under part 264,  Subpart X authority.   The
 permitting authority should review each of the proposed
 filtration media, including spent activated carbon,  to determine
 whether the media is treated by regeneration.   It will also be
 important to determine whether the current permit conditions  and
 treatment standards adequately address these additional
 materials, or whether additional testing or permit modifications
 would be needed.   The permitting authority would make a final
 determination based on the particular  facts presented in the
 permit application.

      You also expressed concern about  the  potential  delay of  your
 permit due to uncertainty about the regulatory status of the
 unit.  We do not  believe there has  been an undue delay in the
 preparation and notice of the EPA thermal  treatment  permit for
 this facility.  It is our understanding that EPA Region III
 prepared and issued for comment a  draft permit to Envirotrol  on
 March 19, 1996.   This draft permit  (prepared in only 19 days)
 contains permit conditions designed to protect the community  in
 which Envirotrol  operates.

      Please note  that in the April  2,  1996,  letter from
 W. Michael McCabe to Senator Rick Santorum,  EPA Region III
 deferred to EPA Headquarters the final interpretation of the
 regulations given the need for national consistency  and the
 precedent-setting nature of the interpretation.   As  such,  this
 letter is intended to clarify EPA1 s position on the  matter.   We
 plan to make this letter widely available  to states,  industry,
 and  environmental interests so that they too may be  informed  of
 our  opinion on this topic.

      I hope we have addressed all  of your  concerns with respect
 to these issues.   If you need any  further  assistance,  please
 contact Val de la Fuente,  Permits  and  State Programs Division, at
 (703)  308-7245.                                   '

                                    Sincerely yours,
cc:  Senior RCRA Policy Manager
                                         el H.  Shapiro,  Director
                                         e of Solid Waste

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Standards For Managing Specific
Hazardous Wastes And Specific
Types Of Facilities (Part 266)
                                      WD
                                      *k
                                      so

-------
9490 - STANDARDS FOR
MANAGING SPECIFIC
HAZARDOUS WASTES AND
SPECIFIC TYPES OF FACILITIES
Part 266
                         ATKl/l 104/48 Icp

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9493 - RECYCLABLE MATERIALS
USED IN A MANNER
CONSTITUTING DISPOSAL
Part 266 Subpart C
                         ATKl/l 104/49 kp

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


                                                     9493.00-1A


                                MAY 31 -aSfc
Mr. Pill Poss
Cor>n iss ioner                                   ^   .'~    >-'
Alaska Perartment of
  Fnvironmen tal 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 HSV'A 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)  Federal law does not presently set a maximum lead level
for used oils, waste oils, or any other dust suppressant.  As
described above, the HSWA prohibits the use of. hazardous waste as
a dust suppressant.  One way that a solid waste may be identified
as a hazardous waste is if it exhibits the characteristic of FP
toxicity, defined by $2*1.2* (and Appendix II of Part 261).  When
the extract from a solid waste, obtained throuah the FP  toxicity
procedure, contains lead at a concentration oreater than 5 ppm ,
it then is a hazardous waste and therefore is subject to the HSWA
prohibition,  riscd oil, because of its often viscous nature, does
not always exhibit FP toxicity even if relatively  hiah concentra-
tions of lead are present.

     (2)  If a ouestion arises as to whether a person is violatina
the HSWA prohibition, analyzing  the extract froi" a sample of  the
road oil using the EP toxicity procedure would be  necessary  to
determine compliance with federal law.  However, neither EPA
reoulations nor the HSWA reouire a State  to set up an analysis
program for road oilers.

-------
     (3)  EPA need not Issue any formal rules to enact the HSWA
prohibition 7 it became effective when the President sinned the
HSWA (November 8, 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 he
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.  FPA Region 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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                  STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. D.C. 20460

                                                     9493.00-1A
                                                     Attachment
                            MAR 2 0  1935
                                                       -•-: s.
MEMORANDUM
SUBJECT:  Interpretation of Section 3004(1), the
          Dust Suppression Prohibition

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

TO:       Kenneth D. Feigner, Chief
          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 P.CPA, 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.!

     (i)  Used oil that exhibits a characteristic (other than
ignitability) must not be used as a dust suppressant.2  You should
know that althouah OGC feels this is a strono position, it is not
a direct reading of Section 300401) (which speaks of "mixtures").
In the soon-to-be-proposed Federal Register 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.
1 As a point of information, we have proposed  [50 FP 1691-1692,
  January 11, 1985] that for used oil used a£  fuel , a total
  chlorine content exceeding 4000 ppm is presumptive evidence of
  mixing with hazardous waste.

2 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.

-------
     (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                 9493.00-1A
                          1200 SIXTH AVENU               Attachment
       3              SEATTLE,  WASHINGTON 9«ioi


                                    ...A3   1 1985
     M/S 530

MEMORANDUM
SUBJECT:  Interpretation ofJteste 013  Regulations
FROM:     Kenneth  .'7egnefrChief3
          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 1n
concentrations of 300ppn 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
     Ignltability), for dust suppression  or road  treatment is prohibited".

     We are interpreting this to mean that  the 40 CFR 26T.3 mixture rule
does not apply in this case. That 1s, a waste  oil  which has been mixed
with a characteristic waste is prohibited for  use as  a  dust suppressant
regardless of whether or not the"resultant  mixture exhibits a"
cTjaracTeristlc.  Also, the us'e of a waste oil  as  a dust suppressant is
prohibited If 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 tan deuiunstrTfe" that the source of the constituents  did
not com 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

ccMichael Petruska  (WH565A)
    Keith Kelton, AOEC

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DEFT. OF ENVIRON Jf ENTAL CONSERVATION        r./«,/><»«..7907;
                            -Sl..
    OFFICE OF  THE  COMMISSIONER                         9493.00-1A
    POUCH 0, JUNEAU,  ALASKA  99811                      Attachment


                     Z~-    * "Cc
                           	     May 7,  1985
    Mr.  John H,  Skinner,  Director
    Office of  Solid  Waste  —--
    WH-562, Room M2804    - -- -
    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 ^.oxicity  method  of testing in the required waste oil
    i a-.jsis.

    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,
    yau.vweht 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 b'f' analysis for deterrriining lead
    content in waste oil.  J. 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?
                                                         Ml.*. OO .

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      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 problem?

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
BR:PO:mt
cc:  Lisa Friedman, Associate General Counsel, EPA/
     Kenneth Feigner,  EPA,  Region  X
     Ronald Kreizenbeck,  EPA, Alaska Operations Office

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                       WASH.NGTON.O.C. 20460            9493.00-lA

                             JULI2.38S                Attachment
                                                        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                           flu/i' /
FROM:   /UJohn H. Skinner, Director UuIf///\fii/
        Y Office of Solid Waste (WH-'sdZ)

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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     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 positidn remains as stated
in the June 6 memorandum.
cc:  Waste Management Division Directors, Regions I - IX
     Mark Greenwood, OGC

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 0
  *i        UNITED STATES ENVIRONMENTAL PROTECT ---- -^
                       WASHINGTON. D.C. 20460               9493.00-lA
 -/                                                     Attachment
                            JUN 6   1985
                                                        OFFICE OF
                                               SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT:  Prohibition on Use of Hazardous Waste for
          Dust Suppression or Road Treatment

FPOM:     John H. Skinner, Director ol (c*^ (*-\&.(,
          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, $261.33 (setting out requirements for discarded com-
mercial chemical products) has been amended to provide that the
materials and items listed in S261.33 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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STATUTORY INTERPRETATIONS

     Several questions may arise as you implement this prohibition.
EPA interprets Section 3004(1} to impose the following requirements

     8   Any material used as a dust suppressant is at 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 5261.5, 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.3

     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.

2/ 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 aa fuel with a chlorine content exceeding 4000 ppm
   total chlorine would be presumed to be mixed with hazardous
   waste. [See 50 FR 1691-1692.]

V 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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         Because the ban applies to hazardous waste and
         materials mixed with hazardous waste, a mixture
         containing 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 b'y 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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MP1.Y TO
ATTN Of:
             UNITED STATES ENVIRONMENTAL PRO!
                                    REGION 10
                             Seattle,  Washington 98101

             M/S  533
                                                                9493.00-1A
                                                                Attachment
MEMORANDUM


SUBJECT:



FROM:



TO:
                   Prohibition  on  Use of Hazardous Waste for
                   Dust Suppression  or Road Treatment
                   Charles  E.  Findley, Director
                   Hazardous Uaste  Division   (M/S

                   John H.  Skinner,  Director
                   Office of Solid  Waste   (WH-562)
 ,
-
           One of the interpretations in your June 6. 1985. 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 I1s- r: 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 ignitanility)
      then that waste, used oil, or material cannot be used for dust suppression
      or road treatment— irrespective of whether 1t exhibits the
      characteristic.  We fail to understand how any other interpretation of the
      statutory language can be made.

           The interpretation 1n your memo, :1n fact, would tend to encourage
      p.lxing of characteristic hazardous waste with waste, used oil, or other
      material and hence avoid regulation if the resulting mxt.ire no longer
      e> hi bits the characteristic.  The mixture rule under §261.3 allows such an
  ^-"exemption" with  respect to the  Subtitle  C  regulations,  '.he statutory
      amendment  does not  provide  such  an  exemption  for  such mixtures with
      rerpect  to the ban  as  a dust suppressant.

            The  Interpretation (fourth bu11et>  1n your  memo concludes that
      "...the  material  being used for  dust suppression  must actually be a^
      hazardous  wasteJL  That conclusion  appears  to be"  contradictory to tne
      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 t.he interpretation.

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

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                                                            9493.1985(01)
                         JUL \ 2 |98E

                                                                        tr
                                                                        f
                                                                        *-
                                                                       s ?
                                                                       i t

                                                                       tn rf
                                                                       > f
                                                                       \ (9
HEHORAKDC*                                                             w3


SUBJECT!  Prohibition on Use of Rasardous Waste for Dust               v?
          Suppression or Road  Treatment  (Tour memo dated $-25-85)      1»
                                                                       S rt
PRO*i     John R.  Skinner,  Director                                    3c
          Office of Solid Waste (VB-SC2)                               ^J
                                                                       9 •
TOt       Charles  E. Pindley,  Director                                 a r
          Rasardous Waste Division (H/S  52»)                           M_
          Region X                                                    • £


     Based on the  legislative  history to Section 3004(1), and          ="|
on the structure of the statute and CPA's current regulatory           a a
policy, we believe that the ban in Section 3004(1) applies only        2^
to materials that  are themselves hasardous wastes.  The provision      u^
will be codified in Part 2fC,  a subpart  reserved for hasardous
waste uses constituting disposal.
                                                                       -j r
     The language  of Section 3004(1) does not specify whether          *?
the mixture of used oil and hasardous waste must, itself, be a         \-e
hasardoua waste in order for the ban to  apply.  However, the           ^.£
conference report  to the Rasardoua and Solid Waste Amendments          ^B
of If84 explains that Congress intended  for the ban to apply to        -jo
the use of "dioxin contaminated wastes or any other hasardoua          j,^-
waste as a dust suppressant* (H.R. Rep.  Ho. 1133, 98th Cong.,    \    r*«
2d seas,  tt (19S4)).   [Emphasis added.)                               «r

     In adtfltiop,  Congress  placed the prohibition on dust
suppressiom in Section 3004 of RCRA, where regulatory juris-
diction is generally limited to hasardous wastaa 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 hasardous wastes.  Por example, the
prohibition could  have been placed in Section 3014(a) of RCRA,
which applies to all uaed oils that are  recycled, whether or
not the used oils  are hasardous waste.

-------
     Zn 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 hasardous wasta
and is no longer subject to Section 3004.  This  is not an  exemp-
tion but rather is part of BPA's definition  of hasardous wast*.
Absent a clear indication in the statutory language  or legislative
history that Congress intended to override BPA's current regulatory
policy relating to the definition of  hasardous wastes, we  believe
that the policy should apply in this  case.

     Based on the above rationale, our position  remains as stated
in the June € memorandum.


ccs  Waste Management Division Directors, Jtegions I  - IX
     Hark Greenwood, OGC

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                                                         9493.1985(02)
                          N&V 14  BBS
Everett* Wyatt
wire Division Engineer
Leggett ft Platt, Inc.
P.O. Box 695
No. 1 - Leggett Road
Carthage, Missouri  64836

Dear Mr. Wyatt:

     Our office has received your letter dated July 29. 1985,
requesting a decision from the Agency in regard to the proper
classification of the liquid mlcronutrient fertiliser (•Ferrous
Green*) produced by Leggett ft Platt from your spent sulfurie acid
pickle liquors.  Based on the Agency's recent amendment to the  .
definition of solid waste published in the federal Keqister on
January 4, 1985* the fertiliser produced from your pickle liquor
is not presently subject to regulation (although the material it
still a solid and hazardous waste).

     The raw material for the fertiliser production/ waste pickle
liquor, is both a solid waste (since it is a soent material; see
the Federal Register, January 4, 1985 - $261.2) and a hazardous
waste (EPA Hazardous Waste No. K062).  If a fertilizer is produced
from this waste, the fertilizer (if hazardous) is normally regulated
under Subpart C of Part 266 (see 50 FR 666, January 4, 19*5).
If the fertilizer is produced for use by the general public, how-
ever, this product is exempt from regulation (see $266.20(b)).

     As you know, Leggett ft Platt originally received a temporary
exclusion for their spent pickle liouor on December 16, 1981.
This exclusion was for treated It062 waste, and was based on the
Agency's proposal to change the F.P toxicity characteristic fron
total chromium] to hexavalent chromium.  This proposal has not
been made fiaal by the Agency, nor do we expect to make that
proposal final.  After treatment, the pickle liguor has pR values
ranging from 2.5-3.5, and hexavalent chromium levels are low
«0.005 mq/1).  The treated liquor, however, contains 16-19 mg/1
total chromium, which exceeds the RP toxicity limit for chromium
(5 mg/1).  Leggett ft Platt'* treated pickle liouor is, therefore,
classified as hazardous due to the characteristic of RP toxicity,
and so it cannot be delisted under IS260.20 and 260.22 of the
RCRA regulation*.

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     The chromium levels in the untreated liquor (28-63 mg/1)
also exceed th« BP toxicity limit for chromium.  Due to it*
exceptionally low pa level (0.3-1.7), the untreated liquor is
also classified as a corrosive waste.  Such a characteristically
corrosive and BP toxic waste is likewise not dellstable under
SS260.20 and 240.22.  Leggett fc Platt's untreated pickle liquor
is also considered a hazardous vaste, and Bust be handled and
stored in accordance with 40 CPft Parts 262 to 265 and the
permitting requirements of 40 CPR Part 270) that is, the spent
pickle liquor is subject to requlation before it is used to
produce a fertiliser.  Since the pickle liquor, when treated,
becomes a commercially available fertilizer product, the treated
pickle liquor is exempted from requlation, although the treated
liquor is still a hazardous waste.  Should any portion of Legqett
i Platt's pickle liquor not be handled in this manner, that
portion would be subject to regulation under RCRA.

     As mentioned above, the Agency has not acted on the proposal
to alter the EP toxicity characteristic from total chromium to
hexavalent chromium, and your treated waste is, therefore, not
delistable due to the high levels of total chromium.  Due to this
findinq, the Agency will recoraend to the Assistant Administrator
for Solid Waste and emergency Response that the temporary exclusion
granted for your treated waste on December 16, 19tl be withdrawn
and that your petition be denied.  This action do«s not have any
bearing on the regulatory statue of your fertiliser product, but
indicates that because of the characteristics that the treated
waste exhibits, the waste is not eligible to he removed from the
Agency's list of hazardous wastes (4261.32).

     At this time, we would like to close our files.  The Agency
is required to publish all delistinq decisions in the federal
Register, so our office will reconatend to the Assistant
Administrator that a denial notice b« published in the near
future,  we, however, have been offering petitioners the option
of withdrawing their petitions rather than having the Agency
publish a denial in the Pederal Register.  If you would like to
exercise this option, we require that a letter be sent to us
retracting your petition and stating that the waste  is hazardous
and will be managed appropriately.  We would appreciate that if
such a letter is sent, it be forwarded to our office within one
month from the date of today's correspondence.

     As indicated above, the Agency  is not currently  regulating
commercial, hazardous waste-derived  fertilizers.  As more  infor-
mation becomes available about these products, the Agency reay
propose to regulate their use.  We will keep you  advised of  any
further developments in this area.

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     If you h«*« any questions, please contact Scott Kaid, of my
staff, at  (2tl) 312-4783.

                              Sincerely yours,
                              Eileen Claussen
                              Director
                              Characterisation and Assessment
                                   Division (VR-562B)
cct  Joe Davis, Missouri ONR
     Chet fcLaughlin,  EPA Feqlon VII

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                                                       9493.1985(03)
                            NOV 25 1985
Ms. G. Mahoney
Environmental Engineer
Bridgeport Brass Corporation
P.O. Box 51519
Indianapolis, Indiana  46251

Dear MS. Mahoney:

     This letter is in response to your request cor an
interpretation of the January 4, 1985 hazardous waste regulations,
concerning the regulatory status of two characteristically
hazardous sludges that are recycled.  (The specific exanples
you are interested in are described in your letter dated
August 14, 1985, and in our telephone conversation.)  in
your letter, you indicate that both of these Materials are
recycled in such a manner that you believe they are not
solid wastes and therefore not subject to the hazardous waste
regulations under RCRA.  However, baaed on the January 4
rules, one of the materials—the zinc oxide dust'-would be
oetined as a solid waste and would be regulated under the
hazardous waste regulations.  The remainder of the letter
will describe how these materials are covered under these
rules.

     First, I would like to apologize to you for ray delay in
getting back to you.  My schedule has been very busy and hope
ray delay has not caused you any problems,  with respect to
your specific examples:

     0 A zinc oxide dust (a characteristic hazardous sludge) is
       sold to a facility where it is processed into zinc sulfatt;
       the resulting sine sulfate is then sold to bulk tertiiizer
       blenders who use the zinc sulfate as an ingredient in
       fertilizers.  The fertilizer is then sold to smaller
       distributors.

            Under the example, the zinc oxide  is processed
       to produce zinc sulfate (as this is described in
       the attachment to your letter),  under  the rules,
       such activities do not normally constitute solid waste
       management.  However, when the material (that is, the
       zinc oxide dust) is to be incorporated  into a product
       that is placed on the land, we would detine the entire
       recycling activity as "use constituting disposal."

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       Under the January 4 rules, all sludges that are hazardous
       (whether or not they are listed) are defined as wastes
       if they are placed directly on the land for benefical
       use or incorporated into a product that is placed on
       the land for benfical use.  (See 40 CPR Part 261.2(c)(l)
       and Part 266 Subpart C; see also preamble discussion
       at 50 PR 627 and 646.)  Therefore, the zinc oxide
       dust is subject to the hazardous waste regulations
       (i.e., the generator of the zinc oxide dust is subject
       to the requirements of Part 262, transporters of this
       dust are subject to the requirements of Part 263, and
       the facility that processes the zinc sulfate would be
       subject to the storage requirements of Parts 264 and
       265).  You should also be aware that if the zinc
       sulfate is hazardous (i^e^, exhibits any of the charac-
       teristics of hazardous waste), it would also be subject
       to the hazardous waste regulations.

     • A characteristic hazardous sludge is generated from an
       air pollution control device.  This sludge can be reclaimed
       to recover its copper content; in addition, any lead
       recovered can be produced into a low grade lead solder.  •

            Under this scenairo, the hasardous sludge would not
       be defined as a waste (and thus not be subject to the
       hazardous waste rules) as you have correctly indicated  in
       your letter.  In particular, under the January 4 rules,
       sludges that are reclaimed are only detined as solid and
       hazardous wastes if they are specifically listed;
       since the sludge is not listed (but is hazardous solely
       because it exhibits the characteristic of EP toxicity),
       the material is not detined as a solid waste.  See 40
       CPR part 261.2(c)(3)> see also preamble discussion at
       50 PR 633.  (This material may still be subject to
       regulation it it is accumulated speculatively.)

     I hope this letter responds to your request.  Please
feel free to give me a call if you have any questions or
comments.  Hy telephone number is (202) 475-8551.

                       Sincerely yours,
                   Matthew A. Straus, Chief
                   Haste  Identification  Branch

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                                                       9493.1985(04)
                  RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                  NOVEMBER 85
3.   L'se Constituting Disposal

    The January 4,  1985 (5Q-PT* 614) redefinition of Solid Waste brought into regulation
    certain  hazardous waste management activities that were previously exempt fron
    regulation because these activities were deemed to be beneficial use,  reuse,  or
    reclamation under S261.6(a)(1).  On this date, EPA added a new section (Part  266
    Suopart  C) which outlines the regulations on the use of hazardous waste in a
    manner constituting disposal.  This section now regulates beneficial use or
    reuse of hazardous wastes via placement or application of the hazardous waste
    (recyclable material) on the land.

    For training purposes, a fire department sprays virgin diesel fuel on  the ground.
    The fuel is set ablaze and then extinguished.  The .resultant residues  are collected
    and properly disposed of as RCRA hazardous wastes.  -

    Does the act of spraying the virgin diesel fuel meet the use constituting disposal
    classification?

       No;  spraying virgin fuel on the ground foe firefighting practice does not meet
       the  use constituting disposal classification.  In this case, the fuel is  a
       primary material and not a waste.  Had the fuel been spent or a secondary
       material, such usage could be considered use constituting disposal.

       Source:    Steve Silveeman (202) 382-7706
                  Matt Straus     (202) 475-8551

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                                             9493.1985(05)
                                DEC 11 Q85
Mr. Michael D. Boruch
P.O. Box 236
Bast Setauket, New  Tork   11733

Dear Mr. Boruch»

     This letter  in  in response  to your  inoulry of October 25,
1985, regarding the  de-characterisation  and disposal of hasardous
wastes that have  undergone chewleal  solidification.  Per our
discussion, the waste treatment  scenario you have described
would result in a waste which the Agency classifies as a
•recycled Material  to be  used in a manner that constitutes
disposal.*  The latest regulations addressing such a waste
product can be found, in  full, in 50 Pf^ €14-6(8, dated
January 4, 1985 and  40 CPR, Part 266,  revised date of July 1,
1985.  To briefly summarise, the Agency's jurlsdlcation over
waste products extends to all hasardous  secondary Materials,
when they are applied to  land or used  In water as fill or
support material.   This jurisdiction extends to all such
material, whether or not  the waste has been mixed with other
materials or chemically altered  before disposal.  The tyt>e of
processing or treatment of the waste may be relevant in determining
what regulatory scheme to adopt  for  the  waste or in deciding  if
the derived product  is still hasardous,  however, the act of
processing, in and  of itself, does not deprive the Agency of
RCRA Subtitle C jurisdiction when the  waste containing product
will be disposed  of. Thus, such products a« fertilisers,
asphalt, and building foundation materials that use hasardous
wastes as ingredients are subject to RCRA jurisdiction.

     In essence,  the Agency maintains  that if a waste product
is fully or partially composed of a  hasardous material, then  it
is under RCKA jurisdiction and must  be managed accordingly
unless and until  an exclusion is petitioned for and granted
pursuant to 40 CfH  f1260.20 and  260.22.   It should be noted
however* that the Agency* while  having jurisdiction over these
wastes, has decided not to regulate  these materials when they
are formulated into fertilisers  that we  sold to the general
public.  (See f2«6.20(b))

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     I hope this letter and the referenced regulations will
provide you »ore insight Into the  Agency's responsibilities
for hazardous waste management, and in particular, for wastes
that have been chemically treated.   Should you have any further
Questions regarding this, or any other subject, please do not
hesitate to contact ne.

                              Sincerely,
                              Jawes  A.  Poppiti
                              Manager
                              Waste  Identification Branch

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                                                  9493.1985(06)
               RCRA/SUPERFUND  HOTLINE MONTHLY SUMMARY

                                DECEMBER 85
Used Oil as Dust Suppressant

5.  Can EP-toxic waste oil wnich has not been mixed witn hazardous waste se used
    for dust suppression purposes?

         Yes; 261.6(a)(3)(iii)  currently exempts waste oil  exhibiting a charact-
         eristic from regulation under Parts 262-266,  124,  and  270 when the used oil
         is being recycled.   Therefore, waste oil which exhibits a characteristic
         and which has not been mixed with hazardous waste  can  be used as a dust
         suppressant.

         This ban,  mandated by the Hazardous and Solid Waste Anendments of 1984
         (HSVA)  and codified in $266.23(b), prohibits  used  or waste oil which has
         been mixed with dioxins or other hazardous wastes  from being used as a
         dust suppressant.  Discussion in the preamble of the codification rule
         (50 FR  28718) indicate that this ban would also apply  to unmixed hazardous
         waste.   Therefore,  in the future  when EPA lists waste oil as a hazardous
         waste,  road oiling and other dust suppression methods  involving used oil
         would be prohibited.

         source:    Matt Straus (202) 475-8551

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              U   EL ..ATES ENVIRONMENTAL PROTE   ON -GENCY         9493.1986(01)
               JAN 2 2 1986
Mr. Rar.rtall F. Andrews
Industrial and Agricultural Chemicals, Inc.
Route 2
Box 521-C
Red Springs, H.C.  28377

Dear Mr. Andrews:

     This is in response to your letter of December 27, 1985,
concerning the regulatory status of the copper plating solution
that you receive at your plant site.  As I understand your
situation, you obtain from a copper plating operation a copper
sulfate bath (which exhibits the characteristic of corrosivity)
at your plant site and react it with a chelating agent to
produce a material that is registered with the North Carolina
Department of Agriculture as a commercial fertilizer.  This
material no longer exhibits the corrosivity characteristic.
This material is then sold to farmers for use as a fertilizer
or is sold to fertilizer companies for inclusion into fertilizer
for resale.

     Under this scenario, the copper sulfate bath that you
receive at your plant site ijB a solid and hazardous waste and
is subject to the transportation and storage requirements
under the hazardous waste regulations.  The material that is
produced at your plant site (i.e., the commercial fertilizer),
however, is no longer subject to regulation under the hazardous
waste rules and may be managed as such.  The basis for this
decision is as follows*  On January 4, 1985, EPA promulgated
its final rules which deal with the question of which materials
are solid and hazardous wastes when they are recycled.  Among
other things, these rules state that all hazardous secondary
materials that are placed on the land for benefical use or
incorporated into products (referred to as waste-derived
products) that are placed on the land for benefical use are
solid and hazardous wastes.  (See enclosed copy of regulations.)
In the Agency's view, these practices are virually the equivalent
of unsupervised land disposal, a situation RCRA is designed
to prevent.  The many damage incidents resulting from wastes
being placed on the land for benefical use bear out the
Agency's concern.  This type of recycling activity has also

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     a particular concern of Congress.  in particular, iti a
tiucibor ot Congressional reports, they describe various damage
incidents involving wastes that arc? placed on the land tor
beni-tical use.  These reports reflect net only Congress1
concern but its intent that EPA regulate this type of activity.
Therefore, we believe that this type of recycling activity
constituc-s waste management and need be subject to regulatory
control.

     by asserting jurisdiction over waste-derived products
that are placed on the land, we are also asserting jurisdication
(and regulating) the materials that go into these products,
provided these materials are hazardous (i.e., exhibit one or
more of the- hazardous waste characteristics or are specifically
listed).  Therefore, since the copper plating solution is
corrosive, it is subject to regulation.  More specifically,
the generator and transporter of this material is subject to
the appropriate generator and transporter standards,  including
the hazardous waste manifest, while you (being the recycler)
would be subject to the appropriate storage standards.   (see
40 CFR 261.6(b) and (c) for specific regulatory requirements.)
As indicated earlier, however, the material that is produced
at your facility — the commerical fertilizer — is no longer
subject to regulation since this material is no longer'defined
as hazardous.

     Since this regulation has gone through formal rulemaking,
your only alternative (at this time)  is to submit a rulenaking
Petition under 40 CFR Part 260.20  (See enclosure for  specific
information requirements).  Please feel free to give  me  a
call if I can be of any further assistance; my telephone
number is (202) 475-8551.

                              Sincerely yours,
                              Matthew A. Straus
                              Chief
                              Waste  Identification  Branch  (WH-562B)

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                                                             9493.1986(02)
     guidelines or regulations have been issued under RCRA
Procurement of recovered materials?

    The "Federal Procurement" provision in Section 6002 of
    the Resource Conservation and Recovery Act is one of the  few
    provisions of the statute that directly mandates resource
    recovery.  In establishing this provision, Congress recognized
    that the Federal Government is an enormous consumer of certain
    materials.  Hence, procurement practices of Federal agencies
    can encouraqe the development of private sector companies which
    use recovered materials to manufacture products for both  the
    Federal and private sectors.

    The provisions of §6002 apply to procuring agencies that  purchase
    designated items when the price of such designated item exceeds
    310,000 or when the cost of such an item purchased during the
    preceding year exceeded 510,000.  The statute incorporates two
    mechanisms to accomplish the goal of establishing Federal recyclirq
    practices.  First, §6002(d) states that all Federal procuring
    agencies responsible for drafting or reviewing specifications
    must review and revise their specifications in order to eliminate
    any unfair discrimination against the use of recovered materials.
    Second, §6002(e) requires the EPA to designate items that are or
    can be produced with recovered materials and to set forth recommended
    procurement practices for such items ("procurement guidelines").
    Section 6002(c) requires all procuring agencies which use appropriated
    Federal funds to procure designated items containing the highest
    percentage of recovered materials, practicable, provided that
    reasonable levels of competition, cost, availability and technical
    performance are maintained.  Section 6002(i) requires procurina
    agencies to adopt an affirmative procurement program to ensure
    that designated items containing recovered materials are purchase 1
    to the maximum extent practicable.

    EPA finalized guidelines for cement and concrete containing
    fly ash on January 28, 1983 (48 FR 4230).  Paper and paper produces
    guidelines were proposed on April 9, 1985  (50 FR 14076).  Guidelines
    for Federal procurement of asphalt materials containing ground  iir<«
    rubber for construction and rehabilitation of paved surfaces were
    proposed on February 20, 1986  (51 FR 6202).  The EPA has establish.?-!
    criteria for selecting additional items for which procurement -TJ Me lines
    will be prepared  (48 FR 4231).  The criteria are:

    1)  The waste material must constitute a significant solid waste
        management problem due to volume, degree of hazard or
        difficulties  in disposal;

    2)  Economic methods of separation and recovery must exist;

    3)  The material must have technically proven uses; and

    4)  Federal purchasing power  for  the  final product must  be  subs'- \-\* • \\.

    Source:    William Sanjour   (202) 382-4502
    Research:  Kevin  Weiss

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              ITED :   TES ENVIRONMENTAL PROT^-riON A  NCY
                                                         9493.1986(03)
Mr. Gary D. Meyers
The Fertilizer Institute
1015 IStli Street, N.W.
Washington, D.C.   20036                    _.
                                    G-2.'\ \936
Dear Mr. Meyers:                   ****

     This is in response to your letter of May 9, 1986,
regarding the regulatory status of commercial fertilizers
that contain emission control dust/sludge from the primary
production of steel in electric furnaces (EPA Hazardous Waste
No. KUGl) under the Federal hazardous waste rules.  In your
letter, you question an Interpretation I have taken regarding
the applicability of the hazardous waste rules to fertilizers
produced using zinc flue dust as an ingredient.  In particular,
you disagree with my statement that such fertilizers are not
exempt from regulation pursuant to 40 CFR §266.20(b) until
they are in the physical form in which they were sold to the
ultimate consumer.  Rather/ you believe that once the zinc
tluc- dust has been incorporated into the product and has
been properly processed, the material, while subject to our
authority, is currently exempt from regulation because it is
a "commercial fertilizer.I/  (We both agree that the
transportation and storage ot zinc flue dust prior to is use
in the production of fertilizer is regulated.)
I/  You also believe that the zinc flue dust would not be
    regulated after it is reacted with sulfuric acid, the
    first step in producing zinc micronutrient fertilizers,
    since it has undergone a chemical reaction making it
    inseparable from the product by physical means (see
    S266.20(b)).  This would only be true if the material can
    be used as a fertilizer (and such fertilizer is produced
    tor the general public's use) after the zinc flue dust
    is reacted with sulfuric acid.  As you state in your
    letter, however, the zinc flue dust does not become a
    commercial fertilizer (i.e.,, a fertilizer that can be
    used by the general public) until it is reacted with
    sulfuric acid, granulated, and sized.  I, therefore,
    believe this provision is not appropriate in this case.

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     In reviewing your letter as well as the information
enclosed, I have reconsidered my interpretation and believe
that your reading of the rules is correct; that is, once a
zinc micronutrient commercial fertilizer is produced,  it is
exempt trom regulation, provided it is being produced  for the
general public's use.  Therefore, zinc flue dust that  has
been reacted with sulfuric acid, granulated, and sized]?/ would
be exempt trom regulation, except as described below,  whether
it is sold directly to the public for their use or to  a third
party who blends the zinc micronutrient fertilizer with other
nutrients prior to their being sold to the general public.

     The only exception to this is if the material is  not handled
in a manner commensurate with the management of zinc micronutrient
fertilizers.  In particular, in your letter you state  "...the
fertilizer is stored in bags or in bulk, awaiting shipment
to customers.  Because excessive moisture must not be  allowed
to contact the fertilizer until it is applied, the fertilizer
is stored indoors and transported in covered (hard top or
tarpaulin) trucks" (see page 4 of your letter).  Therefore,
if a person were to handle the "zinc fertilizer" in open
piles outside of buildings or in ways that would not be
typical for managing commercial fertilizers and such management
is causing this material to escape into the environment, we
believe the material would not be a commercial fertilizer
and that the operation could be viewed as a sham situation
where recycling is not in fact occuring.
2/  As stated in your letter, zinc micronutrient fertilizers
    do not become commercial fertilizers until they are
    reacted with sulfuric acid, granulated, and sized.
    Therefore, if a person were to just react the zinc flue
    dust with sulfuric acid or perform this step and the
    granulation step and then ship the material off-site to
    be granulated and sized or just sized, the material would
    be subject to the transportation and storage standards
    since the material is not yet a "commercial fertilizer"
    produced for the general public's use.  In addition, any
    wastes from the fertilizer production process—such as
    filter cake left after reacting the wase flue dust—would
    be RCRA wastes, and would automatically be deemed to be
    listed wastes if they derive trom treating a listed waste
    (such as wate K061).

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     Please teol free to give me a call if you have  any
further questions;  my telephone number is (202) 475-6551.

                              Sincerely,
                              Matthew A. Straus
                              Chief
                              Waste Characterization Branch
cc:   Regional Branch Chiefs (Regions I-X)
     Karl Johnson,  TFI
     Carl L.  Schauble, Frit Industries
     Michael  Steffensmeier, Neb. Dept. of Environmental Control

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     \         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY  9493'1986( 04)

 	 -                     WASHINGTON. DC. 20460
v.
                               SEP 3  !S87
                                                          O«=e'CE OF
                                                 SOLiO WASTE AND EUEPGENCv OESPQNSE
  MEMORANDUM

  SUBJECT:   Regulatory Requirements tor Agricultural Use
             of Spent Acias

  FROM:       Matthew A. Straus, Cnief "^      ^'
             waste Characterization Brancn (wH-5t>2fl)

  TO:         Bill Taylor, cnief
             Enforcement Section  (ba-CE)
             Region VI
       I am writing in response to your memo o£ August 1«,
  The term "commercial fertilizer," as useo in >266.20, has che
  same meaning as normally usea in agriculture, i.e., a material
  added to soil to supply certain elements essential co tne
  growth of plants.

       materials addea to soil to alter soil propercies, i.e.,
  pH  adjustment, are callea soil amendments, not fertilisers.
  further, tne exemption in 3266.201D) is meant to incluae
  fertilizer products tnat contain hazardous waste, not hazardous
  waste placea directly on tne ground,  on ootn counts, the
  spent acids you descrioe fail to meet the conditions o£
  >266.20(b), and tnereiore are suoject to si266.21-266.2J.

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             UNITED SI  ES ENVIRONMENTAL PROTECTION AGi-,
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                                                      9493.1991(01)

mj
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
           WASHINGTON. D.C. 20460
  JAN   8 1991
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
 Frank Dixon
 President
 Thermal Waste Management
 237 Royal Street
 New Orleans, Louisiana  70130

 Dear Mr. Dixon:

      This letter responds to your August 9, 1990, letter to
 Mr. Bob Holloway, as well as to phone conversations between
 Mr. George Lane of Thermal Waste Management (TWM) and Mr. Mitch
 Kidwell, of my staff.  Your principal intent in writing to EPA is
 to seek confirmation of your assessment that the fuels TWM
 produces are exempt from hazardous waste labeling requirements.
 You also ask for clarification of the regulatory provisions that
 govern the production of fuels from oily hazardous petroleum
 refinery wastes (i.e., 40 CFR 261.6(a)(3)) and the impact of
 various court opinions on these regulations.

      As I understand your letter, TWM has a process that produces
 marketable liquid and solid fossil fuel products from oily
 hazardous petroleum refinery wastes.  The liquid portion is
 reinserted into the petroleum refining process and the solid
 portion is marketed as a fuel.  You assert that the TWM process
 is unique because it leaves no residues that would require
 subsequent treatment or disposal (aside from the wastewater,
 which is further managed in the refinery's wastewater treatment
 system) and use this as a basis for drawing a "significant
 difference" between the TWM process and typical oil reclamation
 processes that recover a liquid component, yet leave a solid
 residue requiring disposal.

      Regulatory determinations such as the one you seek  (i.e.,
 specific to your process or products) are made by the appropriate
 State regulatory agency or EPA Regional 'Offices.  I am able to
 respond to your questions regarding which Federal regulations may
 be applicable, clarifying the intent and meaning of various terms
 used in the regulations, and provide some of the pertinent
 factors to consider in determining the regulatory status of the
 TWM process and the fuels produced; however, the determination
 must be made on a case-specific basis by the regulating agency.

      Under the Federal regulations, there is no regulatory basis
 to draw a distinction between secondary materials processed by an
 oil recovery process that does not generate a residue and
 secondary materials processed by an oil recovery process that

                                                           Priiiltd on Kteyeltd Paptr

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does generate a residue.  The emphasis you apply to the phrase
"no element of discard" as it describes the TWM process suggests
a misunderstanding of the Agency's use of the phrase in its
January 8, 1988 proposal (see 53 PR 525) on the definition of
solid waste.  (This definition is used to determine whether a
secondary material is subject to hazardous waste regulations
promulgated under the Resource Conservation and Recovery Act
(RCRA).)

     In the January 8, 1988 preamble discussion, the phrase "no
element of discard" is used to indicate that where there is an
element of discard evidenced in the management of a hazardous
petroleum secondary material (e.g., placement in a surface
impoundment) prior to reinsertion into the petroleum refining
process, the very element of discard indicates that the secondary
material is a solid waste subject to RCRA regulation.
Conversely, if a secondary material is managed prior to
reinsertion into the petroleum refinery process that generated it
such that there is no element of discard (e.g., by managing the
materials solely in tanks), the secondary material is considered
to be part of an ongoing continuous production process, and thus,
outside the scope of RCRA regulation.  Whether or not the
processing of the secondary material (in this example, by
reinsertion into the petroleum refining process) results in a
residue that must be disposed of is irrelevant to determining
whether the secondary material, prior to reinsertion, is a solid
waste subject to regulation.

     The January 8, 1988 preamble discussion, as well as the
exclusion proposed for oil-bearing hazardous secondary materials
that are reinserted into the petroleum refinery process (proposed
40 CFR 261.4(a)(10)), is neither relevant nor applicable to such
materials that are inserted into an oil recovery process other
than the petroleum refinery process that generated the secondary
material (regardless of whether the recovery process generates a
residue).  Rather, fuel that is produced (and oil that is
reclaimed and used as a fuel) from hazardous wastes resulting
from normal petroleum refining, production, and transportation by
processes other than normal petroleum refining operations are
eligible for an exemption from hazardous waste regulation under
40 CFR 261.6(a)(3)(viii).
                                     /
     Your first four questions indicate a concern regarding
whether the ownership of the unit, the operator of the unit, the
characterization of the unit's operation as intermittent (i.e.,
batch) rather than continuous, or the unit's characterization as
mobile rather than stationary has an impact on whether the
products produced are exempt from regulation.  In general, under
Federal regulations such aspects of a process have little impact
on the regulatory status of the products produced or the residues
generated.

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     The applicable regulatory provisions (40 CFR 261.6(a)(3))
explicitly state the conditions which must be net for fuels
produced from hazardous secondary materials from petroleum
refining to be exempt from regulation.  (For example, in
261.6(a)(3)(v), "refining of oil-bearing hazardous wastes along
with normal process streams"; and in 261.6(a)(3)(viii)(A),
"reintroduced into a process that does not use distillation or
does not produce products from crude oil so long as the resulting
fuel meets the used oil specifications under § 266.40(e).")

     In another question, you refer to the proposed 40 CFR
261.4(a)(10)   (53 FR 529, January 8, 1988) which excludes:

     "Oil-bearing hazardous secondary materials from petroleum
     refining that are generated onsite and reinserted into the
     petroleum refining process along with normal process
     streams, provided that the materials are not stored in a
     manner involving placement on the land, or accumulated
     speculatively, before being so recycled.   (Fuels produced
     from such recycling activities are not solid wastes.)"

You ask for EPA's concurrence that TWM fuels are not solid
wastes, since the feed materials meet all of the above
requirements.  Such an evaluation would need to be made on a
case-specific basis by the regulating agency.

     It should be clear from the January 8, 1988 proposal
preamble discussion regarding RCRA jurisdiction that the
exclusion applies only to those secondary materials that are
reinserted into the petroleum refining process  (rather than being
"inserted" into an onsite "recovery" process), thereby being part
of an ongoing, continuous production process.   (This language is
taken from the statutory provision in section 3004(r).)
Materials that are processed by processes other than "the
petroleum refining process" would not be excluded under this
proposed provision (although, as stated above, there is an
existing rule that exempts fuels produced by such other
processes, provided the fuels meet the used oil specifications)
Please keep in mind that the Agency has not finalized the 1988
proposal, nor has any State, to our knowledge, adopted such a
provision in a final regulation.  Conditions for meeting the
exclusion could change at promulgation.

     A number of your questions refer to the January 8, 1988
preamble discussion and make an assumption that the TWM process
is a "petroleum refining process."  EPA described what it means
by a petroleum refinery process (i.e., petroleum refining
facility) in a November 29, 1985 rulemaking that promulgated the
exemptions for fuels derived from petroleum refinery wastes (see
50 FR 49169).  (This description was reiterated in the January 8,
1988 proposal preamble discussion, and is consistent with the
statutory language in section 3004(r).)  As Footnote No. 11 in
the November 29, 1985 FEDERAL REGISTER notice states, the Agency

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does not consider used oil-based processes that produce fuel to
be refining operations "(in spite of the use of distillation)
because they do not produce fuels from crude oil."  This footnote
further explains that if such processes use "... oilbearing
petroleum refining hazardous waste as a feed material, the
resulting fuels would be exempt if they a««t th« us«d oil
specification ..." (emphasis added).  By requiring that such
fuels meet the used oil specifications of 266.40(e)  to be exempt
from regulation as a hazardous waste fuel (assuming that the
fuels are derived from listed hazardous wastes or exhibit a
hazardous characteristic),  the Agency clearly did not intend for
used oil distillation processes (and, by extension,  other oil
recovery processes) to be considered petroleum refining
processes, even when oil-bearing petroleum refining hazardous
wastes are used as a feedstock in the used oil distillation
process.

     The TWM process does not appear to meet the Agency's
definition of a petroleum refining operation because it:  1) does
not use crude oil as a feedstock, 2) recovers a liquid fraction
that must be rerefined in the petroleum refining process (and
therefore, -is not itself a refined hydrocarbon product), and
3) exhibits no evidence that the solid fuel produced is a typical
petroleum refining product rather than a hazardous waste fuel
(i.e., if there is no removal of contaminants in the processing -
- as would be the assumption if such fuel meets the used oil
specifications found at 40 CFR 266.40(e) — then there is no
basis on which to conclude that such fuel is a refined petroleum
product rather than a petroleum refining waste recovery residue
with recoverable energy  (BTU) value, or rather, a hazardous waste
fuel).  Since it does not appear that the TWM process is a
petroleum refining operation, many of your questions are moot or
are otherwise unanswerable because there is insufficient
information on which to base a response.

     In two questions you ask whether the January 8, 1988
proposal has been finalized and whether the Agency has considered
recent court opinions regarding the jurisdiction of RCRA in
responding to your questions regarding the status of the fuels
produced by the TWM process.  EPA has not yet finalized the
January 8, 1988 proposal; however, insofar as the proposal and
relevant court opinions address the -scope of RCRA, particularly
in relation to secondary materials that are part of an ongoing
continuous petroleum refining processes, these considerations
were taken into account in responding to your questions.

     In another question, you cite the Standard Industrial
Classification (SIC) 2911 for petroleum refining and ask whether
the TWM process is the "redistillation of unfinished petroleum
derivatives."  While the TWM process does appear to be the
redistillation of an "unfinished petroleum derivative," the main
focus of the SIC classification seems to be the actual production
of petroleum products.  Because the SIC description includes the

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 phrase "other processes,"  the emphasis  does  not  appear to be  on
 2he typ« of process involved,  but rather  on  the  feed materials
 and the products produced.   The TWM process  is best characterized
 as a recovery process that processes hazardous petroleum refining
 wastes to recover a liquid component which is reinserted into the
 petroleum recovery and a solid component  which,  assuming it meets
 the used oil specifications of 266.40(e), is a hazardous waste
 fuel that is exempt from regulation.  If  the solid fuel produced
 by the TWM process does not meet the used oil specifications  at
 266.40(e),  it is subject to regulation  as a  hazardous waste fuel.

      In describing a petroleum refining process,  EPA sought to
 distinguish between actual petroleum production  processes and
 ancillary recovery processes.   However, exemptions were also
 promulgated to address fuels produced by  recovery operations
 where the contaminants were removed from  the fuels, thus ensuring
 that the use of the fuels  would not pose  an  increase in risk  to
 human health and the environment over the use of normal petroleum
 refining fuel products. You have provided no data indicating
 whether the solid fuel produced by the  TWM process meets the
 266.40(e)  used oil specifications; therefore we  are unable to
 determine the regulatory status of the  solid fuel.

      You specifically asked whether the Agency agrees that the
 TWM process is a refining  process.  For the  purpose of the
 regulatory exemptions found at 40 CFR 261.6(a)(3), the TWM
 process does not appear to be a refining  process in the same  way
 that a used oil distillation process is not  a refining process.
 Rather, the TWM process appears to be a recovery process.

      In summary, I reiterate that EPA Headquarters is not the
 appropriate entity to make a determination on the regulatory
 status of the TWM process  as it operates  at  a particular facility
 or on the products it produces.  There  is no basis on which to
 conclude that the TWM process is a petroleum refining process,
 and no information was supplied to make a regulatory
"determination on the status of either the liquid or solid
 portions recovered (i.e.,  no data on whether the fossil products
 meet the used oil specifications).  If  the liquid portion is  sold
 for direct use as a fuel,  the fuel would  be  exempt from
 regulation as a hazardous  waste fuel only if it  meets the used
 oil specifications of 40 CFR 266.4-0(e).   If  the  liquid portion
 (i.e., oil) is reinserted  into the petroleum refining process
 along with normal process  streams, it would  be exempt from
 hazardous waste regulation under 261.6(a)(3)(vi). If the solid
 portion is marketed as a fuel, or further used to produce a  fuel,
 it would likewise not be regulated as a hazardous waste fuel  only
 provided that it meets the used oil specifications  (assuming  that
 it meets other relevant criteria for a  hazardous waste  fuel).  If
 the recovered portions that are marketed  as  fuel do not meet  the
 used oil specifications, such fuels are hazardous waste  fuels
 (assuming that they are derived from listed  hazardous petroleum

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wastes or are themselves hazardous by exhibiting a characteristic
of a hazardous waste) .

     If you have further generic questions regarding the
regulatory status of recovery processes or fuel products derived
from hazardous petroleum wastes, you should contact Mr. Mitch
Kidwell, of my staff, at (202) 475-8551.  For specific questions
regarding the application of RCRA regulation to the TWM process
or TWM fuel products, you should contact the appropriate State
regulatory agency or EPA Regional Office.

                              Sincerely,
                              David Bussard
                              Director
                              Characterization and Assessment
                                Division
bcc: Allyn Davis, Director
     Waste ' Management Division, Region VI

     Bob Holloway, Chief
     Combustion Section

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                                                       9493.1991(02)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON, D.C. 20460
                          JUN 2 0 1991
                                                      OFFICE OF
                                            SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT:  Regulatory Determination Regarding the Use  of
          Petroleum-Contaminated Soils as an Ingredient  in
          Asphalt BatchJ

FROM:     Sylvia K.
          Office of

TO:       Merrill S. Hofaman. Director
          Waste Management Division
          Region I

     This responds to your March 11, 1991, memorandum requesting
a regulatory interpretation regarding the use of petroleum-
contaminated soils as an ingredient in asphalt batching.  This
use of petroleum-contaminated soils has become an issue  because
the recently promulgated Toxicity Characteristic  (TC)  rule may
result in such soils being hazardous wastes subject to
regulation, while the majority of such asphalt batching
operations have failed to apply for interim status.   Thus, the
two main issues are:  (1) determining the regulatory  status  of
the asphalt batching processes, and (2) the appropriate
enforcement approach to address those regulated facilities that
failed to apply for interim status, or were late in applying.
For the latter issue, I refer you to the April 10, 1991,
memorandum from Bruce Diamond.

     In determining the regulatory status of the asphalt batching
operation, there are four different points of consideration:
1) whether the petroleum-contaminated soils are hazardous solid
wastes when used as an ingredient in a product used in a manner
constituting disposal, 2) whether the batching process itself  is
legitimate recycling or treatment, 3) whether the asphalt product
meets the waste-derived product exemption found at 40 CFR
266.20(b), and 4) whether the storage of petroleum-contaminated
soils is subject to regulation.

1. Determining whether petroleum contaminated soils are  solid
   wastes.

     In determining whether the contaminated soils are hazardous
wastes when used as ingredients in asphalt, the term  "petroleum-
contaminated" may be too generic to enable a definitive
regulatory determination because this term could encompass too
                                                          Prinltd on Rtcyeltd Paptr

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broad a variation of contaminants.  A more case-specific approach
may be necessary because certain "petroleum-contaminated" soils
may be subject to RCRA regulation while others may not.

     In general, a hazardous secondary material (and soils
contaminated with a hazardous secondary material)  used to produce
a product used in a manner constituting disposal is a solid
waste, unless it is a commercial chemical product that is
normally used in this Banner, such as a petroleum product
normally used as an ingredient in asphalt batching (see 40 CFR
261.2(c)(1)(ii) — although the commercial product may not be
listed in section 261.33, the same regulatory approach applies).
The regulatory status of soils contaminated with crude oil would
be determined by using the same approach.  The crude oil, while
not a secondary material, would be a solid waste because it is
being discarded by use in a manner constituting disposal, unless
crude oil is a normal ingredient in asphalt batching.  We expect
that most petroleum-contaminated soils are not contaminated
with the petroleum product that normally is used in asphalt
production and would, therefore, be solid wastes.   (For example,
if gasoline is not normally used in asphalt production, then
gasoline-contaminated soil is a solid waste when used in asphalt
production.)   However, there may be specific cases where the soil
is contaminated with a petroleum product normally used to make
asphalt, in which case the contaminated soil would not be a solid
waste when used in asphalt batching.

     Also, you should note that any media (including soil) or
debris resulting from remediation of an underground storage tank
cleanup under Part 280 is excluded from regulation as hazardous
waste (for the D018-D043 constituents) regardless of the intended
disposition,  so these soils could be used in asphalt production.
(You should also note that we are presently reviewing a petition
from New York State that requests that the Agency exclude all
petroleum contaminated media and debris from regulation under the
TC.  A rulemaking may be initiated to address issues raised by
this petition, but the remainder of this memo is based on the
current rules.)

     In summary/ with the exceptions of soils contaminated with
petroleum materials normally used in asphalt production and
soils resulting from underground storage tank cleanups, soils
contaminated with petroleum materials that are listed waste or
exhibit one of the characteristics would be hazardous and solid
waste.  The remainder of this memo discusses the issues relevant
for these soils.

2. Determining whether asphalt batchinj is legitimate recycling.

     The act of mixing petroleum contaminated soils into the
asphalt production process may be a form of treatment, subject
to permitting under Part 270, or may ..instead be recycling,

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exempt from permitting under section 261.6(c).   The main question
is whether the batching is "legitimate" recycling, as opposed
to treatment in the guise of-recycling ("sham"  recycling).

     In determining whether the asphalt batching is legitimate
recycling, the Agency compares the contaminated soil with the
analogous raw materials normally used in asphalt batching.  To
the extent that the contaminated soils contain  hazardous
constituents not found in the analogous raw materials, or contain
hazardous constituents in significantly higher  concentrations
than in the analogous raw materials, the batching process would
be considered "sham" recycling, unless such hazardous
constituents can be demonstrated to be useful in the production
of the product or in the product itself.  Another factor
indicating whether the batching process is sham recycling is
whether the contaminated soils are legitimately replacing a raw
material or ingredient normally used in the process.  For
example, if the contaminated soils are being used in excess of
the amount of raw materials that would otherwise be used, sham
recycling would be indicated.  Where sham recycling is indicated
(i.e., where contaminants in the soils are actually being treated
or disposed of by incorporation into a product), a treatment
permit may be required.

3. Determining the status of the asphalt product.

     Whether the batching process is considered legitimate
recycling or not, the resulting waste-derived asphalt product is
a solid waste because it is placed on the land.  Assuming that
the resulting product is a legitimate asphalt product, the
applicable regulations are found at 40 CFR 266  Subpart C.  Doubts
regarding the legitimacy of the waste-derived product are
resolved by a comparison of the constituents found in the waste-
derived product to the constituents found in an analogous product
that is not produced using contaminated soils as an ingredient.

     If the asphalt product is produced using soils contaminated
with a listed hazardous waste  (e.g., K048-52),  it would be
subject to hazardous waste regulations as a waste-derived
product.  If the product meets the conditions of the exemption
found at 40 CFR 266.20(b), which include meeting the applicable
Land Disposal Restriction (LDR) treatment standard(s), the
asphalt product is exempt from further regulation as a hazardous
waste.  If the product does not meet the terms  of that exemption,
then it remains subject to regulation as hazardous waste, which
would amount to a de facto ban on the product's use.  Also, if
the asphalt product does not meet the conditions of the exemption
until further processing, then the asphalt is subject to
regulation as a hazardous waste until the conditions have been
met.

     If the asphalt product is produced using soil contaminated

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with waste hazardous only because it exhibits a characteristic
(e.g., the TC), then the above discussion applies for as long
as the material continues to exhibit the characteristic. Further,
there are currently no LDR treatment standards for TC waste.

     You should note that over the next 1-2 years we will be
developing regulations that will address various issues
associated with waste-derived products.  We expect those
regulations to further clarify the distinction between legitimate
and "sham" recycling.

4. Determining the status of stored materials.

     With the exception of the materials described above in
number 1 (i.e., soils contaminated with petroleum normally used
in asphalt production or from underground storage tank
remediations), — and the exception discussed below — the
storage of contaminated soil that either contains a listed waste
or exhibits a characteristic is regulated under Parts 262, 264,
265, 268, and is potentially subject to permitting under Part
270.

     In the case of asphalt product that meets the conditions
of section 266.20(b), no storage requirements apply once the
conditions are met.

     I hope this has helped to resolve your issues.  If you have
any questions regarding the late notifier guidance document sent
to you earlier by the Office of Waste Programs Enforcement, your
staff should contact Hugh Davis at FTS 475-9867.  If you have any
questions regarding the regulatory status of recycling processes,
your staff should contact Mitch Kidwell at FTS 475-8551.  For
information regarding the New York petition, your staff should
contact Denise Keehner at FTS 382-4740.

Attachment

cc: Waste Management Division Directors
    EPA Regions II-X

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                                                           9493.1991(03)
I .,	*        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460



                             JUN 2 I  1991
                                                            OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
  Kevin  Young,  Esq.
  Whiteman,  Osterman &  Hanna
  One  Commerce  Plaza
  Albany,  New York  12660

  Dear Mr. Young:

      This  letter responds to  your letters  of June  19,  1990  and
  December 21,  1990  to  Mr. Randolph Hill  of  EPA's  Office of General
  Counsel  regarding  the RCRA  regulatory status of  air  pollution
  control  dusts (i.e.,  baghouse dusts) generated at  facilities
  owned  by Norlite.   These facilities  burn hazardous waste fuels
  and  the  baghouse dust will  either be recycled to produce the
  aggregate  product  or  be directly used as aggregate.
  Specifically,  you  have asked  for a determination that  the
  baghouse dust, when recycled,  meets  the exemption  from RCRA
  regulation for waste-derived  products used in a  manner
  constituting  disposal found at 40 CFR 266.20(b).   You  have  also
  requested  a determination that baghouse dust used  as an
  ingredient in the  manufacture of concrete  masonry  is not solid
  waste  under 40 CFR 261.2(e)(1)(i).

      There appear  to  be four  different  scenarios for recycling
  the  baghouse  dust  that you  outline in your letters,  two in  which
  the  material  is  used  directly as a product, and  two  in which  the
  material is used as an ingredient to produce a product. More
  specifically,  the  scenarios are when the baghouse  dust is used:
  1) as  a  product  used  in a manner constituting disposal (e.g.,
  when used  as  an  aggregate material for  asphalt production), 2)  as
  a product  not used in a manner constituting disposal,  3) as an
  ingredient in a  process that  produces a product  used in a manner
  constituting  disposal, and  4)  as an  ingredient  in  a  process that
  produces a product that is  not used  in  a manner  constituting
  disposal (e.g.,  when  used as  an ingredient of  "block mix"  for the
  manufacture of concrete masonry that is not, in  turn,  used  in a
  manner constituting disposal).   Although the uses  of the baghouse
  dust presented in  these four  scenarios  may seem  very similar,  the
  regulatory determinations differ based  on  the  ultimate
  destination of the baghouse dusts or products  into which they are
  incorporated.  We  have considered two  issues raised  by your
  request:   1)  whether  the process or  activity involving the
  baghouse dust is legitimate recycling  (i.e., not treatment  or
  disposal),  and 2)  whether the baghouse  dust itself is  a solid
  waste  or is excluded  from being a solid waste  because it is a
  legitimate substitute for a commercial  product or  raw ingredient.
                                                            Printed on P- .

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      We  should  note  at  the outset that a final determination on
 these questions must be made by the authorized State regulatory
 agency or  appropriate EPA Regional office.  As we understand it,
 your  request  relates to the Norlite facility in New York; thus,
 the regulatory  determination must be made by the State of New
 York.  We  provide below a discussion of the factors that EPA
 would use  to  evaluate whether the recycling.of the baghouse dust
 generated  by  the burning of listed hazardous waste fuels is
 legitimate under Federal regulations; however, this discussion
 does  not constitute  a site-specific regulatory determination for
 the Norlite facility.

 Scenario 1 -- Use as a  product in a manner constituting disposal

      The baghouse dust  would be considered a waste-derived
 product  and,  when used  in a manner constituting disposal, subject
 to the conditions placed on such products in the exemption
 provided at 40  CFR 266.20(b).  It appears from the data you
 supplied that the baghouse dust meets the applicable treatment
 standards.  Thus the waste-derived product would be exempt from
 further  regulation,  assuming it is otherwise determined to be a
 legitimate product,  which we discuss further in Scenario 2.

      In  section E of your letter, you suggest that the "contained
 in" rule is not applicable to the baghouse dust, and thus that
 the baghouse  dust is not derived from the listed wastes burned as
 fuel  in  the aggregate kiln and thus is not a listed waste.  You
 cite  the Land Disposal  Restrictions for First Third Wastes final
 rule  preamble discussion that presented the Agency's position
 regarding  the regulatory status of products produced using
 hazardous  waste fuels.  The Agency stated that such products are
 not deemed to be used in a manner constituting disposal because
 hazardous  wastes were not used as ingredients to produce them.
 The hazardous waste  burned as fuel does not contribute to the
 product  as an ingredient, but rather fires the production
 process.   53  FR 31198.  This preamble discussion is clearly not
 applicable to the baghouse dust itself.  The baghouse dust is the
 residue  from  burning the hazardous waste fuel; it is not the
 product.   Thus,  the  baghouse dust itself would be a "derived-
 from"  waste.  However,  since the dust itself appears to meet the
 section  266.20(b) waste-derived product exemption, this rule
 would  not  affect the status of the dust used as a product.

      In section D of your letter you also raise the issue of how
 the Bevill rule affects "derived-from" wastes from mineral
 processing.   As  you  note, EPA has stated that mineral processing
wastes removed  from  the Bevill exemption are considered "newly
 identified" for the  purposes of the land disposal restrictions.
While the  preamble discussion states that characteristic wastes
 from mineral  processing which were removed from the Bevill
exclusion  are not subject to treatment standards pending further

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rulemaking, it is silent on how and whether listed wastes used in
the process, either as a fuel or as an ingredient, affect the
wastes newly removed from the exclusion, including residues
derived from listed wastes.  We wish to clarify that the
aggregate kiln generates a residue, the baghouse dust,  from the
treatment of listed hazardous wastes — wastes that are not newly
identified and for which treatment standards are applicable.  So,
the baghouse dust is subject to the land disposal restrictions
treatment standards applicable to the listed wastes burned in the
aggregate kiln.  Nonetheless, since the data indicate that the
treatment standards are met, this issue is also moot.

Scenario 2 — Use as a product in a Banner that does not
constitute disposal

     The baghouse dust would be considered a waste-derived
product, although there are no regulatory requirements for use in
a manner that does not constitute disposal (e.g., the land
disposal restrictions treatment standards do not apply).  We
believe that the State of New York should, however, evaluate the
baghouse dust to determine whether it is a legitimate product by
comparison with the aggregate that would normally be used.  Based
on your letter, we assume the "normal aggregate" would be the
multiclone dust (i.e., the typical fines product).  The data you
submitted indicate that the lead and cadmium concentrations in
the baghouse dust are double the concentrations found in the
multiclone dust.  The State should determine whether this is a
significant difference and, therefore, determine whether the
baghouse dust is not a legitimate product.

Scenario 3 — Use as an ingredient to make a product used in a
manner constituting disposal

     Use as an ingredient to make a product that is used in a
manner constituting disposal would not exclude the baghouse dust
from the definition of solid waste (see 40 CFR 261.2(e)(2)(i)).
The aggregate (as a product that is to be placed on the ground)
continues to be a derived-from waste and would be required to
meet the treatment standard.  Further, an evaluation of the
actual processing would be in order, i.e., a determination as to
whether the process would be considered legitimate exempt
recycling vs. fully regulated treatment or disposal by
incorporating the hazardous constituents into the product.  To
the extent that there are hazardous constituents  found  in the
baghouse dust that are not found in the analogous raw material,
or that are found in the baghouse dust  in significantly greater
concentrations, the process would be determined to be treatment,
unless a demonstration is made that the hazardous constituents
are necessary or beneficial to the process or product.  In  other
words, the hazardous constituents are being treated  rather  than
being used as ingredients, unless demonstrated otherwise  using
the criteria mentioned above.  We should note that EPA  would

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generally use a total concentration analysis rather than a
leachate analysis to make this determination since we are
comparing the waste against the raw material rather than their
respective leachates.  A demonstration of legitimate recycling
would also need to show that the baghouse dust actually replaces
a raw material (e.g., for every ton of baghouse dust used, there
is a roughly equivalent reduction of shale or other raw
materials).  We note that your letter asserts that the baghouse
dust would be used as a direct substitute for additional raw
material consumption.

     In section F, you cite EPA's "indigenous principle" to
suggest that the baghouse dust may not be a hazardous waste when
returned to the kiln.  However, absent such a policy EPA
evaluates the baghouse dust as it would any secondary material
being used as an ingredient.  The "indigenous principle" most
closely captured in the current regulatory language at 40 CFR
261.2(e)(1)(iii)  (the closed-loop exclusion) is not applicable in
any instance where the product is to be used in a manner
constituting disposal (see 40 CFR 261.2(e)(2) (i)).

Scenario 4 r- Use as an ingredient to make a product not used in*
a manner constituting disposal

     As in Scenario 2 above, there are no regulatory requirements
for a waste-derived product that is not used in a manner that
constitutes disposal (or burned for energy recovery).  If the
baghouse dust will be legitimately used as an ingredient to
produce a product that is not used in a manner constituting
disposal,  it would be excluded from the definition of solid
waste.   The determining consideration, however, is whether the
baghouse dust is a legitimate substitute for a raw material  (as
discussed in Scenario 3).  If the baghouse dust is determined to
not be a legitimate substitute, the production process would be
considered treatment, and thus would subject the aggregate kiln
to RCRA regulation as a treatment process for the hazardous waste
burned as an ingredient.

     Under Federal regulations, regardless of the scenario,  since
the baghouse dust appears to meet the applicable treatment
standards, it could be used as a waste-derived product or
ingredient, assuming that it is marketed commercially and is a
legitimate product.  When the baghouse dust is used as an
ingredient in the manufacturing process, the State of New York
must determine:  1) whether the baghouse dust is a solid waste
(i.e.,  whether the product will be used in a manner constituting
disposal)  and 2)  whether the process is legitimate recycling
(i.e.,  whether the baghouse dust is a legitimate substitute).

     We must again emphasize that the New York Department of
Environmental Conservation must make the determinations regarding
the status of baghouse dust under each of these scenarios for the

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facilities operating in New York.  The role of EPA Headquarters
is to provide technical and policy support to the Regional
offices (or to the States through the Regional offices).   We have
provided you the factors that we would use to evaluate whether
the recycling of the derived-from baghouse dust is legitimate
under Federal regulations.  The key considerations are whether
the lead and cadmium concentrations are considered to be
significantly greater in the baghouse dust than in the raw
material and whether the process that uses the baghouse dust as
an ingredient would be considered treatment.

     If you have any further questions regarding the factors to
consider in evaluating the regulatory status of a secondary
material when recycled, please contact Mitch Kidwell at (202)
475-8551.   For a specific determination regarding the regulatory
status of the baghouse dust when recycled at Norlite's New York
facility,  you must contact the State regulatory agency.

                              Sincerely,
                              David Bussard, Director
                              Characterization and
                                  Assessment Division

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             UNrTED STATES ENVIRONMENTAL PROTFCTION AGENCY    9493.1991(04)
                              OCT  | |  |99|
 David Wisch
 RCRA Unit Supervisor
 Hazardous Waste Section
 Land Quality Division
 Department of Environmental Control
 State of Nebraska
 301 Centennial Mall South
 P.O. Box 98922
 Lincoln, Nebraska  68509-8922

 Dear Mr. Wisch:

      Thank you for your letter of June 26, 1991 commenting on a
 May 3,  1991 letter we received from Mike Bates of the State of
 Arkansas requesting clarification of the federal Resource
 Conservation and Recovery Act (RCRA) Subtitle C regulations
 governing the management of certain materials used as ingredients
 in the  production of fertilizers.

      Mr. BateVslletter requested clarification of how materials
 and activities would be regulated under the federal regulations
 in a situation involving the facts listed below,  in addition,
 you request clarification on how such materials and activities
 would be regulated if lead values were recovered from the
 baghouse dust prior to its use as an ingredient in fertilizer
 production.                        r\^~

           A generator in yonr s tat exonerates a baghouse dust
           that is not a listed waste identified in 40 CFR 261.32
           or 261.33 (or,  we assume,  40 CFR 261.31);

           The baghouse dust,  which has a high concentration of
           zinc,  fails the Toxicity Characteristic for lead;

           The dust is a "sludge," as defined in 40 CFR 260.10
           because it is generated in an air pollution control
           facility; and

           The generator would like to send the baghouse dust to a
           producer that could use the dust as an ingredient in
           fertilizer for the  zinc content.

     Tn  det*f>r"nH no hntj frVie •Parior-al  V»af flT'^'VIS vastO rOtTUlntionP
apply *» ^T^g*.™^* ~t »~y rfretffiHyffio firct. determination tUJL
must be  dade  is whlether thel material! in ouestllon is a tolid    I

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                                 2
             UNITED |TATK ENVIRONMENTAL PROTECTION AGEKOf.   .  .
 waste,  since by definition a Hazardous waste must Tirst be a
 solid waste (40 CFR 261.3).  For materials that are recycled,  40
 CFR 261.2(c)  defines those materials that are solid wastes.   If
 the material is both a solid waste and a hazardous waste,  the
 waste management activities must then be evaluated to identify
 applicable requirements.

      In the situation described by Mr. Bates,  the baghouse dust
 would be a solid waste because it is a sludge exhibiting a
 characteristic of hazardous waste which is to be used to produce
 a product that is applied to or placed on the land (i.e.,  used in
 a manner constituting disposal).  (See 40 CFR 261.2(c)(1)(i)(B).)
 Since the dust exhibits the Toxicity Characteristic,  it is also a
 hazardous waste (40 CFR 261.3(a)(2(i)).

      Similarly, if the baghouse dust were sent to a facility at
 which lead was recovered from the dust prior to shipment to the
 fertilizer producer, the baghouse dust would also be a solid
 waste under 40 CFR 261.2(c)(1)(i)(B)  because it continues to be a
 characteristic sludge which is to be used to produce a
 fertilizer.   The regulatory determination does not change because
 some portion of the dust  is to be used in a manner constituting
 disposal,  even though another portion (the recovered lead)  will
 not.   In other words,  the solid waste determination for a
 recycled material is made at the point of generation of the
 waste,  and .takes into account the entire waste recycling process,
 not just the first step in a waste recycling train.  Any step
 which involves use in a manner constituting disposal  (or burning
 for energy recovery) causes the waste to be a solid waste from
 the point of generation on.  Any portions of the waste that are
 separated from the waste  and recycled in ways that do not involve
 use constituting disposal (or burning for energy recovery)  may no
 longer be solid wastes (depending on applicable regulations).

      For completeness it  should also be noted that the regulatory
 status  of the  dust after  the lead recovery step would depend on
 whether the dust exhibited any hazardous waste characteristics.
 Thus,  if the dust exhibited a characteristic it would continue to
 be a solid and hazardous  waste,  again because it would be a
 characteristic sludge to  be used in a manner constituting
^disposal.   On  the other hand,  if the dust did not exhibit any
 characteristics after the lead recovery step,  it would not be  a
 hazardous waste at that point.

      Once the  regulatory  status of a recycled material is
 determined,  the applicable management requirements are specified
 in 40 CFR 261.6.   For the characteristic sludge which is to be
 used in a manner constituting disposal, the generator and any
 transporters would be subject to the applicable requirements of
 40 CFR  Parts 262,  263,  and 268 (including use of the manifest),
 and the recycling facility (storer)  to the applicable
 requirements of Subparts  A through L of 40 CFR Parts 264 and 265

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                                3
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
268, 270, and 124.   (See 40 CFR §§ 261. 6(a) (2) (i) , 266.21, and
266.22.)  The recycling  process itself (lead  recovery and/ or
fertilizer production) ,  assuming it is legitimate,; would not be
subject to Subtitle  C  regulation.               A
     Once the  fertilizer  is produced, if it meets the conditions
of 40 CFR 266. 20 (b)  (i.e., is produced for the general public's
use and meets  the applicable land disposal restrictions treatment
standards in 40 CFR  Part  268, Subpart D) , the fertilizer is not
presently subject to regulation  (although under 40 CFR
261.2(c) (1) (i) (B) the fertilizer remains a solid waste, and 40
CFR 268.7(b)(7) recordkeeping requirements would be applicable).
If the fertilizer did not meet the conditions of 40 CFR
266.20(b), use of the product would be subject to 40 CFR 266.23
(i.e., full Subtitle C regulation).

     The above discussion addresses the federal regulatory
requirements applicable to the use of characteristic sludges as
ingredients in fertilizers.  For your information, several past
letters and other material addressing this issue are enclosed.
However, individual  state requirements may be different and may
vary from state to state.

     In addition, there are several follow-up points that I would
like to make.  First, I believe that some background on the
development of the use constituting disposal regulations will
shed some light on the reason the regulations are structured as
they are.   When these regulations were promulgated on January 4,
1985 (50 IB 614), the preamble explained that RCRA Subtitle C
jurisdiction unquestionably encompasses wastes that are placed on
the land (used in a  manner constituting disposal) because this
type of recycling is so similar to normal forms of waste
management  (i.e., land disposal).  In fact, placement on the land
is one of the  activities  that Congress most clearly intended to
control under  RCRA.  As with any other waste that is to be
managed in a manner  that  is analogous to disposal, generation,
transportation, and  storage of any wastes that are (even in part)
to be used to  produce waste-derived products are regulated (in
addition to those that are to be used directly on the land) .

     Second, there was a  discussion in the January 4, 1985
Federal Register notice explaining that in the future, the Agency
envisioned developing a more tailored regulatory system for
waste-derived  products recycled by placement on the land.  Such a
system would take into account the safety of the product (e.g.,
levels of hazardous  constituents in the wastes, likely routes of
exposure,  etc.).  We will shortly be proposing a rule that will
allow producers of waste-derived products placed on the land to
make such a demonstration.

     Third, as you may know, this proposal is part of a larger
effort that we are currently undertaking to reevaluate our

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                                4
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
overall approach to regulation of hazardous waste recycling
activities and to make changes to ensure that the regulations
encourage environmentally beneficial recycling while at the same
time ensuring protection of human health and the environment.
I understand your concern that the hazardous waste regulations
may, as in the case discussed, discourage recycling activities.
We expect to publish an Advanced Notice, of Proposed Rulemaking in
the Federal Register soon which lays oulE- our current thinking on
this issue and solicits comment on a number of possible
approaches.  I strongly encourage you to review this notice and
give us your thoughts on the issues discussed.  The reactions and
ideas of state agencies implementing the RCRA program will be
very important to the success of this project.

     Thank you for bringing this issue to my attention.  Should
you require any further information or have any additional
questions, please call Mike Petruska, Chief of the Regulatory
Development Branch, at (202) 260-8551.

                              Sincerely,
                              Sylvia K. Lowrance, Director
                              Office of Solid Waste
cc:  Hazardous Waste Management Division Directors;  Regions I-X

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             UNITED STATES EMVIROKMENTAL PROTECTION AGENCY .     9493.1991(05)
                           OCT I |


N.G. Kaul, P.E.
Director
Division of Hazardous Substance Regulation
New York State Department  of Environmental Conservation
50 Wolf Road
Albany, New York   12233

Dear Mr. Kaul:

     Thank you for your letter of June 21, 19 9 ^respond ing to a
May 3, 199 ^letter we received from Mike Bates of the State of
Arkansas. -'Mr. Bates' letter requested clarification of the
federal Resource Conservation and Recovery Act (RCRA) Subtitle C
regulations governing the  management of certain materials used as
ingredients in the production of fertilizers.  Your letter
discussed application of the federal regulations to this
situation and raised several additional issues as well.
          *"!,
         Batfs1 letter requested clarification of how materials
and activities would be regulated under the federal regulations
in a situation involving the following facts:

          A generator generates a baghouse dust that is not a
          listed waste identified in 40 CFR 261.32 or 261.33  (or,
          we assume, 40 CFR 261.31);

     •    The baghouse dust, which has a high concentration of
          zinc, fails the Toxicity Characteristic for lead;

          The dust is a "sludge," as defined in 40 CFR 260.10
          because it is generated in an air pollution control
          facility; and

          The generator would like to send the baghouse dust to a
          producer that could use the dust as an ingredient in
          fertilizer for the zinc content.

We will also address the case raised by other states in which
lead is first recovered from the dust prior to its use as an
ingredient in fertilizer production process.

     To determine how the federal hazardous waste regulations
apply to management of any material the first determination that
must be made is whether the material in question is a solid
waste, since by definition a hazardous waste must first be a

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
solid waste  (40 CFR 261.3).  For materials that are recycled,  40
CFR 261.2(c) defines those materials that are solid wastes.  If
the material is both a  solid waste and a hazardous waste, the
waste management activities must then be evaluated to identify
applicable requirements.

     In the situation described by Mr. Bates, the baghouse dust
would be a solid waste  because it is a sludge exhibiting a
characteristic of  hazardous waste which is to be used to produce
a product that is  applied to or placed on the land (i.e., used in
a manner constituting disposal).  (See 40 CFR 261.2(c)(1)(i)(B).)
Since the dust exhibits the Toxicity Characteristic, it is also a
hazardous waste (40 CFR 261.3(a)(2(i)).

     Similarly, if the  baghouse dust were sent to a facility at
which lead was recovered from the dust prior to shipment to the
fertilizer producer, the baghouse dust would also be a solid
waste under 40 CFR 261.2(c)(1)(i)(B) because it continues to be a
characteristic sludge which is to be used to produce a
fertilizer.  This  is the case because some portion of the dust is
to be used in a manner  constituting disposal, even though another
portion (the recovered  lead) will not be used in such a way.   In
other words, the solid  waste determination for a recycled
material is made at the point of generation of the waste, and
takes into account the  entire waste recycling process, not just
the first step in  a waste recycling train.

     For completeness it should also be noted that the regulatory
status of the dust after the lead recovery step would depend on
whether the dust exhibited any hazardous waste characteristics.
Thus, if the dust  exhibited a characteristic it would continue to
be a solid and hazardous waste, again because it would be a
characteristic sludge to be used in a manner constituting
disposal.  On the  other hand, if the dust did not exhibit any
characteristics after the lead recovery step, it would not be  a
hazardous waste at that point.

     Once the regulatory status of a recycled material is
determined, the applicable management requirements are specified
in 40 CFR 261.6.   For the characteristic sludge which is to be
used in a manner constituting disposal, the generator and any
transporters would be subject to the applicable requirements of
40 CFR Parts 262,  263,  and 268 (including use of the manifest),
and the recycling  facility (storer)  to the applicable
requirements of Subparts A through L of 40 CFR Parts 264 and 265
268, 270, and 124.  (See 40 CFR §§ 261.6(a)(2)(i), 266.21, and
266.22.)  The recycling process itself (lead recovery and/or
fertilizer production), assuming it is legitimate/, would not be
subject to Subtitle C regulation.               A /

     Once the fertilizer is produced, if it meets the' conditions
of 40 CFR 266.20(b) (i.e., is produced for the general public's

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
.use and meets the applicable  land disposal restrictions treatment
standards  in 40 CFR  Part 268, Subpart D) , the fertilizer is not
presently  subject to regulation  (although under 40 CFR
261.2 (c) (1) (i) (B) the  fertilizer remains a solid waste, and 40
CFR 268.7(b)(7) recordkeeping requirements would be applicable).
If the fertilizer did  not meet the conditions of 40 CFR
266.20(b), use of the  product would be subject to 40 CFR 266.23
(i.e., full Subtitle C regulation).

     Please note that  fertilizers produced using solid wastes are
solid wastes under 40  CFR 261.2 (c) (1) (i) (B) .  Although, as you
noted in your letter,  40 CFR  261.2(c)(ii) does include both
commercial chemical  products  that are listed and those that
exhibit characteristics,  this provision applies only to non-
waste-derived products.   Fertilizers that are produced using
solid wastes continue  to be solid wastes under 40 CFR
     There are several additional points that I would like to
make on this topic.  First, I believe that some background on the
development of the use constituting disposal regulations will
shed some light on the reason the regulations are structured as
they are.  When these regulations were promulgated on January 4,
1985 (50 ZB 614), the preamble explained that RCRA Subtitle C
jurisdiction unquestionably encompasses wastes that are placed on
the land (used in a manner constituting disposal) because this
type of recycling is so similar to normal forms of waste
management (i.e., land disposal).  In fact, placement on the land
is one of the activities that Congress most clearly intended to
control under RCRA.  As with any other waste that is to be
managed in a manner that is analogous to disposal, generation,
transportation, and storage of any wastes that are (even in part)
to be used to produce waste-derived products are regulated (as
are those that are used directly on the land) .

     Second, there was a discussion in the January 4, 1985
Federal Register notice explaining that in the future, the Agency
envisioned developing a more tailored regulatory system for
waste-derived products recycled by placement on the land.  Such a
system would take into account the safety of the product (e.g.,
levels of hazardous constituents in the wastes, likely routes of
exposure, etc.).  We will shortly be proposing a rule that will
allow producers of waste-derived products placed on the land to
make such a demonstration.

     In your letter you also raised the issue of how the use (or
fate)  of hazardous constituents in a recycling process should be
viewed when evaluating the legitimacy of the process.  We agree
with you that this is an important consideration in determining
whether a recycling process is legitimate, and thus whether
recycling exemptions are applicable (e.g., 40 CFR §§ 261.2(c)(3),
261.2(c)(4), 261.2(e), 261 . 4 (a) (8 ) , and 261.6).  We have

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
addressed this issue in the past in several preambles  (see the
January 4, 1985 Federal Register (50 FR 638,  648-9) and the
January 8, 1988 Federal Register (53 FR 526-7)) and in guidance
to the Regional Offices (see the enclosed April 26, 1989
memorandum from Sylvia Lowrance to EPA's Hazardous Waste
Management Division Directors in Regions I-X) .  For example,
criteria to be used to evaluate the legitimacy of recycling
include the following:

     •    Does the waste contain Appendix VIII constituents not
          found in the analogous raw material/product  (or at
          higher levels)?

     •    Does the waste exhibit hazardous characteristics that
          the analogous raw materials/product would not?

     •    Are the toxic constituents actually necessary (or of
          sufficient use)  to the product or are they not
          necessary for the product?

     Further, as you may know, we are currently undertaking a
larger effort to reevaluate the overall approach to regulation of
hazardous waste recycling activities and to make changes to
ensure that the regulations encourage environmentally beneficial
recycling.  We expect to publish an Advanced Not^ce^gf Proposed
Rulemaking in the Federal Register soon which fayn nut* our
current thinking on this topic and solicits comment on a number
of possible approaches.  -One of— the -issues -to be discussied—in the
               to improve implementation of the hazardous waste
regulations by more clearly defining sham recycling and/or by
requiring persons claiming recycling exemptions to notify the
implementing agency of their activities.  I strongly encourage
you to review this notice and give us your thoughts on the broad
issues discussed as well as on the sham recycling issue.  The
input of state agencies implementing the RCRA program will be
very important to the success of this project.

     Thank you for bringing these issues to my attention.  Should
you require any further information or have any additional
questions, please call Mike Petruska, Chief of the Regulatory
Development Branch, at (202) 260-8551.

                              Sincerely,
                              Sylvia K. Lowrance, Director
                              Office of Solid Waste

Enclosure

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460


                                                    9493.1993(01)
                               SEP  .73 1993


                                                           OFFICE OF
                                                     SOLID WASTE AND EMERGENCY
                                                           RESPONSE

Mr. Ronald  B.L.  Jones
Environmental  Consulting
15 Hollow Road
Watertown,  Connecticut 06795

Dear Mr. Jones,

     Thank  you for your letters dated June 1, 1991, December 30,
1991, April 2,  1992,  and  January 12, 1993, requesting
clarification  of the  Resource Conservation and Recovery Act
(RCRA) regulations as they pertain to the manufacture and use  of
waste-derived  fertilizer.   I apologize for the long delay in
responding  to  your requests.

     Your letters reference a scenario described in the EPA
guidance document RCRA Regulation  of Recycled Hazardous Waste,  in
which a characteristically hazardous material (flue dust) is used
to produce  a commercial fertilizer.   You correctly assert that,
in this scenario,  the flue dust is a sludge used in a manner
constituting disposal,  and under 40 CFR 261.2 is classified as  a
solid waste.   You then ask whether the classification of the flue
dust would  be  the same if:

          The  resulting fertilizer does not exhibit any
          characteristics  of hazardous waste;

          The  flue dust is reacted to generate a different
          compound in the  process  of producing a fertilizer; and

          Payment to  the  generator for flue dust exceeds the cost
          of delivery.

     The answer  in each of these cases is that the classification
remains the same.   The solid waste determination for a recycled
material is made at the point the  waste is generated and takes
into account the entire waste recycling process.  The
determination  is based on  the type of material (in this case
sludge) and the  type  of recycling  activity (in this case use
constituting disposal).  None of the aforementioned factors would
change either  the type of  material or the type of recycling
activity, and  therefore do not change the classification  of flue
dust as a solid  waste.
                                                     Recycled/Recyclable
                                                     Printed with Soy/Canon ink on paper thai
                                                     contains it lean SO*/, recycled fiber

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     While our current policy is clear in its application to the
scenarios you present, your letters do raise some valid concerns
regarding the regulation of waste-derived fertilizers.  We agree
that a reevaluation of our existing waste-derived products policy
may be warranted.  As a first step in this process, the Office of
Solid Waste (OSW) is currently conducting a broad review of the
system by which hazardous waste recycling is regulated under
RCRA.  The Definition of Solid Waste Task Force was established
to evaluate many of the issues surrounding the definition of
solid waste, hazardous waste recycling, and waste-derived
products.  The Task Force will be submitting their
recommendations to me later this year on how to improve the
regulatory and/or statutory framework to encourage the safe
recycling of hazardous waste.  For more information on the Task
Force, please contact Mr. Jim Berlow at (202) 260-8104.

     In the meantime, please note that EPA Regional offices and
States authorized to implement the hazardous waste program make
determinations regarding the requirements that apply to specific
materials and facilities.  Some States have programs more
stringent than the Federal hazardous waste program.  If you have
a facility-specific situation, you may contact the appropriate
Region or State for a determination on your specific situation.
Your EPA headquarters contact on this issue of the RCRA
regulations is Stephen Bergman who can be contacted at (202) 260-
8551.

                                   Sincerely,
                                       :ery D. Denit
                                       Lng Director
                                     ffice of Solid Waste

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9494 - HAZARDOUS
WASTE BURNED FOR
ENERGY RECOVERY
Part 266 Subpart D
                 ATK1A104/50 kp

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       (XT I   885                                    9494.1985(01)
Mr. Thomas A. Waite
Senior Attorney
Boeing Computer Services
P.O. Box Box 24346
Seattle, WA  98124

Dear Mr. Waite:

     This letter is in response to your letter dated August
30, 1985, and is a follow-up to our previous  telephone
conversations regarding the regulatory status of  a mixture of
lubricating oil and two jet airplane fuels which  are sent to
a refinery where the fuel mixture is processed to produce
petroleum products.  In particular, you indicate  that in
performing repaires on F-4 type airplanes, the fuel contained
in the fuel cells (JP-4-type fuel)  is first drained.  To remove
the remaining fuel from the fuel cells, a mixture of JP-5
type airplane fuel and lubricating  oil is then injected into
the fuel cells to decrease the volatility of  any  JP-4 type
fuel remaining in the fuel cells; put another way, the JP-5/
lubricating oil mixture is used to remove any JP-4 that remains
in the fuel cells.  This JP-5/lubricating oil mixture is used
until the flashpoint of the mixture is lowered to approximately
120* P.  At this point, the material is pumped to a tanker
truck and sent to a nearby refinery where the fuel mixture
is placed in the refinery process to produce  petroleum products

     you believe this mixture (when sent to the refinery) is
an off-specification, non-listed, commercial  product and as
such would not be subject to regulation when  sent for
reclamation.  (Your letter lays out your basis for making
this argument.)  I cannot agree with you.  As we  discussed
previously, the JP-5/lubricating oil mixture  is used like a
solvent to remove the remaining JP-4 from the fuel cells; as
such, the contaminated JP-5/lubricating oil is a  spent material
a material that has been used and as a result of  contamination
can no longer serve the purpose for which it  was  produced
without processing.I/  Spent materials that are hazardous^/
I/  Even if you are correct that the JP-5/lubricating oil
    mixture is not a solvent, this mixture would still be
    defined aa a spent materal.

2/  As you indicate in your letter, this mixture (when sent
    to the refinery) has a flash point about 120*7 and thus,
    would exhibit the ignitability characteristic.

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 (whether or not they are listed) are defined as solid wastes
 when they are used to produce a fuel.  Therefore, this material
 is subject to BPA's authority under the hazardous waste rules ,3/

     However, based on your letter and my re-evaluation of
 the facts, this material is currently exempt from regulation.
 In particular, secondary materials that are used to produce a
 fuel are only subject to regulation if the material is either
 listed or a sludge.  See $266.36.  Since this material is a spent
material that is hazardous only because it exhibits a characteristic
 the material Is currently exempt from regulation.£/  Thus, the
material can go from your maintenance facility to~the refinery
without a manifest and the refinery need not get a storage
 permit, at this time.5/  You should be aware, however, that
 this exemption is only temporary} the Agency expects to make
 final its rulemakinq regarding burning and blending (proposed
 on January 11, 1985) which is likely to remove this exemption.
At that time, the transport of this material and the storage
of it at the refinery nay subject it to regulation.

     I hop* this answers your questions; pleas* feel free to
give me a call 1C I can b* any further assistance.

                       Sincerely yours*
                   Matthew A. Straus, Chief
                 Wast* Identification Branch

ccs  Dennis Murphy, Kansas Department pf Health and the Environment
     M. Sanderson, EPA Region VII
3/  As you ar« awar*, this  interpretation  is under ths Federal
~*   hazardous wast* rul*st  ths Statas* regulations may not
    r*£l*ct this  interpretation until thsy adopt th* January 4
    rulavaklng-.

4/  Sines tbiav material contains approximately 80 percent jp-5
    typ*> airplan* fusl and  only 20 percent lubricating oil,
    this material is not, a  used oil.  Tnumv this material vouLfl
    not COBS under th* uasd oil *v*mptioa  is §2«1.6(a) (3) (iiU

S/  In discussions wittr both Stato. and ft*glonal personnel, I
    haw* learned  thst this  material  Is no  longer being sent
    to • petroleum r*fln*ry.  It this.ma%e*iajr ie not being
    us** a* a fu*l or us*d  to prodvesv»  fu*iV th* interpretation
    giw** is no longer correct.  You would n**d to. consult the
    January 4 rules to d*t*rmin* th* regulatory status of th*
    JP-Vlubricating oll^mixtur*.

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                                                    9494.1985(02)
              RCRA/SUPERFUND HOTLINE MONTHLY REPORT

                            JULY 1985

  ON-SITE REUSE OF API  SEPARATOR  SLUDGE TO  PRODUCE  NEW PETROLEUM



K051 and HSWA

1.   Section 3004(q)(2)(A) of the Hazardous and Solid Waste
     Amendments of 1984 (HSWA) states that the provisions
     regulating hazardous waste used as fuel "shall not apply to
     petroleum wastes containing oil which are converted into
     petroleum coke at the same facility at which such wastes
     were generated...unless the coke product exhibits a
     characteristic of hazardous waste."  Does this mean that
     K051 (API Separator Sludge)  could be reused on-site to
     produce new petroleum coke?

          Yes; petroleum coke produced from the on-site
          reuse of K051 (or any other listed petroleum
          refinery waste)  is exempt from the labeling
          provisions of §3004(r)  and any standards
          applicable to hazardous waste fuel, unless
          the coke product exhibits a characteristic of
          hazardous waste.

          Source:   Bob Holloway (202) 382-7936
        This has been retyped from the original document.

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                                                       9494.1985(03)
                                 ocr
Or. John p. chadbourne
Director of Environmental services
General Portland, Inc.
P.O. box 324
Dallas, Texas  75221

Dear Dr. Chadbourne:

     It was a pleasure meeting with you and Art Uelmstetter
last week.  As we discussed, you requested an interpretation
of the hazardous waste rules regarding the regulatory status
of waste-derived fuels (that are produced by waste fuel
blenders and processors) that are burned in a cement kiln for
energy recovery.  As I understand, the following are the
facts you described to net

     •  Haste-derived fuels will be used to replace coal
        which is currently burned in s cement kiln (cement
        kilns are defined as industrial furnaces);

     •  These waste-derived fuels will be received only fron
        intermediate waste fuel blenders and processorsi

     •  The waste-derived fuels have a neat content greater than
        10*000 BTU's/lb.; in addition, each waste stream used
        to prepare these waste-derived fuels have a heat
        content greatsr than 6,000 BTO's/lb.jl/ and

     •  varying amounts of 'Appendix VIII hasardous constituents'
        are expected to be present in the waste-derived fuels.

     in addition, General Portland plans to build a 150,000
gallon tank to store the vasts-derived fuel prior to its use
as a fuel*
I/  under the) Statement of Enforcement policy issued OB January IS.
    1993 (printed at 4* F* 1115?r Hard* If,  1993 and guidance
    provided to SPA Jtegioa XT os February 2t and July  S* !»•*
    (attached), if it can be  shows theft each hasardous waste
    that is blended into the  fuel hss>-* substantial heat value-.
    as generated, the waste is a legitimate fuel regardless of

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     Under these circumstances, the waste-derived ruels to be
received Dy General Portland are currently exempt froa
regulation.2/  In particular, under the January 4, 1985
recycle/reuse regulations, we aecided, as an interim measure,
to retain the distinction that existed in the May 19, 1980,
hazardous waste regulations between listed wastes and sludges
and unlisted hazardous waste fuels with only the former being
regulated.  The January 4 rules also exempts from regulation
all waste-derived fuels that are produced by a person other
than the wastes generator or burner.  Thus, hazardous waste
fuels leaving intermediate waste fuel blenders and processors
are exempt from regulation at this time,  bee 40 CPK $266.30
and 266.36; see also 50 PR 632, January 4, 1985.  Consequently,
the waste-derived fuels to be sent to your proposed site in
Demopolis, Alabama would not need to be manifested; in addition,
the 150,000 gallon storage tan* that will be used to store
the waste-derived fuel does not need to be permitted under
RCRA.3/

     A* you are aware, however, these exemptions are temporary.
On January 11, 1985, EPA proposed to modify its regulations
with regard to waste and waste-derived fuel* that are used as
a fuel or used to produce a fuel.  See 50 PA 1684•  This
proposal is expected to bo finalised this Tall* ones it is,
these vasts-derived fuels nay b* subject to SOB* regulation.
footnote 1 cont.

    the concentration of low energy constituents (i.e.,
    halogenatsd compounds liks chlorinated solvents) in each
    waste or in the blsndsd fuel.  To determine which hazardous
    wastes have a substantial heat value, EPA will uss as a
    benchmark thoss wastes with a heating value greater than
    low snsrgy commercial fusls such as wood (5,000 to 8,000
    BTU/lb) or low grade subbituminous coal (8,300 BTU/lb).

2/  Although thsssi waste-derived fuels ar« currently exempt
    from regulation, these waste-derived fuels ars solid and
    haaardoua wastes (if they themselves are hazardous) and
    potentially subject to EPA's control.

3/  Although thess wastes are currently exempt undsr the
    Federal hasardous wast* rules, th* state) of Alabama is
    frs« to establish policies and writ* regulations which
    ars mor* stringent than th* f*d*ral r*quir*m*nta.

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     Plwaae feel free to give me a call if I can be of any
further assistance? ay telephone number is (202) 475-8551.

                       Sincerely yours,
                   Matthew A. Straus, Chief
                 Waste Identification Branch
cc:  Beverly Sp&gg (EPA Region IV)
     Joseph Broadvater (ADtM)
     Bernard Cox, jr. (ADEM)
     David Sussman

Attachment

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                                                             9494.1986(01)
          86
.-:r.  L.  Larson,  Esq.
At torney
LTV  Stool  Cor.:pany
LTV  Steel  Dui.1-.iirvj
25 West Prospect Avenue
Cleveland, Ohio  44115

Dear Mr. Lawson:

     This  is  in  response  to your January 9, 1986,  letter
requesting answers  to several questions pertaining to provisons
of our  November  29, 1985,  final rule concerning the burning of
hazardous waste  fuela.

     As I  indicated in our January 15 phone conversation, our
response to your questions is as follows:

     Questions 1 and 2 (paraphrased)*  Can LTV Steel notify EPA
of its  burning activities  without requesting, or being deemed to
have requested,  interim status  for subsequent use or storage of
Cadence Product  312?  If yes, would storage of Product 312 after
January 29 subject LTV Steel to any substantive obligation* under
the RCRA hazardous waste storage facility standards, including
recordkeeping, reporting,  or closure- requirements?

     Response.  The notification regarding waste-as-fuel activities
required of persons who are marketing or burning hazardous waste
fuel (like Product 312) on January 29, 1986, in no way implies
that a person is requesting, or intends to request, interim status
for subsequent storage of  the fuel.  The hazardous wast* fuel
storage standards become effective on Hay 29, 1986, for aewly
regulated facilities such  as those storing waste-derived fuels
like Product 312.  Existing burners who store such hazardous waste-
derived fuels after May 29 must comply with the interim status
storage standards.  (Mew facilities must obtain a storage facility
permit prior to  initiating storage after May 29.)  If LTV Steel
terminates Product 312 storage activities prior to May 29, LTV
Steel would not.be subject to any RCRA standards for such storage.

     Question 3 '(paraphrased).  Can LTV Steel store Product 312
after March 31,1986, without requesting, or being deemed to have
requested, interim status, and without incurring any obligations
under the RCRA storage facility standards.  This question is

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asked in light of the fact that the RCRA transportation  require-
ments become effective for newly regulated hazardous waste-derived
fuels like Product 312 on March 31. and the RCRA manifest,  system
requirements specify that shipments must be sent to designated
facilities that are permitted to handle the Vaste  (i.e.. in
interim status or have a RCRA permit).

     Response.  You are correct in noting that  for the  two month
period between March 31 and May 29, some hazardous waste fuels,
like Product 312 in your situation, will be transported under the
manifest system to facilities that are not permitted to store the
hazardous waste fuel.  In our efforts to implement the  manifest
system as soon as EPA identification numbers  could be assigned
subsequent to notification, w« inadvertently  omitted regulatory
language in the November 29 rule that would,  during the two  month
period, explicitly!  (1) allow hazardous waste  fuels to be shipped
to facilities that have notified EPA regarding  their waste-as-fuel
activities but that are not yet.-subject to the  interim  status or
permit standards; and (2) require such receiving facilities  to
sign and keep copies of the manifest.

     EPA has set a precedent for allowing hazardous waste  subject
to the manifest requirements to be sent to designated  facilities
that are not subject to interim status or permit standards.  See.
SO FR 652 (January 4, 1985) and §260.10 (aasnded definition  of   .
•designated facility") regarding transport of recycled  materials
to recycling facilities that introduce the waste directly  into
the recycling process without prior storage,  and that  are  other-
wise not subject to RCRA treatment, storage,  or disposal facility
interim status or permit standards.  Similarily, EPA intends that,
during the two month period in question, owners and operators of
facilities not yet subject to the hazardous waste  fuel  storage
standards, like LTV's Product 312 storage  facilities,  notify EPA
regarding their waste-as-fuel activities and  sign  and  retain
copies of manifests.  If LTV Steel continues  storing  Product 312
after March 31 but ceases prior to May 29, LTV Steel  is not
subject to RCRA storage standards with respect to  such  storage.

     I hope that this addresses your concerns.

                                    Sincerely,
                                     Robe rt Hoi Ioway
                                     Lnvironriontal Lnqineer
      i'«s-> i.eeso
     J. ..: asr.c:. i-ort«r
      •.urciu ..;xllia;:i£
      :..ic...-. i..: .'toil, La.;.
      or.fc-v«n -ilver: .an,  .--3.;

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*
                                                               9494.1986(02)
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                          WASHINGTON  O.C 20460
                                 ."A?  I 9
    MEMORANDUM
    SUBJECT:
    FROM:
   TO:
  Implementation of  the Waste-As-Fuel Rules at DoD
  Facilities
  Marcia E. Williams
  Director
  Office of Solid Wa'ste  (WH-562)

  Hazardous Waste Division Directors, Regions I-X
        The  Department of  Defense (DoD)  has developed what we
   think  is  an  effective  and efficient approach to implement the
   November  29,  1985,  waste-as-fuel final rules applicable to used
   oils and  hazardous  wastes generated at military bases.   DoD asked
   that we pass  on  to  you  an explanation of their approach (copy
   attached).   If you  have questions or  comments, please contact
   Bob Holloway  of  my  office at 382-7917, or Joe Kaminski, Office of
   the Secretary of Defense, at (202) 653-1273.

        The  waste-as-fuel  rules regulate marketers and burners of
   hazardous waste  and off-specification used oil fuels.   Military
   bases  typically  generate used oils, and sometimes  generate hazardous
   wastes, either of which may be sent off site for ultimate use as
   fuel,  or  burned  on  site.  When used oil or hazardous waste is
   shipped off  site for use as fuel, the marketing transactions are
   typically handled by a  DoD unit called the Defense Reutilization
   and Marketing Service  (DRNS) or one of its four regional offices
   referred  to  as DRMR's.   The DRMS or DRMR's take responsibility
    for the
    case  of
waste fuel,
a spill.
including, for example, responsibility in
         The  essence of  the attached explanation of DoD's implemen-
    tation  approach  is  that the DRMS or DRMR's will comply with the
    marketer  requirements.   The military bases are ordinary generators
    not subject  to  the  marketer requirements.  The DRMS or DRMR's
    will  use  th-sir  business address as "location" on the notification
    Eor.Ti.   Invoices  for  off-specification used oil and manifests for

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hazardous waste fuels will, however, indicate the address of
the shipping facility — the military base generating the
waste — according to our rules.

     DoD notes that when a military base burns waste fuels,
the base will notify as a burner and comply with the burner
requirements.

     DoD's approach is acceptable because the DRMS or DRMR's
act as independent brokers that take responsibility for the
waste fuel, and,  thus, are subject to regulation as marketers.
The military base is an ordinary generator, not a marketer.
This situation is analogous to situations in the private sector
where a person is subject to regulation as a marketer if he
takes title to the waste fuel.  (Except, however, generators
and initial transporters who do not market directly to burners
are exempt from the marketer requirements.)  Thus, brokers,
transporters, and others who take title to used oil or hazardous
waste fuels are regulated marketers.  Transporters who take
physical possession but not title to the waste fuel, however,
are agents to a regulated marketer (e.g., a generator, processor,
or burner) and are not themselves marketers.

Attachment
cc:  Carl Schafer, Jr., DoD
     Gene Lucero, OWPE

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                         -E ASSISTANT 5EC = "- = -- cr

                         . A -:-•.•:• "ON o :  :  :  J ' .
 C ^ AND
 T CS
Ms. Marcia E. Williams,  Director
Office of Solid Waste
U.S. Environmental  Protection  Agency
401 M Street S.W.
Washington, DC 20460

Dear Ms. Williams:

On January 30, 1986, a meeting was held  between  Mr.  Robert
Holloway of the Waste Management  and  Economics Division  of  the
Office of Solid Waste and Mr.  Joseph  Kaminski of the Defense
Environmental Leadership Project,  Environmental  Policy
Directorate, Office of the  Assistant  Secretary of Defense to
determine the application of the  terms  "generator,"  "burner," and
"marketer" of used  oil and  hazardous  waste  fuel  to the Department
of Defense (DoD).   The enclosed explanation confirms the outcome
of the meeting and  describes actions  to  be  taken by  DoD  to  comply
with the reporting  requirements of 40 CPR 266.

The procedure is consistent with  protection of human health and
the environment, identifies specific responsible persons and
mimimizes administrative overhead. Your assistance  in advising
the EPA Regions of  the DoD  procedure  would  be helpful in
effecting timely and accurate  notification.  EPA cooperation  in
this matter is greatly appreciated.

                                  Sincerely,
                                     1  J.  Schafer-tff
                                  Director,  Environmental  Policy
Enclosure

cc: EPA Office of Federal  Activities (A-104)
              Excellent Installations - The Foundation Of Defense

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           Explanation of Notification Procedure that
            the Department oc Defense (DoD)  Will Use
                    to Comply With 40 CFR 266
    The Defense Reutilization and Marketing Service (DRMS),
headquartered at Battle Creek, MI is a primary level field
activity of the Defense Logistics Agency (DLA).  DRMS is
responsible under the Federal Property and Administrative
Services Act of 1949 (FPASA), as amended, for disposal of excess
DoD "personal property" including used oil.  DRMS therefore
assumes primary responsibility within DoD for marketing used oil
fuel and hazardous waste fuel as required by 40 CPR 266.  DRMS
conducts business through four regional offices within the
purview of 40 CPR 266.   These Defense Reutilization and Marketing
Regions (DRMR) are located at Memphis, TN, Columbus, OH, Ogden
UT, and Camp H. M. Smith, HI.


    Used oil generators at Military Bases turn administrative
control and sometimes physical custody of their used oil over to
DRMS on a standard form, DD 1348-1.  Acting similar to civilian
"brokers," the DRMR's or DRMS headquarters execute contracts for
transfer of used oil to users of used oil or hazardous waste fuel.
Authority to enter into and documentation of transfers currently
exists at DRMS or its DRMR's.  Therefore, DRMS and its DRMR's
will notify as "other marketers" on EPA form 8700-12, using their
business address as "location."  DRMS headquarters or DRMR's
will add to their recordkeeping applicable user notifications,
proofs of used oil fuel quality, copies of manifests or invoices
and will comply with all other marketer requiremens of 40 CFR
266.
    On occasion, DRMR's delegate authority to market used oil to
field level agents at Defense Reutilization and Marketing Offices
(DRMO) located on Military Bases.  In addition, used oil is often
transferred, under the PPASA, from a DRMO to other federal
agencies and state governments through the General Services
Administration (GSA) acting as a subsequent marketer.  If used
oil fuel or hazardous waste fuel marketing is done from an
individual DRMO which maintains the documentation required by 40
CFR 266, then the DRMO will separately identify as "other
marketer."  The DRMO will use the address of the Military Base
as location and the Base's EPA "Identification of Hazardous Waste
Activity" number if previously assigned.  The appropriate
official of the DRMS will sign the form.

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    DoD Military Bases are generators  of  used oil or
hazardous waste fuel and will not  notify  as marketers
unless they transfer used oil fuel  or  hazardous waste fuel
outside of DoD without going through DRMS.  DoD Military Bases
that claim the exemption for using  used oil fuel that meets 40
CPR 266 specification or burn off-specification used oil fuel or
hazardous waste fuel will notify as  "burners" on EPA form
8700-12 and assure that they meet  all  other applicable criteria
of 40 CFR 266.  The Base's "Identification of Hazardous Waste
Activity" number will be used if previously assigned and an
appropriate official of the Base or  its Command will sign the
form.
    The procedure described herein applies only to the
provisions in 40 CPR 266 on marketing  and burning of used oil
and hazardous waste fuel.  Any management activity such as
generation, storage, transportation  and  disposal of used oil that
is hazardous waste regulated under 40  CFR 261-265 and 270 or 271
shall be adhered to by the DoD Component to  which the regulation
applies.


    This procedure must be reviewed  by EPA and DoD and
re-established or revised, or it  is  automatically cancelled on
the effective date of 40 CFR 266  revisions promulgating "Recycled
Used Oil Standards" or 40 CFR 261 revisions  "Listing" used oil as
hazardous waste, which were proposed on  November 29, 1985.


    This is an administrative procedure  only and in no way
relieves or alters the requirement for the Department of Defense
to comply with all applicable regulations implemented in
accordance with the Federal Solid Haste  Disposal Act as amended,
42 USC 6901 et seq.

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 3.  Hazardous Waste Fuel                                         9494.1986(03)

    An iron blast furnace  is used to smelt  iron ores to product
    (pig iron)  suitable for use in makinq steel.  The blast fur
    with both virgin fuel  oil and a fuel produced frcm listed  hazardous  snent
    solvents.  The hazardous waste derived  fuel is produced by a processor  who
    neither generates nor  burns the fuel.   How would the hazardous  waste
    derived fuel  be regulated under the final rule on burning  and blending  of
    hazardous waste which  was promulgated  in the Federal Register on November
    29,  1985 (50  FR 49164)?         '

        The final burning  and blending rule of November 29,  1985 (50 FR  49164)
        removed an exemption in §266.30(a)  that was applicable to this"
        situation which was promulgated on  January 4,  1985  (50 FR 614).
        Formerly, §266.30(a) exempted from  regulation  "fuels  produced frcm
        hazardous waste by blending or other treatment by a  person  who
        neither generated  the waste nor burns the fuel" provided that the
        fuel was  "burned for energy recovery in any boiler or industrial
        furnace that is not regulated" as a hazardous  waste  incinerator,
        with sane specific exceptions.  The November 29,  1985 final rule (50
        FR 49164) removed  the §266.30(a) exemption and specifies in amended
        §266.30(a) that Subpart D of Part  266 applies  to  "hazardous
        waste fuel" burned for energy recovery in any  boiler or industrial
        furnace that is not regulated as a  hazardous waste  incinerator.
        "Hazardous1 waste fuel" is defined  in amended §266.30(a)  to include
        both hazardous waste and "fuel produced from hazardous waste by
,       processing, blending, or other treatment" which is burned for
        energy recovery in the above specified units.

        In this example, the unit used for  burning hazardous waste fuel  for
        energy recovery is a blast furnace. Section 260.10  (50 FR 614)  defines
        the term  industrial furnace to include blast furnaces.  Thus, the
        hazardous waste produced fuel has been excluded from regulation  in
        the past  due to the former §266.30(a) exemption for  fuels produced
        from hazardous waste by a third party processor which are burned for
    vo   energy recovery in any boiler or  industrial furnace.
    co
    ac   Since the November 29, 1985 final  rule  (50  FR  49164) removed the
    «   former §266.30(a)  exemption for fuels produced frcm hazardous waste
    J   and amended $266.30(a) to  include "hazardous waste fuels" in the
        group of  wastes regulated by RCRA,  all previously exempted hazardous
        waste fuels are now subject to regulation.

        The hazardous waste fuel in this case becomes subject to the
        regulations of Subpart D of Part 266 as of the appropriate  effective
        date of  the November 29, 1985 final rule (50 FR 49164).  The owner
        of  the blast furnace is a burner of hazardous waste fuel and will  be
        subject  to the $266.35 standards applicable to burners  of  hazardous
        waste  fuel.  This section includes prohibitions on burning  hazardous
        waste  fuel  in other than specified units, notification  requirements,
        required notices, recordkeeping requirements, and storage  controls.
        The storage controls, found in §266.35(c), require that a  facility
        have interim status or a final permit for the storage of hazardous
        waste  fuels, and subject the facility to the applicable provisions
        of  Parts 265 or 264, 270, and 124.  The applicable effective dates
        include  notification by January 29, 1986; use of manifests, certif-
        ications,  and recordkeeping by March 31, 1986; and submission of
        Part A permit applications or amended Part A permit applications
        by  May 29,  1986.

        Source:     Bob Holloway  (202)  382-7936
        Research:   Qiarlotte Mooney

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              UNIT  STATES ENVIRONMENTAL PROTECTIf  \CEMCY      9494.1986(04)
                                 If  1986
Guinn Doyle
Chief, Hazardous Waste  Management Branch
Division of Land Pollution  Control
Indiana State  Board  of  Health
P. 0. Box 1964
Indianapolis,  IN   46206-1964

Dear Guinn:

     This is  in response  to your March 27, 1986, letter regarding
the regulatory status of  the hazardous waste fuel, Cadence Product
312, prior to  the  effective dates of the November 29, 1985,
marketer and burner  rules,  and the January 4, 1985, redefinition
of solid waste.

     Your understanding of  the applicability of these rules to
Cadence Product 312  is  correct.  Prior to the January 4, 1985,
redefinition of solid wastes, listed wastes and sludges used
directly as fuel were subject to RCRA storage and transportation
standards.  Hazardous waste-derived fuels produced by processing,
blending, or other treatment of listed wastes or sludges, were,
however, exempt from regulation.  This exemption was considered
temporary and was  provided  because we had not evaluated the hazards
posed by such  recycling and appropriate regulatory alternatives.
Thus, waste-derived  fuels were cosidered to be recycled (and
exempt) once they  were  processed or blended.

     The Environmental  Protection Agency (EPA) had intended for
this (temporary) exemption  to apply to waste-derived fuels pro-
duced by third-party marketers — off-site facities where wastes
collected from Ttultiple generators were processed before shipment
to a burner.   It became clear, however, that many qenerat-.ors who
burned their waste on site  or who shipped their wastes directly
to a burner were ciainir.n the exemption even if the only blendino
t.noy did occurerj as  a  result of nip inn multiple wastes to a sinole
storage tank prior to shipment or use as a fuel on site.  To
close t^.i.s looohole/ the  January 4, 1^35, redefinition linited
the exemption  of waste-der i v«-d fuels nror'uco-J rror;i lister? wastes
a nu sluij-jes to tnc.se v;-is to-deri ved fuels produced ov a person wh^
peit.'i'rr  ler.erates  nor burns the wasr.^.  Thus, lenerators an*
L'jr:i-:rs coulv.  no  ion-iar ':rv?*at.- in incidental tr«?atTn«nt anj clai>".
they pr'j'iuced  a waste—Jerivcd fue! e*e/v»pc tro»i regulation.

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     We understand that Cadence Product 312 is produced by blending
listed solvent recovery still bottoms generated at the Product 312
production facility with wastes received from other generators.
Thus, persons who stored and transported Product 312 prior to July 5
1985 (the effective date of the solid waste redefinition), could
have claimed the exemption for waste-derived fuels.  After July 5,
1985, however, Product 312 has been subject to RCRA storage and
transportation standards under federal regulations, although not in
authorized states (except by virtue of state law, if applicable).

     The November 29, 1985, marketer and burner administrative
controls eliminated the remaining exemptions for the storage and
transportation of hazardous waste fuels.  That rule subjects (for
the first time) nonsludge characteristic waste fuels and waste-
derived fuels produced by third-party marketers to storage and
transportation controls.  Thus,.once the November 29, 1985, rule  is
effective, the storage and trarisporation of any hazardous waste
used as .a fuel or used to produce a fuel, and any fuel produced
from any hazardous waste, i-s regulated.  The transportation controls
for the newly regulated fuels became effective March 31, 1986, and
the storage controls become effective May 29, 1986.

     I am sure you are aware that producers of Product 312 may not
have considered the material to be a hazardous waste fuel prior to
November 29, 1985.  Cadence has argued with EPA since late 1984
that Product 312 is a material used as an effective substitute for
coke without providing significant energy to a blast furnace.
Cadence therefore argued that Product 312 is not a solid waste and
thus, is not subject to RCRA rules.  (See §261.2(e).)  As you  know
EPA explained in the preamble to the November 29, 1985, rule why we
disagree with that interpretation and conclude that Product 312 is-
subject to regulation as hazardous waste fuel.  Nonetheless, persons
who store and transport Cadence Product 312 had no absolute way of
knowing whether EPA would agree with their position.  Once they
learned of our interpretation, however, they should have taken
action to comply with the storage and transportation standards as
quickly as possible.

     I hope this addresses your concerns.  If you have further
guestions, please give me a call at 202-382-7917.

                                   Sincerely,
                                   Robert Holloway
                                   Actinq Manaoer
                                   Waste Conbustion  Prooram

cc:  Mr. Willian E. rluno, Region V
     Steven Silveman,  Esq.

r>cc: KicSarcJ ccoll, tsa.
     doo Jolli noer
     Jack Lennan

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                   STATES ENVIRONMENTAL PROTECTlC  \CEHCY     9494 .1986 (05)
                                 II 086
Arthur J. Helmstetter, P.E.
General Manager
Systech Corporation
245 North Valley Road
Xenia, Ohio  45385

Dear Art:

     This is to confirm that your understanding  (reference your
March 21, 1985 letter) is correct regarding the  applicability of
the November 29, 19d5, administrative controls for marketers and-
burners of- hazardous waste and used oil fuels to Systech's
situation.

     You are correct that:

    - Systech is a marketer of hazardous waste fuel  because you
take title to hazardous waste that you collect fron  generators
and deliver to cement kilns.

    - As a marketer, Systech must:

       • Notify regarding your hazardous waste fuel  marketing
         activities.  You should use your corporate  office name
         and location on the notification form.

       9 Ensure that the manifest system, pre-transport,  and
         recordkeepinq and reporting requirements are  complied
         with.  The generator's and cement company's EPA  Identifi-
         cation Numbers should be used on the manifest because
         they are the shipping and receiving facility, respectively
         Systech's Identirication Number should  not  be used on
         tne raanifest.  Systecn should keep copies of  manifests.

    - It uystech Joeo not own or operate hazardous waste  tuel
storage taciiities, you are not subject to KCKA  hazardous waste
racilicy storage s ta.'VMr.'.s.  It" Systech operates buc Joes not
o*n such raciiicies (ror exar.-'ie , ir L-ivstech operates  a  storaqo
facility unJer contract to t'~'j oc-"ort company),  Svetech/  a loan

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with the owner, is subject to RCRA storage facility standards.
This is because the standards apply to owners and operators of
such facilities.  Either the owner or operator may choose to
comply with the standards.  In the event of noncompliance,
however/ both the owner and the operator are liable.
     I hope this addresses your concerns.
questions, give me a call.
If you have further
                                  Sincerely,
                                  Robert Holloway
                                  Acting Manager
                                  Waste Combustion
        Program
cc: (w/incoming)
    Steve Silverman
    Y. J. Kim, Region

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                                                    9494.1986(05aJ

     3 0 '986

.'lr. Andy C. Ricci
President _
Ricky's Oil Service, Inc.
5330 West 16th Avenue
Hialeah, Florida  33012

Dear Mr. Ricci:

     This is in response to your May 27,  1986,  letter  regarding
regulations applicable to used oil fuels.   You  indicate  that your
fuel burning customers will stop accepting  used oil fuel  after
May 29 when the lead specification becomes  effective.

     There appears to be serious misunderstandings of  the
requirements of the November 29, 1985, rules.   You, and  many
others as well, apparently believe the rule precludes  the burning
of of f -specif icat ion used oil fuel.  As explained  in the enclosed
information bulletin we recently developed, of f -specif ication used
oil fuel may be burned in industrial burners; only the burning of
of f-soecif ication used oil in non industrial boilers is prohibited.
In order to burn of f -specif icat ion used oil fuel,  industrial
burners need only notify the Environmental  Protection  Agency  (EPAO
and comnly with two other minor paperwork requirements.   Off-?
specification used oil fuel is not a hazardous  waste and is not
subject to storage standards.  Although EPA proposed to  list used
oil as a hazardous waste and to apply storage standards  to off-
specif ication used oil fuel on November 29, 1985, we are still
evaluating public comments on the proposals.  We expect  to make
final decisions this fall and the final rules will be  effective
six months after publication.

     I hope this clears up any misunderstandings you may have
had.  If you have other comments or questions,  please  contact
Mike Petruska of my staff (202-382-7936).

                                      Sincerely,
                                      Marcia  E.  Williams
                                      Director
                                      Office  of  Solid  Waste (WH-562)

Enclosure

bcc: Karen Walker
     Eric Males
     Mike Petruska

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                                   i ,:*. r rt w : cv_ i iW*  CJ"«v. I


                                                           9494.1986(06)
Mr.  Dennis  Stefani
Chemical  Processor  Inc.
5501 Airport Way  South
Seattle,  Washington   98108

Dear Mr.  Stefani:
     This  is  in  response  to your request  of  October  10,  1986,
for a clarification  of  the  March 16,  1983,  Enforcement  Policy
(48 FR 11157)  and  the  rules applying  to waste  burned  for  energy
recovery.

     Your  problem  concerns  the  interpretation  of  when in  the
process  is  the criteria of  5000 Btu/hr applied  so as  to allow
waste to be burned for  energy recovery in a  cement kiln.

     EPA's  interpretation is that the waste, as generated,
should have an average  Btu  value of  5000  Btu/lb or greater  to
be considered a  bona fide fuel.   Waste with  an  as generated
heating value lower  than  5,000  Btu/lb is  considered  to  be in-
cinerated when burned  in  a  boiler or  industrial furnace and
is, thus,  subject  to the  incinerator  standards  of Subpart 0
of 40 CFR  Parts  264 or  265. Such low heating value  waste is
considered to be incinerated even if  it  is mixed  with other
waste or fuel such that the mixture  has a heating value higher
than 5,000 Btu/lb.

     The intent  of the  policy is not  to apply  the Btu criterion
to each  individual chemical or  hazardous  constituent  of the
waste, but to apply  it  to the aggregate waste,  as generated
(i.e., before mixing).  Therefore the presence  of low Btu value
constituents would not  preclude the waste from  being  considered
a bona fide fuel that  is  burned  for energy  recovery.

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     Please feel free to have any concerned  party at the Washington
Department of Ecology call  me at (202)  382-7934 for any further
clarification.

                                   Sincerely,
                                   Marc Turgeon
                                   Environmental Scientist
                                   Waste Combustion Section

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                         9494.1987(02)
                          JR 15 W
Mr. Richard C. Fortuna
Executive Director
Hazardous Waste Treatment Council
1919 Pennsylvania Avenue, H.W.
Suite 300
Washington, D.c.  20006

Dear Mr. Fortunat

     In your letters of January 6, and March 27, 1987,  you
raised a number of issues regarding the Marine Shale facility.
Region VI has already responded to some of your concerns.  We
will respond to some of the other questions raised in your
letters.  However, other questions relate to current enforce-
ment deliberations and, therefore, cannot be addressed
without jepardizing potential actions.

     First, with regard to past enforcement actions, the Loui-
siana Department of Environmental Quality (LDEQ) has issued
a number of enforcement actions against Marine Shale, the
most recent of which was issued July 29, 1986.  I believe
Region VI has already furnished you a copy of the order
entered in that proceeding.

     * Question 3 - Has Louisiana been delegated authority to
       administer the definition of solid waste regulations
       or the Phase I burning regulations?

     As you know, under Section 3006 of the Resource Conser-
vation and Recovery Act  (RCRA), the Environmental Protection
Agency (EPA) nay authorise qualified States to administer
and enforce their State hazardous waste management program
in lieu of the Agency operating the Federal program in those
States.  Final authorisation was granted to the State of
Louisiana on February 7, 1985 [50 Fed. Reg. 3348  (January
24, 1985)3.  However, the rules relating to the definition
of solid waste that were promulgated under 50 Fed. Reg. 614
(January 4, 1985), were  not part of the authorized program.
Therefore, these rules do not apply until the State revises
its program to include controls for hazardous wastes that
are equivalent to, or more stringent than, EPA's  regulations
(i.e., regulations concerning the new definition  of  solid
waste do not become effect&vauRftexan authorised State, until
that Stite amends its regulations and EPA authorizes the
attended State program).

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     In contrast, the Hazardous and Solid Waste Amendments
of 1984 (HSWA), which attended RCRA,  provide new require-
ments and prohibitions in authorised States, such as Louisiana,
until the State is delegated authority to do so.  The hazardous
waste fuel regulations [50 Fed. Reg. 49164 (November 29, 1985)3
were promulgated pursuant to HSWA.   Therefore,  these rules
are effective and Federally-enforceable in Louisiana, although
they have not yet been adopted by Louisiana and authorized
by EPA.

     It should be noted that if the Marine Shale facility is
engaged in sham recycling and Is in reality operating to
destroy hazardous wastes by controlled thermal  combustion,
it is incinerating the wastes and is subject to the Subpart 0
standards for incinerators.  The issue of sham  recycling is
a question of fact, turning on the contribution of the materials
burned to the output of the device.  The facility's operating
practices (for instance, degree to which wastes are scrutinized
for beneficial properties, revenues derived from burning
wastes versus processing raw materials) are also relevant.
The Agency is investigating these questions. We also are
intending to propose in the near future regulations of air
emissions from boilers and industrial furnaces  that legitimately
recycle hazardous waste.

     * Question 4 - How is the State (or Region VI) implementing
       the overaccumulation restrictions of 40  CFR Part 261.2
       (c)(4) throughout the State, not merely  at MSP?

     As already indicated, the new definition of solid waste
regulations are not a part of Louisiana's authorized hazardous
waste program.  Therefore, the overaccumulation provision
which is part of the new definition of solid waste is not
being implemented in Louisiana,  nevertheless,  the speculative
accumulation provision would be irrelevant at MSP.  In partic-
ular, the facility already is deemed to be accepting hazardous
wastes, and requires a storage facility.

     * Question 5 - The use constituting disposal regulations
       under Part 261.2(c)(1)(A) and (13) specifically contain
       a requirement that wastes placed on the  ground must
       b« bound or chemically fixed in a manner that prevents
       migration.  What is the policy regarding the level of
       chemical reaction that must occur to satisfy this
       requirement?  Are residues of aggregate kiln furnaces
       generally considered to satisfy those requirements?

     EPA regulations, including 40 CFR 261.2(c)(l), which you
cited, do not require that wastes be bound or chemically  fixed
in a manner that prevents  migration before they can be  placed
on the ground.  Rather, Sections 266.20(a)(2)(b)  of  the
regulations state that recyclable materials that have undergone
a chemical reaction, so as to become  inseparable  by  physical

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neans, are exempted from the regulations under Subtitle C of
RCRA.  Therefore, those wastes that are not chemically reacted
can still be applied to the land for beneficial use if the
hazardous waste disposer complies with the appropriate manage-
ment standards.

     As to the level of chemical reaction that must occur
before a waste that is applied to the land is exempt from
regulation, the Agency has not developed specific guidance.
We believe, however, that the preamble discussion provides
general guidance to the regulated community in this area (50
CFR 6463, January 4, 1985).  Specifically, we believe materials
would fall under this exemption if the hazardous waste was
chemically transformed.  In addition, the hazardous waste
would have to be an effective substitute for some commercial
material.  In the preamble, we also included several examples
of materials that would or would not fit the chemical reaction
standard.

     It is important not to confuse this standard with the
"no migration" standard under the Land Disposal Restrictions
requirements.  According to $266.20(a)(2)(b) standard, if a
chemical reaction occurs and the hazardous waste is an effec-
tive substitute for a commercial material, the material
would be exempt from regulation whether or not any migration
has occurred.

     Regarding the residues of aggregate kiln furnace, as a
general matter, if the hazardous waste has undergone a chemical
reaction in the aggregate kiln and if the hazardous waste is
an effective substitute in producing aggregate, then residues
would be exempt from regulation.  The particular facts at
MSP would have to be evaluated to determine its regulatory
status.

     * Question 11 - Is it Agency policy to extend the scope
       of the RCRA mining exclusion to industrial furnaces
       and their residues and thereby exempt them from the
       "der ived-from-rule."

     The mining waste exclusion applies to the residuals, not
to the industrial furnace itself.  The mining waste exclusion
applies to devices that process ores or minerals.  The rele-
vant inquiry thus is first to the nature of the device,
namely is it being used to process ores or minerals,  and
second, to the types of materials burned in the device,
i.e., are they largely ores and minerals or some other type
of materials?

     Thus, if an industrial furnace  is operating to destroy
wastes, it is not processing ores or minerals, and its residues
would not be excluded.  The sham burning policy you mention
is a possible example  (assuming the device is not also processing
ores and minerals).

-------
     If an industrial furnace burns hazardous waste for the
purpose of destruction,  the furnace is subject to the inciner-
ator standards, as already indicated.   The sham burning policy
you reference indicates  that waste with an as-generated
heating value of less than 5,000 BTU/lb may sometimes not be
considered a bona fide fuel.  When such wastes,  whether
mixed with higher heating value wastes or fuels, are burned
in an industrial furnace (or boiler),  such burning is considered
incineration.

     Even if the furnace is being used to recycle wastes, it
might not be considered  to be processing ores or minerals if
the majority of the feed to the device was a non-ore or
mineral.  The Agency has always maintained, for example, that
secondary smelting furnaces are not covered by the mining
waste exclusion even though some of these furnaces burn
small percentages of ores and minerals.

     We should note that the Agency plans to solicit comment
on these issues in its upcoming rules on burning in boilers
and furnaces.  Also, we  repeat that the mining waste exclusion
does not affect the regulatory status of control of emissions
from burning in industrial furnaces, nor the storage which
precedes burning.

                              Sincerely,
                              J. Winston Porter
                              Assistant Administrator

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                                                                  1987(03)
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON. DC 20460
                                                             M • fits: '
Mr. Neil Gingold
General Counsel
Envirosure
333 Ganson Street
Buffalo, NY  14203

Dear Mr. Gingold:

     This is in response to your letter of June 12, 1987, in which
you requested clarification regarding waste  tracking and classifi-
cation.  First, I would like to apologize for  taking so long in
responding to your letter; I hope my delay hasn't caused you any
problems.  The answers to your questions are as follows:

     1.  EPA's current policy on mixing low  and high Btu wastes
         is summarized in an enforcement guidance memo published
         in the Federal Register of March 16,  1983.  (Enclosure
         1.)  As the guidance memo explains, a determination of
         what constitutes "sham burning" depends on a number of
         factors presented by the circumstances of a particular
         case; the energy value of the wastes  being blended or
         burned is likely to be of primary significance in most
         cases.  Blending a low Btu waste (i.e. , less than 5000
         Btu/lb. ) with a higher Btu waste would not normally
         change the "sham" character of the  subsequent burning.

         You should note that, as the guidance memo points out,
         other factors are considered in distinguishing sham from
         legitimate burning, and that EPA will set a priority on
         sham burning in non-industrial settings.  Also, as you
         correctly point out, EPA has proposed a new fuels policy
         in the focn of revisions to the hazardous waste burning
         regulations.  On Nay 6, 1987, EPA proposed standards for
         boilers and furnaces burning hazardous waste.  (See En-
         closure 2.)  The proposed standards would apply to boil-
         ers and furnaces burning hazardous  waste  regardless of
         whether the purpose was energy recovery or destruction,
         so the "sham recycling" distinction would no longer be
         relevant.   (Id. at 16989.)  EPA has  accepted public com-
         ments on the May 6 proposal and we  will be making deci-
         sions regarding the final rule within the next year.
         Until this  regulation  is made final,  the  enforcement
         policy will remain in  effect.

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                               -2-
         As a final pont on burning of wastes,  you should note
         that the U.S. Court of Appeals for  the District of Col-
         umbia reached a decision on July 31,  1987,  that calls
         into question EPA's authority to regulate certain waste
         recycling activities.   EPA is studying the opinion to
         determine its scope.   Because the Court has not yet
         issued its mandate, the regulations currently in the
         Code of Federal Regulations defining  what is "solid
         waste," and establishing regulations  for recycled
         hazardous waste, remain in effect.

     2.   Listed wastes never "lose their identify."   Wastes are
         tracked on the manifest by waste code under U.S. Depart-
         ment of Transportation (DOT) regulations at 49  CFR Parts
         171 and 172.I/  For mixtures, you must enter each waste
         code in the mixture on the manifest.   Further,  you should
         note that facilities  in interim status must specify on
         their "Part A" permit  application the hazardous waste
         they will be receiving {see 40 CFR  S270.13(j))  and must
         amend the Part A to receive new wastes (S270.72.(a)).
         Also, a RCRA permit granted to a treatment, storage,  or
         disposal facility may  specify the specific hazardous
         wastes the facility is authorized to accept.  Finally, a
         treatment, storage, or disposal facility must keep an
         operating record with  very specific information on each
         hazardous waste at the facility.  (See SS264.73 and
         265.73.)

     3.   All of the requirements referenced  in answer number 2,
         above, require tracking of individual wastes by shipment
         (and if necessary, by  container).

     4.   The proper classification of waste treatment residuals
         (the filter cake in your case) depends on the wastes enter-
         ring your treatment system.  Under  40 CFR S261.3(c)(2) (i),
         any waste derived-from treating a hazardous waste is
         itself a hazardous waste.  Such "derived-front11 wastes
I/ Please note a couple of points regarding waste shipment tracking.
   First, the DOT rules referred to above do not require the EPA
   waste code for "U" and "P" listed wastes.  This is because U
   and P chemicals must already be described by their specific
   chemical names under 49 CFR Part 171.  You should also note that
   although EPA does not require the EPA waste codes to be placed
   on the hazardous waste manifest, some States do require EPA's
   (or their own) codes to be entered on the manifest in addition
   to the DOT requirements.

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                               -3-
         are assigned the waste code(s) of the incoming (i.e.,
         treated) wastes.   Thus,  if more than one listed waste
         was treated, the treated residue would be identified by
         all the listed wastes treated.

     If you have further questions in this area, please contact
Mike Petruska of my staff at (202) 475-6676.

                              Sincerely,
                              Sylvia K. Lowrance, Acting Director
                              Characterization and Assessment
                                Division

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                                                     9494.1991(01)
USB
i
|   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                  WASHINGTON. D.C.  20450
                                   4 1991
                                               THE ADMINISTRATOR
  Honorable Robert W.  Kasten,  Jr.
  United States Senate
  Washington,  D.C.  20510

  Dear Bob:

       Thank you for your letter of December 4,  1990,  expressing
  your concern about the burning of hazardous waste  in boilers and
  industrial furnaces (BIFs).

       I share your concerns about the need to ensure  safe
  management of hazardous waste in the United States.   In your
  letter you posed a number of questions regarding the BIF
  regulations we issued on December 31, 1990.  I am  pleased to
  provide the following answers to those questions.

       Q:   Are the new standards as stringent as those required of
            other waste incinerators?

       A:   Yes.  The performance standards for boilers and
            industrial furnaces burning hazardous wastes are
            essentially equivalent to the proposed incineration
            amendments, and are more stringent than  the current
            incineration standards.  As in the incinerator
            regulations, the BIF regulations include performance
            standards for Destruction and Removal Efficiency (ORE)
            of organic constituents, hydrogen chloride emissions,
            and particulate emissions.  The BIF regulations also
            include limits on emissions of products  of incomplete
            combustion  (through limits on carbon monoxide and/or
            hydrocarbons), hazardous metals, and free chlorine.

            The BIF regulations impose substantive requirements on
            existing facilities pending permit issuance or denial.
            According to the Resource Conservation and Recovery Act
            (RCRA), any BIF facilities in existence before these
            regulations became effective are granted interim
            status.  BIF facilities wishing to continue burning
            hazardous waste under interim status will have to
            submit data, under specific time frames, verifying
            compliance with limits on emissions of carbon monoxide
            and/or hydrocarbons, hazardous metals, chlorine/
            hydrogen chloride, and particulates.

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Q:   Is there a strict certification process for new
     facilities that is similar to the review other
     facilities must complete?

A:   Yes.  The regulations for boilers and industrial
     furnaces subject these devices to the full RCRA
     permitting process.  Implementation of these
     regulations through the permitting process will require
     the involvement throughout the Environmental Protection
     Agency (EPA), or the authorized state, prior to any
     permit decision.  This involvement includes a detailed
     review of the permit applications and the solicitation
     of and response to public comments. In addition, as
     discussed above, BIFs will be required to submit
     "certification" data demonstrating compliance with the
     interim-status standards in order to continue burning
     hazardous waste before that permit decision.

Q:   Do the regulations provide for the safe management of
     the residue?

A:   Yes, in general, residues are subject to the full
     panoply of RCRA Subtitle C requirements (i.e., our most
     stringent hazardous waste management standards).  One
     exception would be residues subject to the "Bevill
     Amendment."  In Section 3001(b)(3)(A) of RCRA, Congress
     excluded from Subtitle C restrictions any residues from
     boilers burning primarily coal or other fossil  fuels,
     industrial furnaces processing primarily ores or
     minerals, or cement kilns processing primarily  raw
     materials.  These wastes were deemed by Congress to be
     "high volume/low hazard" in character.  This exclusion
     will be effective until special studies are conducted
     to determine how these devices should be regulated.
     EPA's position reflected in the BIF regulations is that
     so long as, on a case-by-case basis, the processing of
     hazardous waste does not significantly affect the
     character of the waste residues as high volume/low
     hazard, then those wastes may remain excluded under the
     Bevill amendment.  Any residues that do not meet these
     criteria would be subject to Subtitle C requirements.

Q:   Do the new regulations establish a definitive timetable
     for closing this loophole in our hazardous materials
     law that ensures the protection of the public's health
     and safety?

A:   The rule will require facilities wishing to continue
     burning hazardous wastes to demonstrate compliance with
     the interim-status standards within specified time
     frames.  Thus, facilities subject  to  these  rules will
     be under a substantial level of control from the
     interim-status compliance deadlines until permit
     issuance or denial.

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          Permit applications will be "called in" and reviewed
          by the EPA regions or authorized states,  based on a
          system of environmental priorities.  This reflects
          one of the conclusions of our RCRA Implementation
          Study, which was that EPA (along with the states)
          should develop a system that ensures that the most
          environmentally significant facilities in a particular
          state or region are addressed first.

     I hope that these responses give you a clearer understanding
of how we plan to regulate boilers and industrial furnaces
burning hazardous wastes.  I also want to reiterate my own
concern about the significance of this rulemaking and its role in
ensuring that hazardous waste is managed safely and effectively.
If you have any further questions or comments, please have your
staff contact Russ Wyer, Director of EPA's Waste Management
Division in the Office of Solid Waste and Emergency Response,
at (703) 308-8414.
                                  Sincerely yours,
                                  William K. Reilly

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             UNh wO STATES ENVIRONMENTAL PROTECi.wN AGENCY  9494 1991(02)
                               MAR 2 9 1991
Mr. Robert M. Scalliet, President
Scalliet Technologies Inc.
87 Oates Rd., Bldg. 1
Houston, TX   77013


Dear Mr. Scalliet,

     I am writing in response to your February 21, 1991, letter in
which you brought  up  several issues related to sham incineration
and treatment of K048-K052  wastes  in cement kilns and industrial
furnaces.  I have  fully discussed these issues with Bob Holloway,
Chief of the Combustion Section of the Waste Treatment Branch in
the Office  of  Solid  Waste,  and,  based  on this discussion,  am
providing you the  following  response to the issues raised.

     For industrial furnaces,  including cement  kilns,  if a K048-
K052 waste  is treated to separate  oil  and water,  and  the cake
obtained has a heat content below the sham incineration threshold,
then oil  cannot be added to  the  cake to  satisfy  the threshold
requirement unless the oil was  originally  part  of  the K048-K052
waste  and  was  removed  during the  treatment   process.    This
requirement applies regardless of whether or not the combustion ash
is recycled in the industrial  furnace.

     Additionally, all residues  generated from the treatment of a
listed hazardous waste, namely K048-K052 wastes in this instance,
are subject  to  the Land  Disposal  Restrictions  (LDRs)  except for
certain  residues  (e.g.,  cement kiln dust  and  primary  smelter
slag)   that may  be  excluded  from  regulation  under  the Bevill
Amendment.  The  February  21, 1991,  Federal Register contains the
Boiler and Industrial Furnace Rule which outlines a test  for when
the Bevill exclusion  applies.   If  a residue  is  exempt under the
Bevill exclusion,  then the LDRs  do not apply to the residue.  You
should note, however, that the Agency  is considering a rulemaking
to require that  Bevill-excluded residues nonetheless comply with
the  LDRs.    Because  of  this,  we   understand  that  some cement
facilities are voluntarily complying with the LDRs.  We encourage
you to  do the  same for  any Bevill excluded residuals  that you
generate.

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     If you have any questions regarding this response, please call
me at (703)308-8469 to further discuss these issues.
                              Jerry F. Vorbach, P.E.
                              Wa\pte Treatment Branch
                              Office of Solid Waste

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                   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                WASHINGTON. O.C. 20460
APR  23 i39i                                                         OFF.CEOF
                                                          SOLID WASTE AND EMERGENCY RESPONSE
 Mr. Chris L. Gansel
 Test Engineer
 Robert Sun Company
 240 Great Circle Road, #344
 Nashville, TN 37228

 Dear Mr. Gansel:

       This is in response to your letter of March 21,  1990 to Denise Wright concerning
 the burning of compressor oil with ammonia in space  heaters. You asked whether there
 are any regulations prohibiting the burning of such oil

       There are no federal hazardous waste regulations specifically restricting the
 burning of ammonia contaminated used oils in space heaters. Our regulations under 40
 CFR 266.41 governing used oil burning allow off-specification used oil to be burned in
 space heaters provided three conditions are met:

       (1)    The heater burns only used oil that is generated by the owner/operator of
             the space heater or used oil from do-it-yourself oil changers who generate
             the used oil as a household waste;

       (2)    The beater has a maximum design capacity of no more than 0.5 million
             BTU per hour; and

       (3)    The heater's combustion gases  are vented to the ambient air.

       Thus, if your space heater model Sun 2 meets these  design and use criteria, it
 may be used for the burning of off-specification used oils, including those that may be
 contaminated with ammonia, according to the federal regulations.  Some States,
 however, have different regulations governing used oil and we recommend your checking
 with the respective States.
                                        Sincerely yours,  -
                                        David Bussard, Director
                                        Characterization and Assessment Division
                                                                          Printed on Recycled Paper

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                                                                        9494.1991(04)
                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                               WASHINGTON. D.C. 20460
                                      APR  2 3  1991
  Mr. Gary Anderson
  Safety/Environmental Officer                            souo WASTE AM, EMERGENCY RESPONSE
  ARA Leisure Services
  P.O. Box 1926
  Page, Arizona 86040

  Dear Mr. Anderson:

        This is in response to your letter of March 25, 1991 concerning the management
  and burning of used oil generated by private boat owners. You asked whether there are
  any applicable standards for acceptance, storage, testing, or burning, of such oil in on-
  site waste oil furnaces.

        Under our regulations in 40 CFR 266.41 for used oil burned for energy recovery,
  you may burn off-specification used oil in  oil-fired space heaters provided three
  conditions are met:

        (1)    The heater burns only  used oil generated by the owner/operator or
              received from do-it-yourself oil changes;

        (2)    The heater has a maximum design capacity of no more than 0.5 million
              BTU  per hour; and

        (3)    The combustion gases are vented to the ambient air.

        In the case you described, the oil generated by the owners of private boats would
  be considered oil from do-it-yourself oil changers.  If your furnaces meet the design and
  operating requirements listed above, no federal hazardous waste regulations apply.
/.Thus, there are no  additional standards for the acceptance, storage, or burning, or
  testing of used oil generated by either your business or do-it-yourself boat owner oil
  changes.  Please note that your State may have additional restrictions.  Thus,  you  should
  check with your State  to see if their  are any applicable restrictions.

        Should you have any further requirements, please contact Denise Wright at (202)
  245-3519.
                                               Sincerely yours,
                                              SyMa K. Lowrande, Director
                                              Office of Solid Waste
                                                                          Printed on

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                                                      9494.1992(01)
               UNITED-STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                          NOV27892
                                                            OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
Jim Tichich
RCRA Engineering Section
Division of Hazardous Waste Management
Ohio Environmental Protection Agency
1800 WaterMark Drive
Columbus, Ohio  43266-0149

Re:  Hazardous Waste Fuel Blending

Dear Mr. Tichich:

     This letter responds to hazardous waste fuel-blending issues
discussed in your phone conversation of August 11 with Chester
Oszman, and detailed in your subsequent letter of August 12,
1992.  The letter raised the issue of whether or not treatment
associated with hazardous waste fuel blending is regulated.  In
addition, you raised concerns about inconsistent correspondence
addressing fuel-blending activities.

     After review of the hazardous waste requirements, the Agency
remains firm in its determination that treatment associated with
hazardous waste fuel blending is subject to regulation.
40 CFR 26l.6(a)(2)  clearly states that hazardous wastes which are
recycled materials and are burned for energy recovery "... are
regulated under Subparts C through H of Part 266 of this chapter
and all applicable provisions in Parts 270 and 124 of this
chapter."  This reference to Part 270 provides the basis to
regulate all hazardous waste fuel-blending activities.

     40 CFR 266.34 was written with the understanding that
hazardous waate fuel-blending activities were traditionally
performed in containers or tank systems where the storage
standards of Part. 264 could be applied.  The Agency believes that
protection of human health and the environment is accomplished
when the permit addresses the containment of the waste being
treated.  Therefore, no direct reference to "treatment" was
included in Section 266.34; treatment was understood to be
implicit in the regulation, as  shown by the reference in section
261.6 to the ". . . applicable provisions of Part 270."  (Please
note, effective August 21, 1991, Part 266, Subpart D has been
superseded by Part 266, Subpart H.)  EPA has in fact explicitly
interpreted Section 266.34 to require tank storage standards to

-------
apply to tanks in which hazardous waste fuels are blended.  See
52 FR 11820  (April 13, 1987).

     More recently, it has come to the Agency's attention that
fuel blenders may be using devices such as microwave units and
distillation columns in their hazardous waste handling operations
that differ from the traditional fuel-blending practices where
storage requirements can be applied.  These other-than-storage
practices are, in fact, hazardous .waste treatment activities
requiring a RCRA permit, without which the unit cannot operate.
According to section 270.l(c), "RCRA requires a permit for the
treatment, storage, and disposal of any hazardous waste as
identified or listed in 40 CFR Part 261."  Additionally, preamble
language from 50 FR 49196 (November 29, 1985) regarding storage
requirements for hazardous waste fuel states "... today's rule
expands existing requirements for storage so that all storage of
all hazardous waste fuels is subject to regulation."
Furthermore, "All hazardous wastes used to produce fuel and all
hazardous waste fuel so produced are subject to today's storage
requirements ..."  The regulations clearly indicate that
hazardous waste fuel-blending activities are regulated, even if
that activity includes some process other than storage.  See
52 £B 11820.

     Our understanding from discussion with Region V is that the
examples of previous Region V correspondence you provided contain
information supporting the Region's interpretation held early on
in the regulatory process.  The Region then adapted its position
to more accurately reflect the Agency's ruling.  If you have any
questions concerning fuel-blending issues, please contact Jeffrey
Gaines of my staff at (703)  308-8655.

                                   Sincerely,
                                      es F.  Michael,  Acting Chief
                                   Assistance Branch  (5303W)
                                   Office of Solid Waste
cc:  Ken Gigliello, OWPE
     Sonya Sasseville, OSW
     Steve Silver-man, OGC
     Chester Oszman, OSW
     Jeffrey Gaines, OSW
     Subpart X Permit Writers' Workgroup
     Waste Combustion Permit Writers' Workgroup

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 \
•J
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                                                      9494.1993(01)
                          SEP  ! 4  1993
                                             SOLID WASTE AND EMERG?.NCV RESPONSE
Mr. Kenneth M. Kastner
Bryan Cave
700 Thirteenth Street, N.W.
Washington, D.C.  20005-3960

Dear Mr. Kastner:

     Thank you for your letter of April 13, 1993, requesting an
interpretation of the regulation relating to automatic waste feed
cutoffs (AWFCOs) in boilers and industrial furnaces  (BIFs).  We
have also received your letter of August 16 that provides details
on the locations of the fuel pump and the AWFCO valves with respect
to your boiler.  For the reasons discussed below, we agree with
your interpretation that hazardous waste or residue will not remain
after a AWFCO in combustion chambers of systems designed as you
described, and, thus, it is not necessary to maintain a minimum
combustion chamber temperature after the AWFCO.

     40 C.F.R.§ 266.103(g)(1) requires that BIFs be equipped with
an AWFCO system that must be triggered if specified control
parameters are exceeded.  The purpose of this requirement  is to
ensure that hazardous waste combustion occurs only within a
specified operating envelope, and that the combustion of hazardous
waste ceases as soon as the facility starts functioning outside
that envelope.  The regulations also require that after the AWFCO
system is triggered, the minimum combustion chamber temperature
established during a compliance test shall be maintained  (by an
auxiliary heat source, if necessary) until hazardous waste or
residues no longer remain  in the combustion chamber.

     In your letter, you explain that your boiler burns liquid
hazardous waste fuel, and because of the configuration of  the
piping system, no hazardous waste will be fed to the boiler when
the AWFCO system is triggered.  The waste fuel pump  is located
downstream and at a lower  elevation than the AWFCO valves, which,
in turn, are at a lower elevation than the firing nozzle.  Thus,
hazardous waste fuel cannot flow by gravity into the boiler after a
AWFCO.  Given that the liquid waste will burn immediately  upon
firing, and that after a AWFCO is triggered no additional  waste
will enter the boiler, we  conclude that hazardous waste will not
remain in the combustion chamber after a AWFCO.  Thus, it  is not
necessary to maintain a minimum combustion chamber temperature
after the AWFCO.

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     Please note that the above determination is site-specific,
and depends upon the boiler and pipeline design in relation to
the AWFCO system (pump, control valves and burner locations) as
well as the physical form of the waste (i.e., liquid versus
solid).  In some situations, liquid waste may be able to dribble
into the combustion chamber by gravity even after an AWFCO if the
cutoff valve is located at a comparable or higher elevation than
the firing nozzle.   In these situations,  the minimum combustion
chamber requirement applies until the waste stops 'dribbling'
into the kiln.  In cases where solid or semi-solid (e.g.,
sludges) waste fuel is fed, the combustion chamber temperature
requirement applies until the waste fuel no longer enters the
combustion chamber and until the waste residue no longer remains
in the combustion chamber.  This time would vary from facility to
facility.  To address each case, the appropriate EPA Region or
State authority should be consulted.

     If you have further questions on this issue, please feel
free to call Shiva Garg at (703) 308-8459).

                                        Sincerely,
                                        JtffWy D. Denit
                                         rcti/g Director
                                           Lee of Solid Waste
cc:  Sonya Sasseville, PSPD
     Kate Anderson, OWPE
     Bob Holloway, WMD
     Permit Writers (Regions I-X)

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                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                                                            9494.1994(01)


                                                 JAN 2 8 1994

     Mr. Dennis R. Downs,  Director
     Utah Division of Solid  and Hazardous Waste
     288 North 1460 West
     P.O. Box 144880
     Salt Lake City, Utah  84114-4880

     Dear Mr. Downs:

          Thank you for you  letter of  December 3,  1993  in which you
     request clarification of  the Agency's  intent  regarding the
     permitting of hazardous waste fuel-blending activities.  We have
     evaluated the fuel blending-related processes described in your
     letter, and have provided comments  below.

          Your letter describes five fuel-blending activities and
     requests whether such practices meet the definition of hazardous
     waste treatment which,  according to 40 CFR 260.10,  reads as
     follows:

          Treatment means  any  method,  technique, or process, including
          neutralization,  designed to change the physical, chemical.
          or biological character or composition of any hazardous
          waste so as to neutralize such waste, or so as to recover
          energy or material resources from the waste,  or so as to
          render such waste  non-hazardous,  or less hazardous; safer to
          transport, store,  or dispose of;  or amenable  for recovery,
          amenable for storage,  or reduced in volume. (Emphasis
          added.)

     [This definition of treatment was upheld as reasonable by the
     D.C. Circuit in Shell Oil v. "EPA.  950 F.2d 741,  753-56  (D.C. Cir.
     1989).]

     1.   The addition of  other materials (e.g., sodium hydroxide) to
     facilitate homogeneous  mixtures/blends of fuel streams.

          Adding materials such as sodium hydroxide to  the waste
          stream changes the physical  and/or chemical character of the
          waste stream, and  therefore meets the definition of
          treatment.
E PA Form 1320-1A (1 /90)                    Printed on Recycled Paper                    °
                                                         'U.S. Government Printing Otlica: 1992 — 620-856M0672

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2.   Sizing/suspension units designed to grind up or break down
large solids into a smaller, more manageable form for inclusion
in the fuels stream.

     Physical manipulation of the waste would be treatment,
     provided that it changes the physical character or
     composition of the waste stream.

3.   Commingling or consolidation of similar or chemically
compatible hazardous wastes so as to increase their volume,
enhance their BTU content, to meet various boiler or industrial
furnace characteristics such as metal or chlorine limitations,  or
to alter viscosity and enhance miscibility.

     Commingling or consolidation of hazardous wastes resulting
     in physical and/or chemical changes in the waste streams to
     make energy recovery more amenable, meets the definition of
     treatment.

4.   The use of distillation to remove, contamination from various
solvents.

     Distillation to remove contaminants is a process that
     changes the physical and chemical composition of the waste
     stream to render it less hazardous and is, therefore,
     considered treatment.

5.   Processes designed to accomplish phase separation (e.g.,
removal of water or other undesirables)  to facilitate capture of
the desired waste for further processing.

     Processes to remove components from the waste stream may
     constitute treatment if the physical, chemical, or
     biological composition of the waste stream is changed.

     As you can see, we were unable to make a definitive
determination on items #2 and 5 above due to a lack of specific
information.  We hope that the principles provided in the
discussion will allow the State to make the determination based
on site-specific circumstances.

     Finally, you asked about certain waste treatment codes
listed in 40 CFR 264 Appendix I; specifically T50 (blending), T54
(distillation), and T63 (solvent recovery), and what activities
related to these codes did the Agency intend to regulate as
treatment.  Appendix I simply identifies handling codes that most
closely represent the technique(s) used at the facility to  treat,
store, or dispose of hazardous waste for recordkeeping
requirements only.  The codes are not intended to identify  all
those activities that require a RCRA permit or, in your specific
case, what constitutes treatment.

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     Thank you for the opportunity to assist you in your efforts
to regulate fuel-blending activities.  If you have any questions,
please call Jeff Gaines at (703) 308-8655 or Chet Oszman at (703)
308-8659.

                                   Sincerely,
                                   Frank McAlister,  Chief
                                   Assistance Branch (5303W)
cc:  James Michael, OSW
     Steve Silverman, OGC
     Jeffrey Gaines, OSW
     Chester Oszman, OSW
     Terry Brown, Region VIII

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     J
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460

                                                     9494.1994(02)


                            «B 88133*                  OFC,CEOP
                                             SOLID '.VASTS AND EMERGE\C v =>;s = :-.SE


Dr. P.B. Joshipura
5901 College Drive
Suffolk, VA 23435

Dear Dr. P.B. Joshipura,

Thank you for your letter of August  24,  1993, requesting
clarification of the Environmental Agency's  (EPA)  used oil
regulations.  Specifically, you asked 1)  if  a hazardous waste
characteristic determination must be made for used oil being
recycled and 2) if a specification analysis  is  required for used
oil being burned in an  industrial boiler.

     As stated in Section §261.6  (a)(4)  of the  September  10,
1992, Federal Register  (57 FR  41566), used oil  that is recycled
and is also a hazardous waste  solely because it exhibits  a
hazardous characteristic is not subject  to the  requirements of  40
CFR Parts 260 through 268, but is regulated  under  40 CFR  Part
279.  Used oil that cannot be  recycled and is identified  as a
hazardous waste must be managed in accordance with the hazardous
waste management requirements  of 40  CFR   Parts  260 through  266,
268, 270, and 124 when'sent off-site for disposal  or disposed of
on-site  (Section 279.81fal) .

     In response to your second question,  EPA does not require
used oil to be analyzed to determine whether the used oil is on-
specification used oil  if the  used oil is burned for energy
recovery in devices listed at  Section §279.61.   However,  except
for Section 279.23, used oil that is burned  in  devices other than
those mentioned in Section 279.61 is required to meet the
specifications in Section 279.11.

     It is unclear in your letter whether or not you are  selling
used oil to a customer  who burns used oil for energy recovery.
If this is the case, please note that you must  comply with  all
applicable standards for a "Used Oil Fuel Marketer" (Section
279.70).  If you have any further questions  please contact  Bryan
Groce of my staff at  (202) 260-9550.
                                                           PrMtd on

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Sincerely,
            i
Mike Petruska, Chief
Regulatory Development Branch

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9495 - USED OIL
BURNED FOR
ENERGY RECOVERY
Part 266 Subpart E
                  ATKl/l 104/6 kp

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                                                           9495.1985(03)
                           DEC |  2 1985
Honorable Harry Meshel
Ohio Senate
Columbus, Ohio  43266-0601

Dear Mr. Meshelx

     Thank you for your letter of October 16, 1985, concerning
the Environmental Protection Agency's (EPA) proposed standards
for the burning and blending of hazardous waste and used oil
fuels, and the potential status of Cadence Product 312 under
these rules.

     Cadence has represented to us that the rule will be
detrimental to their ability to market Product 312 to current
users.  While we do not dispute this claim, I should neverthe-
less emphasize that our ruleraaking will not prohibit the sale of
Product 312 to steel makers, industrial boiler operators, cement
kiln operators, or other industrial users of waste-derived fuels,
The rule reguires only that these waste-derived fuels be stored
and transported under controls already applicable to other
hazardous wastes, including hazardous wastes used directly as
fuel without the blending that Cadence uses to produce their
Product 312.  The transportation controls reguire that hazardous
waste fuels be identified as such in a manifest presented to the
transporter, and ultimately to the burner, as a means of imple-
menting the prohibition on burning these fuels in relatively
inefficient noninduatrial boilers like those in apartment and
office buildings.  Burning in these devices can expose large
numbers of persons in urban areas to toxic emissions.

     I should also not* that we plan a future rulemaking that
would provide permit standards to control emissions from
industrial boilers and industrial furnaces burning hazardous
waste fuels.  EPA-sponsored testing of a number of boilers and
industrial furnaces, including a blast furnace burning Product
312, indicates that many of these devices can be operated to
burn many hazardous waste fuels safely.  Thus, those planned
standards will not preclude burning of hazardous waste fuels
in industrial boilers and industrial furnaces in most cases.

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     As you Know, we believe waste  reduction and waste recycling
are the preferred options  to manage our growing waste disposal
problem.  This, however/ does  not necessarily mean that a recycled
waste material should be exempt from regulation if improper handling
treatment, or disposal  could result in damage to human health or
the environment.  Our rulemaking attempts to balance the objectives
of fostering recycling  and providing adequate protection of human
health and the" environment.  If a waste material is hazardous,
the relevant policy concern is whether burning the waste needs to
be regulated to protect human  health or the environment.

     We have completed  the process of finalizing these regulations.
I signed the final rule on Friday, November 8 and it was promulgated
in the Federal Register on November 29, 1985.  During the public
comment period, we received several letters asking us to exempt
Cadence Product 312 in  the final rules.  We reviewed those comments
as well as all of the other comments we received pertaining to
the proposed rules.

     In making a final  decision, we have balanced all of the
issues raised by the public, including those comments you had
made; the Congressional mandate in  the 1984 Hazardous and Solid
Waste Amendments; and our  desire to both protect human health
and promote waste recycling.   This  is not an easy task.  The
Office of Solid Waste has  worked diligently to write equitable
and protective final regulations concerning burning and blending
of hazardous waste and  used oil fuels.  I can assure you that your
concerns regarding Cadence Product  312 were considered in this
decision-making process.

     Again, thank you for  sharing your concerns on this matter.
Please contact me if you have  any questions.

                                     Sincerely,
                                         . Thooas

                                      Lee M. Thomas

Enclosure

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               UNITED  *TtS ENVIRONMENTAL PROTECTION   1NCY       <=,OO,
                                                                 198 6(02)
                                       II
Mr. Gillian F. O'Keefe
Vice President
American Petroleur. Institute
1220 L Street, Northwest
Washin<7«-on, D.C.  20005

Dear Mr. O'Keefe:
                                 J
     This is in response to youf January 24,  1986,  letter regarding
applicability of our November  29,  1985,  "burning and blending"
regulations to petroleum refinery  fuel products derived from
recycled used oil.

     As Bob Holloway explained to  you on January 29, the exemption
we provided for hazardous waste-derived  refinery fuel products --
based on data you provided us  -- also exempts refinery products
when both hazardous waste and  used oil are  introduced into the
process.  Had we been aware that crude oil  petroleum refineries
typically recycle used oil as  well as their hazardous wasted, we
would have explicitly addressed  the  issue in the preamble.

     When both oil-bearing hazardous wastes and used oil are
introduced into the crude oil  refining process, the fuel products
are exempt from the Nove.tber 29  rule.  This is because mixtures
of used oil and hazardous waste  axe  subject to regulation as
hazardous waste, and hazardous waste-derived refinery fuel pro-
ducts are exempt from the rule.

     Although we understand that virtually all refineries reintro-
duce their process-generated,  oil-bearing hazardous waste into
the refining process, if a refinery  were to recycle used oil but
not its hazardous waste, the November 29 rule would not explicitly
exempt the refinery fuel products  from regulation as used oil
fuel.  \s you note, however, F.PA 'lid not intend for used oil-
derived refinery nrociucts to be  suMec*  to recrulat 
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whatever action is necessary to  ensure  that  their products are
not subject  to regulation.

     I hope  this addresses your  concerns.

                                Sincerely,

                                c-;.7 •-' • --rj  b*
                                 Marc.a £.  ...ii-ama

                                Marcia Williams
                                Director
                                Office  of Solid Waste

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               UNITED   HES ENVIRONMENTAL PROTECTION   !NCY      '"5.1986(03)
.•ir .  i>on  I.genf r i *-Z
3-iies Aanin;. s -.ra lor and
Paul's Hea*. ing/ Construct ion Company
P.O. Box 1455
Fairbanks, Alaska   99707

Dear Mr. Ilgenfritz:

     Karen Brown, the Environmental Protection Agency's  ( EPA ' s )
Small Business Ombudsman, asked me to respond to  your  January 15,
1986 letter on used oil regulations.  The answers to your
questions are based on the rules issued on November  29,  1985  (40
CFR Part 266, Subpart E) :

     First, Service stations, repair shops, etc.,  are  allowed to
burn used oil they generate on-site (or which they accept from
household, "do-it-yourselfer" oil changers) in used  oil  space
heaters without analysis of the oil.  To answer your second
question, however, when used oil from other businesses is accepted
(i.e., not from household "do-it-yourselfers") from  off-site,  it
cannot be burned in a space heater unless it meets the EPA Fuel
Specification, and analysis would be required.

     Finally, the North Star Borough can burn the used oil produced
at their site  (or accepted from "do-it-yourselfers") in  either a
used oil space heater or an industrial boiler without  analysis.
If the Borough plans to simply burn the used oil  in  its  normal
heating boilers, however, the used oil must meet  the EPA Fuel
Specification and analysis would be,. -required.  For your  information,
I have enclosed a copy of the EPA Used Oil Fuel Specification.
Please be advised that used oil mixed with hazardous waste, such
as spent cleaning solvent, is subject to the hazardous waste
rules and those rules do not allow burning in space  heaters at  all.

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     For fur* her inforrnat ion, call  me  at   (202)  382-7917.

                              Sincerely,
                              Michael  PeTusXa
                              Environmental  Protection Specialist
                              Waste  Combustion  Program
Enclosure

cc:  Karen brown  (A-149C)
     Steve Silverman  (LE-132S)
beet  Karen Walker

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EPA Used Gil Fuel Specification
Constituent/ property








Allowable
level
5 ppm maximum.
2 ppn naximun.
10 ppm maximum.
100 ppn maximum.
100 *F minimum.
4,000 ppn maximum.

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                UNITED!   FES ENVIRONMENTAL PROTECTION A  .KY        9495.1986(04)
                                   28 FEE 86
    - •   .'  ' 1 .• O
  r. ;-j.c L-  : ..-.r.Ajrrt i'--
  .•T"*->A  : J 1 .:
  ". r 11 r ':;••_:> i    ^ '  . >
         Hol Inwav ^rsfcwJ  -'.e  ro  rop^or-!  to your Jonu^r/ J .i ,
1-J86 lettor, requesting  cone irnat ion  or  your uirvrierstan !i-v, np
some of the  provisions of  the  Novenber 29,  1985,  final rule tor
the burning  and blending of  hazardous  waste and used  oil  fuels.

     Your interpretation that  the  presumption of  mixing of haz-
ardous waste with used oil  is  applicable only to used oil  that
will be burned for energy  recovery is  correct.  As you also stated
correctly, the presumption  does  not establish a new hazardous
wasta characterstic under  Part  261, Subpart C,  nor does it -nean
that halogen levels in used  oil  destined for uses other than
energy recovery must be monitored. You should note, however,
that we have proposed standards  for recycled oil  that would
apply the presunption of mixing  to all recycled oils, not  just
those destined for use as  a  fuel (see  SO PR at 49217  (November
29,
     Your interpretation  that  the  "significant concentration"
of hazardous halogenated  constituents  that would indicate mix-
ing of hazardous waste with  used oil  is  more than ICO ppre is
not valid in all cases. The  "significant concentration" which
would indicate  that mixing has  taken  place depends on the type of
halogenated compound found,  and the circumstances surrounding
the generation  and collection  of the  used oil. For example,  as
we stated in the .preamble to the rules (50 PR at 49176), we
believe that the owner of used  oil containing less than
100 ppm of any  individual hazardous halogenated spent solvents
(i.e., F001 and F002) could  successfully rebut the presumption
of mixing for the following  reasons i  (1) both used oil and hazar-
dous halogenated solvents are  frequently generated at the same
facility, making incidental  contamination a real possibility,  and
(2) deliberate  mixing of  used  oil  and such solvents would very
probably yield  concentrations  of total halogens of greater than
100 ppm. However, mixing  of  used oil  with other hazardous halo-
genated waste could be indicated by concentrations of Appendix

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\/III haloqenated compounds an levels lower than 100 pom, especi-
ally if the hazardous halogenated waste is not generated at the
same site as the used oil or woul'l not be expected to be formed
during use of the oil. The example we used in t^e preamble
(also at 5U FK at 4^176) was nixing ot chlorinaoed pesticides
witn useil oil.

     In analyzing used oil fuel to prepare a rebuttal, the
analyst should chec* for those Appenui* VIII conpounds used at
the tacility and tnose which could reafconabl  be expected to
enter the used oil waste stream.

     I hope this addresses your concerns and clarifies your under-
standing of these regulations. If you have any further questions,
I can rje contacted at (202)382-7937.
                              Sincerely,
                              Karen A.
                              Environmental Scientist
                              Waste Combustion  Program

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              UNITF- STATES ENVIRONMENTAL PROTECTIO'' AGENCY        9495.1986(05)
                             MAR  5 1
v.r. Anthony L. Trini
.-v r-;i ti:s , Incoroora te^
6 j Lerr.on Street
St. Augustine, Florida  32084

Dear Mr. Tripi:

     Boo Holloway asked me  to  respond  to your letter of
February 14,  1986, in which you  asked  how the regulations for
burning of hazardous waste  and used  oil  fuels (50 FR at 49164
(November 29, 1985)) apply  to  the  burningyof f-specif icat ion
used oil fuel in greenhouses.            $$r

     When we defined an "industrial  boiler"  as one which produces
electric power, steam or heated  or cooled air, or other gases or
fluids for use in a manufacturing  process,  we were not trying to
exclude agricultural operations.   We were trying to distinguish
between those boilers used  for space heating  of residences and
commercial buildings versus those  used in production processes.

     Our primary concern in the  case of  used  oil is the emission
of toxic metals.  The distinction  between industrial and non-
induatrial boilers in the rule immediately restricted the burning
of used oil contaminated with  metals in  densely populated urban
areas.  Although we did not specifically consider agricultural
processes, we believe that, because  of their  typical location,
exposures to metal emissions from  boilers used for agricultural
operations are more similar to the exposures  resulting from manu-
facturing or utility boilers rather  than the  exposures resulting
from typical residential or commercial boilers.

      Since you supply off-specification used oil to a nursery
for use in an industrial boiler^  you  are  a used oil marketer,
suoject to 40 CPR 266.43.   The nursery is subject to the controls
for burners of off-specification used  oil fuel under 40 CPR 266.44,

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     As a final note, the distinction between industrial and
n on industrial boilers is not intended to be a final technical
determination concerning the suitability of boilers for burning
contaminated oil.  We recognize that many industrial and utility
boilers burning contaminated used oil do not have air pollution
control equipment and are located in populated areas, thereby
most likely posing hazards to nearby residents.  Later this year
we will be oroposinq emissions control standards for these boilers
and for industrial furnaces burning contaminated used oils.

     If you have any further questions, please call we at
(202) 382-7937.

                              Sincerely,
                              Karen Walker, Environmental Scientist
                              waste Combustion Program
                              Waste Treatment Branch (WH-565A)
bcc:  Region IV

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                                                    9495.1986(08)
April 8,  1986

A. R. Tarrer, P.E.
Professor and Director, AWORL
Auburn University
College of Engineering
Auburn University,  Alabama  36849-3501

Dear Mr.  Tarrer:

     Thank you for your March 18,  1986, letter concerning the
possibility of separating chlorides from used oil.  As explained
in more detail below,  you may strip used oil to reduce its
halogen content,  but any fuel produced by treating a listed
hazardous waste is still considered a hazardous waste.

     Used oil used as fuel (or to produce fuel) that contains
over 1000 ppm total halogens is presumed to be mixed with
halogenated hazardous wastes listed in 40 CFR Part 261, Subpart
D.  (See 40 CFR 266.40(c).)   Such used oil is thus also a listed
hazardous waste.   Persons may rebut this presumption by
demonstrating that the used oil does not contain hazardous waste
(for example, by showing that the used oil does not contain
significant concentrations of halogenated hazardous constituents
listed in 40 CFR Part 261, Appendix VIII).  Absent such a
showing,  the used oil is regulated as hazardous waste fuel under
40 CFR Part 266,  Subpart D,  not the used oil fuel rules of Part
266, Subpart E.  You could treat such used oil with steam or air
stripping to reduce the halogen content.  You would need a RCRA
hazardous waste permit to do so.  Under 40 CFR 261.3(c)(2)(i),
any fuel produced by treating hazardous waste is still considered
hazardous waste.   (In contrast, if a lubricant is produced,  the
lubricant is not a hazardous waste because under 40 CFR 261.2 it
is not a solid waste.)  To market the fuel as an exempt material,
you would have to obtain a "delisting" decision under the
petition process under 40 CFR 260.20 and 260.22 by showing that
the resultant fuel is not hazardous.

     Commenters on EPA's November 29, 1985, proposal to extend
the 1000 ppm halogen limit beyond used oil fuels to include all
used oils being recycled  (see 50 FR 40217-49218) have indicated
that, for a variety of reasons, the 1000 ppm limit is too
restrictive.  They have suggested that it be raised to 2500,
3000, or 4000 ppm.   We are considering these comments, and,  in
        This has been retyped from the original document.

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                               -2-

fact, are presently conducting studies to determine if some
unmixed used crankcase oils may contain over 1000 ppm halogens.
Although EPA may raise the limit as a result of those studies,
the rule described above applies in the interim.

     I suggest you contact the generators who have been sending
you used oil with over 1000 ppm halogens either to obtain
documentation that they are not mixing hazardous waste with the
used oil or to make sure they properly manifest their shipment.
It is possible that some of these generators may previously have
been exempt from hazardous waste regulations as "small quantity
generators" under 40 CFR 261.5.  EPA recently lowered the
exemption limit from 1000 to 100 kilograms per month, however,
and these generators will be required to comply with the
hazardous waste rules by September 22, 1986 (51 FR 10146).  We
would be very interested in learning what you find out about the
waste management practices of each of the generators from whom
you receive used oil.

     If you have further questions on our used oil rules, please
contact Mike Petruska of my office at (202) 382-7917.

                              Sincerely,
                              Marcia E. Williams
                              Director
                              Office of Solid Waste (WH-562)
bcc: Mark Greenwood
     Steve Silverman
     Tom Devine, Region IV
       Hazardous Waste Division Director
        This has been retyped from the original document.

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              UNT   STATES ENVIRONMENTAL PROTECTI  AGENCY       9495.1986(09)
                                 *t
Mr. Gordon D. Hall
Lake Carriers Association
614 Superior Avenue/ N.W.
915 Rockefeller Building
Cleveland/ Ohio  44113-1306

Dear Mr. Hall:

     Bob Holloway asked me to respond to your  letter of March  17,
1986, in which you requested clarification of  the application  of
the November 29, 1985, final rules for the burning of hazardous
waste and used oil fuels to the marine industry.

     As we stated in the preamble to the rules  (50 PR at  49193),
burning used oil in marine engines is not covered by these  regula-
tions because we have not fully considered whether marine engines
meet the definition of a boiler.  Burning used  oil in a .shipboard
steam boiler for heating purposes, however, is  regulated.   Although
we did not consider in the development of the  rule whether  ship-
board boilers should be classified as industrial or nonindustrial
boilers, we believe that, because of their location relative to
population centers, exposures resulting from emissions of ship-
board boilers would be more similar to the exposures resulting
from manufacturing and utility boilers rather  than the exposures
resulting from typical residential and commercial boilers.  Thus,
shipboard boilers should be considered industrial rather  than
nonindustrial boilers for regulatory purposes  in this situation.
As such, burning of off-specification oil is allowed.  Although
the owner or operator would not need to perform analyses  of the
used oil, he roust notify EPA of his burning activities  (see
$266.44).  Note that notification is not required for burners  of
used oil that meets the specification, but such burners must
analyze the used oil or otherwise obtain data  to document that
the used oil fuel meets the specification.

     You are correct in your assumption that used oil generators
ar-> not required to notify unless they market  directly  to a
burner.  Ships generatino used oil that is then hurned on board
in a boiler are considered to be burners, and  are reauired  to
notify as turners if they burn otf-specific?!ion usec? nil tuel.

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No notification of generator status is necessary.  In the case
where used oil generated on board a ship is generated and
transferred to a transporter, the transporter, not the ship,
may be subject to regulation as a marketer.

     1 hope this answers your questions.  If you need further
clarification or assistance, please call me at (202) 475-6128.

                              Sincerely,
                              Karen A. Walker
                              Environmental Scientist
                              Waste Combustion Program (WH-565A)

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                                                               9495.1986(13)
           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                       WASHINGTON. D.C. 20460

                           JUN 27 1986
                                                        Of-FICE OF
                                              SOLID WASTE ANC EMERGENCY RESPONSE

MEMORANDUM

SUBJECT:  Regulation of Hazardous Waste and Used
          Oil Fuels (November 29, 1985)

FROM:     Karen Walker, Environmental Scientist
          Waste Management and Economics Division

TOt       Michael Sanderson, Chief
          RCRA Branch, Region VII


     This is in response to your memo of May 2, 1986,  requesting
clarification of whether the November 29, 1985, rules  for burning
of hazardous waste and used oil fuels apply to used oil  that is
burned in incinerators.  I also discuss two other issues your
staff has raised:  whether the November 29 rules apply to the
open burning of vised oil and whether the hazardous waste fuel
storage standards apply to burner facilities that pump hazardous
waste fuel directly from tank trucks into a boiler.

Incineration of Used Oil

     As I indicated in telephone conversations with Jack Coakley
and Chet McLaughlin of your staff, the regulations specifically
apply to the burning for energy recovery of hazardous  waste and
used oil fuel in boilers and industrial furnaces.  Therefore,
burning of used oil in incinerators is currently unregulated
and the used oil fuel specification does not^ apply to  such oil.
If used oil exhibits a characteristic of hazardous waste and
is burned in an incinerator, it is presently regulated under
Subpart O.  This position is not an extrapolation of the marine
and diesel engine discussion in the preamble (which was included
primarily due to public comment and inquiries prior to promulgation
of the rules), nor does it stem from an  "interpretation" of the
rule.  The rule simply and clearly applies to only that used oil

-------
that is burned in boilers or industrial furnaces (see §266.40(a))
     We agree that it is somewhat inconsistent to regulate the
burning of used oil in boilers and industrial furnaces but not
the burning of used oil as auxilliary  fuel in incinerators.  We
did not extend coverage of the November 29 rule to incinerators
because burning of any waste in an incinerator has been considered
for regulatory purposes to be burning  for the purpose of destruc-
tion and not for energy recovery.  We  have taken this position
irrespective of the heating value of the waste and whether the
waste is actually used as auxilliary fuel because, to do otherwise
would potentially open up the energy recovery exemption to any
waste with significant heating value when burned in an incinerator
Thus, without the policy that any waste burned in an incinerator
is burned for destruction, owners and  operators of hazardous waste
incinerators could argue that their high heating value wastes were
burned for energy recovery and therefore exempt from Subpart 0.
If high heating value hazardous wastes were coincinerated with
non-hazardous waste, the owner or operator could argue that the
incinerator is exempt from Subpart O because the hazardous waste
is burned for its energy value.  This  is an outcome we wanted to
avoid.

     You should note that, if used oil is listed as hazardous waste,
incineration of used oil would be subject to Subpart 0 uhless the
rule said otherwise.  This outcome will be considered as we deter-
mine whether to list used oil as hazardous waste.  (Whether or
not used oil is listed, standards for  "incinerating" used oil are
more likely to resemble the controls being developed for boilers
and industrial furnaces burning off-specification used oil fuel
than the Subpart O standards.)

     The May 2, 1986 letter from Chet  McLaughlin to Dr. Paul Hipps
of the Washington University School of Medicine incorrectly
indicates that the November 29 rule applies to used oil burned in
a pathological incinerator.  As I stated above, if used oil is
burned in an incinerator, the November 29 rule does not apply
and a permit is not required at the present time.

Open Burning of Used Oil

     Your staff also forwarded to us an April 17, 1986 letter
from Chet McLaughlin to fire marshals  in Missouri.  This  letter
indicated that fire departments would  not be allowed to burn off-
specification used oil in training exercises.  I discussed this
with Jack Coakley, who stated that the used oil is burned  in open
pits.  For the same reasons outlined above, such burning  of used
oil is not covered by the November 29, 1985, rules.  We have
received similar inquiries  from  fire departments and have  advised
them that burning used oil  in pits, drums, or containers  constitutes
disposal and is currently unregulated  unless the used oil  exhibits
a  characteristic of hazardous waste,  in which case such burning
would be other thermal treatment  of hazardous waste.  If  the  used

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                       fci        .ENTAL PROTECTION Ar  CY         9495.1986(20)
Mr. Jod Mandel
Jenner & Block
One IBM Plaza
Chicaqo, IL 60611          AUG 2 2 !986

Dear Mr. Mandel:

     I am writing in response to your letter requesting an inter-
pretation of EPA's proposed listing of used oil as a hazardous
waste that was published in the Federal Register on November 29,
1985.  In particular, you ask whether the hydraulic devices that
your client manufactures would be considered as hazardous waste
by the mixture rule when these devices become contaminated with
oil during quality control testing conducted prior to their sale
and distribution.

     As described in 40 CFR $261.3, the mixture rule applies only
to mixtures of solid waste and hazardous waste.  These hydraulic
devices do not meet the definition of a solid waste (see 40 CFR
$261.2) because they are products that are manufactured for sale
and are not discarded or intended to be discarded.  Thus, if used
oil were to be listed as a hazardous waste and subsequently "mixed"
with these hydraulic devices, the resulting mixture would not bo
a hazardous waste according to the mixture rule.

     It must be noted that used oil drained from these hydraulic
devices would be a hazardous waste if the oil exhibits a hazardous
characteristic as described in 40 CPR SS261.21 - 261.24, or if
used oil is listed as a hazardous waste as proposed in the November
29 notice, unless this used oil is reused for its original purpose
(i.e., in testing hydraulic devices).

     If you have any additional questions regarding the proposed
rules, you nay contact me at (202) 475-8551.

                              Sincerely,
                              Matthew Straus
                              Chief

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              UNIT-  STaiES ENViKONMENTAL PROTECTS AGENCY
                                                             9495.1986(21)
                                     15 SEP 86
Mr. Fred Hurban
Cottman Transmissions
240 New York Drive
For*-. Washington, Pennsylvania   19034

Dear Mr. Hurban:

     Per your telephone request of August  15,  1986,  I am providing
written confirmation of the status of  used  oil-fired space headers
under the November 29, 1985, regulations  for  the  burning of haz-
ardous waste and used oil fuel.

     We sent a letter to Tom Kagi on February 4,  1986,  (copy
enclosed) explaining the application of these rules  to  space
heaters.  This application is the same regardless of the geographic
location of the facility or space heater.   In that  letter we
indicate that used oil could be burned in  a space heater without
testing for toxic materials under the  following conditions:

     1.  The used oil is oil that you  generate by servicing
         vehicles, or that you accept  from  "do-it-yourself"
         oil changers (you may not burn oil that  you receive
         from another shop or from a used  oil collector);

     2.  You have not mixed wastes such as  solvents, with the
         used oil;

     3.  The heater is designed to have a maximum capacity of
         less than 0.5 million Btu per hour (rating  is  on heater
         nameplate); and

     4.  The flue gases are vented to  the  outdoors  (e.g., through
         a chimney).

     I hope this addresses your concerns.   Please call  me at  (202)
475-6128 if you have any questions.

                                  Sincerely,
                                  Karen  Walker
                                  Environmental  Scientist
                                  Waste  Combustion Section

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                                                          9495.1986(22)
                           15  SEP  86

Mr. Paul McFmddew
1045 Archer L*ne
Lansdale, Pennsylvania  19446

tear Mr. McFadden:

     I received your August 7 letter only late last week.  Let me
summarize your largely correct interpretations of the current
Federal requirements for Industrial burners of used oil.

     Hazardous waste (solvent) Mixing - Mixing any amount of a
listed hazardous waste (such as the spent solvents you name) into
a used oil creates a aixture that wet be managed as a hazardous
waste.  The 1000 ppm halogen standard is simply the level at which
EPA will presume (until rebutted) that used oils «it» gresteo^
Lhen Iflftfl ppm 'nil mj•mohaire been mixed with halogenated hazardous
waste.  The presumption could be rebutted by demonstrating,  for
example, that all halogens are inorganic.  (If you are burning
oils on-site, it should be easy for you to prevent solvent contami-
nation. )

     Burning hazardous waste Mixtures - Hazardous taste combustion
is more stringently regulated than used oil combustion (under the
November 29 final rules).  Facilities burning hazardous waste for
energy recovery, however, are not regulated aa incinerators.
Hazardous wastes (including mixtures) can be burned only in
industrial boilers and furnaces.  An on-site burner is subject
to Part 262 requirements for hazardous waste generators.  The on-
site burner is also subject to notification ($266.35(a)), and
storage (§266.35(b)/$26X. 34) requirements.  There may *ell be
additional requireaents in the future; however, these rules have
not yet even been proposed.

     Burning used oils (on-specification) - For used oils not
nixed with hazardous waste, the regulations (f266.40(e)) define
two types of used oil fuelsi on-specification and off-specificatioa.
The combustiom of on-spec used oil is unregulated, however, there
are a few requirements for on-site burners to meet the exemption.
(I admit those may be a bit unclear from a reading of the actual
regulatory language.)  First, the on-site burner must notify as
•an on-site burners who first claims the oil meets specification.
Second, the burner must be able to demonstrate that the oil (as
burned) meets the specification.  Lab analyses are certainly a
good way of making such a demonstration.  Note that the combustion
itself is entirely unregulated by the used oil rules, that is,
the oil may be burned in any type of device).  There are no  plans
to regulate on-spec burning with future used oil rules.

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     Burning used oils  (off-specification)  -  3urniri-j off-apaciftcation
used oil is regulated sore stringently  (»266.44)  than on-spec.   :tost
importantly/ off-spec used oil :nay  be burned  only in industrial
devices, and only by facilities that have notified as "an ofr-spec
used oil burner."  In the future, there r;iay be additional requirements
to TOet, such as, the use of air  pollution  control, or perhaps  storage
requirements.  These additional regulations,  however, nave :iot  yet
been proposed.

     I hope you have by now received r.iy August 4  letter on tastinj
procedures and laos.  If you have any other questions, please
contact ne.

                                    Sincerely,
                                     Hxr
                                     Office of Solid

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                           ATTACHMENT I
     Question 1;  Why, when the "Banking of Lead Rights" was
promulgated on April 2, 1985, (21 days after the public comment
period closed for 40 CFR Parts 260, etc.) was there no mention,
reference, or acknowledgement of its existence 8 months later in
the November 29, 1985 Federal Register?

     Response:  Staff working on the final regulations published
on November 29, 1985, were totally unaware of the lead credits
program included in the April 2, 1985, "Banking of Lead Rights"
final regulation.  During development of the November 29, 1985
regulations, our staff was working to resolve all of the issues
raised in public comments on the January 11, 1985, proposed
regulations on the burning of hazardous waste fuel and used oil
in boilers and industrial furnaces.  Unfortunately they were
not knowledgeable in the matter of the lead credits program
first proposed in January 4, 1985 (50 PR 718).  No commenters on
our proposed rules raised the issue of the effect of the lead
credits program on lead levels in used oil fuels.*  Thus, certain
projections made by staff and published in the preamble to the
November 29, 1985 final rules have proven to be inaccurate.

     Question 2;  Why was Table 4 and the entire dissertation
surrounding it published in the November 29, 1985 Federal Register
when the EPA Staff knew that it was inaccurate and misleading?

     Response;  Table 4, which projects how much used oil will
meet various lead limits by May 1986, was derived without takinq
into account the lead credits.  As explained above, the inaccurate
projections were due to a lack of knowledge by the staff writing
that document of the lead credit provisions, and was certainly
not a deliberate attempt to mislead the public.  As shown in
Table 5, on the same Federal Register page as Table 4, EPA also
made projections of how much used oil would meet the entire'used
oil fuel specification, not just the lead specification,  we
projected that by May 1986, only 46% of all used oil would meet
the used oil fuel specification without blending with virgin
fuel oil*  This is because we expected other elements of the
specification, i.e., the limits for Arsenic, Cadmium, and Chromium
of 5, 2, and 10 ppm, respectively, to cause significant amounts
of used oil to be off-specification.  The purpose of the specifi-
cation is to identify used oil fuel with high levels of toxic
contaminants compared to virgin fuel oil and to restrict the use
of such contaminated fuel to industrial burners.  We never  intimated
that any set percentage of used oil fuel must meet the specifica-
tion; in fact, as discussed above, we expected that most used
oil fuel would not meet the specification unless blended with
virgin fuel oil.

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     Question 3;  Why, when EPA readily admits in 49 CFR Part 80
that "— the Agency estimates that about 9.1 billion grams would
be banked" and that "	 the Agency does not expect that these
regulations will have a significant adverse impact, if any, on
the public health or the environment", does the small percentage
of that lead (2.65%) flowing through the oil recycling industry
pose a health risk?

     Response;  The amounts of lead allowed in gasoline cannot be
directly compared to the amounts contained in used oil.  First,
the Agency's regulations of 49 CFR Part 80 are designed to reduce
and perhaps eliminate the use of lead as a motor fuel additive
(50 FR 9386; March 7, 1985).  EPA indicated that a national
health problem exists with regard to lead and that "... all
reasonable efforts should be taken to reduce lead exposure to
the population as rapidly as possible."  (Id.)  The Agency at
first concluded that the refining industry as a whole could
achieve a 0.1 grams per gallon limit by January 1, 1986 without
the allowance of lead credits.  CPA became convinced, however,
that a more flexible but equally protective approach would be to
impose a limit less stringent than 0.1 grams per*gallon prior to
January 1, 1986 (i.e., 0.5 grams per gallon on July 1, 1985), to
impose the 0.1 limit on January 1, 1986, and. then allow lead
credits through 1987.  The Agency reasoned that this accelerated
schedule could be combined with a lead credits program and achieve
the same lead reduction in 1985-1987 as imposing the 0.1 gram per
gallon limit on January 1, 1986, with no lead credits (50 FR
718-719; January 4, 1985).  Therefore, EPA did not simply con-
clude, as your letter suggests, that 9.1 billion grams of lead
entering the environment would pose no problem.  Rather, the
Agency concluded that we could achieve the most rapid reduction
through an accelerated phasedown schedule combined with a lead
credits program.

     The used oil fuel regulations serve a dual purpose.  First,
EPA concluded that under certain conditions the burning of used
oil in boilers could cause violations of the National Ambient Air
Quality Standard (NAAQS) for lead; the 100 ppm lead limit prevents
these occurrences (50 PR 49184-49185; November 29, 1985).  Further,
EPA considered whether the used oil fuel regulations should be
used as a supplement to the gasoline lead phasedown described
above to reduce overall lead exposures, i.e., to go beyond what
is necessary to prevent violations of the NAAQS and set an even
lower lead limit*  (Id.)  As the Agency indicated, due to new
health effects data on lead that may lead to a lowering of the
NAAQS and the latter consideration, we are considering whether
the 100 ppm limit should be lowered.  (Id.)  An important factor
in this determination will be the likely impacts of a  lower limit
on the used oil recycling industry.  Impacts on recycling will
not, however, take precedence over health-based considerations.

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     Question 4;  Why, when the National Ambient Quality Standard
for lead at a 75% emission rate is currently 300+ ppm, has a 100
ppm specification been imposed upon the oil recycling industry?

     Response;  The enclosures to your letter (Exhibits IV, V,
and VI) cite air modeling work performed for EPA in about 1980.
The results indicate that under some conditions an individual
burner can burn a fuel with over 100 ppm lead without exceeding
at groundlevel the lead NAAQS of 1.5 micrograms per cubic meter.
As EPA explained when it proposed and promulgated the 100 ppm
limit, however, a number of factors must be considered besides
single burner air modeling.  (This is discussed in detail at 50
PR 1698; January 11, 1985, and 50 FR 49184, November 29, 1985.)

     0    Used oil sources can be clustered, i.e., multiple
          sources can be located near one another, leading
          to increased ambient pollutant levels;

     0    In urban areas, it is not unusual to have exposed
          individuals at elevated locations (e.g., in apart-
          ment houses) where pollutant levels ma/ be higher;

     0    Many areas already have lead in the air so used
          oil burners, while emitting only a fraction of the
          NAAQS, could add to the ambient levels and cause an
          exceedence of the NAAQS; and

     0    The current NAAQS is under review by EPA.  New health
          effects data indicate that lead is even more toxic
          than earlier studies indicated; and the NAAQS may
          therefore be lowered from the current 1.5 micrograms
          per cubic meter.

     In summary, the 100 ppm lead limit for used oil is necessary
to prevent violations of the NAAQS.  In fact, the original study
performed for EPA in 1980 recommended a lead specification for
used oil of 50 ppm.  Used Oil Burned as a Fuel, Volume I, Recon
Systems, Inc. and ETA Engineering, Inc., 1980 (p. 1-8).

     Question 5:  Why has EPA so clearly discriminated against
the oil recycling industry (as opposed to the major producers
and importers of leaded gasoline) to the obvious detriment of
the environment?

     Response:  EPA has not discriminated against used oil
recyclers while favoring producers and importers of leaded gaso-
line.  EPA has moved swiftly to reduce lead in gasoline and we
may in the future prohibit lead as a gasoline additive.  Used  oil
recyclers may market used oil containing any amount of  lead to
any industrial burner.  We have imposed only minimal requirements

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on the marketing and burning of used oil high in lead content to
track the movement of a fuel which is substantially different
from virgin fuel oil (e.g., virgin fuel oil rarely contains more
than 1 ppm of lead), and which may pose a hazard when not burned
in the proper device.  This is entirely consistent with RCRA
Section 3014, which requires EPA to regulate used oil recycling
practices that potentially could harm human health or the environ-
ment .

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            UNITED STATES EHVIkUHMtN i ML. , »v • e*. , ION AGENCY



                                                          9495.1986(28)
                             NQV  12 !386
Honorable Charles W. Stenholm
House of Representatives
Washington, D.C.  20515

Dear Mr. Stenholmi

     Thank you for your October 14, 1986, letter regarding
the 100 ppm lead specification.  This specification was
developed to protect human health and the environment.  The
fact that we did not consider lead banking had no effect on
our decision.  The only effect of lead banking is to modestly
increase our estimates of the amount of used oil that would
be off-specification.

     With regard to your three suggestions, the Environmental
Protection Agency (EPA) is drafting
a proposed response to the petitions and expects to publish
it in the Federal Register before the end of the year.  (EPA
procedural rules require the Agency to propose action on a
petiton for rulenaking beore taking final action.  40 C.F.R.
5260.20(c).)

     Second, you suggest that EPA defer implementation of the
100 ppm lead specification but at the sane tine retain the
prohibition on burning off-specification used oil in non-
industrial boilers.  This is virtually what the present regu-
lations provide.  All burners but non-industrial sources may
burn off-specification oil provided they notify EPA and
their supplier that they are an industrail source.  You may
be asking that EPA repeal these administrative requirements.
Our present thinking is that these administrative provisions
are needed if EPA is to be able to enforce the prohibition
against burning contaminated used oil in non-industrial
boilers, since some means are needed to verify independently
that processors are not selling contaminated oil to prohibited
sources.  Further, these requirements have no other legal
significance.  We have taken, and are continuing to take
active steps to inform the public of the minimal legal signi-
ficance of this one-time notification.

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    Finally, with regard to your last point as stated above,  the
pecification is,  and must be,  based on human health and the
environment.

     I appreciate your continued interest in this area and will
continue to inform you of our  activities.

                              Sincerely,
                              J.  Winston Porter
                              Assistant Administrator

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                                    PROTECTION AGENCY       9495.1986(30)
                           NOV24
Ms. Kathryn O'Connor Gunkel
Director of Environmental
  and Safety Operations
P.O. Box 517
Riverdale, Maryland  20737-9981

Dear Ms. Gunkelt

     Thank you for your October 10, 1986, letter regarding the
relationship between "permit-by-rule" and the proposed used
oil special management standards for burners.

     The major point you raised in your letter is the impli-
cation of filing the burner notification form 8700-12.  Our
final standards will apply only to facilities burning off-spe-
cification used oil as of the effective date of the final rule
(which is usually six months after the final rule is published
in the Federal Register).  Filing the notification form now
would not subject your members to that final standard.
Piling also will not subject your members to the corrective
action requirements in Section 3004(u).  Form 8700-12 is not
a Resource Conservation and Recovery Act (RCRA) permit appli-
cation or the equivalent, and again it does not trigger
compliance with Section 3004(u).  You specifically asked if
used oil recyclers will need permits, and if so how would
they apply for such permits.  We have not yet resolved this
issue.

     You also asked why, when we generally avoid perrait-by-
rule in the RCRA program, did we propose a permit-by-mle
for used oil recyclers?  The used oil permit was established
by Congress for recycled oil identified as a listed or hazar-
dous waste in RCRA Section 3014(d).  The permitting is a
statutory requirement.

     We are also considering what types of regulations should
apply to recycled oil burners.  For example, we are currently
debating whether used oil burners should be regulated like
other recyclers or if we should apply special, less stringent,
requirements.  Our current thinking is that it may be appro-
priate to have different standards for processors and re-refiners,

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     Let me assure you that EPA believes that off-specification
used oil can be burned safely.  When emissions are properly
controlled, burning is an environmentally desirable method of
recycling used oil.  We will consider the issues you raised when
developing our final rule.  I would be pleased to meet with you
on these and any other concerns you may have.

     I have addressed the seven specific questions you asked in
the enclosure.  If I can be of any further assistance, please
let me know.

                              Sincerely,
                                V Jack If. Ue6raw
r.
                                 Winston Porter
                               issistant Administrator
Enclosure

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                   Answers to Questions 1-7

     1.   Under the November 29, L985 proposal, facilities
burning off-specification used oil fuel on the effective
date of the final rule would be eligible for a permit-by-rule.
Submission of the notification form 8700-12 would not trigger
issuance of a permit.  Under the proposed used oil management
standards, facilities in compliance with all of the applicable
requirements would be deemed, without any action on their
part, to have a RCRA permit.  [See 50 FR 49240] Submitting
notification information is only one requirement; compliance
with proposed 40 CFR 266.43, 266.44, and 270.60(d)(2) would
be necessary to obtain the permit-by-rule.  This approach to
permitting used-oil recyclers is actually specified in
RCRA Section 3014(d); Congress instituted such a system to
encourage facility permitting.  (See H.R. Rep.  No. 98-198,
98th Cong., 1st Session, at 69 (1983).]  Under this system,
there is no written permit per se.  In fact, EPA would not
be granting a permit at all.  Congress specified in RCRA
Section 3014(d) that a used-oil recycler who complies with
all applicable requirements receives a permit.
                                                  *
     With respect to the relationship in the proposed rule
between the permit-by-rule and corrective action, you should
note that in the November 29, 1985, Federal Register, we
proposed that used oil recyclers who qualifed for the permit-
by-rule were not subject to the corrective action requirements
in Section 3004(u) unless EPA revoked the permit-by-rule based
on specified criteria.  [See 50 FR 49241]

     We have not determined what management standards will
apply for used oil burners.  We have concluded that the full
set of requirements proposed on November 29, 1985, is probably
too stringent.  We will consider whether a reduced set of
standards might be adequate for burners.  We also have decided
not to list recycled oil aa a hazardous waste.  This may
render the perrait-byrule provisions of the November 29,
1985, proposal moot because facilities managing nonhazardous
waste have not in the past been subject to EPA permitting.
It should be noted, however, that EPA can require permitting
for used-oil recyclers even without a hazardous waste
listing.  [See H.R.  Rep. No. 98-198, 98th Cong., 1st Sess.,
at 69 (1983).]  Whether we do require some form of permitting
will depend upon the extent of Agency oversight needed to
implement the management standards issued for burners.
These decisions are still several months away.

     2.   You are correct in stating that under the proposal,
a facility is deemed to have a RCRA permit if  it complies
with all applicable requirements.  It is the responsibility
of the owner or operator of the facility to comply with the
requirements.  EPA can, of course, conduct facility inspections
to ensure compliance.

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                             -2-
     Submittal of form number 8700-12 has little to do with
the facility permitting.  Submittal of notification informa-
tion is one requirement that a facility would have to meet
whether or not a permit is required by the final rule.  EPA
form 8700-12 is not a permit application.  This issue was
discussed in the November 29, 1985, proposal [See 50 FR 49243].
Under the proposal, those owners or operators who were not
in compliance with applicable requirements,  or who were not
sure whether they were in compliance, would have been required
to submit a special notice, separate from the notification,
to EPA indicating their desire to obtain interim status.
Those owners and operators who were sure of their compliance
would not have to submit an application.

     Let me clarify one point which may be confusing.  In the
proposed rule we stated that a notifying facility is afforded
the option of indicating that the information submitted on
form 8700-12 could be used to fulfill the permit application
requirements of RCRA Section 3005(e)(i)(c).   A facility might
have wished to take this course because eligibility for the
proposed permit-by-rule turned on a facility being in
compliance on the rule's effective date with applicable
regulations.  A facility not in compliance or unsure whether
it was in compliance was thus afforded the opportunity to_
have legal authorization to operate [See 50 F_R 49240].
Facilities electing to take this action were not thereby
subject to Section 3004{u) corrective action [See 50 F_R
40241].

     The "two year" inspection schedule applies to facilities
permitted by EPA under RCRA Section 3005.  Since, under the
proposed rule, most used oil recyclers would be permitted under
RCRA Section 3014(d), the schedule would not apply.

     3.    As discussed in response #1, under the proposal,
facilities who were eligible for the permit-by-rule would
not have been subject to RCRA Section 3004(u).  [See 50 FR
49240.]  The only case where such a facility would have been
required to take corrective action measures is when EPA
revoked the permit-by-rule,  [see 50 FR 49241.]  See proposed
§270.60(d)(3) for the criteria under which a permit-by-rule
could be revoked.  EPA has not determined whether these, or
similar* requirements will ultimately be applied to used
oil burners.

     4.    As explained above, the used oil recycling permit
would not actually be issued by EPA.  Rather, the permit  is
a special authorization granted by Congress in RCRA Section
3014(d)  for used oil recyclers to be exempt from normal RCRA
permitting procedures, provided they comply with all applicable
requirements.

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                               -3-
     5.   As explained above, submittal of EPA form number
8700-12 has nothing to do with corrective action requirements.
Further, the timing of the notification was set by Congress
in RCRA Section 3010(a); notification was required by February
1986.

     6.   As explained above, the burner notification require-
ment is just that, nothing more.  It simply does not expose
burners to the types of consequences suggested in your
questions.

     7.   At present, burners of off-specification used oil,
except for the notification and recordkeeping provisions of
40 CFR §266.44, are subject to the same requirements as
burners of virgin fuel oil.  The time that management standards
are issued in final form for used oil burners is appropriate
time for each facility owner or operator to make his own
decision on whether or not to continue burning used oil
fuel.  As a general matter, RCRA regulations become effective
six months following promulgation, so burners will have time
to assess any new requirements.

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                                                        9495.1987(01)
                                           20 JAN 87
Mr. Joseph P. Chu, Assistant Director
Plant Environment
Environmental Activities Staff
General Motors Corporation
General Motors Technical Center
30400 Mound Road
Warren, Michigan  48090-9015

Dear Mr. Chut

     This is in response to your letter of December 19, 1986,
concerning the used oil notification requirements of
40 CFR Part 266, Subpart E.  You are correct in pointing out
that the regulations themselves do not require burners of
specification used oil fuel to notify EPA.  This is, however,
the result of a drafting oversight.  Question VI.7. on the
notification form (EPA Form 8700-12) is meant to apply to all
persons who first claim that their used oil fuel meets the
specification, including generators who bura their own used
oil on-site.  See the preamble of the November 29, 1985,
Federal Register  (50 FR 49195), which states:

          The following persons must notify either EPA •
          or an authorized state to identify their
          waste-as-fuel activities ... (3) marketers
          (or burners) who first claim used oil fueT
          meets the specification and so is exempt
          from subsequent regulation.[Emphasis added.]

     We recognize that the rules themselves should be clarified
on this point.  In the future, we will be issuing a correction
notice in the Federal Register to clarify this and certain other
ambiguities in the rules issued on November 29, 1985.

     Finally, the last point you raised was that EPA Form 8700-12
is not appropriate for used oil because it is not necessarily a
hazardous waste.  EPA never limited the notification requirement
to used oil that  is hazardous waste, so the requirement does
apply.  If you wish, however, you may notify EPA on the enclosed
form that we have recentlv developed for used oil handlers.   (It
nakes no Million of "hazardous waste.")  Either th« •nclosvd
fora, EPA For* 8700-12, or a letter with all required  informa-
tion would b« equally acceptable ways for you to notify.

                                        Sincerely,
                                        Hard a E. Williams
                                        Director
                                        Office of Solid Waste
Enclosure

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                                                              9495.1987(04)
          UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                      WASHINGTON. D.C. 20460
 MAR  61987                                           OFF.CEOF
                                             SOLID WASTE AND EMEBGENCr BESPONSE

MEMORANDUM
SUBJECT:  Hazardous Waste Statues of Automotive Fluids
                          /^~\ \ '••
FROM:     Marcia E. Williams"/
          Director, OSW     /

                           /
TO:       Michael J. Sanderson
          Chief, RCRA Branch
          EPA Region VII

     This is to provide guidance on the questions raised in your
February 19, 1987 memo.  First, no automotive fluids have been
listed as hazardous under Subtitle C of RCRA; therefore, the
question of whether these fluids are subject to the hazardous waste
regulations depends on whether the fluid in question exhibits one
or more of the RCRA hazardous waste characteristics.  Although
we do not have studies in this area, we have been informed that
some brake fluids and automatic transmission fluids are ignitable
under 40 CFR §261.21.  Used crankcase oils may also be ignitable
(because small amounts of gasoline are added during or after use),
and may exhibit E.P. toxicity for lead.

     However, for those automotive fluids that are used oils and
are recycled, the hazardous waste regulations would not currently
apply, even if the fluid exhibits a characteristic; rather all
used oils that are recycled are subject to 40 CFR Part 266, Subpart E
(See 40 CFR §261.6 (a) (2) (iii) . )  Currently, Part 266, Subpart E
only regulates the recycling of used oil as fuel.  All other recyc-
ling methods are exempt from regulation.  Those automotive fluids
that are either not a used oil, or are used oil that is disposed
of, are subject to the hazardous waste regulations if they exhibit
one or more of the characteristics.  Currently, we define "used oil
in §266. 40 (b) very broadly.  Brake fluid, power steering fluid,
and automatic transmission fluid would all be considered used oils.
On the other hand, antifreeze and windshield washer fluid, because
they are not "oils" as the term is commonly used, would not be
used oils.
                                                                   "

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                               -2-
     As a practical matter, our understanding is that brake,
steering, and transmission fluids are typically mixed with crank-
case oils and recycled.  Therefore, the hazardous waste characteris-
tics are not relevant and Part 266, Subpart E applies if the oils
are recycled as fuel.  Used anti-freeze is not a used oil and is
not likely to exhibit any of the hazardous waste charateristics;
consequently, it may be disposed of as a solid waste in Subtitle D
facilities.  Similarly, windshield washer fluid is not used oil,
and is not likely to exhibit a characteristic; thus, it may also
be disposed of as solid waste.

     Please feel free to call Mr. Mike Petruska at 8-382-7737 if
you have and further questions.

cc: Regional Branch Chiefs (EPA Regions I-IV and VII-X)

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             UNITED   TES ENVIRONMENTAL PROTECTION y  NCY        9495.1987(05)
 MAR  2 6 1987


Mr. Joseph P. Chu
Assistant Director
Plant Environment
Environmental Activities Staff
General Motors Corporation
General Motors Technical Center
30400 Mound Road
Warren, Michigan  48090-9015

Dear Mr. Chu:

     Thank you for your response to our January 20, 1987, letter
with regard to the notification requirement for specification
used oil burners (40 CFR Part 266, Subpart E).  Your most recent
letter of February 12, 1987, has prompted us  to reconsider our
position and the regulatory notification requirement.

     You had previously written us on December 19, 1986, in
reference to the above subject.  Our response at that time
emphasized the November 29, 1985, Federal Register preamble
(50 PR 49195).  The preamble stated that burners who first
claimed that used oil fuel meets the specification which allows
it to be exempt from regulation must provide  EPA a one-time
notification of their UM of such oil.  However, burners who
receive used oil from a marketer who claims the oil meets the
specification (and who has notified EPA as marketers), are not
subject to the notification requirement.

     In your particular situation, your facilities generate and
burn on-site their own used oil that they claim meets the speci-
fication.  Sine* no marketer is involved, and your facilities
burn used oil directly, the preamble identified a requirement
for you to provide notification.  In our previous letter to
you, we advised that you should provide notification, and that
a technical corrections notice to this regulation was being
prepared to clarify this and other issues raised since the
November 29, 1985, Federal Register publication.

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     You correctly noted, in your most recent letter, that our
January 26, 1987, Federal Register notice (52 FR 2695, 2698)
provided comments referencing the 11/29/85 Federal Register,
which exempted burners of specification used oil from the notifi-
cation requirements.  This  exemption was provided in the context
that the marketer who distributed the used oil (to the burner)
had already first claimed (via the required notification for
marketers) that their used  oil met the burning specification.

     We recognize that you  have raised a valid concern with
respect to on-site specification used oil generators who are also
burners.  This circumstance was not specifically addressed in the
original regulations.  Upon further evaluation* we now want to
clarify that the notification requirement is not appropriate for
generators who burn their own specification ueed oil on-site.
The only intent of the (burner) notification requirement is
to allow blenders who receive off-specification ueed oil from
marketers to provide notice that they only burn on-specification
used oil.

     The previously mentioned technical correction notice, to
be published soon in the Federal Register (hopefully, mid-April);
will clarify this natter.   We thank you for bringing this circum-
stance to our attention.  Tho Agency supports the use of specifica-
tion used oil for burning as if it were virgin oil.  Thus, we will
not require notification from generators who burn specification
used oil on-site.

                                       Sincerely,
                                       Marcia E. Williams
                                       Director
                                       Office of Solid Waste

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             UNITED STATES tHV\fiOH**Off L PROfflTlON AGENf*       9495.1987(06)
                                     APR 17 1967

Mr. R. F. Gebhardt, Manager
Environmental and Manufacture
  Services
Lehiqh Portland Cement Company
71d Hamilton Mall
Allentown, PA  18105-1882


Dear Mr. Gebhardt:

     Thank you for your March 30, 1987, letter regarding used oil
recycling.  In your letter, you implied that, on November 18, 1986,
the Environmental Protection Agency (EPA)  announced that it would
not issue regulations for used oil destined for recycling and stated
tnat such a decision was a poor one.  Let me assure you that this
is not the case.

     EPA's November 18, 1986, decision (51 FR 41900) was that
recycled oil would not be listed as a hazardous waste.  It did not
constitute a decision that used oil would not be regulated.  Rather,
as explained in that notice, CPA under authority of Section 3014 of
the Resource Conservation and Recovery Act (RCRA) will issue recycled
used oil management standards and combustion controls.  The schedule
for these activities was included in the Federal Register notice
(enclosed).

     In our strategy to control used oil (Section V, 51 FR 41900),
EPA recognizes as you have expressed in your letter that "improper
recycling of used oil can pose substantial environmental hazard."
However, we believe it is necessary to conduct additional studies
before issuing the recycled oil management and burning standards.
We must ensure that the standards do not have the unintended effect
of causing Improper disposal of used oil to increase, tnus negating
the positive benefits of the standards.

     Please note that the Agency is currently regulating used oil
recycling and disposal under certain conditions.  For instance, used
oil recycling becomes subject to regulation when used oil  is mixed
with hazardous wast* or PCBs.  Such mixtures must be managed
according to regulations tor hazardous waste and/or PCB-containing
substances.  Additionally, EPA regulations (50 FR 49064, November  29
1985) require restricted burning environments (Industrial  boilers
and burners 1 fnr nf f-«n«r \ f < f»f i on n«art r>i 1	

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     Thank you very much for your interest in the used oil
regulations.  If you have any questions regarding our progress,
please contact Robert Dellinger of my staff at (202) 382-
7917, who will be happy to discuss this matter more fully.
We are working very hard at developing regulations that
protect human health and the environment while encouraging
the recycling of used oil.  As explained above, both recycled
used oil and used oil bound for disposal will be addressed in
future rulemaking activities.

                              Sincerely,
                              J. Winston Porter
                              Assistant Administrator

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                                                          9495.1988(02)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460


                             SEP 2 2 1988
                                                           OF
                                             SOLID WASTE AND EMERGENCY RESPONSE

Kathleen M. Blair, Director
Consumer Information Center
2402 Daniels Street
Madison, Wisconsin  53704

Dear Ms. Blair:

    Thank you for your August 23, 1988, letter inviting the
Environmental Protection Agency  (EPA) to review  "Specification
No. PFS-983 Test, Inspection and Certification Criteria for
Atomizer Multi-Oil Fueled Heaters."

    In 1985, EPA issued a final rule that established a
specification for used oil fuel.  Used oil that meets this fuel
specification can be burned for energy recovery without EPA
restrictions, in any device.  This rule restricted the burning of
"off-spec" used oil fuel to certain devices (see 40 CFR
$266.4Kb)).  One of these devices is a space heater (1) that
burns only used oil that the owner or operator generates or used
oil received from do-it-yourself oil changers who generate used
oil as household waste; (2) that is designed to have a maximum
capacity of 0.5 million BTUs per hour; and (3) that vents
combustion gases to the outdoor air.

    Although EPA has not developed more specific standards for
space heaters, we are concerned about the risks posed by
improperly maintained or operated space heaters  (and other
devices burning off-spec used oil fuel).  We also recognize that
certain types of space heaters may pose greater  risks than
others.  This final rule was intended to address the greatest
risks posed by uncontrolled burning of used oil  fuel.

    We plan to develop technical standards for burners  of
off-spec used oil fuel sometime  in the future.   At that time, we
will further evaluate regulatory options to address  risks  posed
by space heaters.  When we do propose a rulemaking on this
subject, it will appear in the Federal Register  and  will allow
for public comment.

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                                -2-
    with regard to your suggested technical specifications for
used oil-fired,"automation type, space heaters, we prefer not to
comment on the document for two reasons:  (1) we do not have the
resources to comment on documents prepared by independent firms,
and (2) we do not wish to imply any endorsement of one type of
space heater (i.e., atomization type) over another.

    If you have any questions, or would like to discuss the used
oil regulations in more detail, please contact David Tomten of my
staff at (202) 382-2550.

                                Sincerely,



                                •Jj Winston Porter
                                Assistant Administrator

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                                                            9495.1989(01)
                               MAT 15 1989
MEMORANDUM
SUBJECT: Interpretation of Subpart E — Used Oil
         Burned for Energy Recovery (S266.40(c))

FROM:    Sylvia K. Lowrance
         Director
         Office of Solid Waste (OS-300)

TO:      Lloyd Guerci, Acting Director
         Hazardous Waste Management Division
         Region 8


    This is in response to Robert Duprey's April 12, 1989,
memorandum requesting an interpretation of rules pertaining to
used oil that is to be burned for energy recovery and the
application of the Agency's enforcement mechanism — the
rebuttable presumption — to determine when mixing with hazardous
waste has occurred.  Your memorandum discusses the practice by
coal companies in Region 8 of spraying coal with used oil to
suppress coal dust and to increase BTU value.  The coal is then
marketed to a burner by the coal company or through another
marketer.

    You asked whether- any person other than the generator of the
used oil is eligible to rebut the presumption that the oil was
mixed with hazardous waste when the used oil contains in excess
of 1000 ppm total halogens.  The rebuttal test is not limited to
the generator;of tile used oil.  Any person in possession of used
oil contatiBpIr •ore- than 1000 ppm total halogens must be able to
provide doqBMBtation to support a rebuttal if the oil is not
managed as^HBardous waste.

    You also asked if the rebuttable presumption was applicable
in the situation you described since the used oil was being
applied to the coal and was not itself being marketed directly as
a fuel.  The used oil fuel and hazardous waste fuel regulations
apply to used oil and hazardous waste that is burned in boilers
or industrial furnaces.  The regulations apply irrespective of

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                               - 2 -


whether the used oil or hazardous waste is mixed with other fuels
or waste before use as a fuel.  If used oil containing more than
1000 ppm total halogens is mixed with coal and the presumption of
mixing with hazardous waste cannot be rebutted, then the
coal/used oil mixture is hazardous waste fuel and is subject to
the hazardous waste fuel regulations under 40 CFR Part 266,
Subpart D.

    Finally, you mentioned in your memorandum that RCRA Hotline
personnel told you that if the used oil is sufficiently diluted
after it is sprayed on the coal, such that a representative
sample would test under the 1000 ppm halogens level, the
"oil-treated coal" could then be burned in any industrial boiler
or furnace.  This answer is partly correct — the oil-treated
coal may be burned in an industrial (or utility) boiler or an
industrial furnace.  However, the oil-treated coal would be
subject to regulation as hazardous waste fuel even if the mixture
contains less than 1000 ppm total halogens.  This is because the
1000 ppm halogen test for used oil identifies used oil that is
presumed to be mixed with spent halogenated solvents listed as
hazardous waste numbers F001 and F002.  Thus, used oil containing
more than 1000 ppm halogens is subject to regulation under the
mixture rule as those listed spent solvents.  When this used oil
is mixed with coal, the mixture also is subject to regulation as
those listed solvents.

    The mixtures, like any hazardous waste, may be burned in
industrial or utility boilers and industrial furnaces under the
regulations in Subpart 0 of 40 CFR Part 266 (e.g., transportation
and storage is fully regulated, and standards for burners are
under development).  Part of the logic for this position is that
the 1000 ppm halogen limit is not a health-based concentration
"characteristic."  Rather, it is based on data that indicated
that used oil was mixed with significant levels of halogenated
solvents when halogen levels exceeded 1000 ppm.  Thus, used oil
with more than 1000 ppm halogens cannot be diluted by mixing with
other materials to make the mixture nonhazardous.  Used oil with
more than 1000 ppm halogens is subject to regulation like any
other listed hazardous waste.

    If you have any further questions on this issue, you may call
Angela Wilkes (382-7934) of my staff.

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                                                      9495.1989(02)
              UNfTEETSTATES'EHVnnWfEfraL' PROfTCCTTONAGEKer
                                OCT  | 7 B99
    Mr. James A. Stevens
    1016 Brook Street
    Kingsport, Tennessee   37660

    Dear Mr. Stevens:

         Thank you  for your  letter from August 1989 concerning used
    or waste oil.

         The Environmental Protection Agency (EPA) does not require a
    burner of used  oil to  oJDtain a permit for this activity.  There
    are, however, some restrictions regarding the burning of used
    oil.

         The federal regulations, specifically 40 CFR Part 266,
    Subpart E, state that  off-specification used oil may be burned in
    industrial furnaces and  boilers, including used oil-fired space
    heaters.  If off-specification used oil is burned in space
    heaters, however, it must be from household do-it-yourself oil
    changers or be  generated by the burner of used oil itself.  Also,
    the space heater must  be designated to have a maximum capacity of
    0.5 million BTU per hour or less and the gases/emissions
    generated must  be vented to the outside air.  If an individual
    has a supply of on-specification used oil, there are no
    restrictions on the type of unit in which it is burned.  However,
    the burner of on-specification used oil must analyze or use other
    information to  show that the oil meets the specifications, and
    must comply with recordJceeping requirements.

         The definitions of  on-specification used oil and off-
    specification used oil are found in 40 CFR Section 266.40(e).
    Both "en-specification"  and "off-specification" used oils can be
    burned in space heaters; however, you must follow the
    requirements for the design of the space heater when burning
    "off-specification" used oil.

         For more information on federal regulations concerning used
    oil (under RCRA, the Resource Conservation and Recovery Act) you
    may contact the RCRA/Superfund Hotline at 1-800-424-9346.
                              COMCOMtMCM
kJ   -   .,!.__--•

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                      HOTLINE QUESTIONS AND ANSWERS
                                       May 1 994
                         9495.1994(01)
                 RCRA
1.  Energy Recovery On-Site Constitutes
    Reuse for the Generator Processing
    Exemption

    A facility generates off-specification used
oil that the used oil generator wants to burn
on-site for energy recovery. The used oil
generator filters the off-specification used oil
in order to remove impurities. After filtering
the  used oil, the generator burns it in an on-
site industrial furnace.  Does the filtering
activity meet the definition of processing in
§279.1 and, therefore, subject the generator to
ihe  used oil processor standards in 40 CFR
Pari279,SubpanF?

    While filtering can meet the definition of
processing, used oil generators may filter,
clean, or otherwise recondition their own used
oil on-site for reuse on-site without meeting
the  processor requirements (59 FR 10560;
Starch 4, 1994; §279.20(b)(2)(ii)(A)). The
Agency believes that on-site energy recovery
constitutes reuse for purposes of this provision.
If, on the other hand, the generator filters the
used oil for subsequent burning off-site, the
generator would be subject to the processor
requirements in Pan 279, Subpan F.

    Under the generator processing exemptions
in §279.20(b), EPA allows on-site but not off-
site burning of used oil  generated from on-site
activities. This approach best enables the
Agency to encourage beneficial on-site reuse
and recycling activities that pose limited risks.
At the same nme, the Agency ensures that
activities undertaken primarily to make used
oil amenable for shipment to an off-site
burner are regulated under the more stringent
processor standards (59 FR  10556; March 4,
1994).

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This Page Intentionally Left Blank

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DIVIDER PAGE

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9496 — RECYCLABLE
MATERIALS USED FOR
PRECIOUS METAL
RECOVERY	
Part 266 Subpart F
                A.T. Kearney 1/3590/5 cr

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9497 - SPENT
LEAD-ACID
BATTERIES BEING
RECLAIMED
Part 266 Subpart G
                  ATKl/l 104/51 kp

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                     WASHINGTON, D.C. 204*0
                            FE3  6 1986
                                                     OFFICE OF
                                            SOLID WATT! AND EMERGENCY RESPONSE
Mr. Michael  L.  Sappington
Lake Engineering  and  Development, Inc.
6000 Lake  Forrest Drive
Suite  350
Atlanta, Georgia   30328

Dear Mr. Sappington:

     The Administrator has  asked that I respond to your letter
dated  January 3,  1986, regarding your concern with the Agency's
recycle/reuse regulations and  its impact on the recycling of
spent  lead-acid batteries.   You state in your letter that
the Agency's January  4,  1985,  recycling rules will make it
very difficult  to legally reclaim these batteries.  Part of
your concern is the unavailability of environmental impairment
liability  insurance.  The end  result, you believe, will be
the disposal of 50 million  gallons of highly corrosive, acid
and 1.3 billion pounds of lead.  Thus, you are requesting
that EPA reconsider its  position (i.e., whether to regulate
the battery components generated from breaking and separation
operations) and will  be  submitting a petition to address
this matter.

     We are very  sympathetic to your problem.  We agree with
you that secondary lead  smelters do provide a valuable
environmental service.   However, the Agency's recycle/reuse
rules were promulgated to ensure that any storage (or
transportation) of the battery components is conducted in an
environmentally sound manner.  As you state in you letter,
the management  of these  materials has created problems in
the past.  Thus,  all  we  wish is to ensure that the management
of these materials (in the  future) will be conducted in a
proper manner.  Therefore,  it  will be important that your
petition address  all  the criteria in S260.31(c) as completely
as possible? in particular,  it will be necessary for you to
address the manner that  these  battery components are handled
(in order  to minimise loss  of  the toxic contaminants) since
this has been a particular  concern of several of our Regional
offices.   To this end, I plan  to circulate your petition to
our Regions for their comment.  We look forward to receiving
your petition.

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     EPA recognizes that, during the past year, the insurance
industry has substantially curtailed the writing of new
environmental liability policies.  The Agency worked with
the House of Representatives, at their request, on H.R.
3917.  This Bill provided some relief for land disposal
facilities subject to the Resource Conservation and Recovery
Act (RCRA) from the requirement to certify compliance with
liability requirements by November 8, 1985, if the facility
was in compliance with ground water monitoring requirements
and had submitted a Part B permit application by that date.
The Agency worked with the Senate staff on their review of
the H.R. 3917 but the Senate has not yet taken any action on
that or any other similar legislation.

     with regard to your concern of the unavailability of
liability insurance, I have enclosed a list of insurance
companies who may be willing to write environmental impairment
liability insurance.  The Agency contacted all insurance
companies known to have been involved in this market.  The
list includes those who were willing to be on a list of
potential suppliers of environmental impairment liability
coverage.

     Please feel free to write me if you have any further
questions.

                                  Sincerely,
                                  J. Winston Porter
                                  Assistant Administrator

Enclosure

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                                                               9497.1986(01a)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                                MAY 86
5. Hazardous Waste Export Rule

   A generator of spent lead-acid batteries will send  the  batteries to
   Taiwan for reclamation.  The batteries exhibit the  characteristic oE
   EP toxi.city, as defined in §261.24 for lead contamination.  What
   RCRA regulations pertaining to export notification  and/or record-
   keeping is the generator subject to currently?  Wiat  regulations
   would the generator be subject to under the hazardous waste export
   regulations as proposed in the March 13, 1986 Federal Register
   (51 FR 8744)?

        Section 266.80 of the current RCRA regulations (applicable to
        reclaimed spent lead-acid batteries) states that "[plersons who
        generate, transport, or collect spent batteries...but do not
        reclaim them are not subject to regulation under Parts 262
        through 266..."  "Report notification reguirements  are presently
        found in §262.50 and generator recordkeeping requirements are
        in S262.40.  Since this generator is exempt form Part 262, he
        is then not subject to the export notification or  recordkeeping
        requirements.

        The hazardous waste export regulations, as proposed, would
        not alter the current exemption in S266.80. However, EPA
        anticipates making a final regulatory determination on this
        issue and all other hazardous waste export regulations in late
        July 1986.

        Source:    Carolyn Barley  (202) 382-2217
                   Wsndy Grieder   (202) 382-4888
        Research:  Margaret Kneller

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         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                     WASHINGTON. O.C. 20460
                                                           3497.
                             JUL
1986
                                                     OFFICE OF
                                            SOLID WASTE AND EMERGENCY RESPONSE
Honorable David O'B. Martin
House of Representatives
Washington, D.C.  20515

Dear Mr. Martin:

     Thank you for your June 16, 1986, letter on behalf of
your constituent, Mr. Roland A. Clement.  Mr. Clement  expressed
concern about the disposal of lead-acid batteries.

     The Environmental Protection Agency (EPA) shares
Mr. Clement's concerns regarding the  improper disposal of
spent lead-acid batteries.  These batteries are a hazardous
waste, therefore, their disposal is controlled under Federal
law.  The only exception to this is the direct disposal of
batteries by an individual consumer.  Federal law specifically
exempts such household waste from hazardous waste regulations.

     The Agency does regulate the storage of batteries prior
to being reclaimed, i.e.,  battery crackers, smelting  and/or
refining operators.  However, the Agency does not regulate
the storage, generation or transportation of recycled  batteries
by any other persons.  We have adopted this regulatory
approach in order to provide a balance between protecting
human health and the environment and  encouraging the recycling
of these batteries.

     The EPA has not imposed a reguirement that recycled or
used batteries be collected at established points and  a fee
paid for their management*  If this reauirement has been
imposed, it is either a State or local rule and you, therefore,
should contact the State Department of Environmental Conser-
vation  (DEC) for details on this particular requirement.

    We have developed a regulatory program to encourage the
recycling of lead-acid batteries by generators.  Please feel
free to write me if I can be of any further assistance.

                              Sincerely,

                                 /•/ Jack W. Mo6r«>i

                                 Winston Porter
                               Assistant Administrator

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           UNITED STATES ENVIRONMENTAL PROTECTION
                                                         9497.1987(01)
                            12 1967
Honorable Jesse Helms
United States Senate
Washington, D.C.   20510

Dear Senator Helms:

     Thank you for your  January 13,  1987,  letter  regarding
Mr. W. R. Helms' concern about  the regulations the  Environmental
Protection Agency  (EPA)  has  issued regarding  the  reprocessing
of batteries and the transportation and  the export  of  these
batteries.

     I want to assure  you  that  EPA carefully  considered  its
approach before regulating industries such as spent batteries
recycling.  We are convinced that regulation  of these  recycled
materials is necessary to  adequately protect  human  health
and the environment.   Waste  destined for recycling  can present
the same potential for harm  as  wastes destined for  treatment
"and disposal; that is, the risks associated with  transporting
and storing wastes is  unlikely  to vary depending  on whether
they are ultimately recycled, treated, or disposed. In  the
past, facilities'  recycled hazardous wastes have  caused
serious health and environmental problems. In fact, recycling
operations, including  a  number  of battery reclaimers,  account
for some of the most serious environmental damage incidents.

     The Agency has developed special standards for spent
lead acid batteries that are reclaimed to minimize  the regu-
lations' ispact.   In particular, only the person  who reclaims
the battery is subject to  regulation and only the storage
activity prior to  recycling  is  regulated. Therefore,  even
though we regulate these materials, we have designed our regu-
lations to have the least  adverse impact on the regulated
community while still  meeting our statutory mandate of pro-
tecting human health and the environment.

     EPA also has  recently promulgated regulations  for the
export of hazardous waste.  (See enclosed August  8, 1986,
PR.)  These regulations  were required by Section  3017  of

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That provision mandated that EPA finalize regulations prohi-
biting hazardous waste exports,  unlessi  (1) the person exporting
the waste has provided notification to the Administrator of
EPA; (2) the government of the receiving country has consented
to accept the waste; (3) a copy of the receiving country's
written consent is attached to the manifest which accompanies
the waste shipment; and (4) the shipment conforms to the
terms of the foreign country's consent.

     In developing the export rules, EPA determined that a
hazardous waste which poses risks domestically would pose
equivalent threats in international shipments (this includes
spent lead acid batteries).

     Although EPA recommends that exporters notify the Agency
at least 60 days in advance of an intended shipment, we
anticipate that the processing of notifications and written
consents can be accomplished in less time.  Iftua, we expect
that exporters will not typically be subject to the require-
ments under 40 CFR Part 262 which require generators who
store for more than 90 days on-site to obtain a storage
permit.

     If I can be of any further assistance, please let me
know.

                              Sincerely,
                             /J. Winston Porter
                              Assistant Administrator
Enclosure

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           UNITED STATES ENVIRONMENTAL PRO I tCTION AGENCY
                                                       9497.1987(02)

                                  '91987
Honorable Ron Marlenee
House of Representatives
Washington, D.C.  20515

Dear Mr. Marlenee:

     Thank you for your January 23, 1987, letter regarding
the regulations the Environmental Protection Agency (EPA)
has issued regarding the reprocessing of batteries.

     I want to assure you that EPA carefully considered its
approach before regulating industries such as spent batteries
recycling.  We are convinced that regulation of these recycled
materials is necessary to adequately protect human health
and the environment.  Waste destined for recycling can present
the sane potential for harm as wastes destined for treatment
and disposal; that is, the risks associated with transporting
and storing wastes is unlikely to vary depending on whether
they are ultimately recycled, treated, or disposed.  In the
past, facilities' recycled hazardous wastes have caused
serious health and environmental problems.  In fact, recycling
operations, including a number of battery reclaimers, account
for some of the most serious environmental damage incidents.

     The Agency has developed special standards for spent
lead acid batteries that are reclaimed to minimi re the regu-
lations' impact.  In particular, only the person who reclaims
the battery is subject to regulation and only the storage
activity prior to recycling is regulated.  Therefore, even
though we- regulate these materials, we have designed our regu-
lations to have the least adverse impact on the regulated
community while still meeting our statutory mandate of pro-
tecting human health and the environment.

     As is also correctly noted in your consitituent's letter,
EPA also has recently promulgated regulations for the export
of hazardous waste.  (See enclosed August 8, 1986, PR.)
These regulations were required by Section 3017 of the

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provision mandated that EPA finalize regulations prohibiting
hazardous waste exports, unlessi (1) the person exporting
the waste has provided notification to the Administrator of
EPA; (2) the government of the receiving country has consented
to accept the waste; (3) a copy of the receiving country's
written consent is attached to the manifest which accompanies
the waste shipment; and (4) the shipment conforms to the
terras of the foreign country's consent.

     In developing the export rules, EPA determined that a
hazardous waste which poses risks domestically would pose
equivalent threats in international shipments (this includes
spent lead acid batteries).

     If I can be of any further assistance, please let me
know.

                              Sincerely,
                              J. Winston Porter
                              Assistant Administrator
Enclosure

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            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


                                                     9497.1987(03)


                           APR  I 7 ;o
Honorable Joseph M. Gaydo*
House of Representatives
Washington, D.C.  20515

Dear Mr. Gaydosi

     Thank you for your March 17, 1987, letter  regarding
your constituent's, Mr. George W. Burrows, concerns about
the reprocessing of batteries.

     First, I want you to know that the Environmental Protec-
tion Agency (EPA) agrees with you that the iaproper management
of spent lead-acid batteries can present a hazard.  Thus, as
part of its hazardous waste regulation, the Agency regulates
the Materials when disposed of and when sent  for  recycling.
In particular, we agree that regulation of these  recycled
materials is necessary to adequately protect  human health
and the environaent.  Waste destined for recycling can present
the sane potential for harm as wastes destined  for treatment
and disposal; that is, the risks associated with  transporting
and storing wastes is unlikely to vary depending  on whether
they are ultimately recycled, treated, or disposed.  In the
past, facilities recycling hazardous wastes have  caused
serious health and environmental problems.  In  fact, recycling
operations, including a number of battery reclaimers, account
for some of the most serious environmental damage incidents.

     Because of this potential hazard, the Agency has developed-
special standards for spent lead acid batteries that are
reclaimed  In particular* the person who reclaims the battery
is subject to regulation and the storage activity prior to
recycling is regulated*  In addition, any spent lead-acid
batteries that are disposed of are subject to the general
hazardous waste rules*  Thus, we believe we have  rules  in place
that meet our statutory mandate of protecting human health
and the environment.

-------
     With respect  to your constituent's suggestion regarding
imposing a tax on  new batteries, EPA does not have the authority
to iapose such a tax.  Therefore, we are not able to consider
this approach.  I  can be of any further assistance, please
let ae know.
                              Sincerely,
                           1*1
J. Winston Porter
Assistant Administrator
Enclosure

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                                           9497.1989(01)
             RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY

                              JANUARY 8?
1.   Spent Lead Acid Batteries

    The  owner/operator of a facility that collects spent lead acid
    batteries drains the acid and then manifests the acid off-site for
    reclamation.  The battery shell, which still contains the lead
    plates,  is sent to a facility that extracts the lead for smelting.
    Should these battery shells when sent off-site, be managed as EP
    Toxic hazardous waste or as spent Lead acid batteries subject to
    Subpart  G of 40 CFR §266?

        First, the material is classified as a solid waste after the
        acid is drained.  Second, either a  "spent lead acid battery" or
        a battery shell must exhibit a characteristic of hazardous
        waste to be a hazardous waste in the Subtitle C system.  Assuming
        the battery case exhibits a characteristic, then the owner/operator
        of  the facility would be regulated  as a hazardous waste generator
        because he generates spent acid which exhibits the characteristics
        of  corrosivity.  The act of draining the batteries, however, is
        not considered part of the reclamation process.  Therefore, the
        owner/operator would not be subject to the requirements of
        §266.80(b), for example, notification, contingency planning,
        closure, and all other applicable provisions 40 CFR Part 264.

        However, the facility that cracks the battery to remove the lead
        plates will be subject to these provisions of 40 CFR 266.80(b).

        Source:   Matt Straus   (202) 475-8551
        Research: Robyn Neaville (202) 382-3112

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                                                      9497.1989(02)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
              0
E  L  Williams  JT*                                    o^f ICE of
                            .                 SOLID WASTE AMD EVE«GE\Cv P6SPONSE
Director of Environmental Protection
Defense Logistics Agency
Defense Reutilization and Marketing Service
Federal Center
74 N. Washington
Battle Creek, Michigan  49107-3092

Dear Colonel Williams:

    This letter responds to your September 19, 1989 request for
information regarding the regulatory status of spent lead-acid
batteries stored by the Defense Reutilization and Marketing
service (DRMS) before reclamation and the applicability of the
speculative accumulation provision found at 40 CFR 261.2(c)(4).

    The speculative accumulation provision (the requirement to
recycle 75% of a material within one calendar year to demonstrate
that the material is not a solid waste) is entirely separate and
distinct from the regulations applicable to spent lead-acid
batteries.  The speculative accumulation provision is used to
define a material as a solid waste.  Because the only use for this
provision is to Irring under regulation as a solid waste those
materials which ire intended to be recycled in one year, but are
not, the speculative accumulation provision is not applicable to
those materials already defined as solid wastes (e.g. , spent
lead-acid batteries) .  This is evident in the definition of
"accumulated speculatively" at 40 CFR 261.1(c)(8) which states
that •*. . . (Materials that are already defined as solid wastes
also are not tc be included in making the calculation.)"

    Under Federal regulations, the lead-acid batteries that DRMS
collects and stores are spent materials that are reclaimed.  As
provided in Table 1 at 40 CFR 261. 2 (c) , spent materials that are
reclaimed are solid wastes.  Assuming lead-acid batteries likely
exhibit one or more characteristics of a hazardous waste, they are
defined as hazardous wastes pursuant to 40 CFR 261.3 (a) (2) (i) .
However, certain recyclable materials are regulated under special
provisions.  In the case of recycled spent lead-acid batteries,
the appropriate regulatory section is 40 CFR Part 266 Subpart G.

    Part 266 Subpart G states that "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 Part 270 or 124 of this chapter,
and also are not subject to the requirements of section 3010 of
RCRA."  Therefore, DRMS is not subject to regulation under RCRA
for the storage of spent lead-acid batteries.  (The spent
batteries remain a solid waste and, if they exhibit a
                                                          Pruutd an Rtcycltd Paper

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                               - 2 -


characteristic,  a hazardous waste; however,  if they are reclaimed,
they are exempted from substantive regulation under RCRA).

    You should note that state regulations may differ from, and,
in fact, be more stringent than, Federal regulations.  Therefore,
you should also contact the appropriate State regulatory agencies
to determine what State regulations may be applicable.

    Thank you for your interest concerning the recycling of
lead-acid batteries.   If you have further questions regarding the
applicability of Federal regulations,  you, or your staff, should
call the RCRA/CERCLA Hotline at 1-800-424-9346, or contact Mitch
Kidwell, of my staff,  at (202)  475-8551.

                                    ice
                                  Edwin F.  Abrams
                                  Chief
                                  Review Section

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       ~        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, 0 <~ 20460
                                                   9497.1989(03)


                             ::3V.4-T-1S£;
Jean M. Beaudoin,  Chairperson
BCI Environmental  Committee
Fox, Weinberg  and  Bennett
750 17th Street, Northwest
Washington, D.C.   20006

Dear Ms. Beaudoin:

    Thank you  for  your October  24,  1989,  letter concerning the
impact of the  Land Disposal Restrictions  (LDR) on the recycling of
lead-acid batteries.  The Agency  encourages the recycling of solid
waste and believes it is important  for preserving resources and can
prevent environmental degradation.  Thus, we strongly support the
reclamation of lead-acid batteries.

    Restricted wastes may be stored on the land in tanks or
containers (i.e.,  land disposed)  without  meeting treatment
standards, provided  it is done  solely with the intent of
accumulating such  quantities of hazardous waste as necessary to
facilitate proper  recovery, treatment or  disposal.  In addition,
this storage must  comply with all other applicable storage
standards such as  those relating  to secure storage, secondary
containment in some  instances,  and  other  requirements.  (See
40 CFR 268.50.)

    The Agency has indicated in a previous rulemaking that the
shell surrounding  a  lead-acid battery is  considered to be a
container (see 47  FR 12318, March 22, 1982; see also 40 CFR
264.314 (d)(3)).   Thus, to the  extent that lead-acid battery
storage meets  all  the conditions  set forth in the LDR storage
prohibitions at 40 CFR 268.50,  such storage is permissible.

    We are including your letter  in the Third Third Rule Docket anc
will specifically  address any issues it raises in our Response  to
Comments Background  Document.
                                Sincerely
                                Sylvia Lowrance
                                Director
                                Office of  Solid Waste

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                                                     9495.1990(01)
USR
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
           WASHINGTON. D.C. 20460

              JUN  I 3 I99C
                                                           E OF
                                              SOLID WASTE AND EMERGENCY RESPONSE
  Ms. Kristina Richards
  Senior Engineer
  Applied Environmental Technologies Corporation
  7 Belver Avenue, Suite 210
  North Kingstown, Rhode Island 02852

  Dear Ms. Richards:

       This is in response to your letter of March 22, 1990, in
  which you asked several questions concerning the management of
  used oil and the identification of listed hazardous wastes.

  1)    Question on 40 CFR 266 Subpart E:  Does this subpart apply
  to all used oils, or does it apply only to used oils which
  exhibit characteristics of a hazardous waste?  The definition in
  40 CFR 266.40(b) implies that the regulation applies to all used
  oils.  However, one arrives at 40 CFR 266.40 because it is
  referenced by 40 CFR 261.6(a)(2)(iii).  40 CFR 261.6 covers the
  requirements for "recyclable materials," which are defined by EPA
  as hazardous wastes that are recycled.  Therefore, 40 CFR 261.6
  would not apply to nonhazardous used oils.  This implies  that
  40 CFR 266 Subpart E does not apply to nonhazardous used  oils.

       ANSWER:  40 CFR 266 Subpart E applies to all used oil, both
       hazardous and non-hazardous.  However, the level of
       regulation imposed under Subpart E can differ substantially.
       The used oil regulations may be clarified  in the following
       way:

       o    Used oil that meets the definition of 40 CFR 266.40(b)
            and is burned for energy recovery is  regulated under
            40 CFR 266, Subpart E.

       o    Used oil that exhibits a characteristic of hazardous
            waste and is burned for energy recovery is regulated
            under 40 CFR 266, Subpart E  (40 CFR 261.6(a)(2)(iii))
            rather than Subpart D, provided it is not mixed with
            listed hazardous waste.  Subpart E specifies two
            classes of used oil:

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               "On-specification" used oil is subject to minimal
               requirements.

               "Off-specification" used oil is fully regulated
               under Subpart E.

     o    Used oil that exhibits a characteristic of hazardous
          waste but is recycled in a manner other than being
          burned for energy recovery is not regulated under any
          provisions of 40 CFR Parts 262 - 266, 270, or 124
          (40 CFR 261.6(a)(3)(iii)).

     Please note that the definition of used oil in §266.40(b) is
a statutory definition — Section 1004(36) of the Resource
Conservation and Recovery Act  (RCRA).  Under the authority of
that section and Section 3014 of RCRA, Congress gave EPA special
authority to regulate used oil that is destined for recycling.
The requirement that EPA develop management standards for
recycled used oil is independent of a determination concerning
the identification or listing of used oil as a hazardous waste.
The used oil fuel standards under Subpart E were developed under
this authority.  Thus, any used oil that meets the definition of
§266.40(b) and is burned for energy recovery is regulated under
Subpart E.

2)  Question on 40 CFR 261.31:  With regard to the 10% rule for
F-listed solvents, what does "before use" mean?  Does "before
use" mean as purchased from a manufacturer, or as used by a
generator?  For example, if a generator purchased a product that
contained 15% toluene and 85% water, then the generator blended
the material with more water to prepare the material for use at
the generator's facility, so that the resulting material
contained 8% toluene and 92% water, how would the waste generated
from using this material (as a cleaning solvent) be identified?

     ANSWER;  With regard to listed F wastes, "before use" means
     before use at the facility, not when purchased.  Thus, in
     your example, the waste solvent generated would not meet the
     listing description.

3)  Question on 40 CFR 261.31;  As I understand the F003 listing,
the product, before use, must contain 100%  (or technical grade)
F003-listed solvent(s) in order for the waste generated  from
using the solvent to be identified as F003.

     In addition, mixtures containing F003-listed solvents and
10% or more of the solvents listed in F001, F002, F004,  and F005
are identified with the waste number F003 and the waste  number(s)
representing the other solvent(s) present.  In this case,
however, how much of the F003-listed solvent(s) must be  present
in the mixture for F003 to apply?

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     ANSWER:  You are correct in your first point that,  in order
     to meet the F003 listing description,  the product (before
     use) must contain only fi.e..  100%)  the solvents listed
     under F003 (according to the regulation).  with regard to
     your second question, the regulation states that the listing
     applies to "all spent solvent mixtures/blends containing,
     before use, one or more of the above non-halogenated
     solvents, and, a total of ten percent or more (by volume) of
     one or more of those solvents listed in F001, F002, F004,
     and F005."  Should the solvent meet the ten percent criteria
     of F001, F002, F004, and/or F005 solvent and contain F003,
     the regulation (or the preamble language of December 31,
     1985) contains no guidelines for the minimum amount of F003
     solvents needed to meet the listing description; therefore,
     any amount will do so.

4)    Question on 40 CFR 261.33;  There are references in the
comment at the end of 40 CFR 261.33(d)  to "commercially pure
grade and "technical grade."  How does EPA define these terms?

     ANSWER:  The Office of Solid Waste does not have a
     regulatory definition for the two terms in your question.
     However, please refer to the Federal Register preamble
     concerning the comment to §261.33(d) (45 FR 78529,
     November 25,  1980) for more details.  Potentially,
     "technical grade" or "commercially pure grade" can refer to
     any and all grades of purity of a chemical that are
     marketed, or that are recognized in general usage by the
     chemical industry.

5)    Question on 40 CFR 261.32;  Do K-listed waste numbers apply
only to wastes generated from facilities whose primary industries
are the industrial categories listed, or do they apply to wastes
generated from the manufacturing operations listed, regardless of
what the primary industrial category of the generator is?  I
understand that K062 only applies to industries within specified
SIC codes, but does this concept apply to all the other K-listed
wastes as well?

     ANSWER;  The EPA Hazardous Waste Numbers listed under
     40 CFR 261.32 are wastes from "specific sources," and the
     sources are specified in the listing description.  These may
     be the "manufacturing operations listed" to which your
     letter refers.  The primary SIC code for the facility does
     not limit the applicability of the hazardous waste listing
     description(s) to that (or any other) facility.  For
     example, production of various organic chemicals with
     different SIC codes may occur at large, complex  facilities.

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     Thank you for your inquiry.  If you need further assistance
please contact Ed Abrams, Chief, Listing Section at
(202)382-4770.

                                        Sincerely,
                                        Sylvia K. Lowrance
                                        Director
                                        Office of Solid Waste
cc:  Waste Management Division Directors, Regions I - X
     Susan Bromm, OWPE (OS-520)

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               RCRA/SUPERFUND HOTLINE SUMMARY             9495.1990(02)

                          AUGUST  1990
3.   Definition of a Used CXI Marketer

A used oil generator sends used oil to a corporation which blends it at one
site and then ships it off-site to another of its divisions, where it is burned
for  energy recovery pursuant to 40 CFR Part 266, Subpart E.  Who is  the
used oil marketer in this instance: the generator or the corporate division
which blended the oil and sent it off-site to be burned?

    40 CFR Section 266.43(a) defines the term "marketer" to include both
    "generators who  market used  oil fuel directly to a burner"  and
    "persons who receive used oil from generators and produce, process,
    or blend used oil fuel from these used oils (including persons sending
    blended or processed used oil to brokers or other intermediaries)."  In
    this instance, the generator is not marketing the  used oil directly to
    the burner, even  though the burning and blending are performed by
    the same company. As noted in the February 1985 Hotline Monthly
    Report Question,  one doesn't  have  to  sell the oil to a distinct
    corporate entity in order to qualify as a "marketer":  "(a)lthough  the
    term  marketer  implies commercial  activity,  the  regulations
    governing used oil fuel marketers were meant, in part, to regulate
    transportation of used oil fuel off-site." By sending the  used  oil off-
    site, the blender  in this instance qualifies as a marketer, despite  the
    fact that the burner and blender are different parts of the same
    corporation. All  the requirements of a marketer specified in Section
    266.43, therefore, must  be  fulfilled in this instance  by the blender
    rather than the used oil generator.

Source:        Angela Wilkes, OSW    (202) 382-7934
Research:      Ken Sandier

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                                                     9495.1991(01)
             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                                                           Of
                                             SOLID WASTE AND EMERGENCY RESPONSE


MEMORANDUM

SUBJECT:  Determination on the Regulatory Status of  Two Waste Oil
          Management Practices Utilized by .Wyoming Coal Companies

TO:       Robert L. Duprey, Director
          Hazardous Waste Management/Division
          Region VIII

FROM:     Sylvia K. Lo
          Office of Solid W

     This memorandum responds to your March  4,  1991  request  for
regulatory determinations ^regarding two different scenarios  in
which waste oil is utilized by Wyoming coal  companies.  These
determinations concern:  1) whether the waste oil is a solid
waste when used in certain ways, 2) whether  the waste oil  is
being legitimately recycled (rather than disposed of) when used
in these ways, and 3) whether the management of the  waste  oil  is
subject to Part 266 Subpart E.  Although your memorandum does  not
specify what type of waste the "waste oil" is,  our response
assumes it is "used oil."  The responses to  your questions may
change based on what the "waste oil" is.  For example, a listed
oily waste or an unused off-specification product oil could  have
a different regulatory status than used oil  under the different
recycling scenarios you describe.

     1.  Coal Treating.

     In the first scenario, the coal companies  mix/ spray
approximately three gallons of used oil per  ton/cubic yard of
pea-coal (coal crushed to pea size) during railroad  car loading.
The used oil is used to suppress coal dust while in  transit  to
power plants and, to a lesser extent, to increase the BTU  value
of the coal.  It is my understanding that this  is a  standard
practice in the coal industry and that the pea-coal  is burned  as
fuel .

     Because the used oil is being burned for energy recovery
(assuming the oil is a spent material rather than an unused
commercial fuel oil product) , the used oil is a solid waste  (see
40 CFR 261. 2(c) (2) ) .  Because the coal/oil is ultimately used  as
a fuel, the material is subject to regulation as a "used oil"
being burned for energy recovery  (see 40 CFR Part 266 Subpart  E) .
                                                          Printed on Recycled Paper

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     The toxicity characteristic and TCLP are not applicable as
long as the used oil is legitimately recycled.  (See the
exemption at Section 261.6(a) (2) (iii))..

     Insofar as such use of the used oil is a standard practice
within the coal industry, our concerns regarding whether this is
a legitimate recycling practice focus on the amounts of used oil
being used and on the hazardous constituents contained in the
waste oil itself.  (If such use was not a standard practice, the
Agency would be concerned about the actual use of the waste oil
for this purpose.)  More specifically, if used oil is used in
excess of the amounts necessary (e.g., if the oil leaks out of
the railroad cars while in transit), such use could be considered
sham recycling, subject to regulation as a hazardous waste
management activity if the used oil exhibits a hazardous
characteristic.

     2.  Use in making explosives.

     In the second scenario, the used oil is used as an
ingredient to produce ANFO  (an acronym for an explosive normally
made by combining ammonium nitrate and a fuel oil, such as a
product #l/#2 diesel oil blend or product 12 diesel oil) that is
used to remove overburden/coal from the earth.  The key
determination is whether such use of the used oil is legitimate
recycling (i.e., is the waste oil a legitimate ingredient in the
production of ANFO).  If the used oil is not a legitimate
ingredient, the used oil is a solid waste (and hazardous if it
exhibits a characteristic of a hazardous waste), and the use of
the used oil to produce the ANFO, as well as the use of the used
oil-derived ANFO, would be subject to permitting requirements.

     A key factor in evaluating whether the used oil is a
legitimate ingredient is a comparison of the constituents found
in the used oil to the constituents found in the analogous raw
material, i.e. fuel oil.  To the extent that there are hazardous
constituents in the oil that are not found in the fuel oil  (or
that are present in the fuel oil, but in significantly lower
concentrations), the oil is not a legitimate ingredient in the
production of ANFO (unless it can be demonstrated that such
hazardous constituents are actually useful in the production of
the product or to the product itself).  [Note:  Other factors to
consider include an assessment of:  1) how the oil is managed
(i.e., whether the oil is handled in a manner similar to the fuel
oil before use and whether it is handled in a manner to prevent
release to the environment), 2) whether the oil is as effective
as the fuel oil when used as an ingredient in ANFO production
(i.e., whether more used oil must be used to replace the fuel oil
and whether the waste oil-derived ANFO performs as well as the
fuel oil-derived ANFO), and 3) whether excessive amounts of oil
are used (i.e., excessive amounts of oil being used could
indicate an intent to discard)].

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      If the  used oil  is  not  a  legitimate  ingredient  in the
 production of ANFO, then it  is a  solid waste being treated  by
 mixing  with  ammonium  nitrate and  the  toxicity characteristic is
 applicable.   And,  if  hazardous, the used  oil may be  subject to
 the  "open burning and detonation" requirements  of 40 CFR  265.382.
 [Note:   Whether the used oil-derived  ANFO itself performs as well
 as the  fuel  oil-derived  ANFO is not the determining  factor  in
 considering  the regulatory status of  the  waste  oil.   In other
 words,  just  because a secondary material  can be used as an
 ingredient and still  result  in a  usable product does not, by
 itself, mean that the secondary material  is not a solid waste and
 nor  does it  mean,  necessarily,  that the processing is legitimate
 recycling.  Rather, the  determining factors must include  the
 consideration of the  constituents in  the  secondary material and
 the  role these constituents  play  in the production of the
 product.]

      You mentioned in your letter that the Mine Safety and  Health
 Administration (MSHA)  is currently allowing/monitoring this
 practice at  Bridger Coal Company  from a health  and safety
 standpoint.   It should be noted that  although there  is agency
 overlap between EPA and  MSHA regarding health,  safety and
 environmental considerations,  neither agency's  jurisdiction
 supersedes the other's.   For example,  if  EPA determined that the
 used oil is  a legitimate ingredient in the production of  ANFO,
 this would not absolve the coal company from its regulatory
 obligations  under the MSHA.  Likewise, if MSHA  grants approval of
 the  use of used oil as an ingredient  in ANFO, this does not
 absolve the  company from its regulatory obligations  under RCRA.
 Nonetheless,  you may  find it useful to share this response  with
 your colleague from MSHA, Mr.  Dick Fischer, whom you mention in
 your letter.

      I  hope  this has  helped  to resolve the issues you have
 presented regarding the  current regulatory status of used oil
..used as a dust suppressant in  the transportation of  pea-coal and
 as an ingredient in the  production of ANFO.  As you  know, we are
 currently developing  regulations  applicable to  the management  of
 used oil. If you have any further questions regarding the
 regulation of used oil or the  determination of  legitimate vs.
 sham recycling, your  staff should contact Denise Wright  (for used
 oil)  or Mitch Kidwell (for recycling)  at  FTS 475-8551.

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                                                         9496.1990(01)
               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, O.C. 20460
  JUL  16 1990                                            OFFICE OF
                                               SOLID WASTE ANO EME RGENCV RESPONSE


Ralph Eschborn
DuPont Recovery Management Systems
Suite 207, Webster Building
3411 Silverside Road
Wilmington, DE 19810

Dear Mr. Eschborn:

     This letter is in response to your April  5, 1990 letter  to  Matt
Straus regarding DuPont Recovery Management Systems' proposal to
collect, fortify and recycle previously used fixer.  In your  letter
you asked EPA to make a determination on the applicability  of the
Resource Conservation and Recovery Act  (RCRA)  Subtitle C  requirements
to the recycling process.

     As I understand your proposed recycling process, photographic
fixer that is used in the photographic film development process  would
be drawn off from the working baths once its concentration  of
ammonium thiosulfate reaches a certain level (targeted at 175 g/1 per
attachments to your letter, and not to fall below 150 g/1 per your
letter).  The used fixer solution would then be transported to your
Regional Service Centers, "refortified," and then sold back to the
customers for use in developing film.

     The issue which is raised is whether or not the used
photographic fixer solution meets the definition of a "spent
material," as the RCRA regulations define the  term in 40  CFR
261.1(c)(l).  According to Section 261.2(c)(3), spent materials  that
are reclaimed are solid wastes (and, if they are also hazardous
wastes, must be managed according to the RCRA  hazardous waste
regulations).  The definition of 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."
(The electrolytic treatment, filtration, and "fortifying" that you
propose would appear to be a processing/reclamation activity.)

     It appears that the used photographic fixer solution meets  the
definition of a spent material, even though it may still  have enough
ammonium thiosulfate to function effectively as a fixer.  Because the
                                                            FriaudatRteycUdPapir

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used fixer, as a result of contamination,  is being removed for
processing it is "spent" as far as the customer is concerned (even
though, should the customer decide to do so, s/he could continue to
use the fixer for its original purpose) .  You mention the
similarities between this and the situation faced by persons
reclaiming spent solvent.  A similar situation exists with respect to
solvent reclaimers who arrange regular pick-ups of used solvents (for
example, in vapor degreasers).  Although the solvent may still be
useful in that its contamination level does not mandate its
reclamation, when the reclaimer removes the customer's solvent, it is
•spent" insofar as its potential use by the customer.

     In contrast, we stated in the January 4, 1985 preamble to the
regulation defining materials as solid wastes (50 Federal Register
624) that when solvents used to clean printed circuit boards are no
longer pure enough for that purpose, but are still pure enough for
use as metal degreasers, they are not yet wastes because the solvent
can continue to be used for its solvent properties.  Similarly, if
you were to remove used fixer from one customer's site and sell it to
another customer for use as photographic fixer, that continued use as
a fixer would mean the fixer was not a waste.  However, the recycling
scheme you have proposed does not fit the "continued use" situation;
the used fixer is being "fortified," or reclaimed.  Thus the used
fixer is a solid waste, and, if a hazardous waste, must be managed
according to the hazardous waste regulations.

     In the recycling situation you have outlined, there are reduced
requirements in the federal hazardous waste program for reclaiming
precious metals.  (Silver is one of the precious metals that can be
reclaimed under the reduced recycling regulations.)  Handlers of
recyclable materials from which precious metals are reclaimed are
directed by 40 CFR 261.6(a)(2)(iv) to the reduced recycling
regulations in 40 CFR Part 266, Subpart F.  Those regulations require
only that the generator, transporters, and storers notify EPA of
their hazardous waste management activities, comply with the use of
the manifest, and keep records to show that they are not accumulating
the materials speculatively.

     In addition, some of your customers may qualify for the
exemption from use of the manifest found at 40 CFR 262.20(e);
however, you have not provided us with information for us to make a
determination whether they may qualify.

     It is encouraging to learn that you are proposing a recycling
strategy for hazardous wastes; EPA is investigating ways to encourage
environmentally protective recycling.

     Finally, the regulations described in this letter are the
federal hazardous waste regulations.  States and localities may have

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more stringent requirements,  or requirements that are broader in
scope.  You will  need to contact them to determine what their
requirements are.

     If you have  further questions, please contact Becky Cuthbertson
at (202)475-9715,  or John Lank at  (404)347-4552.

                                     Sincerely,
                                                ;

                                                            /te>c* £x—
                                     Sylvia Lowrance, Director (/
                                     Office of  Solid Waste

cc: John Lank

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                                                         9496.1991(01)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGT.ON, D.C. 20460
                             AUG-5I99I                OFFICEOF
                                              SOLID WASTE AND EMERGENCY RESPONSE

 MEMORANDUM

 SUBJECT:   Regulatory Status of Residues From Secondary Lead
           Smelters That Recycle KC69 Wastes

 FROM:      Sylvia K. Lowrance, Direct
           Office of Solid Waste

 TO:        Waste Management Division Directors,  Regions I-X

      It has come to my attention that there is an issue about the
 status of wastes such as slags and drosses that result from
 secondary lead smelting when the smelter returns its emission
 control dust/sludge (Hazardous Waste K069) to the smelting
 furnace as feedstock.  This memorandum reiterates that such
 residues are hazardous wastes subject to Subtitle C regulation if
 they exhibit a hazardous characteristic (e.g..  toxicity for
 lead),  and it discusses the Agency's intent regarding whether
 such residues are considered listed hazardous wastes pursuant to
 the  "derived from" rule.

      EPA stated in the February 21, 1991 "Boiler/Industrial
 Furnace" Final Rule ("BIF Rule") (56 Fed.  Reg.  7134, 7144) that
 residues from metal recovery of listed hazardous wastes normally
 are  considered to be "derived from" treatment of hazardous waste
 and  thus listed hazardous waste themselves.  Although this
 general principle remains valid, we note that EPA did not intend
-for  the "derived from" rule to apply to K069 slags and drosses
 that result from returning the K069 to the smelting furnace as
 feedstock.  The Agency initially attempted to achieve this result
 through application of the so-called "indigenous" principle to
 K069 slags.  See August 17, 1988 ."First Third" Land Disposal
 Restrictions Final Rule, 53 Fed. Reg. 31138, 31198-99.  The June
 1, 1990 "Third Third" Land Disposal Restrictions Final Rule (55
 Fed. Reg. 22520, 22565-68) also presumed this result in its
 discussion of slags from secondary lead production, which were
 discussed exclusively in the context of D008 wastes.  However, a
 subsequent decision by the U.S. Court of Appeals, in American
 Petroleum Institute v. EPA. 906 F.2dr 726,  740-42 (D.C. Cir.
 1990),  called into question the validity of the "indigenous
 principle" as EPA had applied it.  (See BIF Rule, 56 led. Reg. at
 7142,  7144, for a brief discussion of the court's decision.)
 Although EPA maintained in the BIF Rule that residues from
 treating listed hazardous wastes in metals recovery processes
                                                         ! Printed on Recycled Paoer

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generally are subject to the "derived from" rule, the Agency
overlooked the recycling practices in the secondary lead industry
in promulgating that rule.  It was not our intent that the
"derived from" rule apply to secondary lead smelting residues
that result when K069 dusts are recycled to the smelting process
as feedstock.

     We expect to address these issues more formally in the
context of upcoming rulemakings.  In the interim, please contact
Mike Petruska at 475-8551 if you have any questions.

cc:  Regional Counsel RCRA Branch Chiefs
     Gary Jonesi, OE-RCRA
     Steve Silverman, OGC
     Susan Bromm, OWPE-RED

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                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                               WASHINGTON. D.C. 20460
                                                                    9496.1993(01)


                                    DEC  2 7  1993

                                                                          OFFICE OF
                                                                   SOLID WASTE AND EMERGENCY
                                                                          RESPONSE
MEMORANDUM

SUBJECT:   Precious Metal Recovery Furnaces

FROM:      Michael Shapiro, Director
             Office of Solid Waste

TO:         Conrad S. Simon, Director
             Air and Waste Management Division
             Region n

       Headquarters has received correspondence1 from the New York State
Department of Environmental Conservation (NYDEC) requesting a regulatory
determination on the status of precious metal recovery furnaces.  The State would like
EPA to clarify the relationship between the applicability of Parts 264 and 265, Subpart O
(incinerator requirements) and Part 266, Subpart F (standards for recyclable materials
utilized for precious metal recovery).  Specifically,  NYDEC wants to know if the Subpart
F exemption for recyclable materials utilized for precious metal recovery extends to tlie
thermal reduction furnaces used by precious metal reclaimers to burn precious metal-
bearing wastes such as papers, filters and circuit boards. In addition, the State wants to
know  whether these units are subject to Subpart O requirements as incinerators if
Subpart F does not apply.

       EPA's position has been that when these units are legitimately  recovering
precious metals from recyclable materials that they are within the Subpart F exemption
and not subject to Subpart O incinerator requirements.  EPA has previously interpreted
these units to be generally exempt from the BIF rule (56 FR 42504, 42508, August 27,
1991).2
      This correspondence consisted of two letters of January 19, 1993 and October 1, 1992 from William
      A. Yeman of NYDEC to Sonya Sasseville of EPA.

      In the August 1991 FR notice, EPA also clarified that the -conditions of the BIF rule where burning
      solely for metal recovery (§266.100(c)(2) do not apply to the legitimate recovery of precious metals,
      which are generally exempt from the BIF rule.
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                                                                   com*ra « taut M% rvcyctad flb«r

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      However, these units are subject to a one time notification requirement (40 CFR
§266.100(f)) that requires owner/operators of precious metal recovery furnaces to notify
the State Director and certify that hazardous waste is burned for legitimate recovery of
precious metal Also to qualify for the BIF exemption, owner/operators claiming the
exemption must sample and analyze precious metal as needed to document that the
recovery is legitimate.

      If precious metal recovery furnaces are not legitimately recovering precious metals
from recyclable materials, then they may be subject to several Subtitle C regulatory
requirements, including Subpart O incinerator requirements. EPA has previously
identified  several indicators of legitimacy:

             "...The Agency indicated in the January 4, 1985 solid waste definition
      regulations some of the indicia of legitimate precious metal recovery operations.
      ...These include presence of economically significant amounts of precious metals,
      efficient recovery operations, no land disposal of wastes destined for recovery, and
      payment by the reclaimer to the waste's generator.  Industry members indicate
      further that materials destined for precious metal reclamation are normally batch
      segregated into  distinct and identified batches of like material, that generators and
      recovery facilities normally enter into written contracts before materials are
      transferred specifying compensation to the generator and when transfer is to
      occur, and that true precious metal recovery is characterized by net financial
      return to the generator (i.e, a price sufficient to cover all charges for transport,
      storage and processing)....  Presence of air pollution control equipment to recover
      any precious metals contained in emissions would be a further indication of a
      legitimate operation. Conversely, the absence of one or more of these features
      could serve as potential indications of a sham  recycling operation, which would, of
      course, be subject not only to the BIF rules but to all other subtitle C provisions
      as well.... Furthermore, under § 261.2(f), persons ostensibly engaged in precious
      metal reclamation of hazardous wastes have the burden of proving (normally
      through recordkeeping plus presence of appropriate recovery equipment) that they
      are engaged in legitimate recovery activities...." (56 FR, 42504, 42509 August 27,
      1991).

      Although EPA currently considers these  furnaces to be generally exempt from
Subtitle C regulation (except for the notification requirement mentioned above), you
should be aware that questions have been raised as to whether these units should remain
generally exempt from Subtitle C regulation. Please  also note that the Agency will be
examining this issue  as part of the Draft Waste Minimization and Combustion Strategy.
I hope that this helps to clarify the current status of precious metal recovery furnaces.  If
you have any further questions, please contact  Mike Petruska of my staff at (202) 260-
8551.

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                UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                              WASHINGTON, D.C. 20460
                                                                   9496.1994(01)


                                     28 ic
                                                                        OFFICE Of
                                                                 SOLID WASTE AND EMERGENCY
                                                                        RESPONSE

Mr. Scott Donovan, Chemisi
Disposal Control Service, Inc.
1200 Marietta Way
Sparks, Nevada 89431

Dear Mr. Donovan:

      In your letter of November 18,  1993, you requested an interpretation on the
applicability of the Resource Conservation and Recovery Act (RCRA) Subtitle C
regulations to silver reclamation operations of spent photographic fixer solutions.  I
apologize for the delay in our response.

      In your letter, you state that a company  operating in Northern Nevada called
Itronics is receiving silver-bearing spent photographic  fixer solutions from a variety of
generators.  You also state  that the State of Nevada acknowledges these solutions to be
RCRA hazardous waste when silver is present in concentrations of 5 mg/L or greater.
Your letter does not indicate whether in fact the solutions Iconics receives are solutions
with silver at or above 5 mg/L. Youi letter states that Itronics stores the solutions in
tanks prior to chemically precipitating silver salts in the form of a sludge which is  then
thermally refined on-site.

      You also indicate that the supernatant liquid resulting from the chemical
precipitation is applied to the land as  a ferrili/er at a  turf farm.  In your telephone
conversation with Paul Borst of the Office of Soiid Waste, you indicated that your
understanding was that the supernatant liquid was nonhazardous and that sodium
thiosulfate in the liquid was the constituent of value iu the fertilizer.

      Please understand that EPA cannot comment on the  regulatory status of the
Itronics facility in Northern Nevada.  The regulatory status of this facility is properly
determined  by the State of Nevada through its Department  of Environmental Protection.
The State of Nevada is authorized to  administer and  enforce its own RCRA program.
This letter will answer in general  terms how federal RCRA regulations apply to the type
cf operation you describe in your letter.

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      In order to determine the applicabu'ity of RCRA Subtitle C hazardous waste
regulations to these activities, it is first necessary to determine if the materials being
handled meet the definition of solid waste (and also hazardous waste).  There are three
secondary materials that require consideration:  the spent photographic fixer solution, the
precipitated silver sludge and the supernatant liquid resulting from precipitating the
sludge.  As discussed below, only the spent photographic fixer solution meets the
definition of solid waste and is subject to certain Subtitle C regulations.

      Regarding the spent photographic fixer solution, RCRA Subtitle C regulation
states that materials are solid wastes (that are also hazardous waste) when reclaimed
(reclamation is a type of recycling) and when the material being reclaimed most clearly
meets the definition of one of four types of materials:  spent materials, listed sludges,
listed by-products and scrap metal.  40 CFR §261.2(c)(3). Since EPA has previously
interpreted spent photographic fixer solution as meeting the definition of spent material
(see attached July 16, 1990 letter from Sylvia Lowrance to Ralph Eschborn), it appears
that these solutions, assuming they are also hazardous, meet the definition of a solid
waste and are subject to certain Subtitle C regulations (specified below).

      On the basis of information you have provided in your incoming letter, EPA
would consider a silver-bearing sludge precipitated from the spent photographic fLxer
solution in the manner you describe to be a newly generated sludge exhibiting a
characteristic of hazardous waste.  Under RCRA Subtitle C regulation, characteristic
sludges being reclaimed are not within the definition of solid waste.  40 CFR
§261.2(c)(3). Therefore, the silver-bearing sludges would riot be subject to Subtitle C
regulation.  Finally, as mentioned above, you have indicate^ that the supernatant liquid
is uonhazardous and therefore would not be regulated under RCRA Subtitle C.
                                                      I
                                                      i
      The remaining issue is what RCRA Subtitle C regulations are applicable to the
management of the spent  fixer solution.   Provided that economically significant quantities
of silver are reclaimed from the  solution, the generation, transport and storage prior to
reclamation of  the solutions is not subject to the general RCRA Subtitle C requirements
for recyclable materials at 40 CFR §261.6, but rather a different set of regulatory
requirements specified at  40 CFR Part 266 Subpart F. 40 CFR 261.6(a)(2)(iv). Subpart
F requirements apply to persons who generate, transport, or store precious metal-bearing
hazardous waste being reclaimed.  The requirements specify notification requirements
under Section 3010 of RCRA, and manifesting requirements.  Subpart F also requires
persons who store precious metal-bearing hazardous waste being reclaimed to
demonstrate through records that these  wastes are not being accumulated speculatively.

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       With regard to the regulatory status of the recycling process, the general RCRA
Subtitle C regulatory requirements for recyclable materials (40 CFR §261.6) and the
Subpart F requirements for precious metal-bearing wastes being reclaimed specify
regulatory requirements for recycling operations.  The general recycling provisions do
state that, in general, the recycling process is exempt from regulation.  Because recycling
operations are generally not regulated, the process of precipitating the sludge from the
solution is not presently subject to regulation under RCRA Subtitle C.

       I hope this letter has answered your questions on the Federal program. If you
bave any additional questions, please contact Mike Petruska of my staff at (202) 260-
8551.
                                             Sincerely yours,
                                             Michael Shapiro, Director
                                             Office of Solid Waste

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                                                   9497.1991(01)
            UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, O.C. 20460
                            MAR   4
Richard A. Svanda
Director
Hazardous Waste Division
Minnesota Pollution Control Agency
520 Lafayette Road
Saint Paul,-Minnesota  55155-3898
                                                     OFFICE OF
                                            SOLID WASTE AND EMEPGENCV RESPONSE
Dear Mr/ySvanda:
     This letter responds to your January 16, 1991 request  for  an
interpretation concerning the regulatory exemption found at 40
CFR 261.6(a)(3)(ii) for "used batteries (or used battery cells),
returned to a battery manufacturer for regeneration."  In your
letter you explain that the Minnesota State Legislature has
passed a bill making it illegal to dispose of four types of waste
battery cells in municipal solid waste landfills.  The bill went
further by requiring manufacturers to establish a system for ..
proper handling and disposal of such batteries.

     You are requesting that EPA interpret the exemption for used
battery regeneration to include material recovery.   In this way,
the management of the batteries would .be exempt from the
otherwise applicable hazardous waste regulations  (e.g.,
manifesting and storage), thus facilitating the recycling of
these materials.  As alternatives to this interpretation, you
request that EPA either:  1) revise 40 CFR Part 266  Subpart G,
"Spent Lead-Acid Batteries Being Reclaimed," to include all waste
batteries being reclaimed; or 2) recommend to the State
regulatory agencies that they use enforcement discretion in
implementing the applicable regulations.
  >
     In promulgating the exemption for used batteries that  are
"regenerated," the Agency discussed its reasons for  doing so (see
the April 4, 1983 proposal preamble, 48 FR 14496).   The main
reasons were that there was minimal risk of environmental damages
and that the activity of regenerating the batteries  was very
similar to the recycling of a commercial product.  Such
activities are generally not considered waste management
activities, but are more akin to a manufacturing  operation.  In
the January 4, 1985 final rule preamble (see 50 FR 633), EPA
defined reclamation to include the "regeneration" of waste
materials and the processing of waste materials to recover  usable
products, but not all reclamation is exempt.  In  the preamble
discussion, the Agency drew a distinction between regeneration
(i.e., processing to remove contaminants in a way that restores a
                                                         Printed on Recycled Paper

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product to its usable original condition, as in the reclamation
of spent solvents through distillation) and material recovery
(i.e., processing to recover usable material values as the end-
products of the process, as in the reclamation of metal values by
the smelting of a secondary material).   EPA's long-standing
policy is that smelting is not regeneration, and batteries sent
for smelting are therefore not exempt under this provision, i.e.,
the definition of "regeneration" is well established and does not
include metals recovery.  A change in the meaning of
"regeneration" is not interpretive, but would require a
regulatory change (i.e., amending 40 CFR 261.l(c)(4)), and would
have far-reaching implications, e.g., the standards at Part 266
Subpart G for spent lead-acid batteries that are reclaimed would
not apply to anything if the spent lead-acid batteries were
exempt.

     Regarding your request that the Agency extend the current
reduced regulatory requirements applicable to spent lead-acid
batteries that are reclaimed to all waste batteries, EPA may
consider such an amendment to encourage the recycling of waste
batteries provided that protection of human health and the
environment can be ensured.  The reasons for the special
requirements for spent lead-acid batteries destined to be
reclaimed were discussed in the April 4, 1983 proposal (see
discussion 48 FR 14498-99) to the January 4, 1985 final rule.
While EPA required hazardous waste permits for storage at
reclamation sites (e.g., secondary smelters and battery
crackers), EPA did not believe that regulatory controls on
generators and transporters were necessary because there were
other incentives outside of RCRA that would ensure that the
materials would both arrive at their intended destination and
would not be improperly managed before their reclamation.  For
example, spent lead-acid batteries were an established valuable
commodity and were customarily reclaimed (indeed, the secondary
lead smelting industry is based on the reclamation of lead-acid
batteries) and mishandling during transportation was considered
unlikely due to Department of Transportation requirements under
40 CFR 122.  Also, the Agency believed that the storage of the
spent batteries by retailers, wholesalers, or local service
stations would be properly managed because these establishments
rely heavily on good public relations with the consumer.  To the
extent that the same considerations are evidenced in the
management of other types of waste batteries, the Agency may
consider providing a similar regulatory framework in a future
rulemaking.

     Finally, with regard to your third alternative, it is
certainly within the purview of an authorised State to use
discretion in how it implements its own hazardous waste program,
including how it sets its enforcement priorities.  However, EPA
has a policy against giving definitive assurances, written or
oral, outside the context of a formal enforcement proceeding,

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that EPA will not proceed with an enforcement response for a
violation of an environmental protection statute or regulation.

     We share your interest in finding alternatives to control
the disposal of potentially hazardous waste streams that are
typically managed in municipal landfills.  The situation you
described will be considered in efforts underway to address
multiple concerns regarding the regulation of hazardous waste
recycling.  If you have further questions regarding the
regulations applicable to these waste types, you may contact Mr
Mike Petrusfca, Chief of the Regulatory Development Branch  at
(202) 475-8551.                                          '
                                   Since
                                   Sylvia
                                   Director
                                   Office/of

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                                                        9497.1991(02)
              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C.  20460
                                 MAY  3
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
 Mr. Paul E. Pentz
 Executive Vice President, C.0.0.
 SERVISTAR Corporation
 P.O. Box 1510
 Butler,  PA  16003-1510

 Dear Mr. Pentz:

      This letter responds to your letter of May 13, 1991
 concerning the regulation of nickel-cadmium (NiCd) batteries
 under the Resource Conservation and Recovery Act (RCRA) and state
 legislation requiring manufacturers to take back spent batteries
 (take-back programs).  We appreciate your interest in developing
 recycling programs for NiCd batteries and in the RCRA regulation
 of these prpgrams.  We commend your recycling efforts and hope
 that you will be developing recycling systems not only in states
 passing  take-back legislation, but nation-wide.

      We  are considering the points that you raise in your letter
 concerning the difficulties involved in implementing recycling
 programs for NiCd batteries if they exhibit the TC.  We are
 currently examining the available options to determine how to
 facilitate the kind of take-back system you describe.   We expect
 it will  take us several more weeks to assess options and reach a
 tentative decision on how to best address your concerns.   At that
 time,  we will notify you of the results of our analysis and of
 our plans to implement the decision.

      To  ensure that you are informed about our approach to this
-issue, there are several options that we are exploring.  First,
 we are investigating what could be accomplished in the short term
 to alleviate the problems you have identified.  One possibility
 is to extend the current regulations governing lead-acid battery
 reclamation to spent NiCd battery reclamation.  As part of this
 effort,  we will be evaluating issues such as the size of the
 problem,  the hazards posed by NiCd battery waste management and
 recycling practices,  and the feasibility of possible solutions.

      Second,  over the longer term, we are currently analyzing the
 RCRA regulations to determine how they could best be modified to
 encourage environmentally sound recycling of hazardous wastes.
 In particular,  we are evaluating how to address reverse
 distribution systems that involve the returr of hazardous wastes
                                                           Pruiitd on Rtcycltd Paptr

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to product manufacturers.  In any case, we will continue with
this longer term effort to examine fully how best to address this
difficult issue, including the possibility of changes to the
regulations to accommodate take-back systems.
     Finally, we would like to be sure that you are aware that
under the current federal regulations, hazardous wastes generated
by certain persons are not subject to the full hazardous waste
regulations even when subsequently collected and managed by
others.  Particularly, these excluded wastes include household
wastes generated by individuals at home (40 CFR 261.4(b)(l)) and
hazardous wastes generated by conditionally exempt small quantity
generators (generators who generate a total of less than 100
kilograms of hazardous waste per month; 40 CFR 261.5).

     Thank you for your interest in the hazardous waste
regulations concerning recycling of NiCd batteries.  Should you
have any further questions regarding this issue, please contact
Mike Petruska, Chief of the Regulatory Development Branch, at
(202) 475-8551.
                              Sincerely,
                              David Bussard
                              Director
                              Characterization and Assessment
                                Division

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. D.C. 20460
                                                      9497.1993(01)
        .                                                   OFFICE OF
                                                      SOLID WASTE AND EMERGENCY
                                                           RESPONSE

Mr. Thomas J.P. McHenry
McCLINTOCK, WESTON,  BENSHOOF,
ROCHEFORT, RUBALCAVA & MacCUISH
444 South Flower Street
Forty Third Floor
Los Angeles, California   90071

Dear Mr. McHenry:

     Thank you  for your  letter  of October 4,  1993,  concerning the
Resource Conservation and Recovery Act (RCRA)  hazardous waste
regulations governing the management of lead-acid batteries that
are recycled.   You requested clarification of how these
regulations would apply  to a battery storage area owned by the
owner of one or more lead-acid  battery recycling facilities
(e.g., battery  crackers  or secondary smelters),  but not co-
located with any battery recycling facility.

     In general, you are correct that we interpret
40 CFR 266. 80 (a) to  apply to facilities at which spent lead-acid
batteries are stored, but not reclaimed,  regardless of what
battery management activities the owner of the storage area may
conduct at other locations.   Similarly, we interpret
40 CFR 266. 80 (b) to  apply to facilities at which spent lead-acid
batteries are both stored and reclaimed.   In addition to the
preamble language you quoted from the proposal for this
regulation (48  FR 14499) ,  the preamble discussion for the final
rule also clearly indicates that our intent was  to regulate
storage facilities based on the activities conducted at the
facility rather than on  activities conducted by  the owner at
other locations (50  FR 649) .

     Beyond this general discussion of the federal RCRA
regulations, we are  not  able to address the specifics of your
client's situation.   The lead-acid battery recycling regulations
are implemented by authorized state agencies (or the appropriate
EPA regional offices) , and they are the appropriate agencies to
contact to determine how these  regulations may be applicable to
any specific location.   Please  note also that state hazardous
waste regulations may be more stringent than the federal
regulations.
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     I hope this information is useful to you.  If you have any
further questions concerning this issue, please contact Charlotte
Mooney, of my staff, at (202) 260-6926.

                              Sincerely,
                              Michael H. Shapiro
                              Director
                              Office of Solid Waste
cc:  Laura Yoshi, Deputy Director for Waste Programs,
       EPA Region IX
     Claudia Moore, California Department of Toxic Substances
       Control

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                      HOTLINE QUESTIONS AND ANSWERS
                                   November 1994
                          9497.1994(01)
                 RCRA
 1.  Regeneration Versus Reclamation
    for Spent Lead-Acid Batteries


    In order to encourage environmentally
 sound recycling, EPA has promulgated special
 standards for some recyclable materials and
 exempted others from hazardous waste
 regulation. For example, reclaimed spent
 lead-acid batteries are subject to the special
 requirements of Pan 266, Subpart G
 (§261.6(aX2)(iv)). On the other hand,
 batteries returned to a battery manufacturer
for regeneration are exempt from hazardous
 waste regulation (§261.6(a)(3)(ii)).  Are spent
 lead-acid batteries returned to a battery
 manufacturer for regeneration regulated
 under Subpart G of Pan 266, or are they
 exempt from all hazardous waste regulation?

    Spent lead-acid batteries returned to a
 battery manufacturer for regeneration are not
 Subject to Subpart G of Pan 266, nor to any
 other Subtitle C regulations. While  the term
 "reclamation," when used in a regulatory
 context, typically includes both materials
 recovery and regeneration (§261.1(c)(4)), the
 standards governing the reclamation of spent
 lead-acid batteries in Subpart G of Pan 266 do
 not apply to the regeneration of these batteries.
 Subpan G regulates materials recovery, which
 involves  the extraction from spent lead-acid
 batteries  of distinct end-products, such as scrap
 metal, lead values, ammonium sulfide, and
plastic. Regeneration, on the other hand,
involves processing to remove contaminants
in a way that restores a product to its original,
usable condition. Because EPA determined
that battery regeneration is similar to the
recycling of a commercial chemical product
and presents minimal risk to the environment
(48 ER 14496; April 4,1983), battery
regeneration, including the regeneration of
spent lead-acid batteries, is exempt from
Subtitle C regulation (§26l.6(a)(3)(ii)).

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                     HOTLINE QUESTIONS AND ANSWERS
                                                               9497.1995(01)
                                    June 1995
                RCRA
3. Spent Lead-Acid Batteries and .
   Counting Requirements

   EPA promulgated specific requirements for
counting hazardous wastes to facilitate
accurate determination of monthly generator
status.  While most hazardous wastes produced
at generator sites are counted in the monthly
quantity determination, some special
hazardous wastes are exempt from this
requirement (§2615(c)). If a generator is
accumulating spent lead-acid batteries that
will be sent for reclamation, should the.
batteries be counted towards the determination
of monthly generator status?

   Spent lead-acid batteries that will be sent
for reclamation are not subject to the monthly •
generator counting requirements. Hazardous
waste is counted only if it is subject to
substantive regulation (40 CFR $261.5(c)).
Substantive regulations are those regulations
which directly relate to the storage,
transportation, treatment, or disposal of
hazardous waste (51 ER10152; March 24,
 1986). Persons who generate, transport, or
store spent lead-acid batteries destined for
reclamation, but who do not reclaim them
themselves, are not subject to substantive
regulation, specifically Parts 262-266,270 or
 124 (40 CFR §266.80). Therefore, spent lead-
acid batteries destined for reclamation are not
counted when determining monthly generator
status. Such wastes should not be counted
because they are not subject to regulation in
the hands of the generator (50 £R 14218;
  April 11,1985).

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                                                                     FILE  COH
                   UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                 WASHINGTON. D.C.  20460
                                                                       9497.1996(01)
                                     JUN  I 9  1996
                                                                         OFFICE OF
                                                             SOLID WASTE AND EMERGENCY RESPONSE
 Mr. Christopher Bryant
 The Technical Group, Inc.
 1300 I Street, NW
 Suite 1000 West
 Washington, DC  20005

 Dear Mr. Bryant:

       Thank you for your letter of March 14,1996 regarding the applicability of 40 CFR
 Section 266.80 to the management of spent lead-acid batteries that are destined for reclamation.
 Specifically, you request the regulatory status of spent lead-acid batteries in the following
 situation:

 A truckload of spent lead-acid batteries is shipped to a secondary lead smelter for reclamation.
 The truck arrives at the secondary lead smelter, where it is weighed.  The truck remains on site
 at the smelter for less than 24 hows and the batteries remain on the truck  Nothing is done to
 the batteries while they remain on site in the truck. The truck then is driven to an off-site
 warehouse where the batteries are stored for 30 days before they are shipped back to the smelter
for reclamation.

       Based on the information provided in this scenario, it appears that the spent lead-acid
 batteries remain exempt under 40 CFR Section 266.80.  This section applies to "persons who
 reclaim (including regeneration) spent lead-acid batteries that are recyclable materials ("spent
 materials"). Persons who generate, transport, or collect spent batteries, who regenerate spent
 batteries, or who store spent batteries but do not reclaim them (other than spent batteries that are
 to be regenerated) are not subject to regulation under parts 262 through 266 or part 270 or 124
 ...." This exclusion does not apply to leaks and discharges from lead-acid batteries. Materials
 generated from a leak or discharge become newly generated wastes and, as such, are subject to a
 hazardous waste determination.

       Please be aware that under Section 3006 of RCRA (42 U.S.C.  Section 6926) individual
 States can be authorized to administer and enforce their own hazardous waste programs in lieu of
 the Federal program.  When States are not authorized to administer their own program, the
                                                                            Printed on Recycled Paper

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appropriate EPA Regional office administers the program and is the appropriate contact for any
case-specific determinations. Please also note that under Section 3009 of RCRA (42 U.S.C.
Section 6929) States retain authority to promulgate regulatory requirements that are more
stringent than Federal regulatory requirements.

      "I hope that this letter sufficiently responds to your questions and concerns.  If you have
any further questions or comments, please contact Kristina Meson of my staff at (703) 308-8488.

                                        Sincerely yours,
                               /-•>
                                         W—•  \s •
                                        Michael Shapiro, Director
                                        Office of Solid Waste

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9498 — BOILERS AND
INDUSTRIAL
FURNACES	
Part 266 Subpart H
                 AT. Kearney 1/3590/6 cr

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                                       9498.1992(01)
                             AUG |  | 1992
MEMORANDUM
SUBJECT:  Combined Operation of the Resource Recovery Kilns and
          Cement Kilns at Giant Cement Company, Harleyville, SC

FROM:     Jeffery D. Denit, Deputy Director
          Office of Solid Waste

TO:       Donald J. Guinyard, Director
          Waste Management Division
          Region IV
     This is in response to your January 8, 1992, memorandum
requesting review of the tentative Regional decisions on the
issues presented in Giant Cement Company's October 1, 1991,
position paper.  Following are the OSW interpretations on each of
the four issues raised.

Issue 1:  Regulatory status of the Cement Kilns

     We agree with your interpretation that the "resource
recovery kiln"/cement kiln systems should be regulated under the
BIF (boiler and industrial furnace) standards, if operated in the
manner described in your memorandum and Giant's position paper.
(That is, each resource recovery kiln burns contaminated soils,
and possibly other solid wastes, and both the treated solids and
the off-gas are fed into a cement kiln.)  For systems of two or
more hazardous waste treatment units in series, our general
guideline is that a case-by-case determination of how the overall
system is classified and what standards and permit conditions are
applied should be based on the dominant design, operating, feed,
and emissions characteristics of the system, and the most
specific standards applicable to that type of system.

     In the Giant situation, it appears that the .resource
recovery kiln and the cement kiln operate as part Nof one overall
system.  The BIF standards would be applicable ~feeCauM they are
the most specific standards applicable to this syctam.  Portions

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points other than the hot end of the kiln and includes
hydrocarbon standards which take into account organics being
volatilized from raw materials.  These provisions may relate to
the Giant system, but are not addressed in the incinerator
regulations.  Of course, additional operating conditions would
likely need to be added to address feed rates, temperatures,
etc., in the desorber.

     You also state that Giant argues that off-gases from the
resource recovery kilns fed to the cement kiln cannot be
classified as a hazardous waste.  We agree with the Regions's
interpretation that this distinction is irrelevant when
determining our regulatory authority over the gases.  Off-gases
from the resource recovery kilns are regulated under RCRA since
they originate from treatment of hazardous waste..

Issue 2:  Carbon Monoxide Testing

     As previously stated, we agree with your position that the
cement kilns and resource recovery kilns operating in series
should be regulated under the BIF regulations.  Therefore, any
approach provided under the BIF regulations to establish a carbon
monoxide limit may be considered, including the alternate
hydrocarbon approach.

Issue 3:  Land Disposal Testing

     You raised the issue of how treatment in the cement kiln of
the solids and the gases discharged from the resource recovery
kilns affect whether the product from the cement kiln is
considered to be a waste-derived product.

Solids

     We agree with most of your interpretation regarding the
effect of treating solids on the classification of the product,
with one clarification noted below.  Environmental media (e.g.,
soils, groundwater) contaminated with listed hazardous waste must
be managed as if they were hazardous wastes until they no longer
contain the listed waste, or are delisted.  The Regions or
authorized States may determine, on a case-specific basis, at
what levels contaminated environmental media no longer contain
the hazardous waste.  As discussed in the attached June 19, 1989,
letter from Jonathan Cannon to Thomas Jorling, these levels may
be health-based levels derived by assuming direct human exposure.
We would like to clarify, however, that this determination must
consider all Appendix VIII constituents present in the listed
waste, rather than just those constituents for which the waste
was listed, as stated in your memo.

     Although Giant's situation is complicated by the fact that
there are two units combined into one system, we believe it may

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be possible to determine whether the soils leaving the resource
recovery kiln contain hazardous waste prior to entering the
cement kiln.  In order for this determination to be meaningful
and enforceable, it will be necessary to develop a sampling and
analysis regime that must be adhered to by the facility in order
to ensure that the media no longer contain hazardous waste after
treatment in the resource recovery kiln.  This determination will
be more difficult and complicated if the facility accepts media
with a wide variety of waste codes, in varying proportions and
concentrations.  It is not clear whether Giant plans to treat
only contaminated media originating from a limited set of waste
codes, or whether they plan to burn.a wide variety of waste codes
including actual wastes1,  in the resource recovery kiln.   We are
concerned that under the Part A already submitted, there is no
limitation on the variety of wastes and waste codes which Giant
could accept and treat.

     The Region or State can use existing policy memoranda
regarding the "contained-in" policy as guidance in setting the
appropriate health-based levels to indicate when the soils no
longer contain hazardous waste.  However, there must be an
enforceable mechanism which specifies the conditions necessary
for the facility to demonstrate that the soil meets these levels
on a regular basis, similar to the delisting program.  In the
future, we expect that the Hazardous Waste Identification Rule
(HWIR) may provide quantitative criteria and specific sampling
and analysis requirements that could be applied to this
situation.  In setting quantitative criteria, you may in the
interim use generally available Agency numbers, such as the soil
levels in the proposed Subpart S corrective action rule (55 FR
30798, July 27, 1990) or numbers derived from IRIS through the
use of standard exposure assumptions.

     If it is determined that treated environmental media from
the resource recovery kilns no longer contain hazardous wastes,
then the "decontaminated" solids need not be managed as a
hazardous waste, and feeding these materials to the cement kiln
would not cause the cement product to be a "waste-derived
product" subject to the provisions of §266.20(b).

Gases

     Although,  as stated earlier, the off-gas from the resource
recovery kiln is regulated,  our interpretation is that feeding
the off-gas into the Giant cement kiln would not cause the cement
     1   It should be noted that if listed hazardous wastes (rather
than media  contaminated with listed  wastes)  are treated  in the
resource recovery  kilns,  the recovery  kiln  residues would  be
hazardous waste pursuant to the derived-from rule.

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produced in the kiln to be subject to the §266.20(b) product
criteria.

     Generally, when listed hazardous waste is burned in a cement
kiln for any purpose other than solely for energy recovery (i.e.
as an ingredient or for destruction) and the product is then
placed on the land, under §261.2(c)(1)(i)(B) and the derived-from
rule (§261.3(c)(2)(i)), the cement.product is a solid and
hazardous waste and is subject to §266.20.2   However,  as
indicated in the preamble to the first third land disposal
restrictions rule, when listed hazardous waste is burned in an
industrial furnace for energy recovery, the product produced is
not subject to §266.20 because the Agency concluded that due to
the process chemistry involved the constituents in the fuel do
not partition to the product and therefore the product does not
"contain" the hazardous waste (see 53 FR 31197, August 17, 1988)

     In the Giant case, because the material fed to the cement
kiln is a gas, and because it is fed similarly to fuels (i.e., to
the hot end of the kiln), we believe that what is occurring in
the Giant system is more analogous to burning of waste fuels than
it is to what normally occurs when materials are burned for
destruction in a cement kiln.  Specifically, it is expected that
the feed rate of hazardous constituents contributed by the gas
stream would be lower than that contributed by the hazardous
waste fuel, and that the hazardous constituents in the gas stream
are no more likely to be contained in the cement product than
those in the hazardous waste fuel.  Thus, unless the facts
indicate otherwise, as with hazardous waste fuels we believe that
burning of the off-gas stream in the cement kiln should not cause
the cement product to be a waste-derived product subject to the
§266.20(b)  criteria because the product is not expected to
contain the hazardous waste.

Issue 4:  Regulatory Status of Clinker

     If, based on the factors discussed under "Solids" in Issue
3, it is determined that the cement kiln product is a waste-
derived product,  §266.20(b)  would apply.  Under §266.20(b),
hazardous waste-derived products used in a manner that
constitutes disposal are not presently subject to regulation if
these wastes have undergone a chemical reaction so as to become
inseparable by physical means, and if such products meet
applicable land disposal restrictions treatment standards in
Subpart D of Part 268 (or applicable prohibition levels in
§268.32 or RCRA Section 3004(d)  where no treatment standards
exist).  You proposed that any analysis required under §266.20(b)
       Such hazardous waste-derived products used in a manner that
constitutes disposal  are  not presently subject  to  regulation if
they meet the criteria under §266.20(b).

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be conducted on the commercially sold cement, rather than the
clinker.  Section 266.20 states that the product must meet the
above criteria.  In most cases the cement is the final product
which is sold to the consumer and placed on the land, and this
material should meet the applicable land disposal restriction
requirements.

     However, in some situations-it may be preferable and
acceptable to test the clinker to determine whether the cement
would meet the §266.20(b) criteria.  We understand there may be
cases where a cement kiln facility sells its clinker to another
facility which grinds and mixes it with gypsum to'produce cement.
In such a case, it may be preferable to test the clinker before
it goes off-site.  Further, waste-derived products which do not
meet the criteria in §266.20(b) must be managed as hazardous
waste.  Thus, if the clinker is not determined to meet these
criteria prior to grinding, clinker storage could be subject to
RCRA permitting.  Finally, in cases where demonstration of
compliance with the 266.20(b)  criteria (applicable land disposal
restrictions) would include testing using the Toxicity
Characteristic Leaching Procedure, we believe that the particle
size reduction step of the procedure would ensure that results
for the clinker would be representative of the cement's
conformance with these criteria, provided the cement contains no
hazardous waste-derived materials other than the ground clinker.
For these reasons, we believe it would be reasonable to consider
the clinker to be the facility's product, and to allow the
§266.20(b)  criteria to be demonstrated on the clinker.

     In addition, as you stated, 40 CFR 268.7(b)(7) Acquires that
for each shipment of waste-derived product to a rece'iving
facility, the waste-derived product producer must submit to the
Regional Administrator a certification as described in
§268.7(b)(5) and a notice which includes the information listed
in §268.7(b)(4) (except the manifest number).  The producer must
also keep records of the name and location of each entity
receiving the hazardous waste-derived product.  It is not
necessary for the producer to send the certification notice to
the receiving facility.

     Finally, please note that the derived-from and mixture rules
were reinstated on an interim basis (effective until April 28,
1993) pending notice and comment on those provisions (57 FR 7628-
7633, March 3, 1992).  In addition, as illustrated by the Giant
case, the management of hazardous waste in cement kilns involves
many complex and difficult issues.  We are currently beginning a
study of these issues as part of our RCRA Reform Initiative for
which we will be gathering a wide range of data including
information on industry practices.  I anticipate that discussion
of these issues will continue as we progress with the study and I
welcome your thoughts and ideas.

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     We commend Region IV for its thorough analysis of these
complex issues.  If you have further questions, feel free to
contact Sonya Sasseville at (202) 260-3132.

Attachment

cc:  Incinerator Permit Writers' .Workgroup
     Dev Barnes
     Matt Hale
     Matt Straus
     Elizabeth Cotsworth
     Dave Bussard
     James Michael
     Charlotte Mooney
     Steve Silverman

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                                                9498.1992(02)
DEC 3 0 1992

 MEMORANDUM
                                            OFFICE OF
                                   SOLID WASTE AND EMERGENCY RESPONSE
 SUBJECT:
 FROM:
 TO:
Application of the BIF
Environmental Servipe>, /jlitd.

                  /   I/I
Sylvia K. Lowrance, Diprepct^
Office of Solid
                               Heritage
                              Lemont, Illinois
                                       \s
Karl E. Bremer, Chief/
RCRA Permitting Branch
Office of RCRA, Region 5  (HRP-8J)
     This  is  in response to your memorandum of November 20, 1992
regarding  Heritage Environmental Services,  Inc. in Lemont,
Illinois and  the burning of a propellant mixture (mostly butane
and propane)  in the company's boiler.   You  specifically asked
whether the burning of this mixture constitutes burning of a
hazardous  waste which would require them to comply with the
boiler and industrial furnace (BIF) regulations.

     Subpart  H  of 40 CFR Part 266 regulates the burning or
processing of hazardous waste in boilers and industrial furnaces.
However, before a substance can be classified as a hazardous
waste, it  must  first meet the definition of a solid waste.  In
determining whether the butane and propane  propellants are solid
wastes, it must also be decided whether the burning of these
materials  constitutes the burning for  energy recovery of a
propellant (is  a solid waste), or use  as a  fuel (is not a solid
waste) for the  reasons stated below.

     As stated  in your memo,  Heritage  plans to recover the
materials  from  the aerosol cans and separate them into three
streams: (1)  scrap.metal (crushed cans), (2)  a liquid phase
(household chemicals),  and (3) a gaseous phase (propellants,
mostly butane and propane).  Heritage  then  plans to burn the
recovered  propellants from the aerosol cans in their on-site
boiler for energy value.

     According  to 40 CFR Section 261.2(c)(2)ii of the
regulations,  commercial chemical products that are listed in 40
CFR Section 261.33 as well as non-listed commercial chemical
products that exhibit hazardous waste  characteristics (see
attached April  11, 1985 Federal Register notice explaining the
                                                          Printed o^ -;-v-^ ecf Papei

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regulatory status of non-listed commercial chemical products),
are not classified as solid wastes when burned for energy
recovery if they are themselves fuels.  Since propane and butane
are materials that are normally both used as fuels, when unused,
they can be burned as fuels without being considered solid
wastes.

     Therefore, if the aerosol cans are full (not used), or
partially full  (in which case they would be considered off-
specification with.the remaining propellants in the cans also
being unused), then the butane and propane propellants would be
classified as commercial chemical products.  Since these products
are fuels and being burned for energy recovery, they would not
fall within the definition of a solid waste and would
consequently not be considered a hazardous waste.

       For the reasons stated above, Heritage would not be
required to comply with the BIF regulations to burn the butane
and propane propellants in their on-site boiler.  However, this
determination assumes that other hazardous constituents have been
separated from the butane and propane propellants, and that the
butane and propane are indeed being burned for energy recovery
rather than to destroy other hazardous constituents contained in
the aerosol cans.

     If you have any additional questions or would like to
discuss this further, please contact Karen Randolph of my staff
on (703)  308-8651.

Attachment

cc:  Christine Dibble, OSW
     Mike Petruska, CAD
     Steve Silverman, OGC
     Bob Holloway, WMD
     Sonya Sasseville, PSPD

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              Feckral  Register  /  Vol. 50. No.  70  /  Thursday. April 11.  1985 /  Rules and  Regv.ia'.:cr.5       ' I21LJ
  and s'.orage requirements apply to those
  hazardous waste fuels containing listed
  wanes and sludges that are shipped
  from the generator to a burner or
  blender. See 50 FR 632. If a generator of
  a listed hazardous waste or sludge
  blends or processes these wastes and
  sends them to a burner or a waste fuel
  processor, the blended waste fuels are
  subject to regulation until burned or
  reprocessed by the fuel processor
  (except as described earlier). Thus, there
  is a conflict in the regulation, because
  transporters taking hazardous waste
  fuels from generators to burners or
  waste fuel processors  are regulated. See
  5 266.33(a). To correct this conflict we
  are revising paragraph (b) of { 206.33 to
  read as follows: 'Transporters of
  hazardous waste fuel are not presently
  subject to regulation when they
  transport hazardous waste fuel from
  marketers, who are not also the
  generators, to burners  or other .
  marketers."

  |. Regulatory Status of Non-Usted
  Commercial Chemical  Products
f  Under the final rules, commercial
  chemical products and intermediates.
  off-specification variants, spill residues.
  and container residues listed in 40 CFR
  201.33 are M.'. c.::-idered solid wastes
  when recycled except when they are
  recycled in ways that differ from their
  normal use—namely, when .they are
  burned for energy recovery or used to
  produce a fuel. A number of questions
  have been raised as to the regulatory
  status of commercial chemical products
  that are not listed in I  261.33 but exhibit
  one or more of the hazardous waste
  characteristics (/.e..ignitability.
  corrosivity. reactivity,  and extraction
  procedure (EP) toxicity).
   Although we do not directly address
  non-listed commercial  chemical
  products in the rules, their status would
  be the same as those that are listed In
  J 261.33—That is. they are not
  considered solid wastes when recycled
  except when they are recycled In ways
  that differ from their normal manner of
  use This is the same relationship that
  exists between discarded commercial
  chemical products that are listed in
  { 26: 33. end those that exhibit a
  •:h3racieristic of hazardous waste. We
  :..  c-x; this point is implicit In the rules.
  as H i! implicit in existing {{ 261.3 and
  261.3.1.
  K. Regulatory Impact
   Under Executive Order 12291, EPA
  must judge whether a regulation is
  "major" and therefore  subject to the
  requirements of a Regulatory Inpact
  Analysis. Sine'.- iiiis notice simply makes
  typographical and technical corrections
 and does not change the previously
 approved final rule, this rule is not a
 major rule and. therefore, no Regulatory
 Impact Analysis was conducted.

 List of Subjects

 40 CFR Part 260
   Administrative practice and
 procedure. Hazardous materials. Waste
 treatment and disposal.

 40 CFR Part 261
  .Hazardous materials. Waste _
 treatment and disposal. Recycling.

 40 CFR Part 266
   Hazardous materials.
  Dated: April 2,1965.
 lack W. McGnw.
 Assistant Administrator.
   For the reasons set out in the
 preamble. Title 40 of the Code of Federal
 Regulations Is amended as follows:

 PART 260—HAZARDOUS WASTE
 MANAGEMENT SYSTEM: GENERAL

  1. The authority citation for Part 260
 reads as follows:
  Authority: Sec*. 1006. 2002(a). 3001 through
 3007. and 3010 of the Solid Waste Dliposal
 Act. as amended by the Reiource
Conservation and Recovery Act of 1976. as
amended (42 U.S.C. 6005.69U(t). 6921
 through 6927. and 6930).

  2. In { 260.30. paragraph (a] is revised
to read as follows:

( MOM   Variance* from ctaMrftcation at a
txtfkJ wutr
  (a) Materials that are accumulated
speculatively without sufficient amounts
being recycled (as defined in
8 261.1(c)(6) of this chapterl:
PART 261-IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE

  3. The authority citation for Part 261
reads as follows:
  Authority: Sees. 1006. 2002(a). 3001. and
3002 of the Solid Waste Disposal Act is
•mended by the Resource Conservation and
Recovery Act of 1976. as amended (42 U.S.C.
0905.6912(a). 6921. and 6922).
  4. Section 2612 Is amended by
revising paragraph (c)(2) to read as
follows:

| M1J  Definition of hazardous waste.


  (c)'  '  '
  (2)(i) Except as otherwise provided in.
paragraph (c)(2)(ii) of this section, any
solid waste generated from the
treatment, storage, or disposal of a
 hazardous waste, including any s!-.,J;e.
 spill residue, ash. emission control d-jst.
 or leachate (but not including
 precipitation run-off) is a hazardous
 waste. (However, materials that arc
 reclaimed from solid wastes and that
 ere 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.)
  (ii) The following solid wastes are not
 hazardous even though they are
 generated from the treatment, storage, or
 disposal of a hazardous waste, unless
 they exhibit one or more of the
 characteristics of hazardous waste: (A)
 Waste pickle liquor sludge generated by
 lime stabilization of spent pickle liquor
 from the iron and steel industry- (SIC
 Codes 331 and 332].
  5. Section 261.4 is amended by
revising paragraph (a)(6) to read as
follows:

52<1.4  ExclusJon*.

  (a)' ' «
  (6) Pulping liquors (i.e.. black liquor)
that are reclaimed In a pulping liquor
recovery furnace and then reused in the
pulping process, unless it is accumulated
speculatively as defined in {  26l.l(c) of
this chapter.
•    •    •    •     •

  6. Section 261.S is amended by
revising the second sentence  in
paragraph (c) to read as follows:

} 241.5 Special r*qulrtm«nts for
hazardous wutt g«ntr»t»d by  •null
quantity generators.
•    •    •    •     •

  (c)  • * * Hazardous waste that is
subject to the requirements of } 261.6 (b)
and (c) and Subparts C. D. and F of Part
266 is Included in the quantity
determination of this section  and is
subject to the requirements of th:s
section.
                                      -PART 266—STANDARDS FOa THE
                                       MANAGEMENT OF SPECIFIC
                                       HAZARDOUS WASTES AND SPECIFIC
                                       TYPES OF HAZARDOUS WASTE
                                       MANAGEMENT FACILITIES

                                         7. The authority citation for Pdri 166
                                       reads as follows:
                                         Authority. S«c*. 1006. 20021 a). «nd XX* cl
                                       the Solid Waste Disposal Act ts tmrnord t>
                                       the Resource Conservition and R*to»try  v.i
                                       of 1976. a i amended l« 2 U.SC MOY«gi:i«i
                                       and 6924).

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USE
                                                  9498.1993(01)


         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
- >                   WASHINGTON. D.C. 20460

-------
     If you have any additional questions or would like to
discuss this in any further detail, please contact Karen Randolph
of my staff on (703) 308-8651.
                                   Sincerely,
                                        a K. Lowrance, Director
                                      Ice of Solid Waste
cc:  Dev Barnes, PSPD
     Matt Hale, PSPD
     Jim Michael, PSPD
     Sonya Sasseville, PSPD
     Nancy Alvarez, NDEP
     Waste Combustion Permit Writers' Workgroup

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                                                                     9498.1993(02)
                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                               WASHINGTON, D.C.  20460
                                                                    OFFICE OF
                                 'UN ~2  IQQ3             SOLID WASTE AND EMERGENCY RESPONSE
Marshall D. Owens, Jr., P.E.
Engineering Manager
Borden Chemicals and Plastics
Operating Limited Partnership
P.O. Box 427
Geismar, Louisiana  70734

Dear Mr. Owens,

      Thank you for your letter dated October 27, 1992, concerning the regulatory status
of a thermal processing unit located at the Borden Chemicals and Plastics ("Borden")
facility in Geismar, Louisiana. As you know, in addition to your letter we received three
written requests from Mr. Harvey Rosenzweig (legal counsel representing Borden) dated
May 5, June 18, and July 7,  1992, prior to our meeting with you on September 23, 1992.
Those letters requested that U.S. EPA Headquarters review a regulatory determination
made by the U.S. EPA Region VI office regarding Borden's Valorization of Chlorinated
Residuals (VCR) unit. Region VI had determined that the VCR unit meets the
definition of an industrial furnace (specifically, a halogen acid furnace, or HAF) under
the Resource Conservation and Recovery Act (RCRA), and would require a RCRA
industrial furnace permit. Because the issues raised in all four letters sent to us address
the same question, this response provides an answer to all four incoming letters. A copy
of this  response will be sent to Mr. Rosenzweig as well.

      EPA shares your interest  in the safe and efficient management of residual
materials. I can assure you  that my staff carefully considered the information you and
your counsel presented.  I appreciate your including for our understanding the economic
and business considerations  that were part of your decisions to construct the VCR unit
and your goal of being a "generator only".  After reviewing the information obtained
from irooming letters, U.S. EPA Region VI personnel, apd from our meeting on
September 23, our determination is that Region VI was correct in classifying the unit in
question at the Geismar facility as a halogen acid furnace. Therefore, this unit would be
subject to the regulatory requirements applicable to industrial furnaces burning
hazardous waste,  including RCRA interim status and permitting requirements.  The
rationale for this determination is presented in the remainder of this letter, and our
response to your specific questions are attached to this letter.
                                                                   FILE
                                                                      Printed on Recycled Paper

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 Regulatory Status of HAFs

      EPA's position is that the thermal decomposition of hazardous chlorinated
residuals in devices like Borden's VCR unit necessarily involves the destruction of toxic
organic compounds in addition to any energy recovery and/or reuse of secondary
materials as feedstocks. Prior to the final rule promulgated for boilers and industrial
furnaces (BIFs) in the February 21, 1991. Federal Register (56 FR 7134), HAFs burning
hazardous waste were either regulated as incinerators or as  industrial boilers (56 FR
7139). This is because HAFs were not specifically defined as an industrial furnace.
Therefore, if a HAF burned hazardous waste and was not a boiler (no steam produced),
and since HAFs were not listed as industrial furnaces in §260.10, by definition the unit
was an incinerator. Since the promulgation of the BIF rule, however, the industrial
furnace definition now includes HAFs .

      Based on all the information we reviewed,  Borden's VCR unit meets  the
definition of a HAF. The preamble and regulatory language in both the proposed and
final BIF rulemakings were very explicit concerning EPA's intent to regulate HAFs as
industrial furnaces.  EPA's rationale for regulating HAFs as industrial furnaces, and for
designating any material fed to a HAF as "inherently waste-like," are reflected in the
preamble from the April 27, 1990, supplemental notice, which states:

      Materials fed to the HAFs are usually the residual still bottoms no longer
      suitable for use as feedstock to make new chemical products.  Many are
      listed wastes, for example the generically listed F024.  These materials
      contain dozens of Appendix VIII constituents not ordinarily found in  the
      raw materials that are normally used to produce chlorine...Other than for
      their chlorine content, these organic toxicants do not contribute to
      hydrochloric acid production; they are destroyed...Thus, these toxicants
      (which by volume comprise the greater part of these wastes) are discarded
      by thermal combustion. Second, inefficient combustion of the halogenated
      organic compounds in wastes fed to a HAF can pose the same risks to
      human health and the environment as combustion of those wastes in  an
      incinerator, boiler, or other industrial furnace. We thus believe that
      hazardous materials burned in these devices are inherently waste-like. 55
      FR 17892.

      The development of the regulations pertaining to HAFs clearly indicates EPA's
    ^"he § 260.10 definition of industrial furnace now includes "Halogen acid furnaces
(HAFs) for the production of acid from halogenated hazardous waste generated by
chemical production facilities where the furnace is located on the site of a chemical
production facility, the acid product has a halogen acid content of a least 3%, the acid
product is used in a manufacturing process, and, except for hazardous waste burned as
fuel, hazardous waste  fed to the furnace has a minimum halogen content of 20% as-
generated."

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intent to regulate these units as BIFs within the Subtitle C management system in order
to ensure adequate destruction of the toxic constituents.  Despite opportunity to
comment on our specific approach to HAFs in both the May 6, 1987, proposal and the
April 27, 1990, supplemental notice, no party (including Borden) raised information to
cause EPA to modify this approach.

      In summary, EPA recognizes the benefits of burning hazardous waste in boilers
and industrial furnaces, which include energy and material recovery, and the reduction of
waste volumes requiring commercial  treatment and disposal. We also must be able to
ensure that burning hazardous wastes in boilers and industrial furnaces is performed in a
manner that minimizes risks and is protective of human health and the environment.  If
you have any further questions please contact Ross Elliott of my staff at  (202) 260-8551.
Thank you very much for your time.
                                     Sine
                                      Director
                                     Office of Solid Waste
cc:    Bob Holloway, USEPA
      Matt Hale, USEPA
      Brian Heineman, USEPA Region VI
      Harvey Rosenzweig, Troutman, Sanders, Lockerman & Ashmore
Enclosure

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                         EPA Response to Specific Questions
                   Raised by Borden Concerning VCR Process Unit
                      Located at Borden's Geismar. LA Facility

       The following arguments were raised at various points in the four incoming letters
EPA received from Borden (and Borden's counsel) concerning the VCR unit in Geismar,
Louisiana. They are addressed here in order to help clarify some of these issues.

Spent Sulfuric Acid Exemption - Borden made the argument that  the chlorinated
stillbottoms used in the production of "anhydrous  hydrogen chloride" in the VCR thermal
unit (and therefore the overall process itself) should be excluded from RCRA regulation
because they are analogous to the materials covered by the exclusion in §261.4(a)(7) for
spent sulfuric acid used as a feedstock to produce virgin sulfuric acid.

       EPA promulgated the sulfuric acid exclusion to make clear that spent sulfuric acid
recycled in industrial furnaces was not solid waste under the use/reuse provisions in
261.2(e)(l)(i) and (ii) (see January 4, 1985  Federal Register: 50 FR 634).  In contrast,
we felt that the industrial  furnaces in which halogenated residuals are burned warranted
regulation due to the highly toxic nature of the materials entering the unit, and the fact
that  many of these chlorinated organics were being thermally destroyed in the process
(see 56 FR 7141).

Coke By-Product Rule - Borden believes that EPA's rationale supporting the exclusions
found in the final rule  on  coke by-products  is applicable to the chlorinated stillbottoms
entering Borden's VCR thermal unit. Specifically, the  coke by-product rule excluded
from the definition of solid waste certain coke by-product residues that are TC (toxicity
characteristic) hazardous,  and are recycled in certain ways, including return to the coke
oven as feedstock. The rationale for these  exclusions  is based on the presence of
adequate  air emission controls under the Clean Air Act, and applicability of  the
American Mining Congress court decisions  ("AMC I" and "AMC II") in favor of
excluding in-process recycling that does not contribute to the waste disposal problem.
These exclusions are also  conditioned on there being no land disposal of the  recycled
material.  Borden feels that they can satisfy these  conditions in their VCR process.

       However, EPA based its coke by-product determination on data submitted by the
American Iron and Steel Institute (AISI) in the form of a rulemaking petition.  Using
this cL;a,  EPA was able to determine that the addition of K087 (or other TC-hazardous
coke residues) to coal prior to coking, to the tar recovery process as a feedstock, and to
coal tar prior to sale, had  no significant effect on the levels of hazardous constituents in
the materials to  which  they were added, and equally important, no significant effect on
air emissions. In this case, EPA was able to conclude that this type of recycling is not
part of the waste disposal  problem.  With respect  to Borden's case, the  air emissions
from the  unit in question are clearly related to the hazardous waste input, even though
the specific unit  may well  be  well designed  and operated  such that the emissions are

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safe.  We also believe that Appendix VIII constituents not ordinarily found in the raw
materials normally used to produce chlorine do not contribute to hydrochloric acid
production; they are destroyed (discarded) in the HAF.

RCRA Jurisdiction - In several of the incoming letters, the stillbottom materials being
fed to the VCR unit were characterized as "previously unused and unconsumed organic
intermediates" that arev then "processed into usable anhydrous hydrogen chloride
feedstock," for use in a continuing production process.  The implication was that there is
no Subtitle C jurisdiction over either the materials or the VCR process unit. The AMC
court decisions were cited in support of these arguments.

       EPA disagrees with this assessment. First, the stillbottom materials are
considered to be chemical manufacturing residuals (i.e., by-products2), as they were
described when EPA listed these wastes as hazardous (K019 and K020) in 1980?.
Although land disposal and incineration were the common management practices
industry-wide for these stillbottoms at that time, EPA also recognized that some of these
by-products were being recycled as feedstocks in other processes.  In fact, EPA still
recognizes the reuse of these materials as feedstocks when fed to HAFs (see 56 FR
7141; 52 FR 17019). However, EPA retains jurisdiction over this type of reuse (i.e., the
burning of highly-chlorinated residuals as ingredients to make halogen acid), in part
through the inherently waste-like designation (§261.2(d)).

       The AMC I decision regarding in-process recycling does not preclude the Agency
from making inherently waste-like determinations. The inherently waste-like criteria
originally discussed in the January 4, 1985 Final Rule (50 FR 637), were reiterated in a
rulemaking proposed in response to the AMC I decision, in which EPA stated:

       The factors the Agency is required to consider in designating secondary
       materials as solid wastes under this section address the element of discard
       necessarily involved in recycling these materials (e.g.,  whether the material
       is typically discarded, or whether it contains unusual hazardous constituents
       not  found in corresponding virgin materials for which the secondary
       material substitutes which do not contribute to the recycling process, and
       whether the recycling process may pose a hazard to human health and the
       environment).  The court's opinion does not affect this provision. (54 FR
       523).
    2 EPA defines a by-product as "...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 bottoms."  (40 CFR
    3 See Listing Background Document for Ethylene Dichloride and Vinyl Chloride
Monomer Production, November 14, 1980.

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AAF Definition - Borden believes that the VCR unit does not meet the definition of
HAF in §260.10, because it is not used for "the production of acid;" instead, Borden
claims  that the  VCR unit is producing anhydrous HC1.

       We understand that the production of aqueous HC1 is the initial result of the
thermal reactor and subsequent water quenching within the VCR process unit.  When
EPA was proposing a regulatory definition for HAFs, we were clearly targeting units
that, in the example of chlorinated residues being burned, "...produce hydrogen chloride
(HC1)  from chlorine-bearing secondary streams by scrubbing HC1 from combustion
gases"  (emphasis added) (52 FR 17018).  The fact that the HC1 is further processed, in
subsequent concentration and distillation stages within the VCR process, to produce the
desired anhydrous hydrogen chloride does not preclude the thermal portion of the unit
from meeting the definition of a HAF.

       However, should a particular unit (that is processing hazardous  secondary
materials using controlled-flame combustion), both 1) not meet the definition of a HAF,
or other industrial furnace specified in §260.10, and 2) not meet the definition of a
boiler,  then EPA would consider such a unit  an incinerator (§260.10).  (Based on the
information provided concerning the production of steam from the thermal portion of
the VCR process, it is possible that the unit may also meet the definition of a boiler.)
This determination would be moot if  the unit was otherwise classified as a  HAF, which
we believe it is.

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                 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                               WASHINGTON, D.C. 20460
                                                                      9498.1993(03)


                                  NJnw p  9 IQQ^
                                  iM-vV c  » tyyj                            OFFICE of
                                                                    SO!.ID WASTE ANC EMERGENCY
                                                                           RESPONSE
Mr. William F. Sutton
President
Mercury Recovery Services
700 Fifth Ave.
New Brighton, PA 15066

Dear Mr. Sutton:

       In your letter of August 27, 1993 to Sylvia Lowrance, you requested an EPA
interpretation of the classification of your  mobile mercury retorting process for mercury
contaminated soils from natural gas pipeline meters as a recycling process. You also
indicate in your letter an interest on the part of natural gas pipeline companies to
understand permitting requirements for field operation of your process.

       In response to your request, EPA has reviewed the written materials that you
have submitted with your letter and during your meeting with  EPA Headquarters on
August 25, 1993.  EPA recognizes that mercury roasting and retorting are two methods
of reclamation, a type of recycling (40 CFR §261.1(c)(7)).

       Under Federal RCRA Subtitle C regulations, recycling  processes are generally not
subject to regulation including permitting requirements (40 CFR §261.6(c)(l)).
However, recycling in industrial furnaces or boilers represents  an exception to this
general rule  (see 40 CFR Part 266 Subpart H generally).  In particular, roasting and
retorting operations meet the definition of an industrial furnace (40 CFR §260.10)  since
they are types of smelting, melting or  refining furnaces.1  However, if the retorting
operation is burning solely for metal recovery, it is conditionally exempt  from most of the
boiler and industrial furnace (BIF) requirements including the requirement to obtain a
permit (40 CFR §266.100(c)).
   1         Roasting involves the heating of a material such as an ore or metal compound in order to
remove impurities such as sulfides from metal compounds such as mercury sulfides. Roasters are a type of
smelting, melting and refining furnace listed in 40 CFR 260.10. A retorter is a furnace where metal
compounds are refined from a metal oxide to metal form through distillation and condensation. EPA
believes that retorters are also a type of pyrometallurgical device that meets the definition of smelting,
melting or refmning furnace even through they are not specifically listed in 40 CFR 260.10 as an example of
such devices.

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      To meet the conditions of the exemption, the owner/operator of a smelting,
melting or refining device must submit a one-time written notice to the Director stating
that: 1) the owner/operator claims the exemption, 2) the hazardous waste is being
burned solely for metal recovery and contains recoverable levels of metals, and 3) the
owner/operator will comply with  sampling, analysis and recordkeeping requirements of
40 CFR § 266.100 (c)(l). (The owner/operator must also meet the management
standards prior to burning (40 CFR 266.101) and the regulation of residues (40 CFR
266.112).)

      In order to be considered burning solely for metal recovery, an owner/operator of
an industrial furnace (e.g., smelting, melting or  refining furnace) must meet two
conditions.  First, hazardous waste burned in the furnace, as fired, must have no more
than a total of 500 ppm of organic compounds listed in 40 CFR Part 261 Appendix VIII.
Second, the hazardous waste must have heating value of less than  5000 BTU/lb. 40 CFR
§266.100(c)(2).

      Note that if the hazardous waste as fired in the furnace exceeds a total of 500
ppm Appendix VIII organic constituents by weight, it is considered burning for
destruction and therefore cannot  qualify for the metal recovery exemption under the  BIF
rule.  Alternatively, if the waste is greater than  5000 BTU/lb heating value, it is
considered to be burned as a fuel. In either event, the industrial furnace would be
subject to 40 CFR Part 266 Subpart H BIF requirements, including permit requirements.
The hazardous waste to be burned in the furnace may be treated either below 500 ppm
Appendix VIII organic constituents or less than 5000 BTU/lb by bona fide treatment  that
removes  or destroys organic constituents.  If this type of partial treatment were to occur
prior  to entry of the waste into an industrial furnace, then the industrial furnace could
still be eligible for the metal recovery exemption under the  BIF rule.  However, blending
to dilute below either of these levels is  prohibited. 40 CFR  §266.100(c)(2).

       Based on information provided in your incoming, it appears that your  operation is
a roasting/retorting operation that may be exempt from RCRA permitting requirements.
However, this regulatory determination will depend on situation specific factors such as
the type  of material fed into the retorting unit.  Therefore,  you should consult with the
appropriate EPA Region or State for particular regulatory determinations regarding
specific sites.

       Please be aware  that under Section 3006 of RCRA (42 U.S.C. Section 6926)
individual States can be authorized to administer and enforce their own hazardous waste
programs in lieu of the  Federal program. When States are not authorized to administer
their  own program, the  appropriate EPA Regional office administers the program and is
the appropriate contact for any case-specific determinations.  Please also note that under
Section 3009 of RCRA  (42 U.S.C. Section 6929) States retain authority to promulgate
regulatory requirements that are more stringent than Federal regulatory requirements.

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      If you have any additional questions regarding this matter, please contact Mike
Petruska of my staff at (202) 260-8551.
                                             Sincerely,
                                             Michael Shapiro, Director
                                             Office of Solid Waste
cc:  Waste Combustion Permit Writers Workgroup

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                                                     9498.1993(04)
                             DEC  I 7 1993
                                                          OFFCE OF
                                                     SOLD WASTE AND EMERGENCY
                                                          RESPONSE
MEMORANDUM

Subject*  Classification  of Olin Mercury Recover

From:
Tot
          Michael  Shapiro,  Director
          Office of  Solid Waste
          Joseph Franzmathes,  Director
          Waste Management Division
          US EPA Region IV
                                                   Unit
     This memo  is  in  response  to Region IVs request for our
advice on classifying Olin's mercury recovery unit located in
Charleston, TN, as either  an industrial furnace or a Subpart X
miscellaneous treatment  unit.

     After review  of  the design and use of the mercury recovery
unit, we have determined that  it is a type of smelting,  melting,
or refining furnace and  is therefore an industrial furnace (under
the definition  in  40  CFR 260.10)  subject to the BIF rule.  As a
smelting, melting, or refining furnace,  however,  the unit is
eligible for an exemption  from the permitting,  emissions
standards, and  certain other requirements of the BIF rule if it
engages solely  in  metal  recovery,  as provided by 40 CFR
266.100(c).  As you may  know,  the exemption is conditioned on the
facility notifying EPA that it is claiming the exemption,
sampling and analysis of the hazardous waste and recordkeeping to
document eligibility  for the exemption.

     The determination that the mercury recovery unit is an
industrial furnace is based on the following:

     •    The unit is an integral component of a manufacturing
          process  that uses thermal treatment to recover mercury.
          We understand  that the unit will recover over 90
          percent  of  the waste mercury for recycling into the
          chlorine production  process;


          We understand  that the unit will be used to convert
          mercuric sulfide to  mercury in exactly the same manner
          as commercial  roasters, and roasters are a type of
                                                       Print** wftti Soy/Ctnota Ink on pip»r tlwt
                                                       M.M.. «• IMM "»t ~~^«- «>-'

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          smelting, melting, or refining furnace listed in 40 CFR
          260.10; and

          The unit is also a retorter because it is used to
          volatilize mercury for subsequent recovery by
          condensation.  In the metallurgical industry, a
          retorter is a furnace consisting of a fire chamber in
          which metals are recovered by distillation and
          subsequent recovery.  These furnaces are used when the
          material must be vaporized and then condensed.
          Mercury, due to its low boiling point, is commonly
          recovered from secondary sources using retort furnaces.
          We believe that retorters are a type of
          pyrometallurgical device that meets the definition of
          smelting, melting, or refining furnace even though they
          are not specifically listed in 40 CFR 260.10 as an
          example of such devices.

     If you have any further questions on the matter, please feel
free to contact me at  (703) 308-8414, or your staff may contact
Nick Vizzone at  (703) 308-8460.

CC   John Dickinson, EPA Region IV
     Bill Gallagher, EPA Region VI
     Denis Zielinski, EPA Region III
     Mitch Kidwell, CAD
     Sonya Sasseville, PSPD
     Bob Holloway, WMD

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f n \
5 ^*—^ *        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460

                                                       9498. 1994(01)


                              APR - 4 1994
                                                       OFf :CE OP
                                              SOLID WAS: E AND EMERGENCY RESPONSE


  Mr. Richard C. Fortuna
  Executive Director
  Hazardous Waste Treatment Council
  915 15th Street,  N.W.,  Fifth Floor
  Washington, D.C.   20005

  Dear Mr. Fortuna:

       This letter responds to the Petition for Administrative
  Action to Cease Hazardous Waste Burning and Notice of Citizen
  Suits,  which the Hazardous Waste Treatment Council (HWTC) and
  several citizens groups submitted to the Administrator of the
  U.S.  EPA on January 31, 1994.  In this letter,  I will refer to
  your January 31 document as "the Notice."

       The Notice you submitted asks the Administrator to halt the
  burning of hazardous wastes (or where hazardous wastes are not
  being  burned, to disallow any burning of hazardous waste until a
  permit is issued) at the following hazardous waste combustion
  facilities:  LaFarge Cement Plant in Alpena, Michigan; National
  Cement Company in Lebec,  California; River Cement in Festus,
  Missouri; BoxCrow Cement Plant in Midlothian,  Texas;  Gage
  Products Company in Ferndale, Michigan; Holnam Cement Plant in
  Ada,  Oklahoma; ESSROC Cement Plant in Speed, Indiana; and Marine
  Shale  in Morgan City, Louisiana.   These facilities all assert
  that they obtained interim status under section 3005(e)  of the
  Resource Conservation and Recovery Act ("RCRA") upon EPA's
  promulgation of the Boiler and Industrial Furnace ("BIF") rule,
  which  became effective on August 21, 1991.  The basis for your
  request was your belief that these facilities either did not
  qualify for interim status, or should be required to cease waste
  combustion due to non-compliance with the BIF standards.

       I appreciate your concerns regarding the operation of all
  BIF facilities and their compliance with the applicable
  regulations.  EPA has vigorously enforced the B.IF requirements
  and will continue to do so.  We welcome public input into the
  implementation of the BIF regulations,  including notification by
  the public of possible violations by interim status BIF
  facilities and any other facilities.

       With respect to the facility-specific  interim status issues
  raised in the Notice, it is important to note that EPA does not
  "approve" or "deny" interim status.  Interim status is a
  statutory right that is conveyed by RCRA to facilities that

-------
satisfy the interim status criteria.  The promulgation of a
regulation that expands the universe of facilities subject to
RCRA regulation, such as the BIF rule, provides an opportunity
for existing facilities to gain interim status.  Unlike an Agency
decision to deny a permit, EPA's interpretations on whether
potentially affected facilities have qualified for interim status
simply express the Agency's view, based on a review of the
information before it, as to whether the facilities have met the
interim status criteria.  These interpretations are potentially
subject to revision based on new information or analysis.  This
letter presents EPA's interpretation regarding whether the
specific facilities qualified for interim status, based on the
information before EPA when it rendered initial interpretations
for these facilities, the information provided in the Notice,
information submitted by some of the facilities since EPA
received the Notice, and additional information gathered by EPA.

     The criteria a facility must meet in order to qualify for
interim status under the BIF rule, or any other rule that first
subjects a facility to the hazardous waste rules, are set out in
40 CFR 270.70(a), 260,10, and 266.103(a).  One of the criteria is
that the facility must be an existing hazardous waste management
facility on the effective date of the rule that subjects it to
hazardous waste regulation.  The regulations specify that if the
facility has not managed hazardous waste by this effective date,
it musr have "commenced construction" in order to qualify as
"existing" (40 CFR § 270.70(a)).  In order to demonstrate that it
has "commenced construction" a facility must have obtained the
Federal, state, and local approvals and permits necessary to
begin physical construction.  These approvals and permits are
those required under Federal, State, and local hazardous waste
control statutes, regulations or ordinances (see 40 CFR 260.10).

     This "approvals and permits" requirement was discussed in an
EPA preamble (46 FR 2344, January 9, 1981) and an August 19,
1991, guidance memorandum from Don Clay, Assistant Administrator,
Office of Solid Waste and Emergency Response, to James Scherer,
Regional Administrator, Region VIII.  Both discussions explained
that, for example, permits required to begin physical
construction of a facility under a state's air statutes or
regulations, are not a requirement for obtaining interim status,
unless the statutes or regulations specifically regulate the
management of hazardous waste.

     For six of the eight subject facilities, EPA used the
guidance contained in the August 19, 1991 memorandum and other
regulatory and policy directives to evaluate the interim status
issues.  (The two remaining facilities, River Cement and National
Cement, are addressed separately below.)  In cases where the
interim status determination turned on whether a state permit was
required under a state hazardous waste statute or regulation, EPA
consulted with the relevant state agency.  Where the state  law

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was open to  interpretation, EPA gave substantial weight to
reasonable interpretations by the state.

     Based on our analysis, EPA believes that the following
facilities never qualified for interim status:  Gage Products
Company in Ferndale, Michigan; ESSROC Cement Plant in Speed,
Indiana; and Marine Shale in Morgan City, Louisiana.  Marine
Shale is the only facility in this group that is currently
burning hazardous waste.  In addition, for the LaFarge Cement
plant in Alpena, Michigan, we believe the three kiln units you
identified in your notice did not q lalify for interim status,
although the facility does have interim status for two other
kilns that have been burning hazardous wastes for a number of
years.

     EPA believes that the Holnam Cement Plant in Ada, Oklahoma
does have interim status.  For the BoxCrow Cement Plant in
Midlothian, Texas, the Notice raises difficult questions as to
the interpretation of a complex state regulatory scheme.  EPA is
consulting with the state of Texas to clarify the interpretation
of the State permit regulations.   EPA will respond to this
portion of the Notice shortly.  Neither of these facilities is
currently burning hazardous waste.

     In the case of River Cement facility in Festus, Missouri,
EPA evaluated whether the owner/operator complied with the BIF
rule compliance schedule cited in 40 CFR § 260.103(e).  The
Agency found substantial compliance with these provisions;
therefore the facility may continue to burn hazardous waste under
interim status.

     With respect to National Cement in Lebec, California, EPA's
Region IX office issued a final decision to deny the RCRA permit
for this facility on March 31, 1994.  The denial was based on the
fact that the landowner did not sign the certification required
by the RCRA regulations.   This decision,  scheduled  to take
effect on April 30, 1994, will automatically terminate interim
status,  to the extent the facility obtained it.   40 CFR Section
270.73(a).  Note that the facility may elect to appeal the
decision under the Agency's administrative appeal process in 40
CFR Part 124.  Because EPA has issued a decision to deny National
Cement's permit application and terminate its operations on
virtually the same grounds identified in the Notice for
terminating interim status operations, EPA does not believe that
any additional action is necessary at this point with respect to
the National Cement facility.
     1As you are aware,  on February 24,  1994,  National Cement
supplied EPA with a certification  signed by the landowner, Tejon
Ranch.  However, the certification signed by Tejon Ranch  is
different from what is required by the regulations.

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     The Agency has notified each of these companies of the
determinations contained in this letter.  Please see the
attachment for additional discussion on each facility.  If you
wish to discuss this matter further, please contact the
appropriate EPA Regional Office.
                                   Sincerely,
                                   Michael Shapiro, Director
                                   Office of Solid Waste
Attachments

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                            ATTACHMENT

   EPA Response to "Petition for Administrative Action to Cease
       Hazardous Waste Burning and Notice of Citizen Suits"


A.    FACILITIES  IN EPA REGION 5

LaFarge Cement Plant, Alpena. Michigan

     'The Notice  asserts that three units at the LaFarge Cement
Plant do not have interim status because the facility did not
obtain all permits and approvals necessary  for physical
construction.  Further, it claims that the  construction
undertaken by the facility in order to qualify for  interim status
was done in violation of Michigan air permit requirements, and
was dismantled pursuant to a consent judgement.  Two units at the
facility have burned hazardous waste for a  number of years, and
the Notice does  not question their qualification for interim
status.                               . ,v

     The key issue regarding this facility  is whether two permits
required for BIFs under Michigan's hazardous waste  control
regulations fall within the "permits and approvals" requirement
for obtaining interim status.  The LaFarge  facility did not
obtain either of these permits for any of the three units in
question prior to the effective date of the BIF rule.  To be
considered "in existence" and thus qualify  for interim status, a
facility that requires "construction" to manage hazardous waste
must obtain any  hazardous waste permits that would  be necessary
for construction.

     EPA believes that these permits are construction permits
required under a hazardous waste regulation.  Because LaFarge did
not obtain either permit, EPA believes the  facility did not
obtain interim status for the three units in question.  In
reaching this conclusion, EPA consulted extensively with the
Michigan Department of Natural Resources  ("MDNR") to clarify
certain aspects of its interpretation of State permit
requirements.  EPA has concluded that MDNR's interpretation of
its own regulatory scheme is reasonable and EPA has given it
considerable weight.  The Agency has no knowledge of hazardous
waste being-burned in these units.

     Essentially, MDNR Rule 299.9802(3)(a)  ("Rule 802"),
promulgated pursuant to the state's hazardous waste control
statute (Act 64), requires BIF facilities to obtain either an Act
64 permit or a permit under the state's..air statute  (Act 348) ir.
order to burn hazardous waste.  Virtually all facilities comply
with this provision by obtaining Act 348 permits, and LaFarge has
obtained Act 348 permits for its kilns with interim status thac
are currently burning hazardous waste.  The requirement  in Rule

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802 to obtain the air permit encompasses the requirement to
obtain a permit to install as well-as a permit to operate,  since
facilities typically operate for extended periods of time under
permits to install.  For facilities that choose to comply with
Rule 802 by obtaining permits under the hazardous waste statute,
the hazardous waste permit provisions similarly require
facilities to obtain permits prior to construction.
Consequently, under MDNR's hazardous waste control Rule 802, a
.facility must obtain a permit prior to commencing construction.
This analysis is documented in correspondence between EPA and
MDNR.

     EPA notes that the August 19, 1991, Don Clay memorandum
indicated that "air pollution control permits" are not
prerequisites for obtaining interim status "if the purpose of the
legislative provision is to regulate air emissions in general,
and not specifically to regulate hazardous waste...."  EPA
clarifies that this sentence was not intended to limit the
inquiry to legislative, as opposed to regulatory, intent.  The
intent of this portion of the memorandum was to reiterate that
permits required under other regulatory schemes are not generally
prerequisites for obtaining interim status, unless the scheme
specifically regulates hazardous waste management.  The inquiry
required for an interim status determination is whether the
permits in question are an official part of the state's scheme
for regulating hazardous waste management.

Gage Products Company,  Ferndale, Michigan

     The Notice asserts that the Gage Products facility did not
have interim status because the facility did not obtain all
permits and approvals necessary for physical construction.   This
facility is subject to the same Michigan permit requirements as
the LaFarge Cement Plant, and-, raises virtually the same issues.
For the same reasons discussed 'for the LaFarge facility above,
EPA believes that Gage Products Company does not have interim
status.

ES5ROC Cement Plant.  Speed. Indiana

     ESSROC withdrew its Part A permit application form on
January 27,  1993 (see attached letter).  To EPA's knowledge the
facility has not burned hazardous waste.  Under EPA's long-
standing "protective filer" policy, it is the Agency's view that
the facility never obtained interim status.  EPA has informed  the
company that a RCRA permit must be obtained before waste may be
burned at the facility.

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 B.    FACILITIES  IN EPA REGION 6

 Marine Shale  Processors, Morgan City. Louisiana

      The Notice  asserts that the MSP facility lacks interim
 status.  EPA  agrees with this conclusion.  On June 14, 1990, the
 United States  filed a multimedia civil judicial enforcement
 action against Marine Shale of St. Mary Parish, Louisiana
 pursuant to the  Resource Conservation and Recovery Act (RCRA) and
 the Clean Water  Act.  Marine. Shale is the largest burner of
 hazardous waste  in the country.  The United States has alleged
 that  Marine Shale is a "sham" recycler that has been  improperly
 operating without a RCRA permit or interim status and is
 violating RCRA by placing hazardous waste on the ground that
 exceeds EPA's treatment standards.  The U.S.'s Complaint also
 alleges that Marine Shale violated the company's Clean Water Act
 National Point Source Discharge Elimination System permit.

      On August 2, 1993, District Court Judge DuPlantier granted
 the state of Louisiana's motion to intervene as a co-plaintiff in
 this  case.  The  Court also permitted the U.S. to add  new claims
 under the Comprehensive Environmental Response, Compensation and
 Liability Act and the Clean Air Act against Marine Shale as well
 as add additional RCRA claims against the intervenors, Recycling
 Park,  Inc. and Southern Wood Piedmont.  A trial of^the RCRA,
 Clean Air Act and Clean Water Act claims is scheduled to begin on
April 18,  1994 in New Orleans, Louisiana.

     On January  31,  1994, Region 6 proposed to deny Marine Shale
 Processors,  Inc.'s application for a boiler or industrial furnace
 ("BIF")  permit.  EPA will accept public comments on the proposed
denial until July 1,  1994.  After receipt of public comments EPA
will  issue a decision in this matter addressing any comments
 received from the public.  This decision will become  final within
 30 days,  subject to the Agency's,appeal process.

Holnam Cement Plant,  Ada, Oklahoma

     The Notice  asserts that the Holnam Cement Plant  facility
does not have interim status because it did not have  the
necessary construction permits.  Further, the Notice  suggests
 that  interim status should be terminated because the  facility
 failed ho submit a complete Part B portion of the RCRA permit
application.

     The Notice  claims'that Holnam needed a state construction
permit and a state recycling permit in order to gain  interim
 status.   This assertion is based on an Au,gust 28, 1991, letter
 from the Oklahoma State Department of Health to Holnam.  However,
this letter states that an exclusion from the construction permit
requirements  (found in § 1-2014.2 of t'r.e Oklahoma Controlled
 Industrial Waste Disposal Act) applies to units used  exclusively

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 in  the  recycling process.  Under state law, any facility which
 receives off-site shipments of hazardous waste to be recycled or
 processed  for  recycling, through any process conducted at the
 facility including  fuel blending or burning, is an off-site
 recycling  facility.  These facilities require only an operations
 permit  for the  recycling units (see Rules 310:270-11-1  (a) (1) and
 310:270-19-1,  and attached October 22, 1992, letter from the
 Oklahoma Department of Health to D. Shandy).  Therefore, since
 neither of these two permits are required for construction at the
 Holnam  facility, they are not necessary to obtain interim status.

     Based on  this analysis of applicable state regulations and
 interpretive letters, EPA believes that the permits identified in
 the Notice are  not construction permits required under state
 hazardous  waste management regulations and are not necessary in
 order to qualify for interim status.  However, the Agency is
 concerned  about the facility's commitment to complete
 construction within a reasonable time, which is a requirement for
 Holnam  to  obtain interim status.   We will continue to monitor the
 facility's  progress and demonstration of intent to complete
 construction within a reasonable time.  If the company does not
 in the  near future objectively demonstrate this intent, this will
 raise questions as to whether the facility satisfied the interim
 status  requirement to have contractual obligations for physical
 construction to be completed in a reasonable time.,*

     Regarding  Part B of Holnam's permit application, the Notice
 points  to  deficiencies in the application cited by Oklahoma
 Department of Environmental Quality in a Notice of Deficiency.
 issued  to  the Holnam facility on August 23, 1993.  The state
 required the facility to revise the application to address the
 cited deficiencies.  Such notices of deficiency are a standard
 step in the early permitting process and do not in themselves
 affect  a facility's interim status.  Of course, if deficiencies
 continue to exist in subsequent permit applications, the permit
 may be denied and/or the facility's interim status may be
 terminated.

 BoxCrow Cement  Plant. Midlothian, Texas

     The Notice asserts that the BoxCrow Cement Plant does not
 have interim status because the facility did not obtain all
 permits and- approvals necessary for physical construction by the
 effective date of the BIF rule.  The Notice raises difficult
questions as to the interpretation of a complex state regulatory
 scheme.   EPA is consulting with the state of Texas to clarify t.u.e
 interpretation of the state permit regulations.  EPA will respond
 to this portion of the petition shortly. " The Agency has no
 knowledge of hazardous waste being burned at this facility.

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 C.    FACILITY  IN  EPA  REGION 7

 River Cement Co..  Festus. Missouri

      The  Notice asserts  that River Cement failed to comply with
 the  interim status compliance schedule and should therefore cease
 burning hazardous  waste  pursuant to 40 CFR § 266. 103 (e) .  The
 Notice also states that  EPA's River Cement files contain only an
 unsigned, draft COP that Region 7 never reviewed or approved, and
 alleges QA/QC  deficiencies with respect to certain emissions test
 data.

      EPA  has determined  that because River Cement substantially
 complied  with  all  mandatory COC-related compliance schedules, an
 order to  cease burning and close pursuant to 40 CFR §  260.103(e)
 is not appropriate.   While EPA Region 7 filed an administrative
 complaint against  River  Cement on September 27, 1993  (In re:
 River Cement.  Docket  No. 07-93-H-0029) alleging, among  other
 things, two potential COC deficiencies, as described below, EPA
 does  not  consider  the deficiencies sufficient to shut  the
 facility  down  under 40 CFR § 266.103 (e)..

      In Count  III of  the complaint, Region 7 alleged that River
 Cement failed  to include certain dioxin and furan emissions test
 results in its COC.   The missing results, however,*related to a
proposed operating mode  that River Cement never used,  and River
 Cement had provided Region 7 with the underlying dioxin test data
 in a  separate mailing prior to submitting the COC.  No  penalty
was proposed for this deficiency, which has been corrected.

      Count IV  alleged that River Cement failed to establish
operating limits for  its electrostatic precipitators  (ESPs).
This  failure was based on a misunderstanding resulting  from good
 faith discussions with EPA personnel concerning the use of
opacity testing as an alternative monitoring method.   Region 7
determined that,  under site conditions, the opacity monitoring
provides  results which approximate the required ESP testing and
 is generally protective of health and the environment.  The
Region will,  therefore, allow the facility to continue  operating
using the opacity monitoring until the required ESP monitoring
equipment is installed.  The compliance order in EPA's
administrative complaint requires this equipment to be  installed.
Again, no penalty was proposed.

     The statement in-the. Notice that EPA's files lack a valid
COP is inaccurate.  The  regional files in fact contain a valid,
 final River Cement COP.  Finally, the QA/QC deficiencies cited  in
the Notice relate primarily to data submitted to support a state
air permit application and not the 3IF COC.  The Region
ultimately determined that the BIF portion of River Cement's data
contained no significant deficiencies.

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D.   FACILITY IN EPA REGION 9

National Cement Company, Lebec. California

     The Notice contends that, because the Part A permit
application form was not signed by the landowner, Tejon
Ranchcorp, the facility did not qualify for interim status.

     Under EPA regulations, the owner of land that is leased to
another party operating a hazardous waste management facility on
the land is an "owner" of the  facility.  ("Owner" means person
who owns a facility or part of a facility;  "facility" includes
"all contiguous land, and structures... used for treating,
storing, or disposing of hazardous waste" see 40 CFR Section
260.10).  Consequently, the landowner is required to sign and
certify the facility's permit  application (40 CFR Section
270.10(b), 270.ll(d)).

     With respect to National  Cement in ..Lebec, California, EPA's
Region 9 office issued a final decision to deny the RCRA permit
for this facility on March 31, 1994.  The denial was based on the
fact that the landowner did not sign the certification required
by the RCRA regulations.  This decision,  scheduled to take effect
on April 30,  1994,  will automatically terminate interim status,
to the extent the facility obtained it.  40 CFR Section
270.73(a).  Because EPA is in  the last stages of finalizing its
denial of National Cement's permit application, and terminating
its operations, on virtually the same grounds identified in the
Notice for terminating interim status operations, EPA does not
believe that any additional action is necessary at this point
with respect to the National Cement facility.

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      I                 WASHINGTON, D.C. 20460


                                                   9498.1994(02)


                            MAY  20 1994
                                                          OFFICE OF
                                                     SOUO WASTE AND EMERGENCY
MEMORANDUM                                                RESPONSE
Subject:  Minimum Heat Content Requirements  for Hazardous Wastes
          Burned in BIFs

To:       Allyn M. Davis, Director
          Hazardous Waste Management  Division  (6H)

From:     Michael H. Shapiro, Directo
          Office of Solid Waste

     This is in response to ycur May  11,  1994,  memorandum
requesting clarification on the minimum heat content  requirements
for hazardous wastes burned in boilers and industrial furnaces
(BIFs) as a result of a Laidlaw Environmental  Services (Recovery)
inquiry.  In their October 19, 1993,  letter, Laidlaw  proposes to
lower the minimum heat content requirement for wastes they accept
for blending into fuel from 5,000 Btu/lb  to  1,000 Btu/lb
providing that the BIF unit has certified compliance.   Laidlaw
contends that wastes with a heating value between 1,000 and 5,000
Btu/lb are suitable for their fuel blending program.

     Blending of hazardous waste to increase its heating  value
for use as a fuel is not prohibited.  However,  the  following
situation illustrates that there can  be undesirable consequences
for specific BIF units that burn such blended  hazardous wastes.
For example, if an industrial furnace that has  certified
compliance burns a listed hazardous waste with a heating  value
less than 5,000 Btu/lb as-generated and the  facility  does not
document that the hazardous waste is  burned  for legitimate energy
recovery, then any product (e.g., cement) applied to  or placed on
the land in a manner that constitutes disposal  would  be a waste-
derived product subject to regulation as  a hazardous  waste.  This
waste-derived product, however, could be  eligible for an
exemption from regulation as a hazardous  waste  by compliance with
the land disposal regulations  (LDRs)  and  associated notification
requirements.

     It is important to note that the "legitimate fuel"
determination is on an as-generated,  not  as-fired,  basis.
Blending to augment the as-generated  heating value  cannot be used

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to meet the "legitimate fuel" teat  (i.e., either the waste must
have a minimum heating value of 5,000 Btu/lb, or the facility
must document that lower heating value waste contributes
significant, useable energy).  However, the as-generated heating
value of a hazardous waste may be increased to meet the
"legitimate fuel" test by bona fide treatment  (e.g., decanting).

     I hope that this information will be helpful.  If you have
further questions or comments, please feel free to contact Frank
Behan of my staff at 703-308-8476.

cc:  Frank McAlister, OSW/PSPD
     Bob Holloway, OSW/WMD
     Prank Behan, OSW/WMD

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                                                    Resource Recovery
           w •* mim m^

 SSRVICES


 October 19, 1993

 CERTIFIED MAIL P  860  SS3  883
 RETURN RECEIPT REQUESTED

 U. S. Environmental Protection
    Agency, Region VI
 Hazardous Waste Division,  6H
 1445 Ross Avenue
 Dallas, TX  75202-2733

 Ret  BTU Limitation for Fuel  Blending Facilities
      Laidlaw Environmental  Services (Recovery).  Inc.
      Crowlev.  LA  - LAD 079  464 095

 To Whom It May Concern:

               of   this letter  is   to  request  an  interpretation
    ^
 concerning the minimum heat content  reguireigftntfa nf ^*gf g.-deriveji
 fuel burned for  energy  recovery.  Laidlaw  Environmental Services'
"(Recovery),Inc.,is ahazardous  waste  fuel blending facility
 located in Crowley, Louisiana.

 As of August'21,  1991,  Boiler and Industrial  Furnace (BIF) units
 were regulated  under the Boiler and Industrial  Furnace Rule  (40 CFR
 266).  Prior to this date, BIF's were  not regulated under RCRA if
 they were burning  hazardous waste for energy  recovery.   The only
 restriction was the hazardous  waste burned for energy recovery had
 to have a minimum  heat  content  of 5,000 BTU/pound  to avoid "sham
 recycling".  The  "Sham Recycling Rule"  (Federal Register, March 16,
 1983, Pg.  11,157)  was intended  to prevent BIF units  from burning
 hazardous  waste solely for the purpose of destruction.   Under the
 BIF Rule,  the "Sham Recycling  Rule"  no longer applies to BIF units
 once they  have  certified compliance with the Rule.

 At the current  time,  Laidlaw Environmental Services  (Recovery),
 Inc., does not accept hazardous waste with a heat content less than
 5,000 BTU/pound.   The facility proposes to  lower  the  minimum heat
 content requirement for  the facility  to 1,000 BTU/pound,  providing
 the BIF unit has  certified  compliance with  the  BIF Rule.   These
 materials  would not be blended and shipped to BIF units,  which have
 no certified compliance  with the BIF Rule.

 Laidlaw contends  that these low-BTU materials,  with  a  heat content
 between 1,000  and 5,000  BTU/pound,  are  suitable  for  the  fuels
 blending program.   These waste streams  will  not be widely accepted
 due to the BTU/pound restrictions, which  are required by the  BIF
 units.  Typically,  the BIF units require minimum  heat contents of
 10,000 BTU/pound for  liquid waste.
Laidlaw Environmental Services (Recovery). Inc.

= O. Box 2B3 Crowley. Louisiana 70527.0283

2029 Bayou Plaquemine Road Rayne. Louisiana 70578
OK^. -MB 7(n 2624 Fax 318.783.2651

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U. S. Environmental Protection        2          October 19, 1993
   Agency


Thank you for your time and consideration of this matter.  If you
have questions or  require  further  information,  please call me at
(318) 783-2624.
Sincerely,
James W. Hathcock
Environmental Manager

cc  Mr. Glenn Miller (LA-DEQ)
    Mr. Lin Longshore
    Mr. Joseph Webb, Jr.

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, O.C. 20460
                                                   9498.1994(03)
                          MAY 2 6  1994
                                             OFFICE OF
                                    SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM

SUBJECT: ^Claseifica

FROM:
TO:
                    in Mercury Recovery Unit
                 o., Director
     e of/Solid Waste
Joseph Franzmathes, Director
Waste Management Division
U.S. EPA Region IV
     This is in response to your April 4,  1994,  memorandum
requesting additional guidance on classifying  Olin  Chemical's
mercury recovery, unit located in Charlestown,  TN, as  an
industrial furnace.
                «
     After review of the design and use of  the mercury recovery
unit in December,  1993, we determined that  the unit is a  type  of
smelting, melting, or refining furnace and  is  therefore an
industrial furnace (under the definition in 40 CFR  260.10)
subject to the boiler and industrial furnace  (3IF)  rule
promulgated on August 21, 1991.  As we stated  in our  December  17,
1993, memorandum to you, however, a smelting,  melting, or
refining furnace unit would be eligible for an exemption  from  the
permitting, emissions standards, and certain other  requirements
of the BIF rule if it engages solely in metals recovery,  as
provided by 40 CFR 266.100(c).  One of the  conditions qualifying
the unit for such an exemption.is that the  heating  value  of  the
waste cannot exceed 5,000 Btu/lb; otherwise the  waste would  be
considered to be burned partially for energy recovery.

     Subsequently, Olin notified you that at least  two of their
waste streams introduced into the mercury recovery  unit do not
qualify for the exemption because the wastes have a heating  value
exceeding 5,000 Btu/lb.  These wastes are already subject to the
land disposal restrictions (LDR) treatment  standard that  requires
thermal recovery of mercury as the method of treatment.   See the
Table of Treatment Standards in 40 CFR 268.40.   Thus, under  these
circumstances, EPA believes that it would be anomalous to
consider these wastes to be burned for a purpose other than  metal
recovery based on the Btu content alone.

-------
     The Agency is aware of this inconsistency and is considering
whether a regulatory amendment is appropriate.  If one is
developed and promulgated, it will likely be implemented in a
fashion similar to lead-bearing materials processed in exempt
lead smeltero at Appendix XI to Part 266 and will likely include
activated carbon and decomposer graphite mercury wastes whose
fuel value may exceed 5,000 Btu/lb and whose LDR treatment
standard requires thermal recovery of mercury as the method of
treatment.  The Agency is also evaluating how best to address
debris that contains high levels of mercury and is generated from
the electrolytic mercury cell process used for the production of
chlorine.

     If you have any further questions on the matter, please feel
free to contact Nick Vizzone of my staff at 703-308-8460.

CC:  Judy Marshall,  EPA Region IV
     Sonya Sasseville,  PSPD
     Bob Holloway, WMD
     Nick Vizzone, WMD

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    ]        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

ja ^i"                         REGION IV
                       345 COURTLAND STREET. N.E.
                         ATLANTA. GEORGIA 3O365
 4WD-RCRA                    APfl 0 ±  ;994

 MEMORANDUM

 SUBJECT:  Request  for Additional Guidance  on  the
          Mercury  Recovery  Unit  at
          Olin Chemicals, Charleston,  Tennessee

 FROM:     Joseph R.  Franzmathes, Director  (\^^ti. $•
          Waste Management  Division        j]

 TO:       Michael  Shapiro,  Director
          Office of  Solid Waste
          OS-320W

     In a memorandum from you dated December  17,  1993, your
 office advised Region IV, at our request,  as  to the regulatory
 status of a mercury  recovery unit  operating at the Olin Chemicals
 facility in Charleston,  Tennessee.  A  copy of this memorandum is
 attached for your  convenience.   In the memorandum, it was
 determined that Olin's mercury recovery unit  is properly
 regulated as an industrial  furnace eligible for an exemption from
 certain requirements of  40  C.F.R.  Part 266.

     As a result of  this determination, Olin  Chemicals submitted
 the attached letter, dated  March 16, 1994, claiming the exemption
 at 40 C.F.R. § 266.100(c)(1)(i) but contesting the regulatory
 status of the unit.  It  is  because of  Olin's  letter that we are
 seeking additional guidance from your  office.

     It appears that at  least two  of the waste streams introduced
 into the mercury recovery unit do  not  qualify for the exemption
 because the waste  streams have a heating value of 5,000 BTU/hr or
more (see 40 C.F.R.  § 266.100(c)(2)(ii)).  Region IV wants to be
 certain that your  office is aware  of these waste streams, and we
 are requesting guidance  from you as to whether this fact changes
your determination of the unit's status.   If  not, then Region IV
 requests guidance  from your office on whether a variance to the
exemption allowing the processing  of these waste streams is
available to Olin  and if so, what  the procedures are for Olin to
obtain such a variance.

     You will also note  from Olin's letter that Olin intends to
pursue further interpretation of the unit's status and/or a
 request for regulatory rulemaking  which will  exempt mercury
 recovery units from  40 C.F.R. Part 266.  Olin claims that the
 requirements of 40 C.F.R. Part 266 conflict with the description
 of its unit at 40  C.F.R. §  268.42, Table 1, which only requires
 compliance with applicable  air regulations.   Thus, Region IV is
 also requesting guidance from your office  regarding this issue.

-------
     Because Region IV intends to meet with Olin in early May to
discuss these issues, we would be very appreciative of your
expeditious review of the above.  Your guidance in these matters
will be extremely helpful to us in determining the appropriate
regulatory requirements of Olin's mercury recovery unit.  If you
have any questions regarding the circumstances described above/
you may contact Judy Marshall, of my staff, at (404) 347-7603.

Attachments (2)

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^%1S.
                           Glin
              "CHEMICALS
                 P.O. BOX 248. 1186 LOWER RIVER ROAD. CHARLESTON, TN 37310
                                 Phone: (615) 336-4000

                                 March 16, 1994
CERTIFIED
  Joseph R. Franzmathes, Director
  US Environmental Protection Agency - Region IV
  Waste Management Division
  345 Courtland Street NE
  Atlanta, GA  30365

  RE:   Notice of violation
        Olin Chemicals, TND 003 337 292

  Dear Mr. Franzmathes:

  In response to your letter received March 7, 1994, Olin's Charleston facility is claiming a
  metals recovery exemption for it's Thermal Mercury Recovery Unit as provided by 40
  CFR 266.100(c)(1)(i). This claim is based on the following:

  •   All hazardous waste to be introduced into the unit will be processed solely for metal
     recovery consistent with the provisions of 40 CFR 266.100(c)(2);

  •   All hazardous waste introduced into the unit contains recoverable levels of mercury;

  •   Olin will comply with the sampling, analysis, and recordkeeping requirements of 40
     CFR 266.100(c)(1)(ii) and (iii).

  It should also be noted that Olin has worked in good faith with both USEPA and the
  State  of Tennessee over the past four  years during the technology  development,
  construction, and startup of this unit  to ensure that all applicable  regulations were
  identified  and adhered to.   Previous  guidance from  both  EPA and the Tennessee
  Department of Environment and Conservation indicated that the unit was classified the
  same  as previous retort units, utilized for years to recover mercury from chlor-alkali
  waste streams  - that is as an exempt recycling process unit as identified in 40CFR
  261.6(c)(1). Olin still believes this to be the proper regulatory status of the unit but is
  filing the above notification because you have required it in your March 7,1994 NOV.  It
  should also be noted that Olin intends to pursue further interpretation of this ruling
  and/or a request for regulatory rulemaking which exempts mercury recovery units from
  the administrative requirements of 40CFR 266 Subpart H, if necessary.

  Olin is also requesting a meeting with EPA Region IV to discuss issues arising  from the
  above notification.  In particular, the RCRA Land Disposal Requirements stipulate that
  all high level (>260 ppm) mercury wastes be processed for mercury recovery. One of

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Joseph R. Franzmathes, Director
EPA - Region IV, Waste Management Division
March 16, 1994                                                      Page 2
the highest level mercury wastes generated on a routine basis in mercury cell chlor-
alkali facilities is graphite decomposer packing.  This material has historically been
processed for mercury recovery in onsite retort units.  Due to the chemical makeup of
the packing, this material can exhibit a BTU content in excess of the criteria required in
40CFR 266.100(c)(2)(ii) which is intended to prohibit the sham recycling of organic
BTU-rich streams for energy recovery. In addition to decomposer packing, historically
large quantities of activated carbon used for mercury removal in water has also been
simitlarly processed. Neither of these streams are consumed by burning and are not of
significant fuel value as fired. The LDR BOAT requirements under 40CFR 268 Table
1 stipulates that these materials be processed for mercury recovery  (RMERC) in a unit
subject only to the applicable air permitting requirements.  In our opinion, this conflicts
with the application of the requirements identified in 40CFR 266 Subpart H. Olin would
like to discuss this and other pertinent environmental  issues arising from Region IVs
reclassification of the  Thermal Recovery Unit as a BIF.   Please contact me at the
number below  at you earliest convenience to schedule a  meeting with you and
appropriate members of your staff as well as State personnel, if necessary.

If you have questions or need additional information, please contact either me at (615)
336-4234 or Steve Barnes at (615) 336-4185. Your assistance in this matter is greatly
appreciated.

                                Sincerely,

                                OLIN CORPORATION
                                J. P. Newman. Manager
                                Quality Assurance & Environmental Control
BIFNOT.JPN/cb
 cc:   Tom Tiesler. TDEC
      Janet Dutto, TDEC
      Matt Strauss, USEPA, OSWER

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                          WASHINGTON. D.C. 20460
                                                    9498.1994(04)
                            JUL - 5 1994
     OFFICE OF
SOLID WASTE AND EMERGENCY
     RESPONSE
MEMORANDUM
SUBJECT:   Guidance on Trial Burn Failures
FROM:      Michael Shapiro,  Director
           Office of Solid Waste

TO:        Hazardous Waste Management Division Directors
           Regions I-X
     The purpose  of this memorandum is to clarify  EPA's  policy on
trial burns  for incinerators and boilers and  industrial  furnaces
(BIFs) under the  Resource Conservation and Recovery Act  (RCRA),
and to address  issues that have recently been raised regarding
.trial burn failures.   These issues include: 1)  what constitutes  a
successful trial  burn;  2)  how to handle invalid data;  3)  what
constitutes  an  unsuccessful trial burn; 4) how to  handle a
request for  a trial burn retest; and 5) how to restrict
operations after  an unsuccessful trial burn.

     The policies set out in this memorandum  are not final  agency
action, but  are intended solely as guidance.   They are not
intended, nor can they be relied upon, to create any rights
enforceable  by  any party in litigation with the United States.
EPA officials may decide to follow the guidance provided in this
memorandum,  or  to act at variance with the guidance,  based  on  an
analysis of  specific site circumstances.  The Agency also
reserves the right to change this guidance at any  time without
public notice'.'
Purpose of a  Trial  Burn

     A trial  burn serves several purposes.  It  is used  to
determine whether a facility can meet the required  performance
standards for either hazardous waste incinerators  (40 CFR
264.343) or BIFs  (40 CFR Part 266 Subpart H), and to determine
the operating conditions that should be set in  the  permit.   A
trial burn is also  used by the permit writer to determine  the
need for and  establish other limits or requirements on  a site-
specific basis under the "omnibus" authority of RCRA Section
3005(c)(3).   This guidance will consider the term "performance
                                                      Recycled/Recyclable
                                                   ,   Primed wltn Soy/Canola Ink on paper mat
                                                 \ iC~/ contains at least 50% recycled fiber

-------
standards" to include both regulatory performance standards and
such site-specific standards imposed through the omnibus
authority.  Until continuous emission monitors  (CEMs) are
available, setting permit operating conditions based on the
results of trial burns is the best method of assuring compliance
with the regulations.

     A trial burn typically consists of a series of "tests".  A
trial burn test  (or combination of tests) should be done for each
set of operating conditions for which the facility desires to be
permitted.  Three "runs" should be performed for each test.  Each
run of a test should be conducted at the same nominal operating
conditions.  In general, each run of ..a test should be passed for
the test to be considered successful and for the facility to be
permitted to operate at that set of conditions.

     Facilities will often perform multiple tests during the
trial burn in order to develop all applicable permit operating
conditions.  For example, facilities will usually perform a
minimum and a maximum temperature test, since decreasing
temperatures tend to decrease organics destruction, and
increasing temperatures tend to increase metals emissions due to
an increase in volatility.  These tests, if successful, will
determine the temperature boundaries between which the facility
can operate in compliance with the destruction and removal
efficiency (ORE) and metal emissions standards.

     During a trial burn, a facility's general strategy is
typically to operate at conditions that will give it a broad
range of permit operating conditions.   The permit writer should
take great care in reviewing the trial burn plan to assure that
the test conditions meet the regulatory requirements.  According
to 40 CFR 270.62(b)(5) for incinerators and 40 CFR 270.66(d)(2)
for BIFs, the trial burn plan can only be approved if 1)  it is
likely to determine if the performance standards can be met, 2)
it does not present an imminent hazard to human health or the
environment,  and 3)  it will help to determine the necessary
operating requirements.  In determining if the performance
standards can be met in the trial burn, permit writers should use
their experience and best engineering judgement to make sure, that
the trial burn represents "good operating practices".  EPA
believes that a trial burn plan that allows or incorporates sub-
standard operating practices is less likely to demonstrate
compliance with required performance standards than a plan based
on a well-operated unit.  The Combustion Emissions Technical
Resource.Document (CETRED),  which helps to define best operating
practices for various categories of hazardous waste combustors,
can assist in determining good operating practices.  Engineering
judgement and generally accepted industry practices for achieving
good mixing,  adequate temperatures and residence times, adequate
oxygen, steady-state operation, and minimization of fugitive
emissions can also be used in this evaluation.  Additionally, in

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reviewing and approving a trial burn plan, .the permit  writer may
find it useful to examine the  facility's  compliance  history and
past operating history when applicable.


What Constitutes a Successful  Trial Burn

     A trial burn is successful only if enough tests are passed
so that the permit writer can  establish a complete set of
operating conditions in the permit to assure compliance with
applicable performance standards.  A successful trial burn test
generally consists of passing  three separate runs at the same
nominal operating conditions.  If a test  is successful, the
facility would be allowed to operate under the tested conditions.
In general, failing any performance standard in any one of the
three runs constitutes a failure of that  test.  If a test fails,
the facility should not be permitted to operate under the failed
conditions.

     A facility may fail an individual test (or several tests)  at
particular operating conditions during the trial burn; however,
if sufficient tests are passed such that applicable permit
operating conditions can be established from the successful
tests,  then the trial burn is still considered successful.  For
example,  for a facility where maximum and minimum temperature
limits are necessary, the facility would typically have to pass
both a minimum temperature test and a maximum temperature test,
along with any other necessary tests,  for the trial burn to be
successful.

     Facilities can receive final permit conditions for only
those conditions that they passed in the trial burn or that are
set independent of the trial burn (e.g.,  Tier I metal limits,
which are discussed later in this document).   Thus,  in a case
where a facility passed some tests and failed others, it is
important to be able to distinguish the difference between the
successful and unsuccessful conditions.  Final permit conditions
should be written to allow the facility to operate at the
successful conditions while excluding the unsuccessful ones.
Additionally,  the permit writer should be sure to set monitoring
and recording requirements in the permit to assure that operating
conditions are being met.

     Final permit conditions will directly reflect the successful
operating conditions from the trial burn.   Due to unforeseen
circumstances that may arise during trial burns,  the trial burn
conditions may deviate somewhat from the conditions specified in
the trial burn plan.   If this situation occurs,  and the trial
burn was successful,  the operating conditions in the permit
should be the conditions demonstrated during-the trial burn,  not
the conditions from the trial burn plan.   In other words,  for
conditions that are set based on the trial burn,  a facility will

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be permitted to operate only at those conditions that have been
demonstrated successfully during the trial burn.

     Facilities may perform several tests during a trial burn in
an attempt to have different sets of operating conditions for
different sets of wastes (i.e., "campaign burning").  If a
facility fails a particular test,  it may still be permitted to
operate on those.waste streams and at those conditions that were
successfully demonstrated,  provided that sufficient data are
available from the passed tests to set all necessary permit
operating'conditions.  If trial burn.results do not provide
sufficient data to enable the Agency to set permit conditions
which assure compliance with the performance standards, then the
trial burn would not be considered successful.
How to Handle Invalid Data

     In limited situations, the Agency believes it may be
appropriate to use data from two successful runs as the basis to
determine that a trial burn test was successful when
circumstances beyond the owner/operator's control caused the
invalidation of a third run.  An invalid run is different from a
failed run.  A failed run occurs when the data show
nonconformance with the performance standards under a particular
set of operating conditions.  An invalid (or inconclusive)  run
occurs when data problems  (for example, resulting from breakage
of a sample tube in a laboratory)  make comparison with the
performance standards impossible;  neither conformance nor
nonconformance with the standards has been shown in these cases.
Such situations would include sampling and analysis problems, but
not operational problems, which are presumed to be within the
control of the owner/operator.

     The criteria permit writers should use in accepting two runs
as a successful trial burn test are listed below.

     a)   Only one run contains invalid data.  If two or more
          runs contain invalid data, then the test should be
          considered inconclusive and should not be used to set
          operating conditions (i.e., the test should not be
          considered successful).

     b)   No data from any run shows failure.  For example, if
          during a trial burn test, one run passes for ORE, one
          run fails for DRE, and one run has invalid data for
          DRE, then that test should be considered a failure.

     c)   The data from the two successful runs should show a
          reasonable degree of precision and margin of
          compliance.

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     d)   There should be no reason to believe  (based on
          operating data, observation of stack  emissions, etc.)
          that the invalid run was less likely  to be in
          compliance than the other two runs.   Immediate
          reporting by the facility of an incident which might
          invalidate a run (e.g., QA/QC outside of control
          limits) lends more credence to the claim of invalidity
          than if the facility waits.until all  analytical results
          are in and emission calculations have been made.

     e)   A detailed written description of the circumstances
          resulting in the invalidation of data related to any
          test should be submitted to, and reviewed by, the
          Agency.

     Generally,  two valid runs should not be accepted as a
successful trial burn test when the owner/operator had direct
control over the situation that caused the third run to be
invalidated.  The trial burn test should be considered
unsuccessful if neglect and/or carelessness of either the
owner/operator or those conducting the testing/analysis caused
the invalidation of a run.
What Constitutes an Unsuccessful Trial Burn

     A trial burn is unsuccessful either because it showed a
failure to meet the performance standards, or it was
inconclusive.  A trial burn is-considered a failure when enough
tests have failed (i.e., show a failure to meet performance
standards) such that a full set of operating conditions
representing compliance cannot be set in the permit..

     A trial burn failure is different from failure of a trial
burn test.  A test failure shows nonconformance with the
standards at one set of operating conditions; however, a facility
may still be permitted to operate if it passes one or more trial
burn tests at other operating conditions.  A trial burn failure
occurs when enough tests have failed such that a full set of
operating conditions representing compliance cannot be set in the
permit.  The results of a failed trial burn should not be used to
establish final permit operating conditions.  Following a failed
trial burn,  the permitting authority should take one or more of
the following actions, as appropriate: 1) take steps to restrict
operations (as discussed later in this document);  2) begin
processing a denial of the facility's permit application (for an
interim status facility); 3)  initiate proceedings to terminate
the facility's permit  (for a new facility); 4) authorize a trial
burn retest  (also discussed later in this document).

     An entire trial burn (like a trial burn test) may be
considered inconclusive.  An inconclusive trial burn occurs when

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data problems have arisen such that neither conformance nor
nonconformance with the performance standards can be shown.  The
results of an inconclusive trial burn may not be used to
establish final permit operating conditions.  Following an
inconclusive trial burn, the permitting authority should take one
or more of the following actions, as appropriate: 1) take steps
to restrict operations  (as discussed later in this document); 2)
begin processing a denial of the facility's permit application
(for an interim status facility); 3) initiate proceedings to
terminate the facility's permit  (for a new facility); 4)
authorize a trial burn retest (also discussed', later in this
document).

     Facilities may choose not to test for certain parameters and
be permitted at the Tier I or Adjusted Tier I feed rate screening
limits established in the BIF rule  (56 FR 7134, February 21,
1991),  if appropriate.  These parameters include metal emissions
(40 CFR 266.106), and hydrogen chloride (HC1)  and-chlorine gas
(C12) emissions  (40  CFR 266.107).  The  Tier I  and Adjusted Tier I
feed rate screening limits are based on the assumption tha,t all
metals, HC1,  or C12  (depending on the parameter)  fed into the
system are emitted  (i.e., no partitioning into the bottom ash,
and no removal by any air pollution control device).  This case
is the most conservative scenario possible and produces the most
stringent feed limits in the permit.  The Adjusted Tier I feed
rate screening limits also allow for site-specific dispersion
modeling.   Although directly applicable only to BIFs, these
provisions are generally applied to incinerators as well through
the Agency's omnibus permitting authority, where necessary to
protect human health and the environment.

     Facilities that test for these parameters and fail, or show
inconclusive results,  should not be permitted to operate under
the tested conditions.  Instead,  a permit for the facility  (if
one is issued)  should limit the  facility to the Tier I or
Adjusted Tier I feed rate screening limits.  For example, a
permit for a facility that does not meet the HC1 or C12  standard
when tested under higher chlorine feed rates should limit the
chlorine and chloride input to the equivalent of 4 Ibs HCl/hr,
the Tier I limit, or the Adjusted Tier I limit, as applicable.

     Similarly,  a permit for a facility that does not meet the
metals emissions standards during high temperature testing should
limit the metals input into the system to the Tier I or Adjusted
Tier I feed rate screening limits (see 56 FR 7171, February 21,
1991).  -

     It should also be noted that, where the trial burn did not
demonstrate compliance with the HC1, C12,  or metal emissions
standards,  the permit may specify allowable chlorine or metals
feed rates that are more restrictive than the Tier I or Adjusted
Tier I limits,  based on a site-specific risk assessment which

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considers both direct and  indirect exposure pathways to a wide
range of pollutants.  In this case, the same assumption
concerning stack emissions should be applied  (that is, the
assumption of no partitioning or removal).


How to Handle a Request For a Trial Burn Retes^

     Facilities that fail or conduct an inconclusive trial burn
test or tests may request a retest and submit a revised trial
burn plan.  The permitting authority would review and approve or
deny such a request.  For a permitted incinerator or BIF  (new or
renewal),  this request would be processed through the permit
modification procedures in accordance with 40 CFR 270.42.  The
revised trial burn plan can only be approved if l) it is likely
to determine if the performance standards can be met, 2)  it does
not present an imminent hazard to human health or the
environment, and 3) it will help to determine the necessary
operating requirements (see 40 CFR 270.62(b)(5)  for incinerators
and 40 CFR. 270.66(d) (2)  for BIFs).  In the case of a request for
a trial burn retest following a trial burn test failure,  the
applicant should conduct an investigation into the reason for the
failure, and make substantive changes in its proposed trial burn
plan which would be expected to prevent failure from reoccurring..
A facility should not be allowed to retest unless it has made
changes to its process (i.e.,  design and/or operating
conditions), that are likely to correct the problems encountered
in che failed trial burn test.  A facility should not be allowed
just to'"take its chances" on passing a retest under the same
conditions.   The first failed test indicates that, at best,  the
unit would not be in compliance some of the time when operated at
those conditions,  and that those conditions should therefore not
be incorporated into a permit.

     As opposed to a trial burn test failure,  an inconclusive
test would not necessarily require changes to be made to the
process prior to allowing a retest.  The test could be repeated
under the same conditions as the previous test,  but with special
attention paid to the situation that caused the original test to
be inconclusive.  During the retest,  all attempts should be made
to prevent that situation from reoccurring.

     There is no set limit on the number of retests allowed under
EPA regulations, so long as after each unsuccessful test the
above criteria are met and the trial burn plan is revised and
approved (through a permit modification for a new incinerator or
BIF) prior to any retesting.  The same criteria recommended for
the design and conduct of initial trial burns are also
recommended for all retests (i.e., three runs for each trial burn
test,  etc.).

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     Facilities that wish to conduct a trial burn retest after an
unsuccessful test should expeditiously submit a comprehensive
request consistent with the guidance discussed above.  If a
complete request is not promptly submitted, it is appropriate for
the Agency to start permit denial proceedings.  The Agency's
decision to discontinue or delay permit denial proceedings will.
be highly dependent on the adequacy of any retest request and the
Agency's ability assure compliance with applicable regulations
during the interim period.

     For facilities that fail a trial burn test for only the HC1,
C12,  particulate,  or metal emissions standards,  EPA believes  it
may be appropriate in some cases to authorize a retest for these
failed performance standards without simultaneous ORE testing.
This decision would depend on the nature of the design or
operating modifications made for the retest.  If the
modifications would not adversely impact ORE  (e.g., addition of
pollution control equipment),  then HC1, particulate, and/or metal
tests are sufficient.  In this case, operating conditions .should
be identical to those of the original trial burn test for all
parameters other than those related to the modifications which
were made.  In contrast,, if the design or operating modifications
made by the facility in order to retest for the HC1, C12,
particulate, or metals emissions standards have the potential to •
affect ORE, then ORE should be retested along with the standards
that were not demonstrated.

     The permit writer should ensure that operating conditions
during a trial burn retest are consistent with the overall scheme
of the trial burn plan so that all successful tests can be used
in conjunction to establish final operating conditions.


How to Restrict Operations After an Unsuccessful Trial Burn

     Permitting authorities should move expeditiously, in
appropriate cases, to restrict operations  (to the extent that
regulatory and statutory authorities allow) after receiving
information that a facility conducted an unsuccessful trial burn
(i.e.,  a trial burn failure or an inconclusive trial burn).

     Permits for new incinerators and BIFs should be written with
a provision that would restrict post-trial burn operations if a
facility conducts an unsuccessful trial burn.  The Agency
recommends that such permits contain the following conditions: 1)
the permittee must notify the Regional Administrator within 24
hours of making a determination that the incinerator or BIF
failed to achieve any of the performance standards in any run of
any test,  and 2) upon the request of the Regional Administrator,
the permittee shall feed waste and operate the incinerator or BIF
only under restricted conditions as specified by the Regional
Administrator.  (A similar condition is recommended in the

                                8

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incinerator module of the model permit, except  the second portion
of the condition provides that, upon the request of the Regional
Administrator, the permittee shall cease feeding hazardous waste
to the incinerator.  The new recommended language covers the case
where a complete shutdown is required, while providing clearer
authority in cases where some, but not all, tests were
successful.)  The permittee then has the option of applying for a
permit modification pursuant to 40 CFR 270.42 to'conduct a new
trial burn pursuant to 40 CFR 270.62(b) for incinerators or 40
CFR 270.66 for BIFs.  If an already-issued permit does 'not have
such a provision in it, and the trial burn is unsuccessful, then
EPA may still be able to modify the permit to restrict operations
based on 40 CFR 270.41(a)(2) or 40 CFR 270.41(b)(1), or terminate
the permit based on 40 CFR 270.43(a)(3).  The appropriate
authorities should be invoked to assure'that operations during
the post-trial burn period will achieve compliance with the
performance standards.

     With respect to interim status BIFs, EPA regulations
establish certain performance standards that must be met at all
times when there is hazardous waste in the unit  (40 CFR
266.103(c)(1)).   Standards for carbon monoxide, total
hydrocarbons,  particulate matter, metals emissions,  and hydrogen
chloride and chlorine gas emissions are included in the
regulations.  If trial burn data from an interim status BIF
indicate failure to comply with any of these standards, then
under appropriate circumstances the permitting agency may be able
to restrict operations under RCRA Section 3008 or Section 7003.

     With respect to interim status incinerators that fail their
trial burns, regulatory agencies should either move as quickly as
possible to cause the incinerators to cease operations by denying
their permits (or,  if appropriate, through RCRA Section 7003
actions),  or,  if appropriate,  authorize trial burn retests.  This
guidance also applies to interim status BIFs that fail their DRE
standard during the trial burn,  since the DRE standard generally
does  not apply to BIFs during interim status.

     EPA has recently proposed a rule which would provide
explicit authority to restrict operations at interim status
facilities after a failed or inconclusive trial burn (59 FR
28680,  June 2, 1994).  During the post-trial burn period,  interim
status facilities would only be able to operate under conditions
that  passed and were demonstrated to meet the applicable
performance standards,  and only if the successful trial burn data
are sufficient to set all applicable operating conditions.   If
finalized as proposed,  this regulation would provide additional
authority to restrict operations at interim status facilities
following a failed or inconclusive trial burn.

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     For more background on issues such as permit conditions,
trial burn measurements, and validity of data, permit writers may
consult the following guidance documents.

     Guidance on Setting Permit Conditions and Reporting Trial
     Burn Results; January 1989.

     Hazardous Waste Incineration Measurement Guidance Manual;
     June 1989.

     Quality Assurance/Quality Control (QA/QC) Procedures for
     Hazardous Waste Incineration,. January 1990.

     If your staff have any questions on this trial burn failure
guidance or how to obtain other guidance materials, they may call
Andy O'Palko at (703) 308-8646, or Sonya Sasseville at (703) 308-
8648.
cc:  Waste Combustion Permit Writers Workgroup
     Dev Barnes
     Matt Hale
     Matt Straus
     Fred Chanania
     Susan Bromm
     Susan O'Keefe
     Office of Regional Council RCRA Branch Chiefs, Regions I-X
     Brian Grant, OGC
                                10

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                             WASHINGTON, D.C.  20460

                                                                   OFFICE OF
                                       SOLID WASTE AND EMERGENCY RESPONSE

July 14,  1994
                                                                    9498.1994(05)
Mr. Douglas A. Donnell
Mika, Meyers, Beckett & Jones
Suite 700
200 Ottawa Avenue, N.W.
Grand Rapids, Michigan 49503

Dear Mr. Donnell:

       Thank you for your  letter of May 9, 1994, expressing your view that the Gage
Products Company facility in Alpena, Michigan ("Gage") qualified for interim status for two
of its boilers  under the boiler and industrial furnace ("BIF") rule. After carefully reviewing
the arguments set forth in your letter, we continue to take the view that the Gage facility
does not  have interim status, for the following reasons.

       First,  your arguments rest on the premise that EPA  "grants" or "denies" interim
status under the Resource Conservation and Recovery Act ("RCRA").  You state that it
would be "inequitable and unjust to deny Gage interim status"  in view of all the facts.
However, as  we explained in our April 4, 1994, letter to Mr. Richard C. Fortuna,  interim
status is automatically conferred by statute on qualifying facilities (see RCRA § 3005(e)
(qualifying facilities "shall be treated as having been issued a permit  . . . .")). EPA
expressed its  view in that letter as to whether certain facilities, including Gage, had qualified
for interim status.  EPA did not, and cannot, "deny" interim status to Gage or any  other
facility, nor can EPA "grant" interim status based on equity or any other consideration.

       Second, the information contained in your letter does not change our view that Gage
did not qualify for interim status.   You point out that Gage submitted its application to the
Michigan Department of Natural Resources  ("MDNR")  for an Act 348 permit to burn
alternative fuels  in January  1991, well before the August 21, 1991, BIF rule effective date,
and that MDNR's regulations required it to  make a final decision on the application within
60 days.   Accordingly, you do not believe that Gage's failure to obtain a permit by the BIF
effective date should disqualify the facility from obtaining interim status.

       In order to qualify for interim status, a facility that has not yet commenced  hazardous
waste management operations must have "obtained" all required state permits by the effective
date of the regulation under which it seeks to obtain interim status (40 CFR § 260.10)
(definition of "Existing hazardous waste management facility")).  Gage did  not satisfy this
requirement and, therefore, did not qualify for  interim status.  While MDNR may have had a
responsibility to act more quickly than it did, its failure  to do so cannot confer interim status
on a facility that has not satisfied a clear regulatory prerequisite.

                            Tliis document has been retyped from the original.

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                                          -2-

       Moreover,  EPA cannot accept Gage's assertion that it "had a legal right to obtain [the
Act 348] permit" by the BIF effective date.  Even if MDNR had a responsibility to  issue a
decision, EPA cannot assume that it would have granted Gage's application.

       Gage also argues that it qualified for interim status based on apparent representations
by an MDNR employee and an EPA employee that the Act 348 permit was  not required for
the facility to obtain interim status. However, the opinions of individual EPA employees on
a legal question cannot bind the Agency or dictate the conclusion of a subsequent Agency
examination of the question.'  The conclusions contained in our April 4 letter were based on
a detailed analysis of MDNR's regulatory scheme  for permitting boilers and industrial
furnaces burning hazardous waste.  MDNR assisted in the analysis and agrees with  the
interpretation of its regulatory scheme set forth in  our letter.  We believe the interpretation is
correct, regardless of whether an Agency  employee earlier expressed a contrary opinion.
Again, EPA does not grant or deny interim status, and the equity considerations raised in
your letter cannot change EPA's view that, under the proper interpretation of MDNR's
regulatory scheme, Gage did not, in fact,  qualify for interim status.

       Thank you  for bringing this matter to our attention.

                                                Sincerely,
                                               Michael H.  Shapiro, Director
                                               Office of Solid Waste
       Because interim status under the BIF rule is implemented in the State of Michigan by
       EPA, not MDNR, EPA clearly is not bound by the verbal opinions of an MDNR
       employee.

                            This document has been retyped from the original.

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                 . MIKA, MEYERS, BECKETT & JONES
                            ATTORNEYS AT
. VANOCH »LOCO

         • CTH *. AAMSOO**'C»1
                               SUITE 7OO
                          2OO OTTAWA AVENUE. N w.

                       GRAND RAPIDS. MICHIGAN 19503
       JO**N C. STUIVC
                             May 9, 1994
  Mr.  Michael Shapiro
  Director,  Office of Solid Waste
  U.  S.  Environmental Protection Agency
  Washington, D.C. 20460

       Re:   Petition for Administrative Action to Cease
            Hazardous Waste Burning

  Dear Mr.  Shapiro:  .

       I represent Gage Products Company  ("Gage")  and I am writing
  this letter in response to your correspondence of April 4, 1994 to
  Mr.  Richard  C.  Fortuna  regarding  a Petition  for  Administrative
  Action to  Cease Hazardous  Waste Burning  and  Notice  of Citizen
  Suits.  In your April 4 letter and the  enclosed attachment,  you
  indicated  that Gage did  not qualify for  interim status under the
  BIF  rules for the same reasons stated with reference to The LaFarge
  Cement Plant in Alpena,  Michigan.   Your discussion  of  the  Gage
  facility did not address a number  of facts which are unique to the
  Gage facility and  distinguish it  from  the LaFarge Cement Plant in
  Alpena, Michigan.  For this reason,  Gage respectfully requests that
  you  reconsider your determination  of interim status with respect to
  the  Gage  facility  in Ferndale,  Michigan.

       Your  discussions pertaining to the LaFarge Cement  Plant in
  Alpena,  Michigan  focus   on  the requirement  in  Rule  802 of  the
  Michigan  Hazardous  Waste Management Act  (Act  64)   requiring  BIF
  facilities  to obtain either an Act 64 permit or  a permit under the
  state's Air Pollution Control Statute (Act 348)  in  order to  burn
  hazardous waste.  Your letter frames the issue  as follows:

       "The   key  issue  regarding  this  [LaFarge]   facility  is
       whether  two permits required for  BIF's under Michigan's
       hazardous   waste  control  regulations  fall  within  the
       •permits and approvals' requirement for obtaining interim

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Mr. Michael Shapiro
May 9, 1994
Page 2
     status.   The  LaFarge facility did not obtain  either  of
     these  permits for any  of the three  units in  question
     prior to  the  effective date of the BIF rule."

     The circumstances pertaining to the Gage  facility with regard
to  obtaining air  permits appear to  be very  different than  the
circumstances  pertaining to  the  LaFarge  facility  in  Alpena,
Michigan.   Gage believes these  factual distinctions are critical to
a correct interpretation  of Gage's interim status.

     In January, 1991, Gage applied to the Michigan Department of
Natural Resources ("MDNR") for  an air use permit to  burn alternate
fuels under Act 348 in connection with its two  boilers.   A  copy of
that permit  application is  attached  to  this letter  as  Exhibit 1.
Under the  Act 348 rules, "the Commission shall notify the applicant
in  writing  of approval,  conditional  approval  or  denial  of  an
application for a permit to install within 60 days  after receipt of
the application and information required by Rule 203."   (Emphasis
added).  (Rule 206(1)).   Notwithstanding the requirement that  the
Air Pollution Control Commission act upon this application within
60 days, several  months passed  without Gage receiving any response
from the Commission regarding  the permit application.

     During  the  time  period  between  January,  1991 and  August  21,
1991, when the BIF rules  took  effect,.Gage was concerned that  the
absence of an air permit might  jeopardize its interim status under
the BIF rules.  Thus, Gage,  through its  consultant,  Energy  and
Environmental  Technology  Company,  contacted  Steve  Blayer  in  the
Waste  Management Division of  the Michigan  Department  of Natural
Resources to discuss  this matter.   On  July  5,  1991,  Energy  and
Environmental  Technology Company  sent  a letter  to  Mr.  Blayer
summarizing  a  meeting between the  parties  on July  2, 1991  "to
clarify  interim status   criteria  regarding  waste  fuel burning
boilers to be installed at Gage Products Company, Ferndale Plant."
This letter, attached as  Exhibit 2 states:

     "As we also discussed,  'Existing Facility' criteria for
     interim  status  referred  to in  49  CFR  260.10  Ex.  F.
     (1)(Ref. Attachment)  does  not apply  to the Air  Use Permit
     to Install.  Permits referred to in this definition are
     only  those implicit to the physical  construction approval

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Mr. Michael  Shapiro
May 9,  1994
Page  3
     of a process  or  facility  (e.g.  physical construction of
     a TSDF or cement kiln would likely require several levels
     of State and  Federal safety and construction permits)."
     (Emphasis  in  original)

     MDNR's position  was  again  confirmed to Gage in an August 14,
1991 memo,  attached  as Exhibit 3,  from Energy  and Environmental
Technology  Company to Sharon Stahl  of  Gage Products  wherein Mr.
Andrew Fadanelli stated:

     "I spoke with the EPA Region V  representative regarding
     the  BIF  regulations.   Specifically,  Ms. Lorna  Sereza,
     [sic] who handles the BIF regulations, stated that an air
     permit is not necessary to qualify  for interim status.
     [Emphasis in  original].  Therefore,  this  interpretation
     agrees with Mr.  Steve Slayer, permit engineer of Michigan
     DNR."  (Emphasis  added).

     Plagued with further  delays in receiving a response to its air
permit application,  and  assured  by  MDNR and EPA that an Act 348
permit was  not required  to  attain  interim status, Gage  finally
revised its air permit application  in a letter dated August 29,
1991 (Exhibit  4)   asking  only  for a permit  to burn natural  gas.
Gage felt  this change was necessary because Gage  had need  for
additional steam capacity  and it  simply  could  not  wait any longer
for the MDNR to  act on its  earlier application.   (See,  also, letter
dated  February 11,  1992  to EPA, attached as Exhibit 5).    MDNR
finally issued  a  permit  for natural  gas burning on November 25,
1991 (Exhibit 6),  but discouraged Gage   from immediately  pursuing
the  permit originally sought   to  burn  alternate  fuels.     EPA
confirmed the fact that  MDNR urged  Gage to delay  "pushing"  this
issue in granting an extension to conduct compliance testing on the
boilers (See Exhibits 7 and 8) .

     As can be seen from the above chronology, Gage applied for and
sought  an air  permit well  in  advance  of  the August  21,   1991
deadline for interim  status.   Thus,  even if EPA interprets  state
regulations as  requiring  an air  permit  for the establishment of
interim status, Gage  satisfied  that criteria by doing everything
possible to  obtain  such permit.  The MDNR was obligated to  act  upon
Gage's  application within 60  days,  or  by March,  1991,  but  for

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Mr. Michael Shapiro
May 9, 1994
Page 4
reasons beyond Gage's control, delayed  processing  that  application
until after the August 21,  1991 deadline.  Moreover,  although  MDNR
now takes  the  position that air permits were required to  qualify
for interim status,  Steve Blayer of MDNR took the opposite position
back  in  1991 when Gage voiced its concern regarding the delay  in
MDNR's processing of  its  air permit  application.   Region V EPA
shared that  opinion  and so  advised Gage at that time  (Exhibit 3).
Under  these circumstances,  it  would  be  grossly  inequitable and
unjust to  deny Gage  interim  status  for  failure to obtain an air
permit when Gage did everything possible to obtain, and  had  a legal
right to obtain that permit,, prior to the August 21,  1991 deadline.
Gage should  not be  penalized because of MDNR's failure to follow
its own regulations  requiring  processing of the application within
60 days.   Nor should Gage be penalized  for following the advice  of
MDNR and EPA regarding MDNR's  and EPA's interpretation that  the air
permit was not  required to  qualify for interim status.

     Most of this information  was previously provided to Mr. Lorna
Jereza at  USEPA Region V  on March  27,  1992,  as  is  shown by  my
letter of that  date  attached  as Exhibit 9.

     In your April  4, 1994 letter,  the discussion regarding Gage
Products  Company simply  makes reference to  the fact  that  the
analysis  applicable  to  LaFarge   in  Alpena,  Michigan  is   also
applicable to Gage.   Because  of the  facts stated  above, I  believe
Gage  is  situated very differently  from  LaFarge, and should  be
treated as  having had the  air  permit which, by  statute,  it was
entitled to have received well before  the August  21 deadline.
Please consider this  additional information in reconsidering  your
decision regarding  Gage Products' interim  status.   If  you need
additional  information, please  do not hesitate to contact me  at
your convenience.

                              Yours very truly,
                              Douglas^A. Donnell
DAD:jet
Encls.
cc:  Mr. Donald Dixon
     Ms. Sharon Stahl

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      \       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      ?                  WASHINGTON. D.C. 20460
                            JH 20 |994                     OFFICE OF
                                                      SOLID WASTE AND EMERGENCY
                                                           RESPONSE

Ms. Susan  Ferguson                                9498.1994(06)
Director,  Industrial and
  Hazardous  Waste Division
Texas Natural  Resource
  Conservation Commission
P.O. .Box 13087
Austin, Texas   78711-3087

Dear Ms. Ferguson:

     Thank you for your letter dated April 7, 1994, requesting
clarification  of  the exclusion from the Resource Conservation and
Recovery Act  (RCRA)  regulation for secondary materials  that are
used or reused directly as ingredients in an industrial process
to make a  product (40 CFR 261.2 (e) (1) (i)) .   Specifically you
asked for  an interpretation of this exclusion as it applies to a
process employed  by Rhone-Poulenc in which a secondary  material
that has a high heating value and is high in sulfur content is
being burned in a sulfuric acid  regeneration furnace.

     EPA addressed the question  of how the burning of high
heating value  secondary materials is regulated in its February
21, 1991 Final  Rule on Burning of Hazardous Wastes in Boilers and
Industrial Furnaces (BIF)  (56 FR 7134).    In that rule, the
Agency makes a  distinction between the excluded activity of
burning hazardous waste solely as an ingredient
(§261.2 (e)  (1) (i)),  and the regulated activity of burning
hazardous  waste for energy recovery.   Specifically,  as provided
under §266.103(5)(ii)(B)  of the  interim status standards for
BIFs, a hazardous waste is burned for a purpose other than solely
as an ingredient  if the hazardous waste has a heating value of
5,000 Btu/lb or more,  as generated or as-fired.   Under this
provision,  hazardous waste with  a 5,000 Btu/lb or greater heating
value is considered to be burned as fuel  (i.e.,  burning for
energy recovery).

     EPA also  relied on this distinction in crafting a
conditional exemption from RCRA  regulation for smelting, melting,
and refining furnaces that burn  waste to recover metals.  Under
40 CFR 266.100(c),  burning hazardous waste  in a BIF for metals
                                                     Recycled/Recyclable
                                                     Printed wttn Soy/Canola Ink on paoer i
                                                     contains it lust 50% recycled fiber

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recovery is exempt only when the device burns hazardous waste
exclusively for metal recovery and not partially  for destruction
or energy recovery as well.  Again, to clarify what constitutes
energy recovery, the rule provides that a waste with a heating
value of 5,000 Btu/Lb or more  (either as generated or as fired)
is burned (at least partially) as a fuel.

     The regulatory distinction between burning as an ingredient
and for energy recovery provided in the BIF rule  is applicable to
the situation you describe in which a high sulfur content, high
heating value secondary material is fed into a sulfuric acid
regeneration furnace where the sulfur in the stream is converted
to sulfuric acid.  Consequently, under existing regulations, even
though sulfur is being used to produce sulfuric acid in this
situation,  EPA would consider this practice to be a type of
burning for energy recovery rather than use of an ingredient to
produce a product because of the high Btu/lb value of the
secondary material (i.e.,  12,000-16,000 Btu/lb.).  As provided
under §261.2(e) (2) (ii),  secondary materials that are burned for
energy recovery are solid wastes even if they are recycled by
being used or reused as an ingredient in an industrial process to
make a product.   In other words, if the materials are being
burned for energy recovery, the §261.2(e) (1) (i)  "use as an
ingredient"  exclusion does not apply.

     In its  letter to the Texas Natural Resource Conservation
Commission,  Rhone-Poulenc argues that the secondary materials are
covered under §261.4(a)(7)  which exempts spent sulfuric acid that
is used to produce virgin sulfuric acid.   In this case,  however,
the §261.4(a)(7)  exclusion does not apply because the secondary
materials in question are not spent sulfuric acid.

     Having  provided you with a determination of how existing
RCRA regulations would apply in the situation you describe,  you
should note  that EPA is in the process of developing of a
comprehensive hazardous waste combustion strategy.  A key
component of the combustion strategy is the review and evaluation
of the current regulations for incinerators and BIFs burning
hazardous waste  in order to make them more readily implementable,
clarify ambiguities,  and address concerns that have arisen since
the regulations  became effective.   The combustion strategy staff
would be happy to meet with you or representatives of Rhone-
Poulenc to discuss concerns they have raised about the Agency's
burning for  energy recovery policy as  well as any ideas they have
for revising the regulations to address those concerns.   Please
contact Bob  Holloway at (703)  308-8461 if you wish to revisit
this matter  in the context of the combustion strategy effort.

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     If you have additional questions regarding application of
the existing RCRA regulations as they pertain to this case or in
general, please contact Mitch Kidwell at (202) 260-8771 or Becky
Daiss at (202) 260-8718.
                                   Sincerely,
                                   Michael Shapiro,  Director
                                   Office of Solid Waste

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460


                           Jill 2 I  (994              9498.1994(07)
                                                        OFFICE OF
                                                      GEN'ERALCOL'NSF.1
 MEMORANDUM

 SUBJECT:   Response to Issues Raised in January 27,  1994 Letter
           from Senators Breaux and Johnston to Administrator

 FROM:      Jean C.  Nelson
           General  Counsel

 TO:        Steven A.  Herman
           Assistant  Administrator
           Office of  Enforcement and Compliance Assurance


     This  memorandum clarifies some of the issues raised in a
 January 27,  1994 letter from Senators Breaux and Johnston to the
 Administrator.   In that letter,  the Senators inquired about the
 government's  position that a facility that has a primary purpose
 of burning hazardous waste for destruction is subject to
 regulation as a hazardous waste incinerator.  More  specifically,
 they asked if a "primary purpose" test is part of existing law
 and whether  such a standard might stifle innovation in the
 hazardous  waste treatment industry.

     The reference to "primary purpose" in EPA's initial response
 to the Senators was  a shorthand encapsulation of various complex
 regulatory provisions.   The following discussion shows in more
 detail how existing  regulations apply to incinerators of
 hazardous  waste.

     The first  step  is  to ascertain whether a facility manages a
hazardous  waste.   In order to do this,  it is necessary to
determine  whether  a  facility manages a solid waste  (a necessary
precondition  to being a "hazardous waste").   From 1980 to 1985,
 federal regulations  defined "solid waste" to include materials
that are--"burned or-incinerated."  40 C.F.R.  261.2(c)(2-)  •(•198-1-)--,
as promulgated  at  45 Fed.  Reg.  33119 (May 19,  1980).  This
provision  was amended in 1985.   The amended rules continue to
state that solid waste  includes  materials that are "abandoned by
being burned  or  incinerated."   40 C.F.R.  261.2(b)(2) (1991),  as
promulgated at  50  Fed.  Reg.  664  (Jan.  4,  1985)..  .Solid wastes are
                                                       "ttl Ponied c--. Recycled P?.cer

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 regulated as  hazardous wastes  if  they exhibit a  characteristic  of
 ignitability,  corrosivity,  reactivity,  or  toxicity,  or if  they
 are  specifically .listed in  the regulations.   40  C.F.R.  Part  261-
 Subparts  C and-D.1

      The  next step  is  to ascertain whether a  facility should be
 subject to regulation  as a  hazardous  waste incinerator.  In  1980
 and  1981,  EPA issued incinerator  regulations  to  reduce
 environmental hazards  associated  with using poor operating
 procedures to burn  hazardous wastes.   45 Fed.  Reg.  at 33250  and
 33216 (establishing standards  for facilities  with interim
 status);  46 Fed. Reg.  7678-83  (January 23,  1981)  (establishing
 standards  for permitting incinerators).  An "incinerator"  was
 defined as "an enclosed device using  controlled  flame combustion,
 the  primary purpose of which is to thermally  break  down  hazardous
 waste."2  45 Fed.  Reg.  at 33074.  Hazardous waste incinerator
 rules applied to devices burning  hazardous waste to incinerate
 them,  including 1)  operators of incinerators  and 2)  boilers  and
 industrial furnaces (BIFs)  burning hazardous  wastes to destroy
 the  wastes.   40 C.F.R.  264.340(a)  as  promulgated at 50 Fed.  Reg
 at 665-66.  Consequently, since 1980,  persons burning hazardous
 wastes in  order to  destroy  them have  been  subject to the
 incinerator regulations  because they  are engaged in incineration
 of hazardous  wastes, and the devices  in which the wastes are .
 destroyed  are  subject  to regulation as hazardous waste
 incinerators.  These rules  apply  to each hazardous  waste that is
 burned, so that a device burning  any  hazardous waste for
 destruction subjects the device to regulation as an incinerator
 See  e.g. 48 Fed. Reg.  at 11158  n.  2 &  4, and  11159-60 (March 16
 1983) .5
     1   40 C.F.R.  261.4(b)  excludes some solid wastes "from
regulation as hazardous wastes.

     2   The term "incinerator" has been redefined since 1980 to
take into account the design of the unit.  See 40 C.F.R. 260.10
(1992) .

     3   EPA further amended the rules in 1991 to provide that the
rules controlling air emissions from BIFs that burn hazardous
waste apply even to BIFs burning hazardous wastes to destroy
them.  40 C.F.R. 266._100_(aj_f 1992) (promulgated February 21, 1991
at 56 Fed. Reg. 7208).   Thus, for new BIFs coming on line the
primary purpose of the combustion unit no longer determines its
regulatory status.  Id.  BIFs burning primarily to destroy may
now be regulated as BIFs as long as they meet the criteria set
out in the definitions of boiler and industrial furnace.  Id.
This provision does not give devices burning .hazardous waste for
destruction a new opportunity to obtain interim status where such
unit should have obtained but did not obtain interim status as an
incinerator.  56 Fed. Reg,  at 7143.

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      We also want to address the Senators'  concern that EPA is
 using a "primary purpose" standard as  an  economic  test to
 determine whether- a device is an incinerator  or  a  BIF.   The tests
 that determine-whether a device is an  industrial furnace are.set
 out clearly in the definition of "industrial  furnace."   40  G.F.R.
 260.10 (1991).   Specifically,  to qualify  as an industrial furnace
 a unit must 1)  be an integral component of  a  manufacturing
 process (i.e..  engaged in making a product),  2)  use thermal
 treatment to accomplish recovery of materials or energy,  and 3)
 qualify as one of the 12 types of devices that are listed in the
 definition.4  EPA has never stated, nor is it the Agency's
 position,  that the amount of  revenue a facility  makes  from
 receiving hazardous waste for treatment versus the amount of
 revenue it makes from selling recycled products  alone determines
 the regulatory status of the  device.  However, we  have  stated,
 repeatedly,  that this is a relevant factor  in determining whether
 a device is being used for the purpose of destruction rather than
 legitimate recycling.   See e.g.  53  Fed. Reg.  at  522  (Jan. 8,
 1988).   We continue to believe that it is appropriate to examine
 revenue sources when judging  whether a facility  is engaged  in
 legitimate or  sham recycling.
     A  If the unit is an integral component of a manufacturing
process and uses thermal treatment to accomplish recovery of
materials or energy but does not qualify as one of the 12 devices
listed in the definition, the facility may petition the EPA to be
considered as an industrial furnace.  Id.  EPA will consider the
following factors when reviewing the petition:

     (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 material 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.

Id.  as promulgated at 50 Fed. Reg. 661 and revised at 56 Fed.
Reg.  7206  (February 21, 1991).

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     We also wish to address the Senators' concern that
 regulation necessarily stifles development of  new treatment
 technologies.  For example, when the Agency  proposed and adopted .
 stricter controls for treatment of hazardous steel electric arc
 furnace control dust by a recycling treatment  technology  (zinc
 recovery), a host of new facilities developed  competing treatment
 technologies in what had previously been a near monopoly market.
 See 56 Fed. Reg. at 41166 & 41170  (discussing  new zinc recovery
 technologies)  (August 19, 1991).  These facilities have both
 offered innovative treatment technologies and  complied with
 regulations designed to assure that their operations are
 protective of the environment.  Indeed, it is  a fundamental
 premise of the 1984 RCRA amendments that facilities should
 conduct hazardous waste management properly  in the first instance
 in order to ensure adequate environmental protection, and that
 "properly conducted recycling and reuse" will  help achieve the
 statute's ultimate goals of minimizing waste generation, reducing
 land disposal,  and protecting human health and the environment.
 RCRA Section 1002(b)(6),  42 U.S.C. § 6901(b)(6); RCRA Sections
 1003(a)(5)  and (6),  42 U.S.C. § 6902(a)(5) and (6).

    Finally,  the Senators ask whether it is  the government's
 position that a product meeting the exemption  in 40 C.F-.R. 266.20
 (1992)  must be delisted.   If their question  is whether delisting
 is a prerequisite to eligibility for the 40  C.F.R. 266.20
 exemption,  it is not.   See 40 C.F.R. 266.20(a) (1992) (indicating
 that the provision applies to hazardous wastes; delisted wastes
 are not hazardous wastes).   We also note, however, that 40 C.F.R.
 266.20 only applies  to legitimate products derived from hazardous
wastes, not to hazardous  waste residues that merely are claimed
 to be products.

    Please  contact me  or  Lisa Friedman (at 260-7697)  if you have
any further questions  concerning these issues.

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                            WASHINGTON. D.C. 20310
                          January 21, 1994
 Honorable. Carol M.  Browner
 Administrator
 Environmental Protection Agency
 401  M Street, S.W.
 Washington,  D.C.  20460

 Dear Administrator  Browner:
     We  are  in receipt^o £._ ja^iejtjter from Assistant Administrator
Steven A.  Herman dpiej^AJacjrust_ 3 0^,^19.9^3 responding to our inquiry
concerning a constTtuent*^coinpahy'. "" Mr*V Herman's reply raises
issues on which  we would ag£recj.a.t^^cl^r^f JLg^tign , Qflj^.as. .it
re 1 a t e s t Q^.^e^^ojlSJt-JUi'-^J. t- ^.Prcfig^Y <• but rather*genericalily .

     Mr. Herman  discusses "primary purpose" in his letter,
apparently stating that an operation could not be considered as
an industrial  furnace operating as a recycler if its primary .
purpose is to  destroy hazardous wastes.  Is this an additional
standard to current law,  or is it contained in current statutes
or regulations?

     We are concerned that 'such a standard could stifle all new
and innovative technologies for dealing with hazardous wastes.
We are not aware of any hazardous waste recycling process which
does not require a significant payment from the generator of the
waste to be economically feasible.   Therefore, the primary
purpose of all of  these technologies could be said to be the
destruction of hazardous  wastes and recycling might never be
available on the .scale necessary to deal with our hazardous waste
problem. -

     Mr. Herman  also discusses delisting in this letter.   Is it
your position  that a product which  meets the exemption of 40
C.F.R. 266.20  must be delisted?

     We appreciate your response to pur previous communication
and look forward to your  reply concerning the issues- raised in
this letter.
                          Siacerely,
        BENNETT JOHNSTON            -..----r	.-
       IITED STATE^SENATOR         tlNITED STATES SENATOR

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                         WASHINGTON, D.C. 20460
                                                   9498. 1994(08)

                           JUL 29 1994
                                                           OFFICE OF
                                                      SCUD WASTE AND EMERGE:
MEMORANDUM                                                 RESPONSE
SUBJECT:   Clarification Regarding Single Emission  Point,  Multi-
           Device  Combustion Facilities

FROM:      Michael H.  Shapiro,  Dir&cyfor
           Office  of  Solid Waste

TO:        Allyn M. Davis,  Director
           Hazardous  Waste Management Division, Region VI

           Walter  L.  Sutton,  Jr. ,  Acting Regional Counsel
           Office  of  Regional Counsel, Region VI


     This  memorandum is in response to your July 8, 1994,
memorandum requesting .clarification of a prior headquarters
opinion regarding the Giant Cement Company in Harleyville, South
Carolina.  I understand that the  recent court ruling on Marine
Shale Processors  has raised some  questions about EPA's
interpretation of the regulatory  status of multi-device
combustion facilities.   In particular,  we think that our
August 11, 1992 memorandum regarding Giant Cement and Region IV's
subsequent letter of November  24,  1993 was misapplied.  I thus
agree with Region VI  that  it is important to clarify this issue
so that consistent determinations can be made nationwide.

     This  memorandum will  clarify how the RCRA regulations apply
to combustion devices (incinerators,  industrial furnaces, and
boilers) at facilities  in  which more than one of these devices
are connected and in which the emissions from the connected
devices emanate from a  single  emissions point.  I believe the
confusion  arose because there  are two basic issues that are
encountered when  applying  the  regulations to units in series:  l)
what emission controls  and operating conditions are technically
appropriate and will  be fully  protective of human health and the
environment; and  2)  what legal categories do the units fall into,
for the purpose of determining regulatory coverage, eligibility
for interim status,  need for permit modifications, etc.  The
Giant memo addressed  only  the  first issue,  but appears to have
been misinterpreted  to  apply to the second issue also.  Following
is EPA's interpretation of the two issues.
                                                    ' Recycled/Recyclable
                                                f~\  
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                            -  2  -
Emissions Controls

     Giant Cement operated a hazardous waste-fired cement kiln
and a number of "resource recovery kilns" burning contaminated
soil.  Both the off-gas and the treated solids from the resource
recovery kilns were fed into the cement kiln.  The resource
recovery kilns were interim status incinerators.

     The Giant memo referenced above addressed only the question
of what types of operational and emissions controls are
appropriate to impose on connected devices with a single
emissions point, by stating:  "For systems of two or more
hazardous waste treatment units in series, our general guideline
is that a case-by-case determination of how the overall system is
classified and what standards and permit conditions are applied
should be based on the dominant design, operating, feed, and
emissions characteristics of the system, and the most specific
standards applicable to that type of system."  We still believe
this type of flexible approach is important because of the
difficulty, from an engineering standpoint, of applying two sets
of potentially conflicting emission standards (e.g.,  the Part 264
Subpart O incinerator standards and the Part 266 Subpart H boiler
and industrial furnace (BIF) standards) to a single emissions
point on a series of devices which are connected.

     In performing a technical evaluation of what standards
should be applied to a group of units in series, it will usually
be necessary to look at the reasoning behind the regulatory
requirements, as expressed in preambles and guidance documents,
and not simply at the regulatory requirements.  Based on this
type of evaluation, if two sets of emissions standards fit
equally well from a technical standpoint, preference should be
given to the more stringent standards.  If not,  the standards
which are most appropriate technically, considering their
regulatory rationale, should be applied.  In addition, the permit
writer should consider whether additional conditions beyond the
regulations are necessary to tailor the permit to the specific
system and site in order to protect human health and the
environment (through use of the RCRA 3005(c)(3)  omnibus
authority).

     It should also be noted that there may be cases, such as
where two or more combustion devices operate in parallel and
share only a common stack, in which the determination of what
standards to apply is straightforward  (i.e., unit by unit).  The
principal remaining issue in this situation is how to do the
testing to determine whether each unit is meeting the standards.

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                              - 3 -
Permitting/Interim Status Determination

     The above determination of the most technically appropriate
and protective emissions controls to apply in the permit for
interconnected devices must be distinguished from the
classification of the devices for purposes of determining interim
status eligibility and other issues.  Because Giant had already
attained interim status separately for its "resource recovery
kilns" as incinerators and for its cement kiln as an industrial
furnace, the August 1992 memorandum did not address nor need to
address the classification of these devices for such purposes.

     For the same reason, Region IV"s November 24, 1993 letter to
Giant Cement indicating that the resource recovery kilns would
now be subject to hazardous waste incinerator emission standards
because the combusted contaminated soil from those units was
being disposed and not put into.the cement kiln, dealt only with
the issue of what emission standards would apply to these kilns.
These earlier documents addressed the only question asked,  which
is what emission standards should apply.

     In recognition of the practical difficulties of applying
more than one set of standards to a single emission point,  these
documents discussed the criteria to be used in determining what
emission standards should apply to that point.   Under the
principles discussed in these documents,  EPA may determine,  for
example, that the emissions from a process train involving an
incinerator and a cement kiln are most appropriately regulated
under the emissions standards applicable to cement kilns.   This
does not mean that the incinerator "becomes" a cement kiln;  it
simply means that the common emission point should be regulated
under the cement kiln standards.

     These documents did not intend to suggest that the
individual units in r. process train lose their unit identities.
The separate identities of the individual units in a process
train is relevant in the context of facilities seeking to obtain
interim status, among other situations.   Under EPA regulations, a
facility that is "in existence" on the effective date of a
statutory or regulatory change that subjects it to the
requirement to obtain a RCRA permit may obtain interim status by
submitting Part A of its permit application and complying with
statutory notification requirements.   40 CFR §270.70(a).  A unit
that is already subject to the permit requirement cannot obtain
interim status upon the promulgation of regulations bringing a
different type of unit into the RCRA system.   See 56 FR at  7142
(February 21, 1991)  (aggregate kiln burning hazardous waste for
destruction and thereby subject to the rules for incinerators is
not newly eligible for interim status when BIF rules are
promulgated).

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     In reviewing a Part A application  form filed by a facility
seeking interim status following the regulation of a new type of
unit, EPA evaluates whether the unit (or units) identified on the
form were of the newly regulated type.  In performing this
evaluation, EPA would compare the unit  with the unit definitions
set forth in its regulations, irrespective of whether the unit
was self-contained or part of a process train.  In particular, if
the unit and other units shared a common emission point, the
regulatory emission standards determined to be most technically
appropriate for that point would be irrelevant to the identity of
the unit in question.

     The pertinent definitions for combustion devices are the
definitions of "boiler", "industrial furnace", and "incinerator"
in §260.10.  The definition of boiler is based on unit design.
Industrial furnaces are an enumerated list of devices that are
parts of manufacturing processes and incinerators are devices
which are not boilers or industrial, furnaces.  The list of
industrial furnaces is not written in terms of device systems; it
describes particular devices: "cement kilns", "aggregate kilns",
"halogen acid furnaces", etc.  Consequently, a device would
normally need to fit one of these descriptions to be an
industrial furnace.

     The Agency's interpretation is that the list of industrial
furnaces applies on a device-by-device basis whenever the devices
are combusting separate (i.e., not from another device in the
series)  hazardous wastes.   The only exception would be where the
Agency has indicated unequivocally (normally in the context of a
notice-and-comment rulemaking) that the definition of that
industrial furnace type applies to multiple devices.   The only
device for which the Agency has done so are cement kiln
precalciners,  which EPA agrees are invariably operated as part of
one cement-manufacturing operation,  even if the precalciner.is
separately fired with hazardous waste.   See,  e.g., 54  FR at
43761 (Oct. 26,  1989).  The Agency did not consider the effect of
emissions from other connected hazardous waste units  when it
promulgated the BIF rule.

     The interpretation that the industrial furnace definition is
to be read to apply to each combustion device burning separate
hazardous waste is consistent with the literal language of the
industrial furnace definition.  It is also consistent with
statutory provisions requiring that hazardous waste combustion
can only be performed pursuant to stringent regulatory control,
     1   While  the  Agency may  have  identified  other  devices which
do not separately fire hazardous waste as part of an industrial
furnace, precalciners are the only hazardous waste-fired devices
for which such an interpretation has been made.

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                               -  5  -
RCRA sections 3004(o)(1)(B) and  3004(q), and that hazardous waste
be properly managed  in the  first  instance.  RCRA section
1003(a)(5).  These goals would be circumvented  if hazardous
waste-fired units were simply considered to be  part of the
industrial furnace.   Before the  BIF rules became effective, for
example, this would  mean that the additional unit — an
incinerator -- could burn hazardous waste without any regulatory
control.

     This interpretation covers the case of two hazardous waste-
fired devices.  If the additional device is not hazardous waste-
fired,  then it could be considered to be part of the industrial
furnace.  The Agency has in fact  indicated in explanatory
preambles and other  interpretive documents that industrial
furnaces can include certain integrated components that pretreat
materials or assist  in air pollution control.  See, e.g., 56 FR
at 42598 (August 27,  1991).  So long as these devices are not
burning separate hazardous wastes, they do not raise the core
RCRA concerns discussed above, and can accordingly be regulated
as part of the industrial furnace.

Example

     To illustrate the application of the above principles to
combustion units in  series, consider the following example.  The
owner/operator of an  interim status cement kiln chooses to add an
afterburner to help  achieve control of PIC emissions (see 57 FR
at 38561 (Aug. 27,  1991)  where EPA suggested this course as a
means of reducing organic emissions)  and further chooses to fire
the afterburner with hazardous waste. The hazardous-waste fired
afterburner is not a cement kiln, but rather is a separate
device:  an incinerator.    It  is  not  on  the  list of  industrial
furnaces,  and it is  engaged in the type of activity — hazardous
     2   This  is  not  intended  to  imply  that  the  presence  of  an
afterburner not separately fired with hazardous waste on a non-
controlled flame device never affects the regulatory
classification of that device.  In the case of plasma arc and
infrared units,  the Agency has classified those devices as
incinerators when they have afterburners (considering the plasma
arc or infrared device plus the afterburner to be one unit) and
as Subpart X devices when they do not.  (See 56 FR 7204, 57 FR
38562,  and incinerator definition at 40 CFR 260.10.)  It is
expected that there will be other situations in the future where
the Agency will  be developing separate definitions for units in
series.  This will be done through rulemaking,  as appropriate.

     3  EPA  officials  have  in  fact  given  this  advice  to cement
kilns contemplating adding afterburners to assist in meeting
emission controls for products of incomplete combustion.

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waste combustion -- for which regulatory controls are mandated.
Thus, the afterburner is ineligible for interim status as part of
the cement kiln.  The facility would have to apply for a change
during interim status under §270.72(a) (3)  for addition of a
process and receive Director approval based on meeting the
criteria in that section.

     However, in the same example, if the cement kiln were to add
an afterburner which is not hazardous waste-fired, the Agency
would not view this action as adding an incinerator.  By not
separately combusting hazardous waste, the hypothetical
afterburner is not separately engaged in hazardous waste
treatment.  Rather, it is simply treating emissions from a
hazardous waste treatment device, and so is considered part of
that device.  In such a case no regulatory approval under the
change during interim status provisions is needed to add the
device, and the afterburner becomes part of the interim status
cement kiln.

     I hope this has clarified the issue of how to address
interconnected combustion devices.  If you have further
questions, feel free to call me, or have your staff contact Sonya
Sasseville at (703) 308-8648.

cc:  Matt Straus
     Fred Chanania
     Dev Barnes
     Matt Hale
     Frank McAlister
     Larry Starfield
     Steve Silver-man
     Terry Sykes
     Laurie King
     Waste Combustion Permit Writers'  Workgroup
     Subpart X Permit Writers' Workgroup

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                     9498.1994(09)
                          AUG I  T 1994                      OFFICE of
.,-„«„, »mTT,,                                            SOLID WASTE AND EMERGENCY
MEMORANDUM                                                 RESPONSE


SUBJECT: Alternative  Metals Analysis for Hazardous Waste
         Combustors
FROM:    Devereaux  Barnes,
         Permits  and State  Programs Division

TO:      RCRA Branch Chiefs,  Regions I thru X


     There has been some question about the methods for analyzing
metals emissions  from hazardous waste combustors.  In the case of
incinerators the  rules do not contain metals requirements or
methods.  Therefore,  the Regions have plenty of discretion
regarding which methods they approve.

     In the case  of BIFs, the situation is quite different.
Section 266. 106 (g)  of the 40 CFR specifies that the Multiple
Metals Train must be used.   Since no alternatives are identified
in the rules, a petition under §260.21 is the only way to obtain
approval of an alternative  method.

     The attached memorandum from Larry Johnson and Tom Ward of
ORD discusses the substitution of inductively coupled plasma/mass
spectroscopy  (ICP/MS)  as an alternative to inductively coupled
plasma/optical emission spectroscopy (ICP/OES) analytical method
in the Multiple Metals Train.  Based on this memorandum, the
ICP/MS analytical method is an acceptable substitute on a
technical basis.  From a regulatory standpoint, however, ICP/MS
can be prescribed for incinerators, but BIFs must go through the
§260.21 petition  process before this method is acceptable.
                                     tf
     OSW plans to propose revisions of the technical (emission)
standards for hazardous .waste combustors in September of 1995.
At that time we also plan to make technical corrections to the
existing standards  which would include simplification of the
petition process  for BIF testing procedures.  If you believe the
above procedure will cause  problems between now that time, please
contact Scott Rauenzahn of  OSW/WMD at (703) 308-4477.  If there
is sufficient interest,  we  will look into the possibility of
issuing a technical amendment to the existing rules prior to the
new rule proposal.  '
                                                      R»cycltd/R»cyclabi*
                                                      Prtnwd wttn SoyiCanoi*
                                                      contains «t MMt SO* r^cyowj

-------
Attachment
                    ,i
cc: Bob Holloway, WMD
    Gail Hansen, CAD
    Steve Silvennan, OGC
    Larry Johnson, AREAL
    Waste Combustion Permit Writers

-------
                      HOTLINE QUESTIONS AND ANSWERS
                                    October 1994
                          9498.1994(10)
                 RCRA
1.  Regulatory Status of Metals
    Recovery Under RCRA

    If an industrial furnace is burning or
processing hazardous waste to recover metal
values, how is the furnace regulated?

    Industrial furnaces burning hazardous
waste arc generally subject to the boiler and
industrial furnace (BIF) regulations in Pan
266, Subpart H. Owners and operators of
smelting, melting,  and refining furnaces that
process hazardous waste solely for metals
recovery are conditionally exempt from the
BIF regulations except for the requirements
regarding management of wastes prior to
burning (§266.101), management of residues
(§266.112) and the alternative requirements
outlined in §266.100(c). Specifically, the
facility must: submit a one-time written
notification; sample and analyze the waste;
maintain appropriate records; and be engaged
legitimate metals recovery.  For purposes of
this exemption, EPA established three criteria
to determine if hazardous waste is processed
solely for metal recovery: (1) the heating value
of the waste cannot exceed 5,000 Bru/lb (if so,
the  waste is considered to be burned for
energy); (2) the concentration of Pan 261,
Appendix VHI organic constituents cannot
exceed 500 ppm (if so, the waste is considered
to be burned partially for destruction); and (3)
the  waste must have recoverable levels of
metals 56 £R 42504, 42507; August 27, 1991).
    Certain industries process wastes for
metals recovery, yet normally do not meet the
criteria for legitimate metals recovery outlined
above. For example, secondary lead smelters
process spent lead acid battery parts that
contain pieces of rubber or plastic, which
generally have heating values over 5,000 Btu/
Ib.  In response, EPA promulgated special
regulations for lead, nickel-chromium
furnaces, or metal recovery furnaces that burn
certain baghouse bags. EPA expanded the
conditional exclusion to include specific
mercury-bearing wastes processed in exempt
mercury recovery furnaces (59 ER 47980;
September 19, 1994). Provided the units
comply with the alternative requirements of
§266.100(c)(3), the metal recovery furnaces
would only be subject to §§266.101 and
266.112.  Specific requirements found in
§266.103(c)(3) include: one-time written
notification; restrictions on the type of
material burned; sampling and analysis; and
maintenance of records. In addition, EPA
 may subject the  furnaces to  full BIF
 regulation, if the emissions from the unit pose
a hazard to human health and the
environment.

   Metal recovery units engaged in precious
metals recovery are also conditionally exempt
from Pan 266, Subpan H.. Precious metal
recovery is defined as the reclamation of
economically significant amounts of gold,
silver, platinum, palladium, indium, osmium,
rhodium, ruthenium, or any combination of
these metals (§266.70(a)). Provided the
owner or operator of the unit complies  with
the alternative requirements of §266.100(0.
the unit would be exempt from all BIF

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Hotline Questions and Answers                                                  October 1994

requirements except for the regulations
regarding residue management (§266.112).
Specific requirements include:  one-time
written notice, sampling and analysis, and
maintenance of records (§266.100(f)).
Management of precious metal wastes prior to
recovery would be covered by Part 266.
Subpart F.

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      \       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      I                  WASHINGTON. D.C. 20460
%
                                                    9498.1994(11)


 NOV  4  J994
                                                           OFFICE OF
                                                      SOLID WASTE AND EMERGENC V
                                                           RESPONSE

 Mr.  James W. Hathcock
 Environmental Manager
 Laidlaw Environmental Services (Recovery), Inc.
 2029 Bayou Plaquemine Road
 Rayne,  Louisiana 70578

 Dear Mr. Hathcock:

      Thank you for your letter of August 23, 1994, regarding the
 minimum heat content requirements of waste-derived fuel  blended
 for  energy recovery in boilers and industrial furnaces  (BIFs).
 Specifically,  Laidlaw proposes to lower the minimum  heat content
 requirement for hazardous waste accepted at its Crowley,
 Louisiana facility from 5,000 Btu/lb to 4,000 Btu/lb for wastes
 with "significant organic content."  Your letter also serves as  a
 follow-up to a previous Environmental Protection Agency  (EPA)
 memorandum to EPA Region VI dated May 20, 1994, on a related
 subject.

      In a letter to EPA Region VI dated October 19,  1993, Laidlaw
 proposed to lower the minimum heat content requirement for wastes
 it accepts for blending into fuel for energy recovery from 5,000
 Btu/lb  to 1,000 Btu/lb provided the BIF unit has certified
 compliance with the BIF rules.  EPA responded in a May 20, 1994,
 letter  stating that blending of hazardous waste to increase its
 heating value for use as a fuel in BIFs is not prohibited;
 however, if  an industrial furnace burns a listed hazardous waste
 with an as-generated heating value less than 5,000 Btu/lb and the
 facility does not document that the waste is burned  for
 legitimate energy recovery, then any product applied to  or placed
 on the  land  in a manner that constitutes disposal  (e.g.,  cement)
 would be a waste-derived product subject to regulation as
 hazardous waste.

      You now indicate that Laidlaw has developed a comprehensive
 list of  386  EPA hazardous waste codes that are considered to have
 "significant organic content."  You also note that many  of these
 waste streams  have a land disposal restrictions (LDR) treatment
 standard of  incineration or fuels substitution.  You contend that
 these waste  streams (with an as-generated heating value  between
                                                  _  Rtcycle^Racyclable
                                                  ac^ Prinied «wtn Soy/Canofi mk on oaoer triai
                                                 -^ **™_y

-------
4,000 Btu/lb and 5,000 Btu/lb) are suitable for their fuel
blending program due to the wastes' "significant organic
content."  Though not specifically mentioned, EPA must infer that
Laidlav intends to send these blended wastes to industrial
furnaces that produce a product applied to or placed on the land
in a manner constituting disposal (i.e., cement or light-weight
aggregate) and are concerned about the waste-derived product
implications.

     The Agency presumes that a hazardous waste with an as-
generated heating value greater than 5,000 Btu/lb is burned in an
industrial furnace for energy recovery.  Documentation that a
waste has a heating value greater than 4,000 Btu/lb and
"significant organic content" is not, by itself, adequate to
rebut the presumption that it is being burned for destruction
rather than for energy recovery.  As indicated in the May 20
memorandum, an industrial furnace may burn a waste with an as-
generated heating value less than 5,000 Btu/lb and avoid waste-
derived product implications only if the facility documents that
the lower heating value waste contributes substantial, useable
energy to the furnace.  Documentation could be provided by, for
example, empirical data showing that substitution of a lower
heating value waste results in a substantial reduction in fuel
(e.g., coal)  usage that would otherwise be consumed.  Other
approaches may also be used to demonstrate that low heating value
waste contributes significant energy input to the furnace.
However, facilities should discuss their approach(es) to document
that lower heating value wastes are being burned for legitimate
energy recovery with the appropriate permitting agency to be sure
that it is acceptable.

     I hope this information will be helpful.  If you have any
further questions or comments, please contact Frank Behan of ray
staff at 703-308-8476.

                            - Sincerely yours,
                              Michael Shapiro, Director
                              Office of Solid Waste
cc:  William Honker, Region VI (6H-P)

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                                                           James W. Hathcock
                                                           Environmental Manager
SEftVtCES

 August 23, 1994

 CERTIFIED MAIL #Z 696 383 766
 RETURN RECEIPT REQUESTED
 Mr. Michael H. Shapiro, Director
 Office of Solid Waste
 U. S. Environmental Protection Agency
 401  M Street,  SW
 Washington, DC 20460

 Re:  BTU Limitation for Waste-Derived Fuels
    Laidlaw Environmental Services (Recovery), Inc.
    Crowlev.  LA - LAD 079 464 095

 Dear Mr. Shapiro:

 The purpose of this letter is to request clarification concerning the minimum heat
 content requirements of waste-derived fuel burned for energy recovery in boilers and
 industrial furnaces (BIF's) and as a follow-up to your memorandum, dated  May 20,
 1994.  As  of  August 21,  1991, Boiler and Industrial Furnace units were regulated
 under the Boiler and Industrial Furnace Rule (40 CFR 266).  Prior to this date, BIF's
 were  not regulated under RCRA if they were burning hazardous waste for energy
 recovery. The  only restriction was the hazardous waste  burned for energy  recovery
 had to have a minimum heat content of 5,000 BTU/pound to avoid "sham recycling".
 The "Sham Recycling Rule" (Federal Register, March 16,  1983, Pg. 11,157) was
 intended to prevent BIF units from burning hazardous waste solely for the purpose of
 destruction. Under the BIF Rule, the "Sham Recycling Rule" no longer applies to BIF
 units once  they have certified  compliance with the Rule.

 Laidlaw environmental Services (Recovery), Inc.,  operates a hazardous waste fuel
 blending facility in Crowley, Louisiana. At the current time,  Laidlaw Environmental
 Services (Recovery), Inc., does not accept hazardous waste with a heat content less
 than 5,000 BTU/pound.  The  facility proposes to  lower  the minimum heat content
 requirement for hazardous waste fuels accepted at the facility to 4,000 BTU/pound
 for  materials with  "significant organic content".   These  materials would not  be
 blended and shipped to BIF units, which have not certified compliance with the BIF
 Rule.   A  list of the  EPA Hazardous Waste  Codes,  which Laidlaw considers to have
 "significant organic content",  are listed in  Table 1.  A description of the additional
 acceptance  criteria,  which will be  utilized by the  facility, for  the acceptance of
 hazardous  waste  with heating values between  4,000  BTU/pound  and  5,000
 BTU/pound is provided in Attachment  A.

 Ljjdlaw Liiivirorunrni.il Savictrs (Recoveiy). Inc.
2(129 H.i)ou Pkiqurmuir RojJ R.i>nc. Louisi:uia 70578
 Posi 01'llv.T Uox 2K3  (..Vowley. Louisiana 7US27.(I2X3
 Phone 3ISt.7S3 2624  K:,x 318.78.V265I

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Mr. Mike H.  Shapiro, Director               2                August 23, 1994
Laidlaw contends the materials with a heat content between  4,000 and  5,000
BTU/pound are suitable for the fuels blending program due to their "significant organic
content".  However, these waste streams will not be widely accepted at the facility
due to the BTU/pound restrictions at the BIF units.  Typically, the BIF units require
minimum heat contents of 10,000 BTU/pound for liquid waste.

Thank you for your time and consideration of this matter.   If you have questions or
require further information, please call me at (318) 783-2624.

Sincerely,
James W. Hathcock
Environmental Manager

Enclosure

cc:    Mr. Stan Burger (USEPA, Region VI)
      Mr. Frank Behan (USEPA)
      Mr. Lin Longshore
      Mr. Joseph Webb, Jr.
      Mr. Glenn Miller (LA-DEQ)

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                             TABLE 1

          LAIDLAW ENVIRONMENTAL SERVICES (RECOVERY), INC.
                       CROWLEY. LOUISIANA
                     EPA I.D. #LAD 079 464 095

                   Description of Fuel Type Materials
TCLP Waste
D001 . D003 D018
D024 D025 D026
D032 D033 D034
D040 D041 D042
Listed Hazardous Waste
F001
F025
K001
K016
K023
K030
K063
K095
K109
K116
K143
K151
P002
P014
P027
P042
P055
P072
P100
P112
U001
U008
U015
U023
U030
U039
F002
F032
K009
K017
K024
K048
K083
K096
K110
K117
K144

P003
P016
P028
P045
P060
P075
P101
P116
U002
U009
U016
U024
U031
U040
F003
F034
K010
K018
K025
K049
K085
K103
K111
K118
K145

P004
P017
P031
P046
P062
P077
P102
P117
U003
U010
U017
U025
U034
U041
                             F004
                             F037

                             K011
                             K019
                             K026
                             K050
                             K086
                             K104
                             K112
                             K130
                             K147
                             P005
                             P018
                             P034
                             P047
                             P064
                             P085
                             P103
                             P118

                             U004
                             U011
                             U018
                             U026
                             U035
                             U042
F005
F038

K013
K020
K027
K051
K087
K105
K113
K136
K148
P006
P023
P036
P048
P066
P088
P109
P123

U005
U012
U019
U027
U036
U043
F023
F039

K014
K021
K028
K052
K093
K107
K114
K141
K149
P007
P024
P037
P051
P068
P093
P110
U006
U013
U021
U028
U037
U044
F024
K015
K022
K029
K060
K094
K108
K115
K142
K150
POOS
P026
P038
P054
P069
P096
P111
U007
U014
U022
U029
U038
U045

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Listed Hazardous Waste (Continued)
U046
U053
U062
U069
U076
U083
U090
U098
U106
U1 13
U120
U127
1 1 -1 O r~
U135
U142
mr~ *~\
52
U-/ i
U210
U221
V./ A. £_ 1
U228
U235
U243
V^ A. ^T \J

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                 ATTACHMENT A
ADDITIONAL ACCEPTANCE CRITERIA FOR LOW-BTU WASTE

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          ADDITIONAL ACCEPTANCE CRITERIA FOR LOW-BTU WASTE

The hazardous waste primary constituent(s) must be a hazardous waste code listed
on Table 1. These hazardous waste have significant organic content to be utilized as
fuel.  In addition, the land disposal  treatment standard for  most of  the  hazardous
waste codes is incineration or fuel blending/,

The characteristic waste codes listed on Table 2 may be found in the waste, but only
as a secondary constituent «5%). These characteristic codes are often associated
with paint, resin and oily waste.

The waste must have a heating value > 4,000  BTU/pound, as generated.  The
establishment of a heating value of 4,000 BTU/pound as  the minimum insures the
waste has significant usable energy prior to acceptance for fuel blending.

Metal bearing waste will not  be accepted for fuel  blending. Therefore, the  metal
bearing  waste codes listed on Table 3 will not be accepted for fuel blending, unless
they are included as trace constituents (< 1 %).  Tank bottoms from incinerators and
storage  facilities often  have metal bearing waste codes associated with the waste
stream.  In most cases, the waste has significant organic content, as generated during
the tank cleaning process. Therefore, waste streams with hazardous waste codes
listed in  Table 3,  which are generated from cleaning of tanks, can be accepted for fuel
blending.  Other  waste  streams containing metal bearing waste will not be accepted
for fuel  blending.

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                                             TABLE 1

                                   Description of Primary Constituents


TCLP Waste

D001 D003 D018 D019 D021 D022 D023 D024 D025 D026 D027 D028 D029 D030 D032 D033 D034 D035 D036 D037
D039 D040 D041 D042 D043


Listed Hazardous Waste

F001 F002 F003 F004 F005 F023 F024 F025 F032 F034 F037 F038 F039

K001 K009 K010 K011 K013 K014 K015 K016 K017 K018 K019 K020 K021 K022 K023 K024 K025 K026 K027 K028
K029 K030 K048 K049 K050 K051 K052 K060 K063 K083 K085 K086 K087 K093 K094 K095 K096 K103 K104 K105
K107 K108 K109 K110 K111 K112 K113 K114 K115 K116 K117 K118 K130 K136 K141 K142 K143 K144 K145 K147
K148 K149 K150 K151

P002 P003 P004 P005 P006 P007 POOS P014 P016 P017 P018 P023 P024 P026 P027 P028 P031 P034 P036 P037
P038 P042 P045 P046 P047 P048 P051 P054 P055 P060 P062 P064 P066 P068 P069 P072 P075 P077 P085 P088
P093 P096 P100 P101 P102 P103 P109 P110 P111 P112 P116 P117 P118 P123

U001 U002 U003 U004 U005 U006 U007 U008 U009 U010 11011 U012 U013 U014 U015 U016 U017 U018 U019 U021
U022 U023 U024 U025 U026 U027 U028 U029 U030 U031 U034 U035 U036 U037 U038 U039 U040 U041 U042 U043
U044 U045 U046 U047 U048 U049 U050 U051 U052 U053 U054 U055 U056 U057 U058 U059 U062 U063 U064 U065
U066 U067 U068 U069 U070 U071 U072 U073 U074 U075 U076 U077 U078 U079 U080 U081 U082 U083 U084 U085
U086 U087 U088 U089 U090 U091 U092 U093 U094 U095 U097 U098 U099 U100 U101 U102 U104 U105 U106 U107
U108 U109 U110 U111 U112 U113 U114 U115 U116 U117 U118 U119 U120 U121 U122 U123 U124 U125 U126 U127
U128 U129 U130 U131 U132 U134 U135 U136 U137 U138 U139 U140 U141 U142 U143 U146 U147 U148 U149 U150
U152 U153 U154 U155 U156 U157 U158 U159 U160 U161 U162 U163 U164 U165 U166 U167 U168 U169 U170 U171
U172 U173 U174 U175 U176 U177 U178 U179 U180 U181 U182 U183 U184 U185 U186 U187 U188 U190 U191 U192
U193 U194 U195 U196 U197 U198 U199 U200 U201 U202 U203 U206 U207 U208 U209 U210 U211 U212 U213 U218
U219 U220 U221 U222 U223 U224 U225 U226 U227 U228 U229 U230 U231 U232 U233 U234 U235 U236 U237 U238
U239 U240 U242 U243 U244 U247 U248 U328 U353 U359

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                               TABLE 2
                   Description of Secondary Constituents
D002
D010
D017

F006
F019
K002
K061
P010
P087
P120
D004
D011
D020

F007
K003
K069
P011
P099
P121
D005
D012
D031

Description of
F008
K004
K071
P012
P104
P122
D006
D013
D038
TABLE 3
Metal-Bearinq
F009
K005
K100
P013
P113
D007 D008
D014 D015

Waste Codes
F010 F011
K006 K007
K106
P015 P029
P114 P115
D009
D016

F012
K008
P074
P119
U032
U145
U151
U204
U205
U216
U217

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C. 20460
                                                     9498. 1994(12)

  NOV   8 1994

                                                           OFFICE OF
                                                      SOLID WASTE AND EMERGENCY
Mr. Joseph A. Kotlinski .                                   RESPONSE
Corporate Compliance  Manager
CleanHarbors Environmental  Services,  Inc.
1200 Crown Colony Drive,  P.O.  Box 9137
Quincy, MA  02269-9137

Dear Mr. Kotlinski:

     This is in  response  to your letter of June 24,  1994
requesting regulatory interpretations under the Resource
Conservation and Recovery Act  (RCRA)  concerning certain fuel
blending scenarios.   Your letter presents  four scenarios from
which you ask several questions  regarding  fuel blending-related
activities.

     I want to emphasize  at the  outset that,  unlike the situation
prior to adoption of  the  Boiler  and Industrial Furnace (BIF)
rules in 1991, the  5,000  Btu/lb  (as-generated) heating value
criterion no longer determines the regulatory status of the
boiler or industrial  furnace (see 56  FR 7134,  February 21, 1991) .
Currently, a fuel blender can  blend wastes of any Btu value for
burning in a BIF; however,  there are  consequences in doing so for
industrial furnaces that  use such blended  wastes.

     Specifically,  the 5,000 Btu/lb value,  as generated,  is used
as a reasonable  yardstick to distinguish between waste fuels
being burned for energy recovery versus those burned for
destruction or,  potentially, as  an ingredient, unless the
facility can demonstrate  that  the waste with less than 5000
Btu/lb is being  burned for  legitimate energy recovery.  Thus,  if
an industrial furnace produces a product that is used in a manner
constituting disposal (e.g., cement or light-weight aggregate
kiln)  and uses a blended  fuel  with a  portion that has an as-
generated heating value of  less  than  5,000 Btu/lb,  the Agency
will generally assume that  the waste  is being burned for
destruction.  In such cases, the resulting product will be
considered waste-derived  (i.e.,  subject to regulation as
hazardous waste), unless  the facility can  document that the low
heating value waste is being burned for legitimate energy
recovery.

Scenario 1

     In this scenario, a  waste stream containing 4,000 Btu/lb as
generated is sent to  a permitted TSDF for  storage and treatment.

                                                     Ftocyctod/ffccydable
                                                     Pitnud »«h 8ov/C»no<» Ink on p*p*r tn»t

-------
While in storage at the TSDF, the waste stream separates  (by
gravity) into two  (2) distinct phases:  an organic layer with .a
heat content of 6,000 Btu/lb; and an aqueous layer containing
3,000 Btu/lb.

a)   You ask whether a RCRA treatment, permit is needed under
     40 CFR Part 264 to decant the two  (2) phases.

     Based on the information provided, the unit(s) at the TSDF
need a permit since the storage of hazardous waste is occurring,
and the specific requirements of Part 264 would apply.  Since the
storage activity establishes the need for a permit, it is not
necessary to determine whether treatment is occurring in the
unit(s), although in this example decanting would be considered
treatment under RCRA.  Enclosed is a recent EPA memorandum dated
October 17, 1994 which provides guidance on the regulation of
fuel blending and related treatment and storage activities.

b)   You ask that if the decanting does not constitute treatment,
     can the decanted layer with a heat content of 6,000 Btu/lb
     be blended with other wastes destined for energy recovery,
     even though the decant originated from a waste with less
     than 5,000 Btu/lb as generated.  You also ask if the
     separation/decanting results in a new point of generation
     making the blending of the high Btu layer legitimate.

     If the decanting of the phases results in a concentrated
stream containing 6,000 Btu/lb,  the concentrated decant fraction
would be considered high BTU "as generated," and can be used as a
fuel accordingly.

Scenario 2

     A waste stream containing greater than 5,000 Btu/lb as
generated is sent to a TSDF for storage and treatment.  The waste
stream contains a high concentration of acetone.   Low Btu waste
streams at the plant are mixed with the acetone stream to
concentrate and separate the acetone.  The resulting more
concentrated acetone layer contains greater than 5,000 Btu/lb.

a)   You ask if the mixing of the acetone waste stream that
     contains greater than 5,000 Btu/lb with the low Btu waste
     stream is considered "sham recycling" if the waste stream is
     managed as a hazardous waste fuel.

b)   You ask if the resulting concentrated acetone phase can be
     used for hazardous waste fuels blending.

     Since the 1991 BIF rules superseded the sham recycling
policy,  the question for an industrial furnace customer that
produces a product that is used in a manner constituting disposal
is whether they can document that the less than 5,000 Btu/lb

-------
hazardous waste is being burned for energy recovery.  Note also
that, based on the information provided, it is not clear to us
why adding a low Btu waste stream to the "greater than 5,000
Btu/lb" waste stream would be beneficial, when the end result is
separating off a waste stream that also has "greater than 5,000
Btu/lb".  Is the reason for adding the low Btu waste stream to
acquire acetone for recycling purposes?  Additional information
would be needed for us to fully understand and reply to your
question.

Scenario 3

     A 6,000 Btu/lb waste stream as generated is sent to a TSDF
for storage and treatment.  While in storage at the TSDF, the
waste stream separates into a 8,000 Btu/lb organic phase and a
3,000 Btu/lb aqueous phase.

a)   You ask if the two phases can be re-mixed and fuels blended,
     or if the re-mixing of the two phases and subsequent
     blending would be considered "sham recycling".

     Again,  the sham recycling portion of your question is not
relevant, since the blender can blend wastes irrespective of
their heating value.  The question is what the consequences are
for the products of an industrial furnace using the blended
hazardous waste fuel.  However, the remixing of the two phases
would not be considered treatment under RCRA (40 CFR 260.10)
or a new point of generation because the original composition of
the waste stream,  as generated, is not changed.

b)   You also ask that, if the decanting is not treatment,  can
     the phases be decanted and the 3,000 Btu/lb phase be
     blended, since the waste stream had not been treated,  and
     originally came from a greater than 5,000 Btu/lb source as
     generated.

     As discussed for scenario 1,  the decanting of the separate
phases results in two separate phases of the waste stream.   Just
as the 5,000 Btu/lb could be used as a fuel as explained in
Scenario 2,  the 3,000 Btu waste stream carries the consequences
that when burned in an industrial furnace the facility must
document that the low heating value waste is burned for
legitimate energy recovery or the resulting product will be
considered waste-derived.

Scenario 4

     A high Btu load of gasoline and water from a tank clean-out
arrives at a TSDF in fifty 55-gallon drums.  The generator has
certified that the waste stream contains greater than 5,000
Btu/lb as generated.  Samples are collected from each drum and

-------
analyzed individually.  Ten  (10) of the drums are found to have a
heat content less than 5,000 Btu/lb.

a)   You ask if the contents of the ten  (10) drums can be
     blended for use as fuel because they originated from a
     source that was greater than 5,000 Btu/lb.

     In this example, you have documentation that questions the
generator's determination that the waste had an as-generated
heating value greater than 5,000 Btu/lb.  Thus, unless you
document by analysis or mathematical calculation, that the total
volume had a heating value greater than 5,000 Btu/lb, you cannot
assume that the ten drums in question contain waste that have an
as-generated heating value greater than 5,000 Btu/lb.

b)   You ask whether the point of generation is the point at
     which the material was placed in each drum, and if so,
     should the generator have provided analysis to the TSDF for
     each drum in the load to verify its Btu content.

     This question regarding the point of generation for clean-
out wastes streams raises complex issues that require detailed
site specific evaluations.  EPA is currently examining whether
the Agency should develop additional national guidance or
regulatory changes to address the point of generation for clean-
out waste streams.  We intend to raise this issue for public
comment in Phase III of our land disposal restrictions
rulemaking.  Currently, decisions on these matters are being made
by the appropriate permitting authorities on a case-by-case
basis.

     Thank you for the opportunity to respond to your questions
regarding hazardous waste fuel blending.  If you have any
questions on the applicability of the regulations and permitting
requirements for fuel blending activities, please call Jeffrey
Gaines of my staff at  (703) 308-8655.

                                   Sincerely,
Enclosure
                                           H. Shapiro, Director
                                          of Solid Waste
cc:  RCRA Branch Chiefs, Regions I-X
     Enforcement Section Chiefs, Regions I-X
     Waste Combustion Permit Writers' Workgroup

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                          leanHarbor
                          ^^M^^^^^^^^^^^^^^^^^rf^^^^^
                        ENVIRONMENTAL SERVICES, INC.
                1200 CROWN COLONY DRIVE. P.O. BOX 9137 • QUINCY, MA 02269-9137
                                (617)849-1800
CERTIFIED MAIL - RETURN RECEIPT REQUESTED   P 650 874 419

June 24, 1994

Mr. Michael Shapiro, Director
Office of Solid Waste  (5301)
United State Environmental Protection Agency
401 M Street, SW
Washington, DC  20460

Re:  Fuels blending

Dear Mr. Shapiro:

This letter requests a regulatory interpretation concerning certain
fuels blending scenarios.

(1).  A wastestream containing 4,000 BTU/lb as generated is sent to a
     permitted TSDF for storage and treatment.  While in storage at the
     TSDF,  the wastestream separates (by.gravity)  into two (2)  distinct
     phases:  an organic layer with a heat content of 6,000 BTU/lb; and
     an aqueous layer containing 3,000 BTU/lb.

     a.   While State hazardous waste regulations may vary,  is  a RCRA
          treatment permit needed under 40 CFR Part 264 to decant the
          two (2)  phases?

     b.   If  decanting does not constitute treatment,  can the decanted
          high BTU layer be blended with other high BTU wastes  destined
          for energy recovery even though the decant came from  a waste
          with less than 5,000 BTU/lb as initially generated?   Does the
          the separation/decanting result in a new point of  generation,
          thereby making fuels blending of the high BTU layer
          legitimate?

(2).  A wastestream containing greater than 5,000 BTU/lb as generated is
     sent to  a TSDF for storage and treatment.  The wastestream
     contains a high concentration of acetone.  Low BTU wastestreams at
     the plant are mixed with the high BTU acetone stream to
     concentrate and separate the acetone. The resulting more
     concentrated acetone layer contains greater than 5,000  BTUs/lb.

     a.   Is  the mixing of the high BTU wastestream with the low BTU
          wastestream considered "sham recycling"  if this wastestream
          is  managed as a hazardous waste fuel?

     b.   Can the resulting concentrated acetone phase be used  for
          hazardous waste fuels blending?
                ' 'People and Technology Creating a Better Environment

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'leanHarboi
 Mr.  Michael Shapiro/U.S.  EPA
 June 24,  1994
 Page 2


 (3) . A 6,000 BTU/lb wastestream as  generated  is sent  to a TSDF for
      storage and treatment.   While  in  storage at the  TSDF, the
      wastestream separates into an  8,000 BTU/lb organic phase and a
      3,000 BTU/lb aqueous phase.

      a.    Can the two (2)  phases be re-mixed  and fuels blended, or is
           the re-mixing of the  high and low BTU phases and subsequent
           blending considered "sham recycling"?

      b.    If decanting is not treatment, can  the phases be decanted,
           and the 3,000 BTU/lb  phase fuels blended since the
           wastestream has not been  "treated"  and it originally came
           from a greater than 5,000 BTU/lb source as  generated?

 (4) . A high BTU load of gasoline and water from a tank cleanout arrives
      at  a TSDF in fifty (50)  55-gallon drums.  The generator has
      certified that the wastestream contains  greater  than 5,000 BTU/lb
      as  generated.   Samples  are collected from each drum and analyzed
      individually.  Ten (10)  of  the  drums are  found to have a heat
      content less than 5,000 BTU/lb.

      a.    Can the contents of the ten  (10) drums be fuels blended
           because they originated from a source that  was greater than
           5,000 BTU/lb?

      b.    Is the point of generation the point at which the material
           was placed in each drum?   If so, should the generator have
           provided analysis  to  the  TSDF for each drum in the load to
           verify its BTU content?

 I  appreciate your attention  to  these questions.  Should you or your
 staff require clarification  or  additional information, please contact
 me at 617-849-1800, extension 4049.
 .Sincerely,
 '
/Joseph A.  Kotlim
•'Corporate  Compliance Manager

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              UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON. D.C. 20460
                                                    9498.1994(13)
 DEC  *5 tOQ/                                                OFFCEOf
 UCO  J ly^W                                           SOLID WASTE AND EMERGENCY
                                                           RESPONSE
Mr. Michel R. Benoit
Executive Director
Cement Kiln Recycling  Coalition
Suite 500
1212 New York Avenue,  N.W.
Washington, D.C.  20005

Dear Mr. Benoit:

     Thank you  for your letter of November 2,  1994,  requesting
clarification to  my October 17,  1994,  memorandum entitled
"Regulation of  Fuel Blending and Related Treatment and Storage
Activities".

     First, you point out that the memorandum appears to
condition the ability of a cement kiln burning listed hazardous
waste to be eligible to retain the Bevill exemption for its
cement kiln dust  (CKD) on whether the  kiln is burning hazardous
waste for energy  recovery.  EPA  agrees that this would be an
inappropriate interpretation.  As you  note,  the Agency made it
clear in the preamble to the Boiler and Industrial Furnace (BIF)
rule that eligibility for the Bevill exemption focuses on the
composition of  the residue generated  (i.e.,  significantly
affected test)  rather than on the purpose for which the hazardous
waste is burned  (i.e., energy recovery versus destruction).
Thus, CKD generated from burning hazardous waste in cement kilns
for the purpose of destruction is eligible to retain the Bevill
exclusion provided it meets all  the provisions of 40 CFR 266.112.
In addition to  the significantly affected test mentioned above,
other requirements of this provision include:  (1)  the cement kiln
must process at least 50 percent by weight normal cement-
production raw materials; and (2) the  cement kiln must retain
sufficient records to document compliance with these provisions
until closure of  the unit is completed.

     Second, regarding your reference  to our statement "Transfer
operations are limited to bulking and  consolidation of wastes, "
we agree with your concern that  this statement.could be
\nterpreted too narrowly by transporters.   Activities such as

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bulking, containerizing, consolidating, and de-consolidating
are within the scope of acceptable transfer operation activities,
assuming of course that no blending is taking place.  Our intent
in this section of the memorandum was not to restrict legitimate
transfer operation activities, but to emphasize, as you noted,
that activities constituting either treatment or selective
blending of hazardous waste fuels to meet a fuel specification
are not allowable.

     I hope this information is useful.  We appreciate your
comments on the memorandum and welcome any further comments that
you would like to provide.

                              Sincerely yours,
                                      Shapiro, Director
                          1l  Office of Solid Waste

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       CEMENT KILN RECYCLING COALITION
       1212 \EW YORK AVENUE. \;.VV   •  SUITE 500  •  WASHINGTON, D.C. 20005
            TELEPHONE: (202) 7S9-1945           FACSIMILE; (202) -10S-93Q2
                         November 2,  1994
Mr. Michael H. Shapiro
Director, Office of Solid Waste
United States Environmental
 Protection Agency
Mail Code 5301
401 M Street, SW
Washington, D.C. 20460

Dear Mr. Shapiro:

     I am writing on behalf of the Cement Kiln  Recycling
Coalition (CKRC).  We have been reviewing a  recent guidance
memorandum you sent to the regions entitled  "Regulation of Fuel
Blending and Related Treatment and Storage Activities," dated
October 17, 1994.

     We have not yet analyzed all  implications  of the memorandum
or obtained feedback from our members  as  to  any significant
concerns they may have.   Nevertheless,  we have  already identified
two passages in the memorandum that raise concerns.  It appears
that both of these concerns may simply result from imprecision in
drafting, but as the consequences  could be significant if we are
incorrect, we would appreciate a clarification  from you on both
points.

     First, on the bottom of page  4, your memorandum appears to
condition the ability of a cement  kiln to retain Bevill
eligibility for its cement kiln dust (ckd) on whether the kiln is
burning for energy recovery.   See  the  last sentence on page 4:
"If the wastes are burned for energy recovery . . . etc."

     We believe this is  incorrect.   EPA's two-part test in 40 CFR
§266.112 is not conditioned on the purpose of burning.  Moreover,
EPA explicitly dealt with this issue in the  final BIF preamble,
and made clear that even if a kiln were burning for purposes of
destruction it would still be eligible to use §266.112 and the

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 ckd could  still  retain  Bevill  status.   56  Fed.  Reg.  7199,  col.  3
 February 21,  1991. *

     Second,  near  the bottom of  page  3  of  the memorandum,  there
 is a discussion  of  "transfer facilities" as  defined  under  40 CFR
 260.10 and regulated under  40  CFR  263.12.  In one  sentence you
 say:  "Transfer  operations  are limited  to  bulking  and
 consolidation of wastes."

     While we agree with the conclusion this sentence  leads to
 that blending to meet a fuel specification is not  within the
 range of activities allowed at an  unpermitted transfer facility
 - we believe  the limitation stated in the  quoted sentence  is too
 narrow.  For  instance,  EPA  has long held that not  only
 consolidation, but also de-consolidation of  wastes is  allowed at
 transfer facilities.  See attached letter  from  Diane Regas, EPA's
 Office of General Counsel,  July  20, 1989.  Moreover, it is also
 clear under the  regulations that containers  may be moved from one
 transport unit to another,  or  even simply  stored in  the same unit
 without movement; "bulking  and consolidation" are  certainly not
 the only activities allowed, as  the memo seems  to  assert.

     In light of the confusion that may be caused  by these two
 sections of your memo among our members, I would appreciate your
 confirming for me in writing that  our understandings as set forth
 above are correct.  Thank you  for  your  consideration.

                               Sincerely,         ,
                              Michel R. Benoit
        I should make clear that CKRC supports the burning of
hazardous waste for energy recovery purposes and not for purposes
of destruction.  Thus far, however, there is no well-established
and accepted test for determining whether burning is for energy
recovery or destruction.  (We filed a petition for rulemaking on
February 8, 1994 that urged EPA to adopt such a test; EPA has not
yet responded to our petition, however.)  Our concern is that
various regional or state personnel could assert an unreasonable
position regarding energy recovery, and then seek to disqualify a
kiln from 40 CFR §266.112 based on that position.

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                                                          -i as
             UNfTED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                                               9498.1995 (01)
   NOV   9 1995

                                                       .  OFFICEOP
                                                    SOUD WASTE AND EMERGENCY
Mr. David Gossman                                        RESPONSE
President
Gossman Consulting, Inc.
45W962 Plank Road
Hampshire, Illinois  60140

Dear Mr. Gossman:

     This is in response to your October 9, 1995, letter
reminding us that we have not responded to your April 3 letter
concerning the use of metal surrogates in complying with the
Boiler and Industrial Furnace (BIF) rule.  We appreciate your
continued interest in developing a system that eliminates
unnecessary testing and that minimizes the risk from metal
spiking as part of the emissions tests under 40 CFR 266. 106 (c)
and (d) .

     Although we have been tardy in providing a written response,
I understand that Bob Holloway, Dwight Hlustick and others along
with our technical support contractor discussed with you in
September the concerns that we have about using metal surrogates
under the BIF rule.  Although the BIF rule requires that a
feedrate be established for each metal based on testing, the rule
does not specifically prohibit the use of testing with  surrogate
metals.  The issue, however, is how to address the problem that
system removal efficiency  (SRS) , and therefore emissions, are  a
function of metal feedrate.

     Generally, SRB decreases at lower feedrates.  Thus, even
though we should be able to agree on which of the regulated
metals have similar volatilities  (e.g., based on the volatility
groupings that will be proposed for the MACT rule) and  could be
used as surrogates for each other, the use ^surrogates
currently has limited practicability under the BIF rule.  This is
because the surrogate metal must be fed at the may! mum  individual
feedrate for any of the metals for which it is acting as a
surrogate.   (Otherwise, SRB would be overestimated.)

     I understand that you are particularly concerned about
spiking beryllium because of its cost and toxicity.
Unfortunately, it is not practicable to use another low
volatility regulated metal  (e.g., arsenic, chromium) as a
surrogate for beryllium because these other regulated metals
normally require much higher feedrates than beryllium.   If  you
were to utilize those higher feedrates for the surrogate,  the
source may axceed the BIF emission limits for beryllium.   I

-------
understand you discussed with ay staff the possibility of
industry testing to identify a surrogate, nonregulated metal that
is not normally present in cement kiln feedstreazns at levels
higher than the feedrate desired for beryllium.  We would be
happy to work with the industry to provide advice on such a
testing program and to take the necessary steps to allow the use
of such a surrogate.

     Thank you for your continued interest in this matter.
Please feel free to contact Bob Holloway to discuss these issues
further.

                                   Sincerely,
cc:  Waste Combustion Permit Writers
                                           Shapiro, Director
                                    fflce.of Solid Waste

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               UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

                          WASHINGTON, D.C. 20460                          x

                                                          •VJc'j.  ?o ,  '"H-^ •


                                            9498.1995(02)


                                                            OFFICEOF
                                                      SOLD WASTE AND EMERGENCY
                                                            RESPONSE
Mr. Paul C.  Chrostowski,  Ph.D.
Principal
The Weinberg Group Inc.
1220 Nineteenth  Street, N.W.
Suite 300
Washington,  D.C.  20036-2400
Dear Mr. Chrostowski:
     Thank you  for your letter of November 6; 1995 to
Administrator Browner regarding your concerns about the Agency* s
policy with respect  to site-specific risk assessments at
combustion facilities that are regulated under the Resource
Conservation and Recovery Act (RCRA).  I appreciate your detailed
coEments that outline the advantageous aspects of site-specific
risk assessments and that support the continuation of site-
specific risk assessments to help ensure that RCRA permits are
protective and  are credible with the public and the regulated
community.  •


     As part of the  Agency's Hazardous Waste Minimization and
Combustion Strategy,  EPA currently has a national RCRA policy
of strongly recommending to all federal and state RCRA permit
writers that, under  the omnibus permit provisions of RCRA
§3005(c)(3), site-specific risk assessments be performed as part
of the RCRA permitting process if necessary to protect human
health and the  environment.  Very soon, the Agency intends to
propose new emission standards for hazardous waste combustors
under joint authority of the Clean Air Act Amendments of 1990 and
RCRA.  We believe these new standards will provide a significant
improvement over current controls for hazardous waste combustion.
However, at least until these rules take effect, the Agency
intends to continue  its policy of recommending that site-specific
risk assessments be  conducted as part of RCRA permitting for
hazardous waste combustors (incinerators, boilers, and industrial
furnaces alike) as necessary to protect human health and the
environment.
                                                      RecyOed/Racyctabl*
                                                      Prlnt»d«imsoy/Cvieuink
                                                      contain* « taut 50% rwyctod flMr

-------
     Of course, we cannot predict what the final regulations and
the final national emission standards will be because we expect
/substantial comment on the proposal.  In that proposal, we are .
dnviting comments specifically on the issue of the role that
site-specific risk assessments ought to play in permitting of
hazardous waste combustion facilities.  Your letter will be
entered into the rulemaking docket, and if you have further
views, we urge you to submit them during the public comment
period so that they get full consideration.  Our ultimate goal is
to be able to implement a set of protective national standards
that do not require intensive site-specific assessments at a
large majority of sites.  However, we also recognize that there
may be situations in which a need for risk assessments at some
combustion facilities will continue to exist.  These and related
issues will be assessed as the Agency develops its final*
rulemaking for hazardous waste combustors.


     Thank you for your interest in this important matter;


                              Sincerely yours,  .
                              Michael Shapiro, Director
                              Office of Solid Waste

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                             THE WEINBERG GROUP INC.
                                  WASHINGTON. DC • BRUSSELS
     November 6,1995
     The Honorable Ms. Carol Browner .     .
     Administrator '                          .                  -
     United States Environmental Protection Agency
     401 M Street, SW                                    .   '-                  .
     Mail Code 1101      -                                                      .    ,
     Washington, D.C.  20460              .                                    ;

     Dear Ms. Browner

     The purpose of this letter is to comment on the Environmental Protection Agency's (EPA's)   '
     proposal to eliminate requirements for site-specific risk assessments at combustion facilities that
     are retaliated under the Resource Conservation and Recovery Act (RCRA). Although the
     performance of direct and indirect risk assessments at these facilities by EPA, state agencies or
     project proponents has gotten off to somewhat of a rocky start, there is little logic to abandoning
     a program that is now reaching an acceptable degree of maturity. Indeed, as both regulators and
     the regulated community become more adept at producing and reviewing risk assessments, their
     utility as a regulatory tool proportionately increases. Some of the more important reasons for
     continuing the program include:                .             .

     •     Emissions associated with the implementation of Maximum Achievable Control
           Technology (MACT) may not be controlled adequately to meet risk management goals.
           This is due to a number of reasons including the uniqueness of site-specific exposure
           pathways and the inability of MACT standards to control {acUity-specific chemical
           standards.  The possibility that MACT might not be protective was, in fact, the reason
           behind the residual risk requirements of § 112(f) of the Clean Air Act Amendments of
           1990. We have already seen several instances where proposed MACT standards will not
           meet typical EPA risk management, goals and are concerned that elimination of risk
           assessments will reduce the Agency's credibility to both the public and regulated
           community.                                                .               .

     •     The elimination of risk assessments will be an impediment to implementation of some
           key Clinton Administration environmental initiatives including environmental justice and
           the assessment of risks to children. Implementation of MACT standards without risk
           assessment will not enable the identification of disparate impacts to various sectors of the
           community, nor will it assist in the evaluation of cumulative .impacts.
1220 Nineteenth Street. NW  • Suite 3OO  •  Washington DC 2O036-24OO • (202)833-8077 • Fax'(202) 833-7057

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The Honorable Ms. Carol Browner
November 6,1995
Page 2       /
•      The elimination of site-specific risk ftgsgssrnchts may allow a competitive disadvantage to
       particular sectors of the waste management community. .Currently, there is a major
       competitive struggle between commercial hazardous waste incinerators, commercial
       boilers.and industrial furnaces, and noncommercial captive facilities. In order to ensure
       that public health is protected plus avoid charges that EPA is favoring one segment of the
       industry over the other, site-specific risk assessments should be retained.

•     -The elimination of risk assessment will fuel public concerns mat regulatory agencies are
       not adequately protecting public health.  There Is a common perception among         •
       individuals residing close to •combustion facilities mat regulations are not health
     .  protective. Risk assessments are a means by which the Agency and industry, alike can
     .  demonstrate the safety of a regulated facilhy.or modify a technology  or permit to make a
 -.' .    facility safe.   ; '. •     .-   .. : •/:.•••'••.'"• :':J "   '-.-'.''    •':•'.'  .•'-••'     .  •'   •:

•   -   .Risk assessments can- be performed on a Very cost effective basis. - For an experienced
       .risk assessment services purveyor, the costs of a multiple pathway, multiple chemical risk .
       assessment to the private sector are typically within the range of $50,000 to $75,000 per
     .  facility. These costs are small considering the benefits to be gained and put in the context
     •  of the costs  to satisfy other regulatory requirements. For example; trial bums, RCRA Part
       B applications, Clean Air Act PSD permit applications, and other requirements are
      ' typically substantially more costly *h»" risk assessments.
- . -      .   •*'    ' •          • •       *      ' *       '           '.       *   *•
I hope you will take these factors into consideration in reaching your decision to continue to
require risk assessments at combustion facilities and to .extend^them to other source categories as
appropriate.        :  . .                     .   .   .

Please feel free to call if you have any questions.             ...                 ;

Very Truly Yours,     .                  ..               .
THE WEINBERG GROUP INC.
Paul C. Chrostowski, PLD.
Principal           -

PCOskw
                       *
cc     Robert Sussman
       David Bussard

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    f

     \       UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

     I                  WASHINGTON, D.C. 20460
fy
                 SO


                   9498.1996(01)
                                                          OFFICE OF
                                                     SOLID WASTE AND EMERGENCY
                                                          RESPONSE
The Honorable  Bill  Emerson
United States  House of Representatives
Washington,  D.C.  20515

Dear Congressman  Emerson:

     Thank  you for  your letter of January 30,  1996 to
Administrator  Browner in which you expressed your concerns about
application of the  omnibus permit authority and site-specific
risk assessments  as part of the Environmental  Protection Agency's
(EPA's) Hazardous Waste Minimization and Combustion Strategy.

     You expressed  concern that the Agency has imposed permit
conditions  without  the benefit of defined regulatory standards
that have been subject to a formal review under the
Administrative Procedure Act,  and that the Combustion Strategy
itself was  not authorized by Congress.  As you know,  the omnibus
provision was  authorized by Congress under Section 3005 (c) (3) of
the Resource Conservation and Recovery Act.  The codification of
this provision at 270. 32 (b) (2)  followed the Administrative
Procedure Act.  The use of the omnibus authority in implementing
the Combustion Strategy is consistent with the original -intent of
the statute and regulations.

     The Hazardous  Waste Minimization and Combustion Strategy
consists of a  compilation of EPA's goals, policies, and
activities  in  areas such as permitting,  combustion standards, and
waste minimization.  Each activity conducted under this Strategy
rests on its own  proper legal authority under  RCRA and, in one
case, the Clean Air Act Amendments of 1990.

     The Strategy itself does not impose regulatory requirements,
but is a policy statement .expressing how the Agency plans to
exercise its discretionary functions under RCRA 'in the future.
Specifically,  the Strategy sets out EPA's permitting priorities
and recommends procedures for ensuring that individual permits
meet RCRA's mandate to protect human health and the environment.
As such, the Strategy does not require its own separate legal
                                                     Recycled/Recyclable
                                                     Printed with Soy/Canota Ink on paper that
                                                     contains at least 50% recycled fiber

-------
authorization from Congress.  As noted above, each independent
activity undertaken as part of the overall Strategy  (e.g.,-
updated technical standards/ individual permitting decisions/
waste minimization plan) has been and will continue to be
carefully scrutinized to make sure that.the legal basis for any
action is clear, and that all appropriate procedures are followed
(including public notice-and-comment for all rulemakings and for
each individual permit action).

     A number of people have expressed concerns about the time
and resources to perform risk assessments/ based on the cost of
the assessment that is being done for the WTI incinerator in East
Liverpool, Ohio.  It is important to recognize that the risk
assessment .guidance developed pursuant to the Combustion Strategy
does not involve the extensive evaluation being done for the WTI
facility.  The level of detail of that assessment is not the
norm,  but rather was due to site-specific factors, as well as to
the fact that this assessment was an early effort which was
expected to help refine future risk assessments.  On the other
hand,  with appropriate emissions data the screening analysis
outlined in EPA's risk assessment guidance can generally be
completed in a fairly short time at a cost of less than $50,000,
although more detailed analysis  for a specific site may be
considered by the permitting authority depending on site-specific
conditions.  The regulations already require hazardous waste
combustors to perform trial burns to demonstrate compliance with
the emissions standards; collection of the additional emissions
data needed for a risk assessment generally amounts to a small
percentage cost increase.  EPA would like to minimize the burden
associated with these risk assessments to the extent possible,
and we are currently discussing  ways' to further standardize and
focus the assessments.
                                                        >
     We understand there may be  some frustration with changes to
the models used for risk assessments.  However,  the Agency
believes it is important to continuously improve its air quality
models and to make improved modeling tools available to the
public.  It is not the Agency's  policy, however, to require that
a particular model be used.  Instead, that decision is generally
made on a case-by-case basis by  the permit applicant in
consultation with the permitting authority.  This approach allows
flexibility to decide, for example, that once the risk assessment
protocol for a site is approved  by the permitting authority, no
further changes will be made unless agreed to by the applicant
and the permitting authority.

     You expressed concern that  these risk assessments are
unjustified.  The Agency policy  that the permitting process for
hazardous waste combustion facilities should include a site-
specific risk assessment is based on new information which became

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available  since  the  time that the current regulations  for
incinerators  and BIFs  (boilers and industrial  furnaces) were
issued.  This information indicates there can  be significant
risks  from indirect  exposure pathways  (i.e., pathways  other than
direct inhalation, such as through the food chain).  This key
portion, and  in  many cases the largest component,  of the risk
from hazardous waste combustor emissions was not fully taken into
account when  the hazardous waste combustion emissions  standards
were developed.

     For this reason, the "omnibus" requirement to protect human
health and the environment comes into play.  Permit writers must
determine  on  a site-specific basis what, if any, additional
permit conditions are necessary to assure that these additional
risks  are  not above  acceptable levels. . Multipathway site-
specific risk assessments provide the information  and  logical
decision-making  process needed in making such  determinations.

     We agree that combustion, when well-designed  and  well-
operated,  is  one of  the safest and most effective  methods for
treating hazardous waste; however,  we do not believe that
performing risk  assessments "threatens" this technology.  Rather,
by performing risk assessments,  EPA and the authorized states are
able to set appropriate emission limitations in permits to keep
risks  below maximum  acceptable levels.  We believe that assuring
the public that  hazardous waste combustors are operating in a
protective fashion is good for the industry as well as for public
health.

     Thank you for your interest in this important area.

                              Sincerely yours,
                                    
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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON, D.C. 20460
                                                        9498.1996(02)
                                                          OFFICE OF
                                                     SOLID WASTE AND EMERGENCY
                                                          RESPONSE
The Honorable Harold L. Volkmer
United  States House of Representatives
Washington,  D.C.  20515

Dear  Congressman  Volkmer:

      Thank  you for your letter of February 27, 1996  to
Administrator Browner in which you raise concerns about  the
Environmental Protection Agency's (EPA's) hazardous  waste
combustion  program.

      You  expressed concerns about:  (1) why the Agency is
pursuing  development of maximum achievable control technology
(MACT)  standards  for cement kilns given the results  of the Texas
Natural Resources Conservation Commission (TNRCC) study  showing
that  kilns  in Texas pose minimal health risk and given that the
National  Academy  of Sciences (NAS) has not yet completed a study
of the  health effects of hazardous waste combustion;  (2)  why the
Agency  has  grouped cement kilns and incinerators together in
developing  MACT standards; (3)  why the Agency did not distinguish
between wet and dry kilns in developing MACT standards;  (4)  why
the Agency  established feedrate limits for cement kilns  under the
MACT  standards; and (5) why the Agency is requiring  cement kilns
to conduct  expensive site-specific risk assessments  using
scientifically unproven methods.  I want to address  each question
you raise.

Risk  Posed  by Cement Kilns

      Notwithstanding the results of the TNRCC study, our analyses
show  that emissions of dioxins and furans (D/F) from cement kilns
(and  other  hazardous waste combustors) can pose significant
health  risk.   The range of carcinogenic risk for subsistence
farmers and subsistence fishers can exceed 1 in 100,000.   The
health  risk posed by a particular kiln is a function of  the
emissions from that kiln and site-specific exposure  factors.
Although  the health risk from emissions from cement  kilns in the
Midlothian,  Texas,  area may not be significant, this may .not be
the case  nationwide.
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     In addition, we believe that hazardous waste combustors
 (HWCs) may represent about 9% of total anthropogenic D/F
 emissions in the U.S, and about 4% of total Mercury (Hg)
 emissions.  Both are highly toxic and bioacculmulative
 pollutants, and Congress singled out both fbr^ priority MACT
 control under Section 112(c)(6) of the Clean Air Act.  The
 Agency's MACT rule that is under development would reduce dioxin
 and furan emissions from hazardous waste combustors by 98% and
 mercury emissions by 80%.

     We believe that there is ample evidence of the potential
 health risk from HWCs and that it would be inappropriate to delay
 the rulemaking.  Stakeholders should have the opportunity to
 review and comment on the proposed MACT rules.  We also note that
 the Agency has entered into a settlement agreement to propose the
 MACT rule for HWCs by February 20, 1996.  Although we have missed
 that deadline, we are committed'to moving forward with the rule
 as quickly as possible.

     Finally/ the settlement agreement deadline does not allow
 the Agency to wait for the results of the NAS study on the health
 effects of hazardous waste combustion.  The Agency will, of
 course, factor the results of the study into our final rulemaking
 to the extent legally and technically appropriate. In doing so,
 we will be mindful as well of the legal deadlines for
 promulgation of the final rule.

 Grouping of Cement Kilns with Incinerators

     The Agency is not proposing to group cement kilns with
 incinerators for purposes of developing MACT standards.  This
misconception may stem from a May 1994 report the Agency released
 (Combustion Emissions Technical Resource Document) in which the
Agency pooled emissions data from all hazardous waste combustors.
We are no longer pursuing that approach.

 Subdividing Wet and Dry. Cement Kilns

     The Agency agrees that it is appropriate to consider
 subdividing cement kilns by process type:   wet versus dry process
kilns.  We have investigated MACT standards for wet versus dry
kilns and plan to invite comment on subdivided standards.  Based
on public comment and further analysis,  we could promulgate
 subdivided standards.

 Feedrate Limits for Cement Kilns

     The Agency is not proposing limits on the feedrate of metals
and chlorine for cement kilns.   In developing the MACT standards,
the Agency has,  however,  considered control of the feedrate of

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metals and chlorine  in hazardous waste along with emission
control equipment as valid emission control techniques in
identifying MACT standards.  This is because both feedrate of
metals and chlorine  as well as collection efficiency of the
control device  affect emissions.  A source would be able to
comply with the emission standard using any ^approach it chose,
however,  including any combination of feedrate control and
emission  control equipment considered most cost-effective.
Finally,  we note that we have considered as MACT control the
feedrate  of metals and chlorine only in the hazardous waste, and
not in fossil fuel and raw materials.

Site~Specific Risk Assessments

     As you note, the Agency is using the omnibus permit
authority to ensure  that site-specific risk assessments are
conducted because it is concerned that its existing emission
standards for HWCs are not adequately protective given that they
consider  exposure via direct inhalation only.  For highly, toxic
and bioaccumulative  pollutants such as dioxins and mercury,
exposure  via indirect pathways (e.g., the food chain) can pose
much greater health  risk.

     You  recommend that the Agency abandon the use of omnibus
permit authority and adopt an approach to address these
additional health risk concerns based on administrative notice
and rule-making.  As you know, however, the omnibus provision was
authorized by Congress under Section 3005(c)(3) of the Resource
Conservation and Recovery Act.  The codification of this
provision at 40 CFR  §270.32(b)(2) followed the Administrative
Procedure Act.  The  use of the omnibus authority to address
potential health risk concerns not contemplated by the current
regulations is  consistent with the original intent of the statute
and regulations.  In addition, whenever the Agency invokes the
omnibus permit  authority, the permit official provides
opportunity for comment by affected stakeholders and responds to
those comments.  Further, the permit official must justify in the
administrative  record supporting the permit any decisions based
on use of omnibus permit authority.  Finally, we anticipate that
the need  for site-specific risk assessments will be reduced once
the MACT  rules  are promulgated.  We believe this is another
reason to proceed with the MACT rulemaking as quickly as
possible.

     You  indicate that site-specific risk assessments are costly.
Although  risk assessments can be costly, we believe it is
important to minimize the burden associated with these
assessments to  the extent possible.  To that end, we have issued
draft guidance  which includes a screening methodology that can
generally allow a risk assessment to be completed in a fairly
short time at a cost of less than $50,000 once appropriate

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emissions data  are  collected.  Although more detailed analysis of
a specific  site may be  considered by the permitting authority.
depending on  site-specific conditions, extensive analysis is
expected to be  the  exception rather than the rule. , In addition,
we are currently  discussing ways to further standardize and focus
the assessments.

     Finally, you expressed concern that the risk assessments use
scientifically  unproven methods.  Although the Agency's draft
methodology for assessing risk associated with indirect exposure
to combustor  emissions  is currently undergoing review by our
Science Advisory  Board  (SAB), we believe it is appropriate to
continue using  the  methodology in the interim.  We have the
responsibility  to make  the best decisions possible using the best
tools available at  the  time.  Moreover, as discussed above,
permit officials  will respond to all comments on a case-specific
basis when  using  the risk assessment methodology under the
omnibus permit  authority.  After comments from the SAB and others
have been received  and  evaluated, the Agency will prepare the
document in final form.

     Thank  you  for  your interest in minimizing the burden
associated  with managing the, risks from HWCs.  I assure you that
EPA's goal  is to  achieve health and environmental protection at
the least burden  possible to the regulated community and to
implementing  agencies.

     The Agency has been working on this complicated rulemaking
for three years.  The issues are complicated, and as noted above,
there are a number  of misconceptions about the Agency's approach
to developing .the standards.  Stakeholders such as the American
Lung Association  are urging the Agency to propose the standards
as quickly  as possible.  I believe that it will benefit everyone
concerned (and  help us  meet our legal obligation)  to  get the
proposed rule on  the street as soon as possible and to engage in
informed communication  on what is appropriate and what needs to
be revised.

                              Sincerely yours,
                              •""  g

                              •Michael Shapiro,  Director
                              Office of Solid Waste

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Given these flaws and the availability of important new information, I urge EPA not
to go forth with its current proposal.  Even a proposed rule with flaws can have
serious negative regulatory impacts and will be difficult to correct.  I would
appreciate a response as to why the proposal cannot be delayed and how the flaws
identified in the draft proposal are to be remedied.

On a final note, I want to voice my great concern regarding the Agency's continued
use of omnibus permit authority to require interim status facilities to conduct costly
and scientifically unproven indirect risk assessments.

While current regulations cover direct exposures, it is the Agency's view that permit
writers have unlimited and open-ended discretion to determine when and by  whom
these scientifically unproven risk assessments must be performed, all without the
benefits of peer-reviewed regulatory guidance.  As a result,  companies in my
district may be required to spend millions of dollars conducting indirect risk
assessments based on arbitrary and unknown standards, which may result in plant
closures and job loss.

I  strongly urge the Agency to abandon the systematic use of omnibus permit
authority in mis manner and adopt a reasoned approach, based on administrative
notice and rule-making, with regard to the criteria for and proper use of indirect
risk assessments.

Thank you in advance for help on this  matter.

                               Sincerely,
                               Harold L. Volkmer
                               Member of Congress

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                  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                                WASHINGTON. D.C. 20460
                                                                       9498.1996(03)
                                                                        OFFICE OF
                                                            SOLID WASTE AND EMERGENCY RESPONSE
Mr. David Gossman                 /   1956
President
Gossman Consulting, Inc.
45W962 Plank Road
Hampshire, Illinois 60140

Dear Mr. Gossman:
       Thank you for your letters of February 7,1996 and February 21, 1996 to Administrator
Browner in which you raise a number of issues regarding the ability of a boiler or industrial
furnace (BIF) burning hazardous waste to spike metals and also to use test data in lieu of
performing a trial burn. We address each of your issues below.

        In regard to testing and trial bums involving the spiking of toxic metals, the
Environmental Protection Agency (EPA), at the time of promulgation of the BIF regulations, did
not envision that facilities would seek permits to burn higher levels of toxic metals than they  •
routinely accept in hazardous waste.  We do not believe a facility should bum high levels of toxic
metals during a trial bum, other compliance tests, or normal operations if this creates potential
worker safety and health risks. Furthermore, our regulations do not require feeding metals at
unsafe levels during trial burns or compliance tests. We would be concerned if they were
interpreted in such a way, since feeding extremely high levels of metals is an environmentally un-
sound practice because metals are not destroyed by combustion but merely partitioned to the ash
or the product or emitted to the air.  EPA has previously addressed the issue of burning waste
fuels with high metals content in boilers and industrial furnaces in the enclosed letter to Mr.
Joseph A. Kotlinski of Clean Harbors Environmental Services, Inc. However, if you still feel that
high levels of spiking are necessary in certain specific cases, we would be willing to discuss with
you alternative approaches in order to avoid or minimize this type of spiking.

      The Agency's concerns with respect to potential health risks from metals being fed in
hazardous waste, as well as from organic emissions, were the major reasons EPA  developed its
Strategy for Hazardous Waste Minimization and Combustion (Combustion Strategy).  This
concern was brought on by the realization that the BIF rule primarily addressed the risk from
inhalation and did not directly address risks by indirect exposure pathways. As a result, the
Combustion. Strategy recommends that toxic metals burned in a hazardous waste combustor
should be addressed in a multi-pathway risk assessment, using the omnibus requirements of
Section 3005(cX3) of the Resource Conservation and Recovery Act (RCRA) (40 CFR
§270.32(bX2)).
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       You also express concern about the infrequent use of "data in lieu of a trial burn and/or
compliance test" (40 CFR, §§270.22(a)(6), 266.103(c)(3), and 270.66(d)(2)).  The purpose of
these provisions is to allow the use of test data from one unit as a substitute for conducting a trial
bum or compliance test for a similar unit. The Office of Solid Waste has no specific guidance
materials on the use of these provisions other than the regulations themselves.  Decisions to allow
data in lieu of a trial burn are made on a site-specific basis by the appropriate permitting authority
after considering a number of complex factors, e.g., the size of the device, the configuration of the
device, the type of waste burned, etc.  However, especially where multi-pathway risk assessments
are conducted, one might anticipate that permit writers would be less likely to accept data in lieu
of a trial burn except in cases where the wastes and the combustion device with its associated
control systems are almost the same. (This issue was previously addressed in the transcript of the
Chemical Manufacturing Association/Environmental Protection Agency (CMA/EPA) Boilers and
Industrial Furnaces (BIF) Workshop of March 29-30, 1994.  This transcript was supplied to you
as part of the response to your February 21, 1995 FOIA request.). We do not keep national data
on requests and approvals, but do know that some Regional offices and states have approved the
use of "data in lieu of trial burns and/or compliance tests" in the past.  Additionally, in some cases
where approvals were granted, the permittee elected to conduct the tests anyway.

       Finally, your letters, at least in our reading of them, seem to indicate some confusion as to
the purpose of the provisions allowing data in lieu of trial burns and compliance tests. The "data-
in-lieu of provisions were not generally intended to allow elimination of requirements for
retesting at a facility, since the purpose of retesting is to ensure the facility remains in compliance
over time as the unit ages.  Therefore, it is difficult to envision a scenario where using earlier test
data gathered prior to the most recent permitting term or most recent period of compliance would
be appropriate as a substitute for a retest.

       I hope I have addressed all your concerns with respect to these issues. If you have any
additional questions, please contact Dwight Hlustick or Bob Holloway at (703) 308-8647 and
(703) 308-8461 respectively.

                                        Sincerely,

                                         /
                                        ; • •/         —-.-'   . ' /


                                     / • Michael Shapiro, Director
                                   r "-•'' Office of Solid Waste

Enclosures                         1'

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     1        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     /                  WASHINGTON, D.C. 20460
                                                     9498.1996(04)
                                                      OFFICE OF
                                             SOLID WASTE AND EMERGENCY RESPONSE
Neil J. Carman, Ph.D.
Director, Clean Air Programs
Lone Star Chapter of the Sierra Club
P.O. Box 1931
Austin, Texas 78767

Dear Dr. Carman:

     Thank you for your letter of March 14, 1996  to
Administrator Browner regarding our proposed maximum  achievable
control technology (MACT) rulemaking for hazardous waste
combustors (HWCs).

     We agree that improperly designed hazardous  waste
incinerators and cement and lightweight aggregate kilns burning
hazardous waste can pose a hazard to human health and the
environment.  Furthermore, the Environmental Protection Agency's
(EPA's) current regulations may not be protective in  all
cases.  Accordingly, you may have already heard that
Administrator Browner signed the proposed MACT rule for these
devices on March 20, 1996.  We believe that the proposed rule
would establish tough emission standards for dioxin,  mercury,
and lead, in particular.

     Regarding EPA's cement kiln dust (CKD) regulatory
activities, the Agency remains committed to developing tailored
regulations in conjunction with existing authorities.  The  Agency
identified risks resulting from CKD and industry  management
practices.  These risks were noted in EPA's Regulatory
Determination for CKD, Federal Register 7366 (1995) as well as  in
correspondence previously sent to you dated July  25,  1995.
Accordingly, EPA's decision affects all CKD, regardless of  the
type of fuel burned in the cement manufacturing process.  In
making its decision, the Agency conducted an objective analysis
of the data at its disposal, as set forth in RCRA §8002(o).   EPA
has no information to suggest that the CKD metals concentration
data considered in the Report to Congress' reflect anything  but
routine industry practice.

     The Agency considered Certificate of Compliance  (CoC)  data
from cement kilns burning hazardous waste.  During the CoC  test
burns, kilns document compliance with emissions standards while
adding (i.e., spiking) metals in the feed in excess of normal
levels to ensure that limits on operating conditions
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provide adequate operational flexibility.  CKD metal
concentration data, as described in the Report to Congress, shows
metals concentrations in managed CKD at levels significantly
below those levels reported in the CoC reports.  The samples of
managed CKD were composites of recently managed dust (0-6 months
old) collected from on-site piles.  Hence, we believe the
available data shows that cement facilities are not routinely
burning wastes with metals concentrations at or near their BIF
permit limits (i.e., CoC levels).  However, even if metals
concentration levels in CKD are significantly affected by
hazardous waste burning, BIF regulations under 40 CFR §266.112
prohibit CKD from exceeding our health-based limits.

     EPA's CKD regulatory program will be risk-based, flexible
and tailored to site-specific conditions.  It will provide
environmental protection at a reasonable cost and avoid over-
regulation.  Please be assured that in developing the program,
the Agency will work with all interested parties, including
states and local citizen groups, to achieve a protective,
efficient, common sense standard.

     Finally, you expressed concern about the impacts of area-
wide emissions from HWCs clusters.  In addition to upgrading the
current HWC emission standards under the MACT rulemaking, the
Agency will continue to use the omnibus permit authority (under
the Resource Conservation and Recovery Act) as warranted to
ensure protection of human health and the environment on a site-
specific basis.   Evaluating the risk from multiple HWCs in a
particular area is an example of how we would continue-to use
omnibus authority to determine if the national MACT standards
need to be adjusted on the local level.
                                                         t
     Thank you for sharing your concerns with us.  We hope you
will be able to take advantage of the opportunity to comment on
the proposed MACT rules.

                              Sincerely yours,
                          D
                              Michael/Shapiro,  Director
                              Office bf Solid Waste

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           UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                      WASHINGTON, D.C. 20460
                                                      9498.1996(05)


The Honorable John Ashcroft                             OFFICE OF
,,  ..  , _. ^_   _   .                                SOLID WASTE AND EMERGENCY
United States Senate                                    RESPONSE
Washington, D.C.  20510-2504

Dear Senator Ashcroft:

     Thank you for your  letter  of  April 18,  1996 to
Administrator Browner, in which you expressed your concerns
about the Environmental  Protection Agency's  (EPA's) Hazardous
Waste Minimization and Combustion  Strategy and our application
of the omnibus.permit authority and site-specific risk
assessments as part of this  Combustion Strategy.

     You expressed concern with the Agency's policy that the
permitting process for hazardbus waste combustion facilities
should include a  site-specific  risk assessment.   This policy is
based on new information which  became available since the time
that the current  regulations for incinerators and BIFs (boilers
and industrial furnaces) were issued.   This  information indicates
there can be significant risks  from indirect exposure pathways
(i.e., pathways other than direct  inhalation,  such as through the
food chain).  This key portion,  and in many  cases the largest
component, of the risk from  hazardous waste  combustor emissions
was not fully taken into account when the hazardous waste
combustion emissions standards  were developed.

     For this reason, the "omnibus" requirement to protect human
health and the environment comes into play.   Under Section 3005
of Resource Conservation and Recovery Act (RCRA), Regional or
State permit writers must determine on a site-specific' basis
what, if any, additional permit conditions are necessary to
assure that these additional risks are not above-acceptable
levels.  Multipathway site-specific risk assessments provide the
information and logical  decision-making process needed in making
such determinations.

     You also expressed  concern that the Agency has imposed
permit conditions without the benefit of defined regulatory
standards that have been subject to a formal review under the
Administrative Procedure Act, and  that the Combustion Strategy
itself was not authorized by Congress.   As you know,.the omnibus
provision was authorized by  Congress under Section 3005(c)(3) of
the RCRA.  The codification  of  this provision at 40 CFR
270.32(b)(2) followed normal procedures under the Administrative
Procedure Act.  The use  of the  omnibus authority in implementing
the Combustion Strategy  is consistent with the original intent of
the statute and regulations.
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     The Hazardous Waste Minimization and Combustion Strategy
consists of a compilation of EPA's goals, policies, and
activities in areas such as permitting, combustion standards, and
waste minimization.  Each activity conducted under this Strategy
rests on its own proper legal authority under RCRA and, in one
case, the Clean Air Act Amendments of 1990.

     The Strategy itself does not impose regulatory requirements,
but is a policy statement expressing how the Agency plans to
exercise its discretionary functions under RCRA in the future.
Specifically, the Strategy sets out EPA's permitting priorities
and recommends procedures for ensuring that individual permits
meet RCRA's mandate to protect human health and the environment.
As such, the Strategy does not require its own separate legal
authorization from Congress.  As noted above,  each independent
activity undertaken as part of the overall Strategy (e.g.,
updated technical standards, individual permitting decisions,
waste minimization plan) has been and will continue to be
carefully scrutinized to make sure that the legal basis for any
action is clear, and that all appropriate procedures .are followed
(including public notice and comment for all rulemakings and for
each individual permit action).

     Your letter also conveyed your concern about the time and
resources needed to perform the risk assessment that is being
done for the WTI incinerator in East Liverpool,  Ohio.   However,
it is important to recognize that the risk assessment guidance
developed pursuant to the Combustion Strategy does not involve
the extensive evaluation being done for the WTI facility.   The
level of detail of that assessment is not the norm, but rather
was due to site-specific factors, as well as to the fact that
this assessment was an early effort which was expected to help
refine future risk assessments.   On the other hand, with
appropriate emissions data the screening analysis outlined in
EPA's risk assessment guidance can generally be completed in a
fairly short time at a cost of less than $50,000,  althou'gh more
detailed analysis for a specific site may be considered .by the
permitting authority depending on site-specific conditions.   The
regulations already require hazardous waste combustors to perform
trial burns to demonstrate compliance with the emissions
standards; collection of the additional emissions data needed for
a risk assessment generally amounts to a small percentage cost
increase.  EPA would like to minimize the burden associated with
these risk assessments to the extent possible, and we are
currently discussing ways to further standardize and focus the
assessments.

     We continue to believe that risk assessments are valuable in
assuring that combustors are operating in a protective fashion.
For example,  WTI brought their risk down into its current range
by significantly reducing their dioxin emissions in response to
EPA's Combustion Strategy and preliminary risk assessment efforts
as well as citizen concerns.   EPA hopes to achieve similar
environmental gains at other facilities as we  continue to

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implement the Combustion Strategy.  Further, it is important to
point out that the encouraging draft risk assessment results for
WTI do not mean that similar assessments are unnecessary at all
other facilities.  While WTI's total organic emissions  (about 0.2
parts per million) are relatively low, in the past some
combustors have emitted up to 400 parts per million and thus may
pose a higher risk.

     The following responses are provided for your detailed
questions:

     1)    The Agency's May, 1994, Draft Trial Burn Guidance has
not been reviewed by the Science Advisory Board.  However, the
EPA has. received formal comments from two sources with respect to
the trial burn guidance.  The first set were from the
Environmental Technology Council (ETC) and second were from the
Industrial Working Group (IWG).  The IWG consists of
representatives of a number of industry trade groups who took
part in the Industry Technical Workshop on EPA Trial Burn
Guidance on November 14 and 15, 1994.  The IWG consists of the
following organizations: ETC, Chemical Manufacturers Association,
Cement Kiln Recycling Coalition, Waste Minimization & Combustion
Coalition, and the Coalition for Responsible Waste Incineration.
The Agency has been working to incorporate these comments into
the guidance document as well as to address concerns identified
by the Agency itself, and we hope to publish an update to the
guidance in the next 3-4 months.

     2)    EPA has been working to improve the models it uses to
evaluate dispersion and deposition from combustion sources.  The
Agency recognized in 1993 that the available models were in need
of improvement and thus in 1994 released to the user community
for comment a draft version of a revised model.  Allowing the
user community to test important software components as part of
the development process has become standard practice in the
field, and therefore, is also practiced by EPA.  The revised
model was finalized in 1995.  We understand there may be some
frustration with changes to the models used for risk assessments.
However,  the Agency believes it is important to continuously
improve its air quality models and to make improved modeling
tools available to the public.  It is not the Agency's policy,
however,  to require that a particular model be used.   Instead,
that decision is generally made on a case-by-case basis by the
permit applicant in consultation with the permitting authority.
This approach allows flexibility to decide,  for example, that
once the risk assessment protocol for a site is approved by the
permitting authority, no further changes will be made unless
agreed to by the applicant.and the permitting authority.

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     3)   In performing a site-specific risk assessment using the
Office of Solid Waste methodology, the permitting authority or
the facility generally first performs a screening analysis' which,
as mentioned earlier, costs $50,000 or less.  Only facilities
which do not pass the conservative screen need to go on to
perform a more detailed assessment.  Due to the variety of
circumstances under which detailed assessments were performed
over the past few years by facilities, EPA Regions, and
authorized states, it is very difficult to accurately estimate an
average cost in workdays.  In general, the regulated facilities
do not share their cost information associated with performing
risk assessments.  Therefore, we do not have sufficient data to
provide you With an average cost for a regulated facility.  With
respect to EPA Regions and authorized states, we estimate that
the effort required for the permitting authority to review a
direct and indirect risk assessment performed by a regulated
facility ranges from 3 to 25 workdays. The effort required by an
EPA Region or authorized state to perform a direct and indirect
risk assessment ranges from 100-700 workdays.  We expect that
cost to a facility performing a risk assessment would likely be
similar to that for a Region or state.  The wide range in
workdays in these estimates is due to factors such as whether the
work was performed by agency staff or by contractors (contractor
workday levels tend to be higher than in-house workday levels) ;
the level of detail of the assessment; and the complexity of the
facility.

     4)   The enclosed chart is provided in response to your
request for a list of facilities where site-specific risk
assessments are being conducted and the types of findings that
have been made in those cases where omnibus authority has been
invoked.

     Thank you for your interest in this important area.

                                                        t
                              Sincerely yours,
                              Michae]J Shapiro,  Director
                               :fice/of Solid Waste
Enclosure

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JOHN ASHCROFT
   MISSOURI
                                   Bniad States
                                       WASHINGTON, DC 20510-2504
                                                                         April 18,1996
        Carol Browner, Administrator
        Environmental Protection Agency
        401M Street, S.W.
        Washington, D.C. 20460

        Dear Administrator Browner:

              I am writing to ask the Agency to conduct a thorough review of the Combustion Strategy
        Program. The Agency has defended the Combustion Strategy by suggesting that it is merely a
        policy statement which does not impose regulatory requirements. Notwithstanding this claim,
        therAgency continues to implement the Combustion Strategy by relying almost exclusively on
        the omnibus permit authority under the Resource Conservation and Recovery Act (RCRA) to
        require mteriHMfeh&rombiistion-facilities to 1) conduct expensive, and scientifically-unproven,
        open-ended direct and-indirect risk assessments and 2) impose permit conditions without the
        benefit of defined regulatory standards that have been subject to a formal review process under
        the Administrative Procedures Act (APA).

              Given the need to get more out of existing Agency resources, it appears that the Agency
        would be well served to thoroughly review the Combustion Strategy in tight of recent reports
        that the Agency's own risk assessment at the controversial WTI incinerator site in Liverpool,
        Ohio, after years of work and the expenditure of millions of private and public sector dollars,
        found that the average total cancer risk for the entire facility was one-million-to-one.  Please
        review the  following questions and respond in writing at your earliest convenience*:

              1) Since its release in May 1994, has the Agency's Draft Trial Bum Guidance been
                  subject to review by the Science Advisory Board?

              2)  Is it true that the Agency has issued three different risk assessment/disposition
                  models for the Combustion Strategy in the last 24 months?

              3)  How much does the average direct and indirect risk assessment cost a) the regulated
                  facility, and b) the Agency, in terms of man/hours?

             -4)  Please supply me with a list of facilities that the Agency is requiring to comply with
                  the draft protocols, and describe the types of ske-specific findings the Agency has
                  made in those cases where omnibus authority has been invoked.
                                                            Sincerely,
       JDA:pxk

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This Page Intentionally Left Blank

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             UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
      J?                 WASHINGTON, D.C. 20460
                            MAY 231996                   9498.1996(06)
                                                          OFFICE OF  .
                                                     SOLID WASTE AND EMERGENCY
                                                          RESPONSE
The Honorable  David M.  Mclntosh
U.S. House of  Representatives
Washington, D.C.   20515

Dear Mr. Chairman:

     Thank you for your letter of April 19, 1996 to
Administrator  Browner regarding the Environmental Protection
Agency's (EPA's)  implementation of the Hazardous Waste
Minimization and  Combustion Strategy and related combustion
matters.  We appreciate your continued interest in this most
important area.   Following are our responses to your questions:

1)   What is the  legal  and scientific justification for requiring
interim combustion facilities to perform indirect exposure risk
assessments in view of  the fact that the protocols recommended by
EPA for conducting these assessments have not been peer reviewed?

     The Agency's policy that the permitting process for
hazardous waste combustion facilities should include, in many
cases, a site-specific  risk assessment is based primarily on
information which became available since the time that the
current regulations for incinerators and BIFs (boilers and
industrial furnaces)  were issued (1981 and 1991, respectively)
Specifically,  the Agency concluded that the regulatory  t
requirements do not fully address potentially significant risks
via indirect pathways of exposure.   Many recent studies,
including the  Agency's  draft Dioxin Reassessment, indicate there
can be significant risks from indirect exposure pathways (i.e.,
pathways other than direct inhalation).  The food chain pathway
appears to be  particularly important for pollutants from
hazardous waste combustion sources.   In many cases, risk from
indirect exposure constitutes the majority of the risk from a
hazardous waste combustor.  This key portion of the risk from
hazardous waste combustor emissions was not fully taken into
account when the  hazardous waste combustion emissions standards
were developed.

     It is important to evaluate whether indirect pathway risks
may pose risks to human health and the environment not fully
addressed by the  promulgated regulations.  Therefore, it is EPA's
general policy —- as stated in the preamble to the proposed
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                                                     contains at least 50% recycled fiber

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revision to the hazardous waste combustion standards  (April
19,1996) — to evaluate site-specific factors to determine
whether to require a risk assessment at a particular  site.

     Where risks are.identified, permit writers will  consider the
imposition of additional conditions pursuant to RCRA  Section
3005(c)(3) (the "omnibus" provision).  The omnibus  provision  is
implemented in EPA regulations at 40 CFR 270.32(b)(2).  Under the
omnibus authority, permit writers determine on a site-specific
basis what, if any, additional permit conditions are  necessary to
assure protection of human health and the environment.  For
combustion facilities, in many-cases, multipathway site-specific
risk assessments provide information needed to make such
determinations.

     Although the Office of Solid Waste (OSW) risk assessment
guidance has not been subjected to an external peer review, it
was internally peer reviewed by risk assessment experts in EPA
headquarters and regional offices.  It was also discussed in an
informal consultation with some members of the EPA's  Science
Advisory Board (SAB).  Furthermore, its parent document, the
Agency's "Addendum to Methodology  for Assessing Health Risks  from
Indirect Exposures to Combustor Emissions," was reviewed by the
SAB.  The Agency is considering the SAB comments as part of its
effort to revise the indirect exposure methodology and we will
make any appropriate revisions to the OSW guidance once that
process has been completed.   There are some difficult issues
regarding indirect exposure assessment.   Nevertheless, EPA is
using the best science available considering the need in the near
term for the Agency to issue permits that protect human health
and the environment.

2)   Has the EPA issued three different risk
assessment/deposition models since June 1992 and/or within the
last 24 months?  Please explain the rationale for the changes in
each model, what defects the changes sought to address and
whether the Agency plans to make further changes.   Have any of
these models been reviewed by independent scientific panels?  If
not, why not?

     The Agency has been working to improve the models it uses to
evaluate dispersion and deposition from combustion sources.  The
Agency convened an interoffice working group in 1992 to make
recommendations with regard to the Agency's indirect exposure
methodology.   The working group recommended that COMPDEP, the
model that had been developed for use with the indirect exposure
methodology,  be replaced.  The working group also recommended
that as an interim measure the COMPDEP model be further tested
and corrections made as necessary.  Subsequently,  COMPDEP was

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revised for public release for use on an interim basis.  At the
same time the Agency began work on revisions to the widely-used
ISC (Industrial Source Complex) model that would serve as the
replacement for COMPDEP.  Thus, in 1994, EPA released to the user
community for comment a draft version of the ISC model which
included an improved dry deposition algorithm, a wet deposition
algorithm, a complex terrain screening algorithm* and an enhanced
area source algorithm.  Allowing the user community to test
important software components as part of the development process
has become standard practice in the field, and therefore, is also
practiced by EPA.  The revised ISC model was officially adopted
as a Guideline model in August 1995.

     EPA's Guideline models are supported by many years of
research, including demonstration and evaluation studies. The
models are subject to review at Congressionally mandated
triennial conferences on Air Quality Modeling, the last of which
was held in August 1995.  Organizations such as the National
Academy of Sciences, the National Science Foundation, the
American Meteorological Society, the Air and Waste Management
Association, the Chemical Manufacturers Association, and the
Natural Resources Defense Council participate in these
conferences.  The revisions to the ISC model were formally
proposed in the Federal Register on November 28, 1994 (59 FR
60740).  All significant public comments received were summarized
and evaluated (Summary of Public Comments and EPA Responses on
the Proposal for Supplement C to the Guideline on Air Quality
Models).  In the final rule promulgated in August 1995 (60 FR
40465), all significant public comments were addressed and the
revised model was adopted.

     We understand there may be some frustration with changes to
the models used for risk assessments.  However, the Agejicy
believes it is important to continuously seek ways to improve its
air quality models and to make improved modeling tools available
to the public.  EPA recognizes that frequent changes to methods
recommended for routine use makes the regulatory process more
complex.  Hence, with respect to air quality Guideline models, as
stated in the Guideline's introduction, EPA always provides ample
opportunity for public review and comment before formally
updating the models recommended for routine use.  For risk
assessments, it is not the Agency's policy to require that a
particular model be used.  Instead, that decision is generally
made on a case-by-case basis by the permit applicant in
consultation with the permitting authority.  This approach allows
flexibility to decide, for example, that once the risk assessment
protocol for a site is approved by the permitting authority, no
further changes will be made unless agreed to by the applicant
and the permitting authority.

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3)  Please provide the number and location of interim status
facilities that have been required to conduct indirect risk
assessments, the number of risk assessments that were completed,
the length of time to complete each risk assessment, and the
total cost of each risk assessment.

     The information you requested is not available at EPA
Headquarters.  We are collecting the information fcpm our
Regional offices and will respond as soon as complete data are
received.

4)   Does the omnibus permitting authority allow the Agency to
implement proposed regulations in certain permit actions, or to
incorporate new requirements in permits where EPA intends to add
such requirements to the regulations but has not yet issued a
final or proposed rule?  Please explain.

     As a general rule, the Agency's position is that EPA's
regulations are protective of human health and the environment
and that permits implementing these regulatory standards will
also be protective.  There may, however, be site-specific
circumstances in which it may be necessary to supplement
regulatory permitting requirements in order to protect human
health and the environment (e.g., where there is a sensitive
subpopulation).  In such cases, use of the omnibus provision may
be appropriate.  The decision to invoke omnibus authority must be
made on a case-by-case basis and only when the Agency, after
examining all relevant data supplied during the permitting
process, determines that additional conditions are necessary to
ensure protection.

     One use of the omnibus authority would be to impose
additional permit conditions reflecting standards that EPA has
proposed but has not yet finalized.  (Conditions that have been
proposed for national application by EPA have gone through
extensive Agency review and generally represent the Agency's best
thinking on an issue.)  In the legislative history for RCRA,
Congress recognized that it may be appropriate to add certain
provisions to permits under the omnibus provision even where
those provisions are not yet contained in final regulations:

     "[The omnibus authority] can also be used to incorporate new
     or better technologies or other new requirements in permits,
     where EPA intends to add such technologies or requirements
     to the regulations but has not yet issued a final regulatory
     amendment."

S. Rep. No. 284, 98th Cong., 1st Sess.  31 (1983).  Another use of
the omnibus authority might be to impose permit provisions that
are not contained in either proposed or final regulations but
which EPA has detailed in guidance documents.

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     EPA does not apply these provisions, however, to permits as
if they were final regulatory requirements.  Rather, EPA's view
is that the proposed regulations or guidances have specifically
identified particular areas where the current generic regulations
might need to be supplemented.  Procedurally, EPA would still
propose to add these supplemental conditions to permits on a
case-by-case basis based on a finding in each case that the
specific conditions at issue are necessary to proteot human
health and the environment.  Permit applicants would be free to
comment on those findings and to challenge these supplemental
conditions both administratively within EPA and in the courts, as
explained below.

5)   With regard to EPA's permitting authority, can the Agency
simply claim an intention to issue a regulation and go no
further?  If not, what prevents the Agency from doing so?  Are
there any administrative checks and balances on the Agency's use
of omnibus authority? ' Please explain.

     There are a number of administrative checks and balances on
EPA's use of rulemaking authority and its use of the omnibus
authority.  With regard to the omnibus provision,  the Agency's
authority is broad but is not unlimited.  To invoke the omnibus
authority to add conditions to an RCRA permit, EPA must show that
the additional conditions are necessary to ensure protection of
human health and the environment.  Specifically, the permit
writer must explain and document why the Agency believes that
human health or the environment is not fully protected under the
regulations and must provide a sound technical basis for the need
to include additional permit conditions to ensure protection.
Under RCRA and EPA's regulations, the Agency must provide an
opportunity for public comment and if requested, hold a public
hearing on the permit.  EPA must respond to the public comments
and include the responses in the administrative record of the
permit.  If the permit is issued by EPA, applicants and other
interested parties have the option of appealing the final permit
decision to EPA's Environmental Appeals Board.  Finally, once the
Agency's administrative appeal process is completed, parties may
challenge the final decision through the courts.  Authorized
States may or may not have similar administrative and judicial
appeal processes.

     There may be cases in which permit writers may find a need
under the omnibus authority to add certain permit conditions to
conform to requirements that EPA has proposed to issue, but has
not issued (and ultimately may not issue), in final regulations.
It is important to understand that the Agency's stated intention
to issue regulations or proposal of regulations establishing
further permit conditions does not have legally binding status.
As in any other case involving the omnibus authority, the permit
writer would need to justify its decision to impose those
additional conditions each time the permit writer sought to

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impose them in a permit.  Therefore, the right to bring
administrative and judicial challenges, and the other procedural
checks and balances described above, would apply.

     Finally, there are also checks and balances on the Agency's
ability to propose a regulation and to go no further.  Were the
Agency to follow such a course, a party could seek redress from
the courts for "agency action unlawfully withheld",Osee section
706 of the Administrative Procedure Act (APA), 5 U.S.C. S 706).
A party could also petition EPA to issue a regulation (see
section 553(e) of the APA, 5 U.S.C. § 553(e)) and could bring a
judicial challenge if EPA declines to do so (see § 7006 of RCRA).


6)  Is the EPA's implementation of its Combustion Strategy policy
initiative and its use of indirect exposure risk assessments
consistent with the rulemaking process required under the
Administrative Procedures Act?  Please explain.

     Yes.  The Strategy itself does not impose regulatory
requirements, but is a policy statement expressing how the Agency
plans to exercise its discretionary authorities under RCRA in the
future.  Specifically, the Strategy recommends procedures for
ensuring that individual permits meet RCRA's mandate to protect
human health and the environment.  As such, the Strategy is not
subject to the notice and comment rulemaking provisions of the
APA (see APA Sec. 553(b)(3)(A)).  However,  each independent
activity undertaken as part of the overall Strategy (e.g.., the
promulgation of updated technical standards, individual
permitting decisions) has followed and will continue to follow
all legal requirements in RCRA and all appropriate procedural
requirements under the APA (including public notice and comment
for all rulemakings and for each individual permit action).

7)   If the Agency requires a regulated facility, as part of a
"site  specific determination," to conduct extensive trial burns
and indirect exposure.risk assessments based solely on the
Agency's assertion that it is "necessary to preserve  health and
human safety," does  the  regulated facility  have any recourse to
challenge the decision?

     Yes, a facility can challenge a request for more data.
Under 40 CFR section 270.10(k), EPA may require the applicant to
submit additional information (e.g., trial burn data or a risk
assessment)  that the Agency needs to make required determinations
under the omnibus provision.   During the application process, the
applicant may informally provide technical information to the
permitting authority to justify its position that the additional
information being requested is not needed to assure permit
conditions that will protect human health and the environment at
the applicant's facility.  If the applicant disagrees with the
Agency's determination under 270.10(k) (or the authorized State's

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analogous determination),  it may refuse to provide the requested
information.  The permitting authority would then evaluate the
reasons offered, if any, for the failure to obtain and provide
the requested information  and may either decide to proceed
without the information  or propose to deny the permit.

     In the case of a permit denial, the facility has a number of
opportunities for recourse, as described above in £he response to
item 5, starting with commenting during the public comment period
on the draft permit (or  here, the draft permit denial) and
followed by the opportunity for administrative review within EPA
and then judicial review.

     In certain cases, the Agency also may seek additional
testing or data under the  authority of RCRA section 3013 (i.e.,
where the Agency believes  that hazardous waste activity "may
present a substantial hazard to human health or the environment")
and may issue an order for testing.  The facility owner or
operator may refuse to perform the work; however, EPA either may
then seek to enforce its order in court or may perform the work
itself and seek to recover its costs.  In both cases, of course,
the owner or operator can  raise any appropriate defenses or
explanations.

     Ultimately, it is important to ensure that EPA's permit
decisions are supported  by an adequate level of data in the
record.  The lack of adequate supporting data can leave permits
vulnerable to legal challenges by other interested parties.

8)   How much does EPA spend on implementing the Combustion
Strategy annually, including outreach activities, commitment of
regional resources, the  OSW newsletter, and other management
resources?  Please provide a breakdown of such costs.

     It is difficult to  isolate the specific costs of
implementing the Combustion Strategy since it is.an integral part
of overall implementation  of the RCRA program for combustion
facilities.  Therefore,  the following budget information
identifies the Agency expenditures that are targeted for
implementing the combustion program in general, not just the
Combustion Strategy.  Many of these activities would be necessary
even in absence of the Combustion Strategy.  The three major
portions of the combustion budget are rulemaking and analysis,
technical assistance and outreach, and permitting activities.  In
fiscal year 1995, the agency budgeted a total of $3,419,000 and
12.8 FTE for rulemaking  and analysis.  Note that the Agency is
obligated to pursue this rulemaking due to a settlement agreement
and Clean Air Act rulemaking requirements.  Outreach and
technical assistance were  funded at $1,394,000 and 5.8 FTE.
Regional offices were provided with $1,539,000 and 8.7 FTE for
combustion-related permit  activities above the base permitting
allocation for permitting  of these units.  The fiscal year 1996

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                                8

operating plan is not yet finalized but the budget is estimated
at $3,414,000 and 11.7 FTE for rulemaking and analysis, $952,000
and 5.0 FTE for outreach and technical assistance, and $1,562,000
and 8.7 FTE  to cover the additional regional expenses of
combustion permitting.  The President's Budget for fiscal 1997
includes $4,009,000 and 12.8 FTE for rulemaking and analysis
activities, and $1,540,400 and 5.6 FTE is allocated for outreach
and technical assistance costs. Regional budgets for fiscal year
1997 include $1,586,000 and 8.7 FTE for supplementary combustion
permitting costs.  The dollars cited here include both salary and
contract costs, in line with the Agency's new appropriation
structure.  The figures for fiscal year 1995 show the sum of what
were separate appropriations at the time, in order to facilitate
comparison.

9)   Can the Agency cite specific scientific studies, or peer-
reviewed agency-sponsored research, which show that hazardous
waste combustors are the major source of direct and indirect
human exposures to dioxins/furans, mercury and other contaminants
and the major contributor (as claimed by the Agency) to
"relatively high" background levels?

     As indicated in the preamble to the proposed rule "Revised
Standards for Hazardous Waste Combustors,"  61  FR  13758, April  19,
1996, the Agency estimates that hazardous waste combustion
accounts for approximately 9 - 10% of known current dioxin
emissions.  As concerns the dioxin estimates,  as well as those
for other hazardous air pollutants, the estimates for emissions
from hazardous waste combustion are presented in the engineering
background documents for the rule.  These documents are currently
undergoing both independent technical peer review and public
review and comment.  To the extent your question asks a£out
dioxin estimates from other sources, the estimates for emissions
from other known sources are from the 1994 draft dioxin
reassessment document "Estimating Exposure to Dioxin-Like
Compounds," which has undergone extensive scientific peer review
and is now being revised.

     With respect to mercury,  the Agency estimates that hazardous
waste combustion accounts for approximately 4% of known current
anthropogenic mercury emissions.  The mercury emissions estimates
for hazardous waste combustors are also contained in the
engineering background documents for the April 1996 proposed
combustion rule, and those for other sources are from EPA air
program emissions data.

10)  If hazardous waste combustors are a potentially minor source
of direct and indirect exposures,  and the Agency has focused on
them through the Combustion Strategy, has the Agency directed
resources to the other major sources?

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     By placing hazardous waste combustors under the RCRA
program, Congress has required EPA to place special emphasis on
hazardous waste combustors.  We do not believe the Agency is
focusing unduly on hazardous waste combustors, and in fact the
Agency is also putting a great deal of resources into regulation
of other air emissions sources.  The Agency has directed
resources to study emissions of mercury and dioxins/furans, and
to develop Clean Air Act standards pursuant to Secjbdjon 112-
Hazardous Air Pollutants and Section 129-Solid Waste Combustion
to reduce air emissions of mercury and/or dioxins/furans, from
numerous sources in addition to hazardous waste combustors.
These activities include the development of standards for the
following source categories that are either included on the list
(published by the Administrator pursuant to Section 112(c) of the
Clean Air Act) of all source categories of listed hazardous air
pollutants; or that are specified in Section 129: municipal waste
combustors (rule promulgated in December 1995), medical waste
incinerators (rule proposed in February 1995), non-hazardous
waste burning cement kilns, secondary aluminum smelters,  chlor-
alkali production, primary copper smelters, industrial/commercial
waste incinerators, and lime production.  The Agency has also
directed resources to developing the list of categories and
subcategories of dioxin/furan emissions and of mercury emissions
as required in Section 112(c)(6) of the Clean Air Act.  This
section directs the Administrator to list sources that account
for at least 90 percent of the national emissions of each of
these pollutants and to promulgate standards for these sources by
November 2000.  The source categories of municipal waste
combustors and medical waste incinerators, for which standards
have been promulgated or proposed as stated above, are among the
largest sources of mercury and dioxins/furans emissions.

11)  Please indicate the total cost of the Agency's overall
efforts related to all major sources of dioxins/furans, mercury
and other contaminants, and indicate the amount spent on each
major source.  If there are sources of dioxin and contaminants
other than hazardous waste combustors, what is the Agency doing
to manage and prevent emissions at those sources?  What are major
natural sources of dioxins?

     We are pulling together the information you have requested
from various EPA offices and will provide it to you as soon as it
is compiled.

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                                10

     Thank, you for your interest in this important area.  If you
have any questions regarding this response, please have your
staff call Sonya Sasseville or Val de la Fuente at (703) 308-8648
and (703) 308-7245 respectively.
                              Sincerely,
                              _lliottVP. Laws
                              Assistant Administrator

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      \         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
     .  ?                      "WASHINGTON. D.C. 20460
                                    OCT    2 1996 .                  9498.1996(07)
                                                                           OFFICE OF
                                                                    SOLID WASTE AND EMERGENCY
                                                                           RESPONSE
MEMORANDUM

SUBJECT:   Johnston Atoll Chemical Agent Disposal System (JACADS) Risk Reh
                                                  •'."••  M
FROM:      Timothy Fields, Jr., Deputy Assistant Administrator
      ,       Office of Solid Waste and Emergency Response (5101^

TO:          Julie Anderson, Director '-....•••,•-•
             Waste Management Division (H-l)

   Thank you for your memorandum of July 25, 1996 requesting clarification of EPA's policy on
risk related issues concerning the Johnston Atoll Chemical Agent Disposal System (JACADS).
As you indicated in your memorandum, many of these issues are national in scope and have
generated interest by members of the public at a number of combustion facilities.  Specifically, we
have noted that similar risk assessment issues have been raised by the public at other proposed
chemical demilitarization facilities.

   As you are aware, EPA's draft site-specific combustion risk assessment guidance was issued in
April 1994. EPA Region VI, in concert with the Office of Solid Waste and Emergency Response.
(OSWER), is in the process of evaluating the 1994 guidance for the purpose of developing an
update.  Below please find provisional responses to the five issues raised in your memorandum.
For your convenience, each request for clarification has been restated followed by the applicable
response. .   .                    .         :
                                                                -  \    '
Issue 1:                 •  .

   The Agency's current method for assessing the non-carcinogenic risks associated with dioxin
exposure(s) in the context of site specific risk evaluations, especially in terms of terrestrial
background dioxin levels - which have been viewed as currently posing an unacceptable
carcinogenic risk (Health Assessment Document for 2,3,7,8-Tetrachlorodibenzo-p-Dioxin
(TCDD) and Related Compounds, EPA June 1994, EPA/600/BP-92/001).
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                                                                   eontalni at least 50% recycled liber

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 Response:

    The Agency's policy regarding risks presented from exposure to dioxin, as set forth in a
 September 11,1991 memorandum from the Administrator, was to continue to evaluate risks from
 dioxin in accordance with the 1985 dioxin assessment until such time as the Agency's
 reassessment of exposures to and risks from dioxins had been completed.  The 1985 assessment
 called for the evaluation of toxic effects of dioxin based upon their carcinogenic potential only, a
 reference dose for evaluating non-cancer health effects of dioxin was not established.

    EPA issued the draft dioxin reassessment in 1994.  The reassessment concluded that adequate
 evidence exists to support the inference that humans are likely to respond with a broad spectrum
 of effects from exposure to 2,3,7,8-tetrachloro-p-dibenzodioxin (hereafter referred to as dioxin)
 and related dioxin-like compounds, if exposures are sufficiently high.  This conclusion was based
 upon results from studies in human populations, experiments with laboratory animals, and
 ancillary experimental studies.  The effects induced may range from adaptive changes at or near
 background levels of exposure to adverse effects with increasing severity as exposure levels
 increase above background.  Enzyme induction, alterations in hormone levels and indicators of
 altered cellular function are examples of effects of unknown clinical significance; they may or may
 not be early indicators of toxic response. Clearly adverse effects including, perhaps, the induction
 of cancer may not be detectable in experimental studies until exposures exceed background levels
 by one or two orders of magnitude (10 to 100 times).                         .
                 . •    * •   "      ..     ..           •'            -'"        «•
    The deduction that humans are likely to respond with adverse non-cancer effects to dioxin and
 dioxin-like compounds is based on the fact that these compounds impact cellular regulation at a
 fundamental molecular level in the diverse range of animal species which have been shown to ;
.respond with adverse effects. Further, similar impacts on cellular regulation have been
 demonstrated in human cells in culture.  Available evidence indicates that humans most likely fall
 in the middle of the range of sensitivity for individual effects among animals. Thus, humans do
 not appear to be either extremely sensitive to or extremely insensitive to the individual effects of
 dioxin and dioxin-like compounds.                             -;..-,

    For the most part, the biochemical, cellular and organ-level effects have been observed in
 experiments in which only dioxin was studied. Specific data on the effects of dioxin-like
 compounds, such as the pentachlorinated and hexachlorinated dioxin and furans, generally are not
 available. Despite this lack of data, evidence exists that all dioxin-like compounds may exhibit
 similar effects to a greater or lesser degree: This derives from the concept of toxicity equivalence,
 specifically the fact that these compounds, like dioxin, bind to the intracellular aryl hydrocarbon
 (Ah)  receptor and have effects on intracellular regulation.  Toxic equivalency factors (TEFs) have
 been  developed for all 17 chlorinated dioxin and furans containing chlorine substitutes in at least
 the 2,3,7 and 8 ring positions.  The TEF for dioxin is 1.0; the TEFs for the 16 other congeners are
 derived from this value. Greater uncertainty exists with respect to the extent of non-cancer effects
 of the 16 other congeners as compared to those of dioxin due to the very limited amount of

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toxicology testing of these congeners. Hence, greater uncertainty is associated with the TEFs of
these congeners as compared to the TEF of dioxin.

   Given the above, EPA's conclusion in the 1994 draft dioxin reassessment regarding non-cancer
effects was that it is inappropriate to develop a reference dose for dioxin because these
compounds are persistent in the environment and because background exposures to dioxin are not
low compared to incremental environmental exposures.  Most compounds to which reference
doses are applied are not persistent and background exposures generally are low. and not taken
into account. Since existing background levels of dioxin are higher than a reference dose that
could be developed, the draft dioxin reassessment concluded that it is not appropriate to use the
reference dose approach in evaluating incremental exposures to dioxin.  This conclusion does not
mean that any incremental exposure to dioxin would cause an increase in potential non-cancer
health effects.    .

   Based upon the findings of the 1994 draft dioxin reassessment and due to the recent increased
concern regarding non-cancer effects of dioxin, the OfiSce of Research and Development has
recommended using, and OSWER agrees, on a provisional and site-specific basis, the "margin of
exposure" approach for estimating potential non-cancer health effects arising from incremental
exposures to dioxin. Under this approach, one determines the ratio of the estimated daily adult   :
dose of dioxin from a particular source (e.g., the JACADS trial burn)  to the average daily intake
of dioxin in the general population. If the ratio of such exposures is very small (the facility-    -
specific exposures comprise a small fraction of background exposures), the non-cancer effects ;
from the incremental exposure are judged to be negligible.

Issue 2:     .     '          ••    .   ;'' •   .     -.-.•'.    '......;•'•...

   The most appropriate data subset for the determination of dioxin carcinogenic potency factors.
Conflicting carcinogenic potency factors derived from human epidemiologic studies versus
laboratory animal findings should be reconciled.  .,.'••      .

Response:

   The cancer potency factor for dioxin was verified in 1985 for use in EPA risk assessments. It
was derived  using results from carcinogenicity studies in experimental animals which demonstrate
that dioxin is a carcinogen in multiple species of animals.      -
            v,                         •               .  '           •
   Since 1985, results from additional human mortality studies have become available which
support an association between exposure to dioxin and related compounds and increased cancer
mortality in humans. However, uncertainties exist in interpreting these studies because not all
confounding exposures (e.g., smoking) have been ruled out and coincident exposures to other
carcinogens  were likely.  It is the conclusion of the 1994 draft dioxin reassessment that dioxin and
related compounds are probable human carcinogens. The EPA Science  Advisory Board, an
independent  group of experts, peer reviewed the draft dioxin reassessment in 1995 and also

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 concluded that dioxin is a probable human carcinogen based upon sufficient evidence of
 carcinogenicity in animals and limited evidence in humans.
         "•.-'•            •                "
    In the draft dioxin reassessment EPA presented a potential cancer potency factor based upon
 the results of one human study, but concluded that the existing data from human studies alone do
 not pro vide the best estimate of the cancer potency of dioxin. The Agency concluded that a
 weight-of-the-evidence approach should be used that considers all relevant data from studies in   -
- humans and experimental animals, as well as data on mechanisms of action.  In that document the
 Agency proposed a new cancer potency factor for dioxin which is slightly lower than the slope
 factor adopted in 1985.  The Science Advisory Board also concluded that a cancer potency factor
 based upon the one human study utilized in the dioxin reassessment was not appropriate for use.

    Until such time as the dioxin reassessment is finalized and a new cancer slope factor is adopted
 by EPA, the Agency will continue to use the cancer slope factor (156,000 per mg/kg/day)
 developed in 1985.  This represents a plausible upper bound on risk based on the evaluation of
 animal and human data. "True" risks are not likely to exceed this value, may be less, and may
 even be zero for some members of the population.      .....'        .

 Issue 3:               '              .

    The Agency's method for assessing the risks associated with exposure to either the sulfur or
 brominated analogs of dioxin - given precursor presence in waste feed stocks!

 Response:               /  :

    At this point in time, the Agency does not evaluate risks associated with exposure to sulfur ,
 analogs of dioxin. Although there have been some reports of the formation of chlorinated
 dibenzothiophenes (sulfur analog of dibenzofuran), EPA is not aware  of similar reports on the
 formation of chlorinated dioxin thioethers (sulfur analogs of chlorinated dibenzo-p-dioxins). The
 furan compound, which is part of the dibenzofuran structure, is more  stable than thiophene, part
 of the dibenzothiophene structure.  Chlorinated dioxin thioethers may not have been observed to
 date because of the potential instability of these compounds! The carbon-oxygen bond is stronger
 than the carbon-sulfur bond; chlorinated dioxin thioethers contain two carbon-sulfur bonds in the
 central ring of the structure whereas chlorinated dibenzodioxins contain two carbon-oxygen
 bonds.

    With respect to brominated and chlorobrominated analogs of dioxin, studies  (Zacharewski et
 aL, 1988; Mason et al, 1987) have shown selected brominated and chlorobrominated dioxins to be
 comparable in toxicity to chlorinated dioxins in certain short-term toxicity assays.  Polybrominated
 dibenz-p-dioxins and dibenzofurans have been measured in municipal waste combustors and have
 been shown to form in the gas phase of laboratory scale  incinerators.

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   An assessment of the fraction of brominated versus chlorinated compounds that are present in
the waste feed should be performed for each facility which bums hazardous waste.
An uncertainty factor can be added to the estimated or measured chlorinated dioxin emissions to
account for the potential impact of brominated and chlorobrominated compounds.  Such an
approach was utilized in the in-depth risk assessment of an incinerator in East Liverpool, Ohio.
The waste feed for the first year of operation was. reviewed and the amount of brominated waste
was compared to the amount of chlorinated waste.  An uncertainty analysis was then performed.

.   A similar measurement of brominated dioxins and furans in the stack emissions would be  .
difficult at this time since analytical methods are not yet well-defined.  The National Risk
Management Research Laboratory (NRMRL) of the Office of Research and Development at
Research Triangle Park, North Carolina has conducted a preliminary study of chlorinated,
brominated and mixed bromochloro dioxins and furans in incinerator stack emissions.  However,
further research is still necessary to better quanitify these compounds and to further develop the
appropriate sampling and analytical methodologies.        .     •• .            .             ;

Issue 4:           . •                     "              .".   .

   The Agency's treatment of putative compound synergistic interactions when applied to the
assessment of facility specific risk.  .

Response:   .-...••                           -

   Because the current  scientific database on synergistic effects (or on antagonistic effects) of
multiple contaminants in complex mixtures is not complete enough to determine if such effects are
occurring, it is EPA's policy to not evaluate such effects at this time. -With respect to
carcinogens, EPA guidance for assessing risks of complex mixtures is to assume additivity of risks
at low doses (Guidelines for the Health Risk Assessment of Chemical Mixtures, 1986). This
assumes independence of action by the various carcinogens and is equivalent to the assumption of
dose addition as well as response addition. The combined effects of antagonism and additivity are
assumed to balance the possible effects of synergism.  This assumption is believed to be protective
of human health. Should sufficient verified data become available on the interactions of the
chemicals in a given complex mixture, then such results could be used to evaluate the cancer risks
of that mixture.                       ;

   For systemic toxicants, the assumption of dose addition is most properly applied to compounds
that induce the same effect by similar modes of action such that a separate hazard index is
generated for each endpoint of concern.  Dose addition for dissimilar effects does not have strong
scientific support and, if done, needs to be justified on a case-by-case basis in terms of biological
plausibility.  The assumption of dose addition is most clearly justified when the target organs or
tissues and the mechanisms of action of the compounds under consideration are known to be the
same (Guidelines for the Health Risk Assessment of Chemical Mixtures, 1986).  Since the;
mechanisms of action for most compounds are not well understood, the justification of the

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assumption of dose addition will often be limited to similarities in pharmacokinetic and toxicologic
characteristics.  Where it is made, the assumption of dose additivity is generally believed to be
protective of human health.
Issue 5:                                                                        •

   The Agency's position on "endocrine disrupting" compound(s) in the context of site specific
risk evaluations.      .                        .                      •  .

Response:                                .              .•..-•. •  '•'•••'•'

   The term endocrine disrupter applies to any number of a broad class of compounds with the
ability to perturb or interfere with the finely-tuned endocrine system that is fundamental to normal
function and homeostasis in cells, tissues, and organisms.  Examples of chemicals suspected of
being environmental endocrine disrupters are DDT, chlordane, polychlorinated biphenyls, and
polychlorinated dioxinjand furans. The evidence of adverse health effects resulting from exposure
to endocrine disrupters stems from a body of diverse historical information, augmented by new
findings.  This evidence, however, lacks sufficient detail and precision to be used in a site specific
risk assessment. Indeed, empirical data to support the designation of specific chemicals as
endocrine disrupters is limited and in some cases conflicting.  Given the current limited state-of-
the-science, it is premature to attempt to evaluate the potential risks from human exposures to
chemicals from the standpoint of endocrine disruption. Therefore, EPA has not yet developed a
methodology for the quantitative assessment of risks due to exposures to potential endocrine
disrupters.           ..       .                  ;  .       ;                      : .

   I hope that the above responses provide sufficient clarification of the Agency's position on the
issues raised.  Should you  have any additional questions or comments, please feel free to contact
James Michael or Rosemary Workman, at (703) 308-8610 and (703) 308-8725 respectively,
concerning chemical demilitarization issues or Dorothy Canter, at (202) 260-3100, concerning
risk assessment issues.

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Permitting Policies
                                         NO
                                         in

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9501 - PERMITTING
PRIORITIES
                   ATKl/l 104/52 kp

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