United States Solid Waste and EPN53O-R-98.0120 ‘ Environmental Protection Emergency Response July 1998 Agency (OS-343) RCRA Permit Policy .EPA Compendium Volume 4 9441.1990 - 9441.1996 Identification and Listing of Hazardous Waste (Part 261) • General TechLa v I/5949/Coverc/ 5 ------- I PAr 3o.. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 ‘I M . ( I V rn 9441.1990(01) O,2-P FEB 9IggO V 4 . sc.: A:.. .•tR • .: 1EL ’lORANDUM SUBJECT: RCRA Status of Dinoseb Formulations FROM: Devereaux Barnes, Director ’ Characterization and Assessment Division Office of Solid Waste (OS—330 TO: Steve Johnson, Directo’ Field Operations Division Office of Pesticide Programs (H7506C) This is in response to your memorandum of July 7, 1988 requesting clarification of the RCRA status of four Dinoseb formulations. In order for materials to be hazardous wastes under the PCRA program, and therefore subject to RCRA regulation, they must first be classified as solid wastes. Materials become solid waste when they are discarded or are intended for discard (40 CFR 261.2). Thus, Dinoseb formulations which are disposed of or are intended for disposal are solid wastes. They become hazardous wastes if they are “listed” in 40 CFR Part 261, Subpart D, or exhibit one or more of the hazardous waste characteristics: ignitability, corrosivity, reactivity, or extraction procedure CE?) toxicity (40 CFR 261.20—261.24). Based upon a consideration of the regulations identified above, we have made a determination as to the regulatory status of the four Dinoseb formulations identified in your memorandum and these are provided below. 1.) DINOSEB TECHNICAL PRODUCT In this formulation the compound (Dinoseb) is the major constituent (95%). The compound known as Dinoseb is listed in 40 CFR 261.33(e) when it “consists of the commercially pure grade of the chemical, technical crades (emphasis added) of the chemical that are produced or marketed, and all formulations in EJBD US EPA ARCHIVE Headquarters and Chemical Libraries 530- EPA West Bldg Room 3340 R- Mailcode 3404T Mat ria 98- 1301 Constitution Ave NW 012D Washington DC 20004 P rm n nt C II iion v.4 202-566-0556 “ ------- which the chemical is the sole active ingredient.” (See 40 CFR 26l.33(d)(co ent).) In a pesticidal formulation, this Dinoseb technical product becomes a “P” or acute hazardous waste and is subject to RCRA regulation when it is discarded or intended for discard. It also should be noted that the Dinoseb technical product may be a potential “characteristic” hazardous waste because of its explosive nature (reactivity characteristic) under high temperature conditions. (See 40 CFR 261.23(b).) The material may also be a hazardous waste by virtue of its corrosivity depending upon the results of tests prescribed in 40 CFR 261.22 for corrosivity. 2.) DINOS IN ORGANIC SOLVENT In this formulation, the compound dinoseb is the sole active ingredient a’ld when discarded or intended for discard, it would be a “P” or acute hazardous laste. Additionally, because the formulation consists of a high percentage of organic solvents, it may also be hazardous by virtue of its ignitabiljty (40 CFR 2 6l.2l(a)(l) and (3)) or corrosivity (40 CFR 261.22(a)(].) and (2)). 3.) DINOSEB ALKANOLAIIINE SALTS IN WATER In this formulation, Dinoseb (2-sec—buty l-4,6-dinjtrophenoj? is not the active ingredient. Rather, according to your memorandum, the active ingredient is “alkanol” amine dinoseb. Section 261.33(e) lists only Dinoseb. No salts are listed. Therefore, these formulations would not be considered a “P” or acute hazardous wastes. However, these materials, when they become wastes, would be hazardous wastes if they exhibited one or more of the hazardous waste characteristics. Of special concern would be the reactivity, corrosivity, and ignitabiljty characteristics. Therefore, any Dinoseb formulations of this type should be evaluated with respect to characteristics before disposal. 4.) PESTICIDE NIXTUR.Es/Low CONCENTRATIONS OF IDINOSEB SALTS IN WATER As in the formulation above, the salts of Dirioseb are not listed in 40 CFR 261.33(e) as acutely hazardous wastes. Therefore this formulation, whit.h lists “sodium dinoseb” as an active ingredient would not be an acute hazardous waste. In addition, this formulation lists “naptalam” as a second active ingredient. Thus, by virtue of there being two active ingredients, this formulation would not be a “Comrnercial chemical product” as defined in 40 CFR 26l.33(d)(comj ent) and therefore would not be an acute hazardous waste. —2— ------- When this material is discarded, or is intended for discard 1 it may become a hazardous waste by virtue of exhibiting one or more of the hazardous waste characteristics and must, therefore, be evaluated with respect to the characteristics outlined in 40 CFR 261.20—261.24. Formulations 1 and 2 listed above are acutely hazardous wastes when discarded or intended for discard and generators must comply with the requirements of RCRA with respect to generation, transportation, treatment, storage, and disposal as provided in 40 CFR Parts 261 through 264. These sections identify the specific requirements for generators, transporters, and operators of treatment, storage, and disposal CTSD) facilities. Formulations 3 and 4 above are not acute hazardous wastes; however, they will be hazardous wastes if they exhibit any of the hazardous waste characteristics specified in 40 CFR 261.21-261.24. If these formulations are found to be characteristic hazardous wastes, they must be managed in accordance with the RCRA regulations outlined above. If these formulations are found not to be hazardous wastes, then they must be managed and disposed of in accordance with the solid waste regulations of the state in question. If a holder or generator of the material elects to treat and/or dispose of any hazardous Dinoseb formulations on site, he : will have to comply with the standards and requirements of 40 CFR Parts 264, 265 and 270 for obtaining a permit to operate a TSD facility, except to the extent that storage in containers or tanks, and treatment in tanks i allowed for 90 days under 40 CFR 262.34. (See 51 FR 10168, March 24, 1986. IFurther, farmers may dispose of these wastes on site under 40 CFR 262.70, subject to appropriate label instructions. Finally, depending upon the amount of the waste generated, a generator may be eligible for the small quantity generator exemption(s) specified in 40 CFR 261.5. Under this section, a generator who generates less than one kilogram per calendar month of acute hazardous waste, or no more than 100 kilograms of hazardous wastes per calendar month, may qualify as a conditionally exempt small quantity generator. A conditionally exempt small quantity generator’s wastes are not subject to regulation under 40 CFR Parts 262 through 266, 268, Part 270, and the notification requirements of Section 3010 of RCRA provided the generator complies with requirements specified in 40 CFR sections 262.5(f), (g), and (j). - If you have any questions pertaining to the above, please contact Ron Josephson at 475—6715. cc: Waste Management Division Directors, Regions I — X —3— ------- 9441.1990(02) Sr. UNITED STATES ENVIRONMENTAL. PROTECTION AGE\CV WASHINGTON. D.C 20460 ‘ t , 1 0 itC. _.- I, --- i O ’CEO; 5Ot.i v... E 4 j E EPcE c— P 5P ’ SE Thomas A. Corbett Environmental Chemist I New York State DEC 600 Delaware Avenue Buffalo, New York 14202 Dear Mr. Corbett: This letter is in response to your letter of October 31, 1989, in which you requested clarification of the domestic sewage exclusion of 40 CFR 261.4 (a) (1) (i) and (ii) as it may relate to excavated sludge from a sewer line. We understand that you have spoken with Region II personnel who referred you to the Office of Solid Waste (OSW). We have enclosed a copy of the meinorandwn you mentioned in your letter from Marcia Williams to David Stringhain dated December 12, 1986. You have related to Emily Roth of OSW your request for a written response from EPA on this issue. The situation as described in your letter involves waste removed from the low points of storm sewer lines by excavation. Apparently, the sewer occasionally becomes blocked as a result of the settling of solids from the sewage. The plan is to place the waste material in waste hauling vehicles and transport it to the publicly-owned treatment works (POTW), where it will be discharged into the system for processing. The waste is EP toxic for lead. Your letter asks if the waste: (1) retains its non—hazardous status under the domestic sewage exclusion after excavation from the sewer line or (2) is subject to regulation as a hazardous waste. The domestic sewage exclusion of Section 261.4 (a) (1) (i) states that neither domestic sewage nor any mixture of domestic sewage and other wastes that “passes through a sewer system to a publicly- owned treatment works for treatment” are solid waste. In the situation you describe, the sludge is removed from the sewer line and, therefore, does not pass through the sewer system to the POTW. The waste, upon removal, loses its “excluded” status under the domestic sewage excluysion and becomes subject to regulation as a solid waste. If the waste exhibits any of the characteristics of hazardous waste as described in 40 CFR Part 261, Subpart C, it must be regulated as a hazardous waste. In order for a POTW to receive hazardous waste, the POTW must be in compliance with the requirements of 40 CFR Section 270.60(c). Prinud i Recycled Pdper ------- If you have any questions or comments regarding this letter, you may contact Emily Roth of my staff at (202) 382—4777. Sylvia K. Lowrance Director Office of Solid Waste ------- 9441.1990(03) itO SP ; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY / WASHINGTON. D.C. 20460 FEB 1 3 1990 SO..13 .%aST AlliD E iEPGE%Cv RESPC’dSE QBAN SUBJECT: Furnace Dust (1(061) as an of Cement FROM: Sylvia K. Office of Sol, TO: Robert L. Duprey, Director Hazardous Waste Management Division Region VIII This responds to your December 6, 1989, memorandum req iestincj a regulatory determination regarding the use of 1(061 electric arc furnace (EAF) dust as an ingredient in the manufacture of cement. Included with your memorandum was a November 17, 1989, letter from Mr. Stephen Wistar of Ferrous American Company, which claims that the LAY dust used in such a manner is excluded from the definition of solid waste (and, therefore, not subject to RCRA) under 40 CFR 261.2(e). In your memorandum you do not specifically address the status of the EAF dust, but rather state that such use of 1(061 waste may be legitimate recycling subject to regulation under 40 CFR 261.6(a) and 266.20(b) and you seek our approval of this view. Several members of my staff also met with Mr. Wistar on December 21, 1989 to discuss his plans to “recycle” 1(061 wastes. The following is our evaluation of the pertinent issues you should consider in making the case—specific determination. Mr. Wistar’s claim that the 1(061 waste is not subject to RCRA under the exclusion at 40 CFR 261.2(e) is not supported by any information we have seen. Cement is considered to be a product that is typically applied to the land (although this is a rebuttable presumption), and therefore the EAT dust is a solid waste (and a hazardous waste - - 1(061) under 40 CFR 261.2(e)(2)(i). This determination does not, however, address the legitimacy of the us. of 1(061 waste as an ingredient to produce cement. To determine whether the processing of a specific waste is legitimate recycling or treatment, one must consider, among other things, the fate of the constituents in the waBte as they are processed. In other words, do the constituents actually play a part in the manufacture of the cement (i.e., ar. they Recycling of Electric Ingredient in the PPIMd R.c c1.d Papu ------- —2— legitimately being used), or are they being treated/disposed by incorporation into a product? Particular focus should be given to the fate of hazardous constituents in the waste that are incorporated into a product (it would be contrary to the intent of RCRA regulation if regulatory determinations are made solely on the use/reuse of nonhazardous constituents also contained in a hazardous waste). In evaluating the fats of the (hazardous) constituents in the waste, one should use the fate of constituents in an analogous raw material as a baseline. Insofar as the constituents (and their concentrations) in the waste and the raw material are similar, the processing may be legitimate recycling. However, if the waste contains hazardous constituents not present in the analogous raw material (or hazardous constituents at significantly higher concentrations than in the analogous raw material) that serve no purpose in the manufacture of the product, the process would appear to • constitute treatment/disposal rather than legitimate recycling. Also, where incorporation of the waBte results in detriment to the quality of the end product, the procedure would appear to constitute treatment/disposal. Finally, it should be noted that the fact that a material can be inserted into a production process without detriment to the quality of the end product does not mean that the waste is actually being used as an ingredient. There are several points that deserve particular focus. For example, in the data that Mr. Wistar supplied to us in our meeting, the levels of hazardous constituents contained in the 1(061 waste were several orders of magnitude greater than the levels found in the analogous raw material. Because of this, we would then question the role in the manufacture of cement of the volatile hazardous metals (such as lead) that are typically found in 1(061 wastes. An additional concern is that the mixing of K06l waste with ailiscale (a nonhazardous solid waste) could constitute dilution of the hazardous constituents. Mr. Wistar states in his letter that such blending ii done “... specifically to ameliorate its handling characteristics, and to make the iron content more even.” Such necessary adjustments to the hazardous waste could indicate that the 1(061 waste is, in fact, not an effective substitute for an analogous raw material. Furthermore, when questioned on the possibility of using only the mill scale as an ------- —3— ingredient in the manufacturing of cement, Mr. Wistar stated that while the mill scale could certainly be used as an ingredient, substituting for the iron or. currently used, it would be uneconomical to transport the mill scal. to the cement kiln unless additional revenues provided by fees charged to generators for the management of their K061 wastes were also received. We reiterate that even if it should prove that the K061 waste is being recycled legitimately, the waste—derived cement applied to the land remains a hazardous waste, and in addition must meet the land disposal restrictions treatment standard for waste K061, as per 40 CFR 266.20(b). Presently, this treatment standard (see 40 CFR 268.43(a)) is based on the performance of stabilization, but on August 8, 1990, the treatment standard for high zinc (15% or greater) K061 requires metal recovery (see 53 FR 31162—4; August 17, 1988). Thus, as of August 8, 1990, high zinc X06]. could not be used as an ingredient to produce cement in any case without an amendment of current rules. By way of further guidance, I am attaching a copy of an April 26, 1989, memorandum from me to th. Regional Hazardous Waste Management Division Directors concerning th. recycling of F006 electroplating sludges. Several aspects of the memorandum are relevant in this case, especially th. criteria to be used to evaluate whether a recycling activity is legitimate or requires a treatment permit. If you need further information or have any more questions concerning the recycling of hazardous waste, your staff should contact Mitch Kidwell, of my staff, at P’TS 475-8551. Attachment cc: Hazardous Waste Management Division Directors EPA Regions I-Vu, IX and X ------- 9441.1990(04) • t: Sr ,, UNITED STATES ENVIRONMENTAL PROTEC WASHINGTON, D.C. 20460 FEB I 4 Iggo O ICE O SOLID AND EMERGE...Cv RESPONSE Richard L. Feulner Director, Regulatory Affairs CIBA-GEIGY Corporation P.O. Box 18300 Greensboro, NC 27419 Dear Mr. Feulner; This letter is in response to your November 17, 1989 request for a one—time exemption from RCRA requirern 5 for end-users of Crilordimeform In your letter, you outlined the voluntary termination of FIFRA registra j for Chlordimeform, and Ciba-Geigy’s commitment to accept for disposal chlordjmeform Stocks turned in by end-users. According to EPA’s final decision regarding Chlordixneform, its use is prohibited after October 1, 1989 [ 54 FR 6246, February 8, 1989]. Your letter describes an assumption that Galecron 4E (a Ciba- Geigy formulation of chlordjmeform) is a hazardous waste, and describes difficulties involved in obtaining EPA Identification Numbers for the various Ch1ordjmefo users. You then requested that EPA’s Office of Solid Waste develop a program “that would, on a one- time basis, exempt end users from You also stated your belief that a certain interpretation of the pesticide’s waste classification may be necessary to exempt end-users from manifesting requiremen After reviewing the information you have su mjtted, I have Concluded that in most (if not all) instances the Galecron 4E is a solid waste in the hands of end—users. Specifically, you stated in a February 19, 1988 letter to EPA that Ciba—Geigy would “offer and actively encourage the return of all inventory remaining after the 1988 use season regardless of the ovnership or location of the material. This material will be destroyed, at Ciba-Geigy expense, in accordance with all appropriate state and federal regulations.” In your November 17, 1989 letter you also stated that “the exemption from classification of Galecro 4E as waste would only last Uflti t ’.e material had been gathered for disposal. Once it has been collecterl, it ,i1l be stored and disposed of as hazardous waste” and “We plan ‘ have the ch lordjmeform incinerated at a permitted RCRA facility once it has been collected from the end users.” Pñj sa4 o ------- 2 40 CFR Section 261.2(b)(3) provides: Naterials are-solid waste if they are abandoned by being: Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned, or incinerated. Thus it is clear that end-users who are accumulating Galecron 4E before it is disposed are managing wastes. My June 23, 1989 memorandum on regulation of cancelled pesticides, which you mentioned as stating that case-by-case determinations must be made for determining the waste status of cancelled pesticides, refers to the April 8, 1987 Federal Re jster (52 FR 11332). That Federal Reaister notice states that “cancelled pesticides are considered to be solid wastes subject to RCRA if they have been “discarded” or are intended for discard. In this context, “discarded” means either abandoned or used as a fuel...” Because of the Section 261.2(b)(3) regulation defining the term “abandoned”, it is clear that in the circumstances you have described, the end-users are managing wastes. Another factor affecting this determination is the fact that Chlordjmeform use is banned in the United States as well as many foreign countries. Thus it is unlikely that Ciba-Geigy would accept unused stocks for resale. In the event Ciba-Geigy does find a legal market and is able to accept the unused stocks for resale, the unused chiordimeform may not be a solid waste under 40 CFR Section 261.2. Another situation in which the material may not be a waste is if it is a conunercjal chemical product that is being reclaimed (Section 261.2(c)(3 )). However, in both of these situations, the burden of proof would be on the parties claiming that the unused chlordizneform is not a solid waste (Section 261.2(f)). Assuming the unused ch].ordimeform is a waste (and the available information indicates that it is), the end-users must determine whether it is a hazardous waste. Although neither chlordizneform nor chlordjmeform hydrochloride appear on the lists of hazardous waste in Section 261.33, you indicated that you believe that Galecron 4E is an ignitable hazardous waste per Section 261.21. You indicated that this determination is based on Galecron 4E’s formulation with xylene- based solvents. We agree that the unused chiordimeform formulations are not listed hazardous wastes; however, assuming the unused formulation exhibits the characteristic of ignitabjljty, it is a hazardous waste. Thus, the end—users (who are the generators under the circumstances you have described) are responsible for managing their unused chlordimeform stocks consistent with the federal hazardous waste regulations. These regulations have varying requirements, depending on the monthly quantities of hazardous waste ------- 3 generated at a site. In some cases, an EPA Identification Number may not be required for the generator, ahd there may be no manifesting requirements. (See 40 CFR Section 261.5.) For those situations where an EPA Identification Number is required, EPA has established a system whereby generators can obtain provisional identification numbers in an expedited manner (see 45 FR 85023, December 24, 1980). The telephone numbers listed in that notice are somewhat outdated; I suggest that you contact the RCRA/Superfund Hotline ((800) 424—9346) for the most up—to—date numbers and assistance. In addition, distributors acting as intermediate collection points in the recall process may qualify as “transfer facilities,” depending on the specific circumstances. In the federal hazardous waste regulations, transporters who store manifested shipments of hazardous waste under certain circumstances may store these wastes for ten days or less without a permit for the storage. (See 40 CFR 263.12.) Finally, the requirements described in this letter are the federal hazardous waste regulations in 40 CFR Parts 260 - 272. States may have additional requirements that are more stringent, or broader in scope. I suggest that you contact the appropriate state waste management agencies for further information on state requirements. Lowra.nce, Director .ffice of Solid Waste cc: Paul Parsons, OPP (H7508C) ------- 9441.1990(05) ,( .‘Ip I ____ I t i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 LII FEB 26 : : OPPICE OP SOLID WASTE AND EMERGENCY RESPONSE Kathleen Wolf, Ph.D. Project Manager Source Reduction Research Partnership 1052 West Sixth Street, Suite 432 Los Angeles, California 90017 Dear Dr. Wolf: This is in response to your letter of October 12, 1989, in which you requested clarification of the application of RCRA Subtitle C regulations to waste chiorofluorocarbons (CFCs) from the production of foam products. More specifically, these CFCs act as blowing agents by physically opening the foam cell. This interpretation is based on your account of the production process. In your description of the manufacture of the rigid insulating and packaging foam product, the CFCs are retained within the product. However, in the production of the flexible foam, the CFCs open the foam cell and are then released to the ambient environment. Once captured by the vapor recovery system, the spent chiorofluorocarbons are then sent off-site for either recycling or disposal. Proper waste classification depends upon having sufficient owledge of the waste process and the source of generation. In order for the spent chlorofluorocarbons to be regulated as RCRA hazardous wastes, the material must first be classified as a solid waste. In the case of the rigid foam production where the chiorofluorocarbons are retained within the product, the RCRA Subtitle C regulations are not applicable because the product is not being discarded and thus is not a solid waste as defined in 40 CFR Section 261.2(a). At issue, in this case, is the question of whether use as a blowing agent constitutes use as a solvent. The December 31, 1985 Federal Register (50 FR 53316) clarifies that “only solvents that are used for their ‘solvent’ properties — that is, to solubilize (dissolve) or mobilize other constituents would be covered by the FOOl — F005 spent solvent listings. Specific examples include “solvents used in degreasing, cleaning, fabric *.cyd.d Pi ------- scouring, as diluents, extractants, and reaction and Synthesis utedia. In the case of foam production, the chiorofluorocarbons are not being used to mobilize or solubilize, rather, they are simply acting to open the foam cell by a physical mechanism. Therefore, the spent chlorofluorocarbons used in this manner would not meet a hazardous waste listing. The spent CFCs would only be RCRA hazardous waste if they exhibit a hazardous waste characteristic under 40 CFR 261.21 — 261.24. Waste not regulated under Federal regulations also may be regulated under more stringent State requirements. Since the CFC5 and methylene chloride used as blowing agents do not classify as solvents, recovered vapors of these substances also do not meet the spent solvent listing description. The “derived from” rule (40 CFR 261.3(c)(2)(i)) does not apply in this case because the recovered vapors are not derived from hazardous wastes and by themselves do not meet any hazardous waste listing description. The Agency recently published a Federal Register notice clarifying the applicability of RCRA rules to CFCs which are spent or reclaimed (54 FR 31335, July 28, 1989). We are enclosing a copy of this notice for your reference. Thank you for your inquiry. If you should have further questions please contact the RCRA/Superfund Hotline at (800)424—9346 or (202)382—3000. Sincerely, Devereaux Barnes Director Characterization and Assessment Division Enclosure 2 ------- UNITED STATES ENYIROP ME? TAL. PROTECT1 9441.1990(06) M R RANDt!1 S0BJ9’r: Texas Industries’ Use of Wastewaters Generated by Off-site Sources as an Effective Substitute for a Co rmercial Product - FRCCI: Joseph S. Carra, Director Permits and State Prograne Division (05—340) Susan E. Brormi, Director RA forcesent Division (OS—520) TO: William K. Honker, Chief ICRA Permits Branch Hazardous Waste Managerent Division (6H—P) The purpose of this meflurandtnn is to clarify procedures for classifying wastes under both 40 CFR 261.2(e) (1) (ii) [ exclusion based on recycling] and 40 CFR 261.2(e)(2)(i) [ inclusion based on final use]. On October 4, 1989, you sent a copy of an interoffice n randtnn from a Texas Water Coznniss ion (TIC) staff attorney to the T C Executive Director, and a copy of a letter from the Executive Director to the aviroriienta1. Manager of Texas Industries (TX !) (both dated Septather 18, 1989). As wa understand, !1 C bed tentatively approved the use by TX! of industrial wastewaters generated off-site as an effective substitute for fresh water in their catent manufacturing process. The basis for the decision was that the proposal appeared to fit the exclusion provided in 31 Texas h±ninistration Code 335.1 (40 CFR 261.2(e) (1) (ii)). The decision was subsequently overruled under the provisiona of the Texas air program because the wastewater was found to contain volatile organic o ounds (VOCS) s ix ] the process neither net best available control tecixiology nor derEretrated 99.99% destruction of several of the organic coepounds. You requested any views that wa nay have on this issue. Howaver, at this point, wa will only address the issues pertaining to the proper rret ology for characterizing the waste stream. The information provided states that TX! was using an off—site industrial wastewater, containing VOCs, to produce the slurry in their c it production process. The first determination to be made is whether the wastewater is in fact a solid waste. Under 40 CFR 261.2(e) (2) Ci), materials used to produce products that are applied to the land are solid wastes. C t is a product that is ------- —2— typically applied to the land. This clearly makes the wastewater a solid waste (although the owner/operator of the c rent kiln may document a claim that none of the cement produced using this wastewateris applied to the land, as provided in 40 CFR 261.2(f)). Because the wastewater is a solid waste, for regulatory purposes, we must next determine if this solid waste is either a characteristic or listed hazardous waste. After reviewing the materials submitted by Region VI, we determined that not enough information was supphed about the generation of the waste stream or its constituents to make a decision on whether the waste was hazardous by characteristic or listing. Therefore, at this time we can only classify this wastewater as a solid waste. In addition, also based on the information we have received, the “effective substitute” classification would not apply because the product is being used on the land (see 40 CFR 261.2 Ce) (2) (i)). However, in such a case that the product (i.e., cement) was clearly not applied to the land and was derived from a waste which was hazardous by characteristic or listing, it might be helpful for us to share with you our approach to the issue of effective substitute (legitimate recycling) vs. treabiient. Determining whether a secondary material is an effective substitute for a con ercial product requires a coiiparison of the secondary material to the conr rcial product that would otherwise be used. In this case, one would compare wastewater to fresh water. Assuming the substitute (wastewater) is a hazardous waste, the conirercial product (fresh water) would probably contain significantly fewer hazardous constituents or characteristics. Therefore, the wastewater is not likely to be an effective substitute. Note that this determination is not based on the qualities of the final product (c iEnt) but on the qualities of the water sources. This approach determines whether the actual “secondary material” is an “effective substitute”. The State’s approach, which compares the utpact to the environment posed by the use of the secondary material to the impact to the environment posed by using the comaiercial product that would otherwise be used, is in error. This would lead us to concl e that the assumed hazardous wastewater is being treated, not legitimately recycled. Whether the constituents in the wastewater are “bound” in the final product is not relevant to the determination. The issue is whether the constituents in the substitute water source are a desired ingredient of the final product or are being, in s r fashion, treated. Therefore, based on the material we received, the only determination that can be made regarding the wastewater is that it is a “solid waste ’. As opposed to the State’s approach in characterizing the wastewater, we believe that the methodology discussed above is the appropriate approach to determine the regulatory status of a waste stream. For your inforn tion, we are enclosing a copy of an April 26, 1989 m randu from Sylvia r 4 owrance to the Regional Hazardous Waste Manag t nt Division Directors regarding recycling vs. treatment for F006 wastes. This ima randum inclt. es criteria for helping to decide if a waste is being legitimately recycled. ------- —3— We hope our views are useful to you. If you have any further questions, please contact either Dave Eberly, OSW, ( ‘ S 382-4691) or Reggie Cheatham, OWPE, ( FS 475—9360) of our staffs. thclosure cc: Mitch Kidwell, CAD, OSW Reggie Cheatham, OWPE Ken Gigliello, OWPE Scott Parish, OWPE Dave Eberly, PSPD, OSW Jim Michael, PSPD, 05W Liz Cotsworth, PSPD, OSW ------- RCRA/StJPERFUND HOTLINE SUMMARY 9441.1990(07) MARCH 1990 I. SIGNIFICANT OUESTIONS AND RESOLVED ISSUES—MARCH 1990 A. RCRA 1. Clarification of By-Product Versus Scrap Metal A manufacturer of computer circuit boards sends unused off-specification printed circuit boards and board trimmings from the production process off-site for reclamation. The printed circuit boards are made of alternating layers of thin copper and fiberglass plates coated with tin lead; containing approximately 30% copper, 68% fiberglass, and 2% tin lead. How are the unused boards classified under 40 CFR 261.2, and are the trimmings by- products or scrap metal? Would these materials be solid wastes under RCRA? The unused circuit boards are secondary materials. Under 40 CFR 261.2, the Agency designates those secondary materials which are RCRA Subtitle C solid wastes when recycled. According to Section 261.2(c)(3), unused off-specification commercial chemical products listed in 40 CFR 261.33 are not considered solid wastes when sent for reclamation. Although the Agency does not directly address non- listed commercial chemical products in the regulations, their status would be the same as those that are listed (see 50 EB 14219, April 11, 1985). The unused circuit boards are considered to be non-listed commercial chemical products, and thus, are not solid wastes when reclaimed. If, however, the circuit boards had been used and were no longer fit for use, they would be considered spent materials and defined as solid wastes when reclaimed. The trimmings are inherently unfit for end use and will be reclaimed. In the January 4, 1985 Federal Register (50 EE 625), the Agency defines by-products as materials “that are not produced intentionally or separately, and that are unfit for end use without substantial processing.” The printed circuit board trimmings meet the definition of characteristic by-product rather than scrap metal, and are not solid wastes when reclaimed under Section 261.2(c)(3). Although the trimmings are physically similar to scrap metal, to meet the definition of scrap metal, the material must have significant metal content, i.e., greater than 50% metal. In fact, examples given in the Preamble concerning scrap metal were virtually 100% metal. Materials defined as scrap metal under Section 261.1 are solid wastes when reclaimed, and, if hazardous, are presently exempt under Section 261.6(a)(3)(iv) from Subtitle C regulation. The Agency has deferred hazardous scrap metal from regulation until appropriate information on types of scrap metal and industry management practices is made available for study. Source: Mike Petruska, OSW (202) 382-3139 Research: Wally Moon ------- 9441.1990(08) RCRA/SUPERFUND HOTLINE SUMMARY MARCH 1990 4. Used Oil Used for Dust Suppression or Road TTeatinent A used oil exhibits the characteristic of EP Toxicity. Is the use of the used oil for dust suppression or road treatment prohibited? Yes. Used oil intended to be placed on the land is defined as a material being used in a manner constituting disposal (Section 261.2(c)(1)(A)). Use of a material in a manner constituting disposal is a recycling activity (Section 261.2(c)(1). AU substances recycled in this manner are considered solid wastes (see 40 CFR Section 261.2 Table 1). Because the used oil exhibits the characteristic of El’ Toxicity, it is considered a hazardous waste. A hazardous waste which is to be recycled is subject to the requirements of 40 CFR Section 261.6. Specifically, Section 261.6(a)(2)(i) requires recyclable materials which are used in a manner constituting disposal to be regulated under Subpart C of Part 266. Thus, the used oil is subject to the requirements of Section 266.23(b) which states “the use of waste or used oil or other material, which is contaminated with dioxins or any other hazardous waste (other than a waste identified solely on the basis of ignitability) for dust suppression or road treatment is prohibited.” This standard was incorporated directly from Section 3004(e) of the Hazardous and Solid Waste Amendments of 1984. The Agency interpreted this statement in a June 6, 1985 memorandum which states “... the prohibition to apply to hazardous waste (whether or not it is part of a mixture). Under this interpretation used oil exhibiting EP Toxicity, for example, must not be used as a dust suppressant.” Therefore, a used oil exhibiting the characteristic of EP Toxicity is prohibited from use for dust suppression or road treatment. SouTce: Mitch Kidwell, OSW (202) 382-4805 Research: Kent Morey Cynthia Hess ------- RCRA/SUPERFUND HOTLINE SUMMARY 9441 1990(09) MARCH 1990 6. Applicability of the Household Hazardous Waste Exclusion to Waste Generated by Contractors A homeowner hires a contractor to scrape old paint from his walls and repaint them. Paint chips from the walls are EP toxic for lead and are disposed of in the household’s waste stream. How are the chips regulated under RCRA? The regulations at 40 CFR Section 261.4(b)(1) state that waste generated at a household is excluded from regulation as a hazardous waste. According to the November 13, 1984 Federal RegisteL waste from building construction, renovation and demolition, even if generated at a household, is not covered under the household waste exclusion. Household waste, to be excluded pursuant to 40 CFR Section 261.4 (b) (1), must fulfill two criteria. Household waste has to be generated ‘by individuals in their homes” and “the waste stream must be composed primarily of materials found in the wastes generated by consumers in their homes.” (49 44978; November 13, 1984) EPA does not distinguish between waste generated at a household by a homeowner and waste generated at a household by a person other then the homeowner. (See the March 24, 1989 Federal Register 54 12339 applying the household waste exclusion to medical waste generated by home health care providers.) EPA determines the applicability of the exclusion based upon the type of waste generated and the place of generation. Therefore, solid waste generated at a home as part of routine residential maintenance (as opposed to renovation, construction or demolition) would be part of the household waste stream and thus would not be subject to the hazardous waste determination requirements of 40 CFR Section 262.11. Source: Carrie Webling, 0CC (202) 382-7706 Research: Monica Genadio ------- 9441. 1990(09a) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION MARCH 1990 Clarification of By-Product Versus Scrap Metal A manufacturer of computer circuit boards sends unused off-specification printed circuit boards and board trimmings from the production process off-site for redamation. The printed circuit boards are made of alternating layers of thin copper and fiberglass plates coated with tin lead; containing approximately 30% copper, 68% fiberglass, and 2% tin lead. How are the unused boards classified under 40 CFR 261.2, and are the trimmings by- products or scrap metal? Would these materials be solid wastes under RCRA? The unused circuit boards are secondary materials. Under 40 CFR 261.2, the Agency designates those secondary materials which are RCRA Subtitle C solid wastes when recycled. According to Section 261.2(c)(3), unused off-specification commercial chemical products listed in 40 CFR 261.33 are not considered solid wastes when sent for reclamation. Although the Agency does not directly address non- listed commercial chemical products in the regulations, their status would be the same as those that are listed (see 50 14219, April 11, 1985). The unused circuit boards are considered to be non-listed commercial chemical products, and thus, are not solid wastes when reclaimed. If, however, the circuit boards had been used and were no longer fit for use, they would be considered spent materials and defined as solid wastes when reclaimed. The trimmings are inherently unfit for end use and will be reclaimed. In the January 4, 1985 Federal Register (50 , 625), the Agency defines by-products as materials “that are not produced intentionally or separately, and that are unfit for end use without substantial processing.” The printed circuit board trimmings meet the definition of characteristic by-product rather than scrap metal, and are not solid wastes when reclaimed under Section 261 .2(c)(3). Although the trimmings are physically similar to scrap metal, to meet the definition of scrap metal, the material must have significant metal content, i.e., greater than 50% metal. in fact, examples given in the Preamble concerning scrap metal were virtually 100% metal. Materials defined as scrap metal under Section 261.1 are solid wastes when reclaimed, and, if hazardous, are presently exempt under Section 2 6 1.6(a)(3)(iv) from Subtitle C regulation. The Agency has deferred hazardous scrap metal from regulation until appropriate information on types of scrap metal and industry management practices is made available for study. ------- 9441. 1990(09b) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION MARCH 1990 4. Used Oil Used for Dust Suppression or Road Treatment A used oil exhibits the characteristic of EP Toxicity. Is the use of the used oil for dust suppression or road treatment prohibited? Yes. Used oil intended to be placed on the land is defined as a material being used in a manner constituting disposal (Section 261.2(c)W(A)). Use of a material in a manner constituting disposal is a recycling activity (Section 261.2(c)(1). All substances recyded in this manner are considered selid wastes (see 40 CFR Section 261.2 Table 1). Because the used oil exhibits the characteristic of EP Toxicity, it is considered a hazardous waste. A hazardous waste which is to be recycled is subject to the requirements of 40 CFR Section 261.6. Specifically, Section 261 .6(a)(2)(i) requires recyclable materials which are used in a manner constituting disposal to be regulated under Subpart C of Part 266. Thus, the used oil is subject to the requirements of Section 266.23(b) which states “the use of waste or used oil or other material, which is contaminated with dioxins or any other hazardous waste (other than a waste identified solely on the basis of ignitability) for dust suppression or road treatment is prohibited.” This standard was incorporated directly from Section 3004(e) of the Hazardous and Solid Waste Amendments of 1984. The Agency interpreted this statement in a June 6, 1985 memorandum which states “... the prohibition to apply to hazardous waste (whether or not it is part of a mixture). Under this interpretation used oil exhibiting EP Toxicity, for example, must not be used as a dust• suppressant.” Therefore, a used oil exhibiting the characteristic of EP Toxicity is prohibited from use for dust suppression or road treatment. ------- 9441.1990(10) ,IS I74 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 APR I 0 1990 OC’ICE OF SOLID WASTE At D (ME mGE c mESPOpdSE Richard G. Stoll Freedman, Levy, Eroll, and Simonds 1050 Connecticut Ave. NW Washington, DC 20036—5366 Dear Mr. Stoll: This letter responds to your January 15, 1990, request for a regulatory interpretation of 40 CFR 261.7, as it applies to washwaters resulting from the steam-spraying of “empty” tank cars. It is our understanding that “steam—spraying” involves the use of water only, and not additional solvents. You are correct in your interpretation that the provision found at 40 CFR 261.7, governing residues of hazardous waste remaining in an empty container, applies to such residues when they are removed by steam-spraying. Section 261.7 does exempt the resulting washvaters from RCRA Subtitle C, including the requirement !or determining whether a solid waste exhibits a hazardous characteristic under Part 261 Subpart C. It should also be noted that the exemption at 40 CFR 261.7 applies only to “empty” containers, as defined in that section. If the steam-spraying is conducted on a container that is not empty, or is done in order to render a container empty, the residues are not exempted by 40 CFR 261.7, but rather are fully subject to RCRA Subtitle C. I should also note that this regulatory interpretation applies only to Federal regulations. The appropriate StaLe regulatory agency may have regulations that are more stringent or that may otherwise differ from Federal regulations. I strongly .ncourags you to seek such regulatory determinations from the appropriate State agencies. Sincerely, - Sylvia X. Lowrance Director Office of Solid Waste ------- UNITEI , STATES ENVIRONMENTAL PROT 9441.1990(11) APR I 2 1990 Mr. Erik Hoygaard State Pollution Control Authority Statens forurensningstilsyn P.O. Box 8100 Dep. N—0032 Oslo 1, Norway Dear Mr. Hoygaard: Thank you for your March 27, 1990, letter (ref. 90/2887—1 682.031/2) asking for our assistance in identifying Federal regulations applicable to cadmium wastes resulting from coating materials and (spent) sacrificial anodes generated by military operations. One of the Waste Management Division’s (WMD) tasks is to support the EPA’s Office of Solia Waste to develop Federal regulations that set standards for the storage, treatment, and disposal of wastes deemed hazardous under Subtitle C of the Resource Conservation and Recovery Act, (RCRA), P.L. 1976. EPA has promulgated in the 40 Code of Federal Re ulations (CFR) Part 261 a criteria listing particular industrial or nonspecific source industrial wastes as hazardous under RCRA. The wastes generated by the military operations described in your letter are likely to generate wastes meeting the listing criteria for electroplating wastes, heat treating, aluminum conversion coating (F006, F019, F007, F008, F009, FOb, FOil and F012). or characteristic wastes for cadmium (Extraction Procedure Toxicity Test level of 1.0 mg/i, referred by EPA as EP Tox for cadmium). Enclosure 1 is a copy of pages from the 40 CFR Part 261 describing these wastes. Another responsibility of the WMD is to set treatment standards that allow the placement of hazardous wastes in land disposal units such as landfills, underground injection wells, or surface impoundments. These treatment, levels can be expressed as maximum concentrations of specific hazardous constituents or a requirement to use one or various treatment technologies. EPA promulgates in the 40 CFR Part 268 land disposal restrictions which include said treatment standards. Enclosure 2 is a speech ------- —2— entitled: “EPA’S BDAT Development for the Land Disposal Restric- tion Program,” which provides a detailed review of the legal and engineering technical framework for the development of treatment standards. on June 23, 1989, (see enclosed 54 Federal Register (a), 26649) EPA promulgated treatment standards for electroplating wastes. Cadmium is one of the regulated metal constituents in the electroplating wastes. Nonwastewater forms of the electro- plating wastes must meet a treatment standard for cadmium of 0.066 mg/i (as measured by the Toxicity Characteristic Leachate Procedure (TCLP) test). This treatment standard is based on stabilization of F006 wastes. EPA did not regulate cadmium in wastewater forms of the electroplating wastes because when these treatment standards were promulgated, EPA lacked data for the treatment of cadmiuin..in electroplating wastewaters. EPA is currently reviewing data documenting technical difficulties found with the available analytical test methods to comply with the free and total cyanide standards for electro- plating wastes. The review of these analytical test data can result in revisions to the promulgated treatment standards or to the analytical test methods currently being used. Enclosure 4 is an EPA document entitled “ Best Demonstrated Available Technoloav ( BDAT Background Document for Cyanide Wastes, ” discussing EPA’s engineering technical rationale and summarizing the data supporting the promulgation of treatment standards applicable to electroplating wastes. On May 8, 1990, EPA will be promulgating treatment standards applicable to all characteristic wastes. These final treatment standards follow up the enclosed November 22, 1989, 54 48372. This letter does not provide a discussion of the final rule, but instead an overview of the proposed rule. The November 22, 1990, Notice proposed several regulatory options for the development of treatment standards for D006 wastes. The proposal identified three subcategories of D006 wastes: wastewaters, nonwastewaters, and cadmium containing batteries. For wastewater forms of D006, EPA proposed two regulatory options. One option is to set a treatment standard of 0.20 mg/i cadmium based on chemical precipitation followed by filtration. The other option is to set a treatment standard of 1.0 mg/i cadmium based on the characteristic level, as measured by TCLP or EP Tox. For nonwastewater forms of D006, EPA proposed two regulatory options. One is to set a treatment standard of 0.14 mg/i (as measured in the extract by the TCLP) based on stabilization. The other one is to set a treatment level of 1.0 mg/i; based on the characteristic level for cadmium wastes, as measured by TCLP or EP Tox. ------- —3— For nonwastewater forms of D006 belonging to the cadmium containing battery subcategory, EPA proposed the use of thermal recovery of cadmium as prerequisite for disposal. Wastes resulting from the thermal furnaces, e.g., clinkers or slags, would not be prohibited from land disposal. However, wastes resulting from the treatment of air pollution control devices would be required to meet the wastewater and nonwastewater treat- ment standards for D006; discussed in the above two paragraphs, as a prerequisite for land disposal. In your letter, you also asked if EPA has taken into consideration the use of any substitutes for cadmium as an anticorrosjve—coating alloy. To the best of my knowledge, EPA has not reviewed any data pertinent to the use of metal sub- stitutes for cadmium in coating operations. However, Jose E. Labiosa of my staff has requested from Infoterra a literature search on this matter. Infoterra is an EPA’S Library service that had access to databases which include technical publica- tions, research papers, hazardous waste treatment articles and State and Federal regulations focusing on environmental problems such as those described in your letter. It is our understanding that Infoterra will mail to you any information available in our database. Enclosure 5 is a brochure describing Infoterra services. If you should have any questions, please contact Jose E. Labiosa at (202) 382—4496 for assistance. Jose is a senior chemical engineer who has valuable experience in hazardous waste treatment. Also, he is responsible for the development of final treatment standards applicable to D006 wastes. I would like to wish you a lot of success in your regulatory ef forts to reduce the discharges of cadmium to the North Sea. Sincerely, \1. David Bussard Acting Director Waste Management Division Enclosures (5) cc: Keith Chanon, Infoterra ------- • UNITED STATES ENVIRONMENTAL. PROTECTION AGEN - WASHINGTON. D.C. 20460 9441.1990(12) MAY 9 1990 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Annetta Watson Oak Ridge National Laboratory P.O. Box 2008 Oak Ridge, TN 37831 Dear Ms. Watson: This letter is in response to your letter of April 2, 1990, : concerning the applicability of the Resource Conservation and Recovery Act (RCRA) to the U.S. Army’s Chemical Stockpile Disposal Program, and asked for EPA’S interpretation of how the hazardous waste regulations apply in the event of a chemical weapon agent release. In your letter, you asked whether, in a situation where an agent’s release is great enough to cause fatalities, RCRA permitting requirements must be satisfied before burial of any agent— contaminated human remains or personal effects. You stated that you understood that the agent was federally listed as a hazardous waste, and was also listed by the states of Kentucky and Oregon. EPA does not consider RCRA to apply to human remains that are cremated or buried. For instance, under regulations implementing the Medical Waste Tracking Act (R RA Subtitle J), EPA excluded human corpses, remains, and anatomical parts that are intended for interment or cremation from the medical waste tracking requirements (see 40 CFR 259.30(b)(1)(v)). Thus, the local communities may make appropriate planning arrangements without considering how R RA requirements would apply to the human remains. With regard to the personal effects that are contaminated with a listed hazardous waste, RCRA requirements may vary depending on the location of the effects when they are discarded. There is an exclusion for household wastes, generated by consumers in their homes, that would be likely to exclude most personal effects from the federal hazardous waste requirements. See 40 CFR 26l.4(b)(l). Thus, persons managing these effects need not comply with permitting or other hazardous waste requirements when disposing of them. ------- 2 This letter has described the federal hazardous waste requiremen ; states or localities can have stricter regulatio , or requjre e that are broader in scope. I suggest that you contact the appropriate state and local agencies to determine what their requjre e cover. If you have further questions, please contact Becky Cuthbertson at (202)475—9715. Sincerely S v a Lowrance, Director 0 fice of Solid Waste cc: EPA Regions i-io ------- 9441.1990(1: I t i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 +)4( 1111 sf MAY 2 O ,CE O SOLID W 5TE ANO EMERGEPICY RESP( Lynn L. Bergeson Fox, Weinberg & Bennett 750 17th Street, NW Suite 1100 Washington, DC 20006 Dear Ms. Bergeson: This letter is in response to your letter of November 1, 1989, in which you describe a hypothetical situation involving a battery manufacturer, ABC, Inc. You are asking for a determination of the regulatory status of the nickel/cadmium batteries that are returned to ABC Inc., the manufacturer, and subsequently, redistributed o exported. You have stated that the batteries exhibit the characteristic of EP Toxicity for cadmium. Spent nickel/cadmium batteries returned to the manufacturer for regeneration are excluded from regulation under 40 CFR Parts 262 through Parts 266 or Parts 268, 270 or 124, and are not subject to the notification requirements of Section 3010 of RCPA (40 CFR 261.6(a) (3) (ii)). The facts you have provided indicate that ABC, Inc. does not regenerate the batteries returned; but rather, drains the batteries of fluid and then exports them. Draining the batteries does not constitute regeneration. Therefore, ABC’S customers are subject to the regulations of Parts 262 through 266, 268, 270 or 124, including the manifesting requirements, when returning spent nickel/cadmium batteries to ABC, Inc. ABC’s customers must determine if their batteries are spent before sending them off-site. 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 (40 CFR 261.l(c)(l)). In the case of used batteries, if the customer has used the battery and can no longer use it for the purpose for which it was produced, it is considered spent. The battery does not have to be contaminated to be considered spent. PrimIad Rc cIe4 Papgr ------- 9441. 1990(13a) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION MAY 1990 5. 40 CFR Section 261.4(c): Hazardous Wastes Which Are Exempted From Certain Regulations A petroleum refining facility, which generates more than 1000 kilograms of hazardous waste per month, operates a heat exchanger as part of the. refining process. A sludge forms inside the heat exchanger. Periodically this sludge is cleaned out of the heat exchanger and managed as listed hazardous waste K050. According to 40 CFR Section 261.4(c) a hazardous waste generated in a manufacturing process unit is exempt from regulation until the waste exits the unit, or the waste remains in the unit more than 90 days after the unit ceases to be operated for manufacturing purposes. If the refining facility disconnects the heat exchanger and ships it off-site for cleaning within 90 days, would the exemption in Section 261 .4(c) apply? No, the 40 CFR 261.4(c) exemption is not available in this situation. Although the exemption is available for hazardous waste in transport vehicles or vessels, which may be moved to a central facility for cleaning (see 45 72026, October 30, 1980), EPA does not interpret the exemption as applying to manufacturing process units, associated non-waste treatment units, or product/raw material storage tanks (that are stationary during operation) if those units are disassembled for cleaning off-site. As stated in the October 30, 1980, Federal Register (45 E.E 72025), the incentive to maintain the unit’s integrity to prevent leaks or unintended releases of products is substantially reduced when the unit is taken out of operation. Likewise, there would be loss of the unit’s structural integrity if it were to be disassembled for off-site shipment, with a potential for hazardous waste releases. Thus the 40 CFR 261.4(c) exdusion is not available to manufacturing units, associated non-waste treatment units, and product/raw material storage tanks that are to be shipped off-site for cleaning. ------- 9441. 1990(13b) RCRA/SUPERFUNDIOUST HOTLINE MONTHLY REPORT QUESTION MAY 1990 L Groundwater “Contained in” Policy The owner of a permitted fadlity determines that the groundwater beneath the facility has been contaminated by a listed RCRA hazardous waste that is generated on-site. The facility is directed to pump the contaminated groundwater and treat it to remove the hazardous waste component. Although the facility will eventually treat the groundwater, prior to treatment, the facility wants to use the groundwater in an on-site production process as a coolant. If the facility pumps the groundwater and stores the water in a tank prior to piping it to the production process, is the tank a regulated hazardous waste tank or just a groundwater storage tank? EPA policy (see the June 19, 1989 letter from J. Cannon to T. Jorling), is that groundwater (and other environmental media) “ [ is] not considered a solid wastels] in the sense of being abandoned, recycled, or inherently waste-like as those terms are defined in the regulations.” Therefore, a mixture of a hazardous waste and ground- water is not considered a hazardous waste under the “mixture rule” in Section 261.3 (since “mixtures” under 261.3 are mixtures of hazardous wastes and solid waste). However, groundwater contaminated with a listed waste “contains” a hazardous waste until the hazardous waste has been removed from the groundwater. EPA interprets its regulations to require that groundwater and other media which contain hazardous wastes must be managed as hazardous wastes. This is known as the “contained in” interpretation. Thus, the storage tank holding the contaminated groundwater prior to use as a coolant is regulated as a hazardous waste storage tank. The question of how the contaminated groundwater is regulated downstream from the storage tank depends on whether the use meets the criteria for the regulatory exclusion for recycling hazardous waste. For example, is the use of the contaminated groundwater in this manner as effective as using water from other sources (see the April 26, 1989 memo describing factors to be considered in making such a determination)? If the use is not legitimate, then all units in which the contaminated groundwater is managed may be subject to regulation as hazardous waste units. However, if the use is legitimate, the units downstream from the storage tank may be exempt recycling units (see 40 CFR 261.6(c) (1)). The EPA Region or an authorized State must make the site-specific determination on whether a recycling process such as the one described here exempts the units downstream from the storage tanks from regulation. ------- 9441. 1990 (13c) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION MAY 1990 2. Hazardous Waste Identification As part of an experiment, an independent tester wishes to set up weather testing equipment on several sites aaoss the country. One of his concerns is that if one of the thermometers breaks and leaks mercury onto the ground, how would the soil contaminated with mercury be identified? When the mercury leaks from the thermometer and falls onto the ground, it meets the definition of “spent material” in 40 CFR 261.1 (c)(1): it is 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.” Spent materials that are reclaimed are solid wastes according to Section 261.2 (c)(3). Thus, if the mercury- contaminated soil exhibits a characteristic of hazardous waste (for example, the toxicity characteristic of Section 261.24), the generator must manage the soil as a hazardous waste. (Authorized States and EPA Regions determine when the hazardous waste has been removed and the soil may once again be handled as soil.) The P- and U- lists of discarded commercial chemical products and spill residues apply only to unused materials; since in this case the mercury in the thermometer had been used, the U151 listing of Section 261.33 does not apply. 58 ------- 9441. 1990(13d) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION MAY 1990 4. Regulation of Nickel/Cadmium Batteries as Scrap Metal when Recycled A facility owner/operator is interested in recycling nickel/cadmium batteries. The batteries are not being returned to the battery manufacturer per 40 CFR Section 261.6(a)(3)(ii) for regeneration. The owner/operator is going to recover the metal content from the nickel/cadmium plates. He believes then, that the plates should be regulated as scrap metal per 40 CFR Section 261.6(a)(3)(iv). If recycled, are these spent nickel/cadmium plates scrap metal? The batteries themselves are spent materials and must be managed as such until the individual components (plates) can be separated out. The scrap metal portions would be regulated (i.e., exempted) as scrap metal while the rest of the battery would continue to be a spent material. This issue was addressed in an EPA letter dated October 20, 1986 to J. Mark Morford from Matt Straus. In this letter, the Agency discusses the regulatory status of certain materials—namely zinc bar, fickle plate, cadmium plate, and steel scrap that are removed from spent alkaline batteries. Specifically, the memo reads, “In particular, you request confirmation that the materials removed from these batteries are scrap metal, and that they are exempt from the hazardous waste regulations. As we discussed, scrap metal is currently exempt from the Federal hazardous waste regulations whether or not the scrap metal exhibits one or more of the hazardous waste characteristics ....I agree with you that these materials are scrap metal, and if recyded, would be exempt from regulation under the Federal hazardous waste rules.” Therefore, if recycled, the spent nickel/cadmium plates would be considered scrap metal. But, as the letter points out, if the nickel plate or cadmium plate was mixed with non-scrap metal material after removal from the battery, the mixture would not be considered scrap metal. In this case, the mixture would be subject to regulation if the mixture itself exhibits one or more of the characteristics of a hazardous waste. ------- 9441. 1990(13e) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION MAY 1990 3. Sample Exclusion A facility owner/operator generates a spent solvent (P004) from his or her manufacturing process. He/she then sends a sample of the waste to a lab for further testing to determine if it meets any of the characteristics, such as ignitability. Would the sample exclusion at 40 CFR Section 2614(d) still apply to this waste when it is sent from the generator to the lab? Also, would contaminated laboratory equipment be identified as F004 via the “contained-in” policy or would such material only be checked for characteristics before disposal? Yes, the sample exclusion still applies to the waste when it is sent to the laboratory because there is nothing at 40 CFR Section 261.4(d) that precludes listed hazardous waste from the exclusion. However, at the lab, any wastes generated from the analysis that contain the P004 spent solvent are also identified as F004 under the “contained-in” policy. It is possible that some of the wastes from the analysis (such as a pipet) may meet the definition of a container and therefore are not subject to the hazardous waste regulations if they are defined as empty per 40 CFR Section 261.7. 58 ------- 9441.1990(14) itO i r , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 • aR tC JIR4 1 2 t9 i OFCICE SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Regulatory Status t Manufacturing Co., Altavjsta, V’ FROM: Sylvia K. Lowra Office of Solid Wasi TO: Stephen R. Wassersug’, Director Hazardous Waste Management Division US EPA Region iii As you requested, we have evaluated the process descriptions for Wastestream #4 at Piedmont Manufacturing Company. Our review has included all of the materials provided by Sherman Latchaw of EPA Region iii to David Topping of my staff, as well as the discussions in the December 8, 1989, meeting with representatives of Piedmont Manufacturing and the State of Virginia held at EPA Region III’s offices. As a result of this review, we agree with your determination that Wastestream #4 is EPA Hazardous Waste No. F006. The major issue is whether the Piedmont process is, in fact, a “bright dip” ( I.e. , a chemical etching) process. While Piedmont’s previous correspondence describe the process as “bright dip”, they have subsequently stated that this was an inaccurate characterization Further, Piedmont has cited the record for the F006 listing——in particuja the Effluent Guidelines Electroplating Document that was referenced in the Listing Background Document__as evidence that the process is not a “bright dipping” operation. Piedmont’s Primarily centers around the amount of material removed from the brass parts during their operation (on the order of 1/10 mu; as compared to a statement in the document that “..,chernical etching is the same as chemical milling except that relatively small amounts u—s mils) of metal are removed.” P,iig.d Rsgycigd Pap.r ------- Our conclusion that the Piedmont process is an etching )peration is based upon the nature of the physical change that ccurs when the brass parts are dipped into the bath. Specifically, metal is removed, or etched, from the surface, resulting in changes in both the appearance (brighter) and physical properties (better adhesion to rubber) of the surface. We believe that this interpretation is consistent with the background document cited by Piedmont (copies of relevant portions attached). Dhe document begins with a general description of “chemical milling and etching” and states that the general classification includes the specific processes of “... bright dipping...” among others. In the discussion of etching, the bright dipping process is specifically described and is consistent with the process that is used at Piedmont. Further, we believe that the process used to alter the surface of the brass parts at Piedmont is commonly understood to be a bright dipping/etching process. (The fact that metal is being etched from the brass parts is somewhat corroborated by Piedmont’s indication that lead is present in significant concentrations in the wastewater treatment sludge from this operation and that the parts (360 brass) appear to be the only source of lead in the operation.) Should you have any questions regarding this interpretation, please contact David Topping of my staff at (202) 382—7737. ?ttachments 2 ------- UNITED STATES ENVIRONMENTAL PROTE 9441 1990 ( 15) WASHINGTON. D.C. 2046Ci JUN I 4 1990 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE SUBJECT: Disposal of Personal Protective Gear FROM: Sylvia K. Lowrance, Direct .9’U ‘k vt .#’ — Office of Solid Waste 0 TO: David Ulirich, Acting Director Waste Management Division, Region V This memorandum is in response to your letter regarding the disposal of personal protective gear (PPG). As you noted, discarded PPG may be considered a hazardous waste either due to surface contamination or because it exhibits a hazardous characteristic. Judging by the data that you presented, you have suits that, when discarded, are a toxic hazardous waste (due to lead) regardless of whether they were contaminated at a site. For the purpose of compliance with the Land Disposal Restrictions, treatment options for PPG were addressed in the Third Third final rule’s discussion of organic debris (55 22555, June 1, 1990). For your immediate reference, I have attached the pertinent pages of the final rule. While the final rule does not preclude surface decontamination, organic debris will often have to be incinerated prior to stabilization of the metal constituents to comply with the treatment standards. As you know, all wastes contained in the Third Third were granted a 90-day national capacity variance. Thus, during the variance, was.tes not treated in compliance with the applicable treatment standards may be disposed. However, if the waste is disposed of in a surface impoundment or landfill, they may go to such units only if they meet the minimum technological requirements. Furthermore, wastes granted this variance must be in compliance with the California list prohibitions if they are applicable. After the effective date, the only other option is to obtain a treatability variance. This option is clearly not practical for one set of PPG and probably the variance is not warranted given the fact that the treatment standards are achievable——albeit at a R.c i.d Paper ------- higher cost. My staff will contact OERR to see if they want to pursue ny generic solutions such as identifying a vendor of PPG that has low levels of hazardous constituents or whether a generic treatability variance for PPG is feasible. If I can be of further assistance, please don’t hesitate to contact me. ATTAC} (ENT cc: Waste Management Division Directors, Regions I—X Russ Wyer Dave Fagan Paul Nadeau Rod Turpin ------- 9441.1990(16) 4 (O Si. ., UNITED STATES ENViRONMENTAL. PROTECTION AGENCY ____ - WASHINGTON. D.C. 20480 ‘ ‘4 .u.D1l . ii4 191990 OFFICE OF SOI’O WASTE £PdO E SERGENC v RESPONSE Mr. Kenneth T. Bowman Assistant Counsel Commonwealth of Pennsylvania Department of Environmental Resources 1303 Highland Building 121 5. Highland Avenue Pittsburgh. Pennsylvania 15206-3988 Dear Mr. Bowman: I am writing in regard to your 7une 5, 1990 letter which requests an interpretation of the exclusion for lime stabilized waste pickle liquor derived from the iron and steel industry at 40 CFR 261.3 (c)(2)(ii)(A) (referred to hereafter as the 1(062 exemption). As we discussed in our May 31, 1990 telephone conversation, the 1(062 exemption only applies to 1(062 waste generated by the iron and steel industry, and not to commercial hazardous waste treatment facilities. This interpretation was made clear in the Kay 28, 1986 final rule (see 53. 19320). Any lime stabilized 1(062 sludge which continues to exhibit a characteristic fails to meet the 40 CFR 261.3(c)(2)(ii)(A) requirement for exemption. Therefore, stabilized 1(062 wastes that continue to exhibit a characteristic remain hazardous, and must continue to be handled as the listed 1(062 hazardous wastes. In your letter, you also request information on the November 1986 final exclusions granted to two commercial hazardous waste treatment companies, Tricil Environmental and the Envirite Corporation. Both companies were granted exclusions for residues generated from the treatment of 1(062 wastes. e 1(062 exemption d not apply to these sitt ati9ns_because_Tricil and nE are commerciarha i eit!eflt acil ities, o iro ànd st l mr rz erp ithtion is an the Ma 8, 1986 ti al rule. We currently have four petitions under review which are pecifical1y requesting the exclusion of non-lime stabilized 1(062 ijastes; none of these facilities is a commercial hazardous waste :reathent facility. We are also reviewing a draft sampling and malysis plan for an electroplating facility which generates .eachate from closed surface impoundments containing 1(062 wastes. :n addition, we proposed decisions for non lime—stabilized 1(062 laste petitions for Perox, Inc., and Bethlehem Steel Corporation, R .cyclcd Papcr ------- on January 12, 1989 (54 1189) and July 31, 1989 (54 31548), respectively. Finally, we recently received a petition from Mill Service, Pittsburgh, PA, requesting the exclusion of filter cake generated from the treatment of hazardous waste leachate. The waste codes given for the listed waste did not include K062. In the petition, however, Mill Service noted that the facility currently accepts untreated K062 wastes, and performs lime stabilization of the K062 waste on—site. The lime-stabilized 1C062 waste is then managed as a non-hazardous waste, per Mill Service’s interpretation of the 1 (062 exemption at 40 CFR 261.3 (c)(2)(ii)(A). Based on our understanding of the 1(062 exemption, it is unclear to us how Mill Service qualifies. If you wish to pursue the Agency’s interpretation of the 1(062 exemption, please contact Mr. John Austin at (202) 382-4787. Should you have any questions or require any additional information regarding delisting, please do not hesitate to contact me at (202) 475—9828. Sincerely, 1 e. c- Linda R. Cessar Variances Section cc: Robert Kayser, EPA HQ Lee Tyner, EPA HQ Ed Abrams, EPA HQ John Austin, EPA HQ David Friedman, EPA Region III ------- 9441.1990 ( 17) •.eO Sr.. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. C C 20460 •L Q 0 1V UN 29 l9 .•.. .S E f E’.C RES ’.SE Mr. John W. Sutton Sterlington Plant f i IMC Fertilizer, Inc. /4 Box 626 Sterlington, LA 71280—0626 Dear Mr. Sutton: I am writing in response to your recent letter to David Friedman requesting clarification of when and how to agitate samples being evaluated for corrosivity using Method 1110. As section 7.3 indicates, the purpose of agitation is to ensure that the steel coupon is exposed to all the components of the waste mixture. While it is probably critical that non- homogeneous liquids be agitated by mechanical means during the coupon exposure period, as the MACE Standard TM-Ol-69 indicates, for homogeneous liquids of low viscosity, thermal currents may be sufficient to maintain solution homogeneity. We have not conducted any studies to determine, in a quantitative manner, exactly when, and to what extent, agitation is needed to ensure homogeneity during the exposure period. The only guidance that I can offer is to use your professional judgement and use the mildest agitation that is consistent with the requirement of maintaining contact between the steel coupon and all components of the waste mixture. I hope that the above discussion is helpful to you. If you have any quantitative data relating agitation rate to waste corrosivity, I would urge you to send it to us so that we may consider possible future revisions to Method 1110. If I may be of further assistance, I can be reached at (202) 475—6722. Sincerely yours, Gail Hansen Program Manager, Miscellaneous Methods Methods Section (OS—331) cc: Hotline R.c cLid ------- RCRA/SUPERFUND HOTLINE SUMMARY JUNE 1990 9441.1990(18) I. SIGNIFICANT OUESTIONS AND RESOLVED ISSUES—IUNE 1990 RCRA 1. The Definition of F001-F005 Wastewater The RCRA Land Disposal Restrictions treatment standards for spent solvents listed in 40 CFR Section 261.31 are different for wastewaters and nonwastewaters. What is an F001-F005 wastewater? Is it the same as a “solvent-water mixture” or an “aqueous solvent waste?” The preamble to the “First Third” final rule (53 EE 31145; August 17, 1988) references 51 40579 (November 7, 1986) regarding the definition of a “solvent-water mixture.” The citation is, however, incorrect. On page 40579 of the November 7, 1986 Federal Register . EPA discusses “solvent-water mixtures” for purposes of the expired national capacity variance at 40 CFR Section 268.30(a)(3) but does not define the term. The discussion also does not mention total organic carbon. For the purposes of the Land Disposal Restrictions, the terms “solvent-water mixture,” “FOOl -F005 wastewater” and “aqueous solvent waste” are equivalent. (51 EB 1 40613: November 7, 1986) The terms refer to any FOOl, F002, F003, F004 and/or F005 waste which is “primarily water and contains either (1) less than 1.0 percent total organic carbon or (2) less than 1.0 percent total solvents.” (51 ER 40613; November 7, 1986; also 40 CFR Section 268.2(a)(6)) Source: Steve Silverman, OGC (202) 382-7706 Research: Monica Genadio ------- RCRA/SUPERFUND HOTLINE SUMMARY 9441.1990(19) JUNE 1990 2. Dyes used in Ink Formulation (K086 ) An ink formulation company in New Jersey claims it only uses dyes and emulsifiers in its production of ink. The dye contains small amounts of lead and chromium. The ink company claims it uses no pigments, driers, soaps or stabilizers in its ink formulation. The listing of K086 specifically states that the waste is generated from “. . . pigments, driers, soaps, and stabilizers containing chromium and lead.” For this reason the generator (ink company) feels it is not generating a K086 listed waste. Is the generator correct in its assumption? No. There is no clear distinction between “dyes” and “pigments,” therefore the Agency feels that the term “pigment” used in the listing is synonymous with the term “dye.” In the background document for K086, it is stated that the basis for listing K086 is because of the “raw materials [ used in the ink formulation) containing lead and hexavalent chromium are listed as hazardous because they typically contain significant concentrations of lead and (presumably hexavalent) chromium.” Furthermore, in the background document it mentions that four types of raw materials are used in the ink manufacture: (1) pigments and dyes, flushes and dispersions; (2) chemical specialties (including driers, plasticizers, soaps and stabilizers); (3) resins; and (4) solvents. A waste generated from an ink manufacturer using any of these raw materials, containing lead or chromium, meets the K086 listing. The generator may petition to have its waste delisted if it feels the waste contains “insignificant” amounts of chromium and lead. Source: Ambika Bathija, OSW (202) 382-7438 Research: David W. Hacker ------- 9441.1990(20) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 JUL 3 ‘990 OFPICEOF SOLtO WASTE AND EMERGENCY RESPONSE Paul C. Burkholder President, Bowyer Properties 400 South Washington Street Winchester, Virginia 22601 Dear Mr. Durkholder: This is in response to your letter (undated) that I received June 16, 1990, regarding the regulatory status of creosote treated cross ties going for disposal and the applicable requirements and standards for facilities disposing these materials. First, I must clarify that the information provided in this letter pertains to the regulatory status of creosote treated cross ties under Subtitle C of the Resource Conservation and Recovery Act (RcRA). In your letter, however, you use the term “hazardous materials.” This is a specific term utilized by the United States Department of Transportation (DOT), vhereas, the Environmental Protection Agency (EPA) utilizes the term “hazardous waste” when defining a material’s regulatory status under the Subtitle C program. Under Subtitle C of RcRA, material that is disposed or intended for disposal is defined as solid waste pursuant to 40 CFR 261.2. Once a material is identified as a solid waste, this waste can be a hazardous waste if it meets a listing of hazardous waste in Subpart D of 40 CPR Part 261, or if it exhibits a characteristic of hazardous waste identified in Subpart C of 40 CFR Part 261. The EPA has issued final regulations listing unused commercial chemical product creosote, when discarded or intended to be discarded, and two manufacturing process wastes (bottom sediment sludge from the treatment of vastewaters from the wood preserving processes that use creosote and/or pentachiorophenol (1(001), and wastewater treatment sludges generated in the production of creosote (1(035)) as hazardous waste in Subpart D of 40 CFR Part 261. Additionally, in the December 30, 1988 Register (53 53282), the EPA proposed to amend its regulations by listing as hazardous, several additional wastes from wood preserving operations that use chiorophenolic, creosote, and/or inorganic (arsenical and chromium) preservatives. ?PL .do Ru c .d Papsr ------- Finally, please note that State and local regulatory agencies may have regulations that are more stringent than those at the Federal level. Should you have further questions regarding the regulatory status of creosote treated cross ties at a specific site, I encourage you to contact the appropriate Regional office or State regulatory agency to determine what, if any, additional regulations apply. Sincerely, David Bussard, Director characterization and Assessment Division 3 ------- ••tL TV ?LP- S f7 4 7 ç jr 11( UNITED STATES ENVIRONMENTAL PR’ _____ WASHINGTON. D.C. 2( 9441.1990(21) S 4 ‘ t . 0 it OL iE’. : Honorable Richard G. Lugar United States Senate / Washington, DC 20510 “ I9q Dear Senator Lugar: Thank you for your letter of March 15, 1990 in which you request information concerning Resource Conservation and Recovery Act (RCRA) regulations that may be applicable to electric utility poles. As I understand your constituent’s concerns, the local utility is no longer providing these used poles to area residents and you are inquiring as to why this may be. Subtitle C of RCRA requires that generators of solid waste must determine if the waste generated is hazardous. Once electric utility poles have served their original purpose and are removed, they would meet the RCRA definition of a solid waste. A solid waste can be defined as a hazardous waste if it is listed as a hazardous waste in Subpart D of 40 CFR, Part 261, or if it exhibits a characteristic of hazardous waste identified in Subpart C of 40 CFR, Part 261. These used utility poles would not currently be classified as a hazardous waste via a listing. Of the four characteristics of hazardous waste—-ignitability, corrosivity, reactivity and toxicity——the toxicity characteristic is the only characteristic that may be directly relevant to these poles. This characteristic identifies a number of toxic constituents that may cause a waste to be identified a hazardous. The Environmental Protection Agency (EPA) recently published the Toxicity Characteristic (TC) Rule which adds 25 organic constituents to the list of constituents which generators of solid waste must consider when making hazardous waste determinations. The TC is designed to address the potential for certain hazardous constituents to leach from waste into ground water. Of concern here might be pentachlorophenol, which is used in the treatment of some wood and wood products. If these poles were treated with this chemical, they may fail the Toxicity Characteristic Leaching Procedure (TCLP) levels for this constituent. Whether they fail the characteristic is determined by how much of the chemical may leach from the pbles. The TC regulatory levels are set at 100 times the health-based level, a concentration which is clearly hazardous. It is possible that ------- these poles may fail the Toxicity Characteristic for this constituent, in which case they would have to be managed as hazardous waste once removed from the ground. You should note, however, that the TC rule does not take effect until September 25, 1990. Another reason why these poles may no longer be available to local residents may relate to changes in the State regulations relative to the disposition of the poles once removed from the ground. Your constituent would have to check with the appropriate local officials about State regulations addressing disposition of these poles. Even if used poles are not hazardous wastes, State regulations under Subtitle D of RCRA may preclude the utility from giving these poles to local residents. A final reason why the utility may have decided not to provide the used poles might be potential liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Although used poles may not be hazardous wastes, a court could still hold the utility responsible for their cleanup at some future date should health or environmental problems ensue. In summary, RCRA regulations and the CERCLA statute may apply to used utility poles once they are removed from the ground. The specific reason(s) why the utility is no longer providing these poles can not be determined without more information. I hope this information is helpful. If I can be of further assistance, please feel free to contact me. Sincerely yours, < “ - :./ - Sylv K. Lowrance, Director 6ff ice of Solid Waste ------- 9441.1990(22) t: j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 L Ip0 # ocCiCE of SOLID WASTE APdO EMERGENCY RESPONSE Mr. Gilbert H. Lewis President American Industries, Inc. 2166 Wisconsin Avenue Washington, D.C. 20007 Dear Mr. Lewis: Thank you for your July 26 letter, regarding clarification on whether used oil filters will be classified as hazardous waste as a result of the Toxicity Characteristic (TC) rule published in the Federal Register on March 29, 1990 (55 11798) and on the applicability of the rule to military bases. Under the hazardous waste program, each generator of a solid waste must determine whether his waste is a hazardous waste, using either his knowledge of the process or by running the Toxicity Characteristic Leaching Procedure (TCLP). To date, there is no available data or testing methodology specific for used oil filters relating to the TCLP. However, as the rule states, if the waste extract (from a TCLP-tested used oil filter) contains a hazardous constituent(s) at concentrations equal to or above the regulatory level(s), the waste (used oil filter) is considered a hazardous waste and subject to all applicable subtitle C requirements. If the oil is drained from the filter, it is less likely to be hazardous waste. Additionally, you should note that a hazardous waste generator is a “conditionally exempt small quantity generator” if he generates no more than 100 kilograms of hazardous waste in a calendar month (see 40 CFR 261.5). Under this exemption, the generator can generate up to 220 lbs/month of hazardous waste and not accumulate at any time more than a total of 2200 lbs. (1000 kg.) of hazardous waste. As long as these generation and accumulation volumes are not exceeded, the generator is not required to comply with the hazardous waste management regulations. As for the rule’s applicability to military bases, pursuant to RCRA section 6001, “Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government .... engaged in activity resulting in the disposal or management of solid waste or 1.qdad Papir ------- 9441.1990(23) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY pljG2l i o SUBJmCT: RCRA Applicability to Military Munitions TOl James Reidy, P.E., chief Caribbean Facilities Section (2AWM-HWF) PROM: Sonya P1. Sasseville, chief Alternative Technology and Support Section (OS-343) Thank you for your memo of July 11, 1990 in which you elaborate upon the previous conversation between Chester Oszman of my staff and Mr. Jean of your staff regarding the point when munitions become hazardous waste and are regulated under the RCRA program. The Naval Ammunition Facility (NAP) at Vieque. Island, Puerto Rico does not, a. you point out, conduct a regulatable activity when storing Runserviceable military munitions (e.g., damaged, outdated or possibly defective munitions) which hay, not been designated for demilitarization. EPA supports Dept. of Defense’s (DOD) definition of the point at which a munition or ordnance becomes a hazardous waste since that is DOD’s responsibility as a generator. Unserviceable military munitions become hazardous waste normally at the point the transfer record (e.g. DD form 1348-1, DA Form 4508, or equivalent) is signed by th. last approval authority acknowledging receipt of the munition or ordnance at a demilitarization facility. This happen. when the U.S. Atlantic Fleet Weapons Training Area receives unserviceable munitions sent by NAP to be demilitarized. In your letter, you mention that NAP stores ignitable, corrosive and reactive (other than serviceable or unserviceable munitions) wastes. These waste streams are waste when there is an intent to discard and are, in that case, fully regulated in the RCRA system. All applicable requirement. of 40 CFR Parts 260—272 apply. ------- — 2 —. I agree with your strategy that interim status for the facility should not be terminated immediately even though the NAP is withdrawing its Part B permit application. Before the facility at NAP can become a less than 90 day accumulator, all units that operated under interim status must be properly closed. If you have any questions or would like to discuss the situation at NAP further, please feel free to call me, or Chester Oszman at 382—4499. cc: Chester Oszman ------- NUCLEAR REGUL4TORY COMMISSION Below Regulatory Concern; Policy Statement AGENCY: Nuclear Regulatory Commission. ACTION: Policy statement. SUMMARY: This policy statement establishes the frame- wOrk within which the Commec k,n wiliformulate rules or make Licensing decisions to exempt from some or all regu- latory controls certain pra involving small quantities of radioactive material. Opportunity for public comment will be provided with each ul m ng and each lic n ing action where generic exemption provisions have not al- ready been established. The exemptions may involve the release of licensee-controlled radioactive material either to the generally soceisible environment orb persons who would be exempt from Committion regulations. Practices for which exemptions may be granted include, but are not limited to, (1) the release for unrestricted public use of lan’ 4 and structures containing residual radioactMty (2) the distribution of consumer products containing nail amounts of radioactive material; (3) the disposal of very low-level radioactive waste at other than licensed disposal sites; and (4) the recycling of slightly contaminated equip- ment and materials. As described in this policy statement, NRC intends to continue exempting specific from regulatory control if the application or continuation of regulatory controls is not necessary to protect the pub- lic health and safety and the environment, and is not cost effective in further reducing risk. The policy statement defines the dose criteria and other considerations that will be used by NRC in making exemption decisions. The policy establishes individual dose criteria (1 and 10 mrem per Year [ 0.01 and 0.1 milIt ievert per yearj) and acollec. tire dose criterion (1000 person-rem per year (10 pezaun- sievert per yearJ). These criteria, coupled with other con- siderations enumerated in the policy statement, will be major factors in the Commission’s determination on whether exemptions from regulatory controls will be granted. The policy statement establishes a consistent risk frame- work for regulatory exemption decisions, ensures an ade- quate and consistent level of protection of the public in their use of radioactive aerials, and focuses the Na- tion’s resources on redu ng the most cigiiif nt radio. Logical risks from practices under NRC’s jurisdiction. The average U.S. citizen should benefit from implementation of the BRC policy through (1) enhanced ability of NRC, Agreement States, and licensees to focus resources on more significant risks posed by nuclear materials; (2) timely and consistent decisions on the need for cleanup of contaminated sites; (3) increased assurance that funds available to decommission operating nuclear facilities will be adequate; (4) reduced costs and overall risks to the public from managing certain types of slightly radioactive waste in am nner commensurate with their low radiologi- cal risk and (5) increased assurance of a consistent Level of safety for consumer products containing radioactive material under the Commi inn’s juricdictiion_ UTECI1VE DATEI July 3, 1990 ADDRESSES: Documents referenced in this policy state- ment are available for inspection in the NRC Public Document Room, 2120 L Street, N. W. (Lower Level), Washington, DC FOR FURTHER INFORMAtiON CONTACT: The appropriate NRC Regional Offlce Region I - Dr. Malcom Knapp, King of Prussia, Pennsylvania; telephone (215) 337—5000 Region U - Mr. I. Philip Stohr, Atlanta, Georgia; telephone (404) 331-4503 Region UI - Mr. Charles E. Norelius, Glen Ellyn, illinois; telephone (708) 790-5500 Region IV - Mr. Arthur B. Beach, Arlington, Tems; telephone (817) 860-8100 Region V - Mr. Ross A. Scarano, Walnut Creek, California; telephone (415) 943-3700 Federal and State Government Officials may con1ac Mr. Frederick Combs, U.S. Nuclear Regulatory Commis- sion, W hington, DC 20555, Office of Governmental and Public Affairs, telephone (301) 492-0325. Questions may also be directed to the following individuals at the U.S. Nuclear Regulatory Comn nn, Washington, DC 20555. Dr. Donald A. Cool, Office of Nuclear Regulatory Research; telephone (301) 492-3785 Mr. John W. N. Hickey, Office of Nuclear Material Safety and Safeguarvis; telephone (301) 492—3332 Mr. L I. Cunningham, Office of Nuclear Reactor Regulazion telephone (301) 492—1086 SUPPLEMENTARY INFORMATION: Statement of Policy L Introduction. Ioniz ing radiation is a fact of life. From the day we are born until the day we die, our bodies arc exposed to I ------- BRC Policy Statement cenang , inspection, and enfozcment programs. For es- ample, the Commission may duulgate regulations that would require some type of labeling so that consumers could make informed de sioas about purchasing a prod. oct containing aempted materials. Such labeling ii pres- ently required by the Con ”i ’on for smoke detectors con, ining radioactive material (see 10 CFR 32.26). The NRC ensures that manufacturers label the detectors in compliance with the labeling requirement through lw t ns- lug reviews and inspections. Specific source controls and esernpcion conditions are not discussed further in this policy berause they will be more awiutely addressed in developing the eremption requirements for specific eremption proposals- The concept of regulatory aemptions is not new. The Atomic Energy Act of 1954, as amended, authorizes the Commission to esempt certain dasses quantities, or uses of radioactive material when it finds that such es- emptions will not constitute an unreasonable risk to com- mon defense and security and to the health and safety of the public. Inthe l96Osandl97Os,theAtomicEnergy Commission used this authority to promulgate tables of eacuipt quantities and concentrations for radioactive ma- terial. These eremptions allow a person or a licensee , under certain circumstances, to receive, possess, use, transfer, own, or aequire radioactive material without a requirement for a license (30 FR 8185; Tune 26, 1965 and 35 FR 6425; April 22, 1970). The Commi vion currently allows distribution of consumer products or devices to the general public and allows releases of radioactive material to the environment consistent with established regula- tions. For mainpie, regulations currently specify the con- ditions under which licensees are allowed to dispose of “ “ quantities of radioactive material into sanitary sewer systems (see 10 CFR 20.303). These misting regu- lations specify requirements, conditions, and constraints that a licensee must meet if radioactive material is to be “transferred” from a regulated to an empt or unregu- lated status. More recently Section 10•of the Low-Level Radio- active Waste Policy Amendments Act (LLRWPAA) of 1985 directed the Commission to develop standards and procedures and act upon petitions “to exrmpt specific radioactive waste streams from regulation ... due to the presence of radionudid . in sufficiently low concentra- tions or quantities as to be below regulatory concern.” The Coiim t u,n responded to this legislation by issuing a policy statement on August29, 1986 (51 FR 30839). That policy statement contained criteria that, if ptcf cto 1y addressed in a petition for rulemkkmg , would allow the Comnit nn to act ecpeditiouslyin proposing appLopriate relief in its regulations on a “practice-specif IC” basis con- sistent with the merits of the petition. Federal and State agencies have also developed and implemented çirnil2r exemptions based on evaluations of their risks to the public and the environment. The Food and Drug Administration (FDA), for ewnple, has ap- plied s I sitivity.of.method, risk-bas’d guidelines in con- nection with the regulation of “i” ’ drugs, food con- ‘ ““ “nts , and trace constituents in some food additives. Similarly, the Environmental Protection Agency (EPA) established exF-mption or threshold levels based on indi- vidual risks in the regulation of pesticides and other toric and esrcinogenic ch rn 1 For example, EPA employs such a concept in defining h rdous waste through the new Tnr dty Characteristic rule in 40 CFR Part 261 (55 FR 11798; March 29, 1990]. The Comiith mn believes that the Below Regula- tory Concern policy is needed to establish a consistent, risk-based framework for n 2fring exemption deasions. Specificelly, this framcwort is needed to (1) focus the resources of NRC, Agreement States, and licensees on addressing more significent risks posed by nuclear materi- als; (2) ensure that beyond the adequate protection threshold potential benefits from additional regulation outweigh the associated burdens; (3) establish residual ra’loactivity criteria and requirements for decommisaion- ing and cleanup of radioactive contamination at licensed and formerly-licensed facilities; (4) ensure that licensee decommissioning funding plans provide adequate funds to cover the costs of cleanup of these facilities to protect people and the environment; (5) ensure that the public is consistently protected against undue risk from consumer products that contain radioactive materials under the Commi ’on’s jurisdiction; (6) provide decision criteria for reviewing petitions to exempt very low-level radioac- tive wastes in a rdance with the Low-Level Radioactive Waste Policy Amendments Act of 1985; and (7) ensure that misting exemptions involving radioactive materials are consistent and adequate to protect the public. The Commission’s BRC policy establishes an er- plicit and uniform risk framework for making regulatory exemption decisions. This policy will also be used by the Comii k n as a basis for reevaluating misting NRC ex- eruptions to ensure that they are consistent with the crite- ria defined herein. In lieu of such a policy, the Commis- sion could continue the current practice of evaluating exemptions on a cese-specific basis - Such an approach, however, does not ensure consistent evaluation and con- trol of risks associated with exempted practices - For this reason and the reasons discussed Øove, the Commission has established the BRC Policy Statement. This policy supersedes the Atomic Energy Commission’s policy statement on this subject (30 FR 3462; March 16,1965]. The Commission recognizes that Agreement States will play an important role in the implementation of the Below Regulatory Concern policy, specificelly in the ar- eas of developing and enforcing compatible State regula- tions , regulating cleanup and decommissioning of certain types of cont mm ted nuclear facilities, and exempting ------- BRC Policy Sta” ' t processes . Underground ore bodies depleted by these solu’ on w”ctio ” operations do not constitute ‘bypruduct material” within this “Collective dose” Is the sum of the individual doses (total effective dose equivalents) received in a given pe- riod of time by a specified population from exposure to a specified sou of radiation (or practice involving the use of radioactive material). Note: The calculated collective dose used to determine compliance with the aiterion of this policy need not include individual dose contributions received at a rate of less than 0.1 micra per year (0.001 mSv/year). “Committed effective dose equivalent” s the sum of the products of weighting factors applicable to each of the body organs or tissues that are irradiated and the commit- ted dose equivalent to those organs or tissues. “Deep dose equivalent” is the dose equivalent at a tissue depth of 1 em. “Dose” or “radiation dose” in this policy is the total effective dose equivalent. “Exemption from regulatory control” refers to a de- aswn process that may allow radioactive material to be tranderred from a regulated status to an unregulated status, in which the material will no longer be subject to NRC requirements. Decisions to grant exemptions will be based upon findings by reason of quantity or concentra- tion that the radioactive material poses a n ni1 risk to public health and safety and the environment and that the n2U magnitude of the risk does not warrant expenditure of additional resources of regulatory agenees and the regulated community in attempting to further reduce the “Exposure” means being exposed to ionissng radia- tion or to radioactive material. “ Iic’n ed materb. ” means source material, special nuclear material, or byproduct material that is received, possessed used , traneferred, or disposed of under a gen- cmi or specifle licen”e ed by the Commission or an Agreement State. “ Licensee ” means the holder of an NRC or Agree- ment State’ ’- “Linear, no-threshold hypothesis’ refers to the the- ory that there is a proportional relationship between a given dose of radiation and the statistical probability of the owirreace of a health effect (such as latent canc s and genetic effects), and that there it no dose level below which there is no risk from exposure to radiation. “Natural background dose” means the dose received from naturally oceurnng connie and terrestrial radiation and radioactive material but not from source, byproduct, or special nuclear material. “Practice” Is a defined activity or a set or combina- tion of a number of milAr coordinated and continuing activities aimed at a given purpose that involves the po- tential for radiation exposure. Disposal of specified types of very low-level radioactive waste; the release for unre- stricted public use of l n k and structures with residual levels of radioactMty the distribution, use, and disposal of specific consumer products containing “‘n ””amounts of radioactive material; and the recycle and reuse of spe- c types of residually contaminated materials and equipment are r mples of practices for which this policy will have potential applicability. (See Section III for fur- ther discumion of prarti e). “Rem” is the special unit of dose equivalent (1 rem — 0.01 sievert). “Risk,” for purposes of this policy, means the annual or lifetime probability of the development of fatal cancer from exposure to ionizing radiation and is taken as the product of the dose received by an exposed individual and a conversion factor based upon the linear, no-threshold hypothesis. The conversion factor for dose to risk is taken to be 5z 10 fatal cancers per rem of radiation dose. The fatal cancer risk is considered, in general. to be more likely than other radiation induced health effects and to be the most severe outcome to an individual. While the Con”‘”’on recognizes that the risks from exposure to radiation arc greater for children than adults and that there are ma eascd risks from exposure to the ernbryo/ fetus, the estimate of fatal cancer risk for all ages and both sexes is considered to be an appropriate measure of risk from practices being considered for exemption in a r- dance with this policy statement (see Appendix). “Source material” means — (1) Uranium or thorium, or any combination of uranium and thorium in any physical or chemi- cal form; or (2) Ores which contain, by weight, one-twentieth of one per nt (0.05 percent), or more, of ura- nium, thorium, or any combination of uranium and thorium. Source material does not include special nuclear material. “Special nuclear material” means — (1) Plutonium, uranium-233, uranium enriched in the isotope 233 or in the isotope 235,and a ny other material which the Cormiu on. pursu- ant to the provisions of Section 51 of the Act, S ------- BRC Policy Statement quiremenis for further dose reductions or licensee re- sources to comply with such requirements is no Longer warranted- These specific criteria include (1) values for the individual annual dose reasonably expected to be received as a result of the practice (e.g., an average dose to individuals in a critical group) and (2) a measure of radiological impact to the exposed population. In combi- nation, these criteria ale chosen to ensure that, for the average dose to members of the critical population group from a given exempted practice, individuals will not be exposed to a significant radiological risk and that the population as a whole does not suffer a significant radio- logical impact. It is important to emphasize that, in this policy, the Co,nmic tin does not assert an absence or threshold of risk at low radiation dose levels but rather establishes a baseline level of risk beyond which further government regulation to reduce risks is unwarranted. As desa bed in the Appendia to this policy statement, the technical ra- tionale for the Commission’s RC criteria is explicitly based on the hypothesis that the risk from exposure to radiation is linearly proportional to the dose to an individ- uaL However, the presence of natural background radia- tion and variations in the levels of this background have been used to provide a perspective from which to judge the relative significance of the radiological risks involved in the exemption decision-making orocess. The Com,,thLcinn notes that adoption of the indMd- ual and collective dose criteria does not indicate a deci- sion that doses above the criteria would necessarily pre- clude exemptions. The criteria simply represent a range of risk that the Commission believes is sufficiently cm U compared to other individual and societal risks that fur- ther cost-risk reduction analyses are not required in order to make a decitton regarding the acceptability of an ex- eruption. Practices not meeting these criteria may never- theless be granted exemptions from regulatory control on a case-by-case basis in accordance with the principles embodied within this policy, if (1) the potential doses to individual members of the public arc sufficiently small or unbkefr (2) further reductions in the doses are neither readily achievable nor ‘g tifr nt in terms of protecting the public health and saf pd the environment; and (3) the collective dose from the exempted practice is B. The Individual Dose Criterion. The Commission has noted that, although there is significant uncertainty in calculations of risks from low- level rathalinn. in general these risks are better under- stood than the risks from other hazards such as toxic cheIIIk It Moreover, radiation from natural background poses involuntary risks (primarily cancers), which must be accepted as a fact of life and arc identical to the hinds of risks posed by radiation from nuclear materials under NRC jurisdiction. These facts provide a context in which to compare quantitatively the radiation risks from various practices and make radiation risk especially amenable to the use of the approach described below to define an acceptable BRC level. The Commission believes that if the risk from doses to individuals from a practice under consideration for iemption is comparable to other voluntary and involun- tary risks which arc commonly accepted by thO same indMduals without significant efforts to reduce them, then the level of protection from that practice should be adequate. Furthermore, for risks at or below these levels there would be little merit in expending resources to reduce this risk further. The Commission believes the defmith n of a BRC dose level can be developed from this -e. Variations in natural background radiation appar- ently play no role in individuals’ decisions on common matters such as places to live or work (e.g., the 60-70 rurem differences between average annual doses received in Denver, Colorado versus Washington, DC). In addi- tion, individuals generally do not seem to be concerned about the difference in doses between living in a brick versus a frame house, the 5 mrem dose received during a typical roundtrip coast-to-coast flight, or incremental doses from other activities that fall weLl within common variations itt natural background radiation. These factors lead to the conclusion that differential risks correspond- ing to doses on the order of 5-10 rurem (0.05-0.1 mSv) are well within the range of doses that are commonly ac- cepted by members of the public, and that this is an appropriate order, of magnitude for the Commission’s BRC individual dose criterion. Although the uncertainties in risk estimates at such low doses are large, the risk to an indMdual as calculated using the linear, no-threshold hypothesis is shown in Table 1 for various defined levels of annual individual dose. The values in the hypothetical lifetime risk column are based on the further assumption that the annual dose is continuously received during each year of a 70-year lifetime. To provide further perspective, a radiation dose of 10 mrem per year (0.1 rnSv peryear) received continu- ously over a lifetime corresponds to a risk of about 4 chances in 10,000 (3.Sz 101 ora hypothetical increase of about 0.25% in an individual’s lifetime risk of fatal cancer. The Commission prefers to use factors of ten to describe such low individual doses because of the large uncertain- ties associated with the dose estimates. The Appendis to the policy statement provides a more complete discu on of the risks and uncertainties associated with low doses and dose rates. ------- BRC Policy Stat ’n t should ude of those individuals whose annual effective dose equivalent is 1cm than or equal to I rarem peryear (0.01 mSv per year) In the sensitMty.of. mca e, risk-bsi d guidelines used by EPA and FDA, a 10’ lifetime risk of nc rhaabeen used as a quantitative aiterion of ifr nce Using an annual risk coeffi- aent of 5x 10’ health effects per rem (Sx 10.1 p sievert), as di iitssed in the Appeudin, the 10’ lifetime risk value would apprtmmate the calculated risk that an individual would incur from a continuous lifetime dose rate in the range of 0.01 to 0.1 rarem (0.0001 to 0.001 mSv) per year. As a practical matter, con eration of dose rates in the mierorem per year range and large numbers of bypo. thetical individuals potentially esposed to an esempted practice may unduly complicate the dose calculations that will be used to support demonstrations that proposed eremptions comport with the aiteria in this policy. The Commission believes that inclusion of individual doses below 0.1 rarem per year (0.001 mSv per year) introduces unneccawy cemplaity into collective dose asses nents and could impure an unrealistic sense of the significance and certainly of such dose levels. For all of these reasons, the Co” i’ ion concludes that 0.1 mrem (0.001 mSv) per year is an appLupllate truncation value to be applied in the asse ent of collective doses for the purposes of this policy. N.. Implementation. The Comm nn’s BRC policy will be implemented principally through rulemafrings however, exemption deasions could also be implemented through specific Ii- c iic ng actions. lug that the assumptions used to aerme ajp emarn a 1 wpnate as the radioactive materiallinOve from a regulated to an unregulated status. Any such ruIe ’n 4ng br ,n would follow the Mministiative Procedure Act, which requires publication of a proposed rule in order to SMith public comment on the nile ’n king action under consideration. The rulem fring action would include an app priate Level of environmental review in a rdance with the Commission’s regulations in 10 CFR Par c 51, which implement the National Environmental Policy Act. If a oposal for nption results in a Commission regulation containing specific requirements for a particu- lar mmption, a licensee using the exemption would no longer be required to apply.the ALARA principle to reduce doses further for the exempted practice provided that it meets the conditions specified in the regulation. The 1 romulption of the regulation would, under these circumstances, constitute a finding that the practice is exe’npted in a rdance with the provisions of the regula- tion and that ALARA considerations have been ade- quately addressed from a regulatory standpoint. The Commission in no way wishes to discourage the voluntary application of adilitw nal health physia practices which may, in fact, reduce actual doses signi ntly below the BRC criteria or the development of new technologies to enhance protection to the public and the environment. This is particularly pertinent in the area of decont min . tion and decommissioning, where the Con ni veon antici- pates that emerging technologies aver the nest several decades should enhAnce aisting tcchni l capabilities and further reduce doses to workers and the public and where other Federal agencies are in the process of developing standards which may affect those receiving In the first case, a proposal for ic Tiption, whether initiated by the NRC or requested by outside parties in a petition for rulc nn ng, must provide a basis upon which the Con niit ion can determine if the basic policy criteria have been saddled. The Commission inte’ ds to initiate a number of rulelnAkmnpon its own (e.g., to establish a dose criterion for decommissioning) and may initiate others as a result of NRC’s review of rusting codified exemptions (e.g., consumer product exemptions in 10 CFR Parts 30 and 40). Rulemakings may be initiated in response to petitions for rulefilAfring submitted by outside parties, such as a BRC waste petition submitted in a rdance with Section 10 of the Low-Level Radioactive Waste P01- icy Am.ndmenl Act 011983. In general, ru1e ” ng . eruption proposals should assess the potential health and safety impacts that could result if the v.mption were to be granted. The proposal should conker the uses of the radio active materials, the pathways of exposure, the levels of zadioaccivity and the methods and constraints for ensur- The second means of policy implementation could involve exemptions that would be granted through licens- ing actions, such as determinations that a specific site has been sufficiently decontaminated to be released for unre- stricted public use. The NRC intends to develop gnL e regarding the implementation of the BRC criteria to en- sure that such site-specific actions adhere to the criteria and principles of this policy statement. New licensing actions that trander radioactive material to an unregu- lated status will be noticed in the Federal Register if they differ from previous generic exemption de ions. One of the principal benefits of the policy is that it provides a framework to evaluate and ensure the consis- tency of past e’nption decisions by the Commt 1 With the adoption of this BRC policy, the NRC will initiate a systematic assessment of exemptions currently ____in NRC’. regulations to ensure that the public is adequately and consistently protected from the risks asso- ciated with exempted practices. In addition, the NRC will, on a periodic ba , review the exemptions granted under ------- BRC Policy information may be useful in characterizing a practice on a national ba- I As low as is reasonably aehiewable (ALAR4). An analysis should be provided that demonstrates that radia- tion exposure and radionuclide releases associated with the exempted practice overall will be AL.ARA consistent with the criteria in this policy. The AL.ARA prin p1e referred to in 10 CFR Part 20 applies to efforts by licen- sees to maintain radiation exposures and releases of ra- dioactive materials to unrestricted areas as low as is rea- sonably achievable. Appendix I to 10 CFR Part 50 de- scribes ALARA for radioactive material releases from light water reactors (nuclear power plants). Exemption proposals should describe how ALARA considerations have been applied in the dexign , development, and imp- lementation of controls for the proposed practice. Licen- see compliance with the ALARA principle must remain in effect up to and including the point at which the inateri- ala are transferred to an unregulated status in accordance with an exemption granted under this policy. 0. Impact Analyses. To support and justify a request for exemption, each petitioner or licensee should assess the radiological and nonradiological impacts of the proposed exemption. The analyses should be based on the characterizations de- scribed previously and should cover all aspects of the proposed exempt practice, including possession, use, transfer, ownership, and disposal of the material. NRC consideration of the exemption proposal and any environ- mental asse ents and regulatory analyses required to implement the exemption will be based on the impact analyses and supporting characterizations. 1. Radiological impach. The evaluation of radiologi- cal impacts should clearly address the policy’s individual and collective dose criteria or provide a sufficient ALARA evaluation supporting the uI!mption. In either case, the following impacts should be assessed: - Average doses to the critical population group; - Collective doses to the critical population group and the total exposed population ( nnd r conditions defined in Section III and — The potential for and magnitude of doses asso- ciated with accidents, misuses, and recon- cenuarion of radionuclides. The collective doses should be estimated and summed in two parts total dose to the critical population group and total dose to the exposed population. The critical group is the relatively homogeneous group of indi- viduals whose exposures are likely to be the greatest and for whom the assessment of doses is likely to be the most a ira1e. Average doses to this group are the controlling factors limiting individual doses and risk, and should be compared with the individual dose criteria, as a ,up- ate. The critical group should be the segment of the population most highly exposed to radiation or radicee- tive materials associated with the use of radioactive mate- rial under unregulated conditions. The second part of the population exposure is the general population exposure, exclusive of critical group exposure. For this group, the indMdual exposures should be smaller and the assess- ment will often be less precise. The impacts analysis should present an estimate of the disthbution of dote , within the general population. In situations where trunca- tion of the collective dose Iculation is done under the provisions of this policy, the basis for applying the trunca- tion provision should be provided. The evaluation of radiological impacts should distin- guish between expected and potential exposures and events. The analysis of potential exposures in accident or misuse scenarios should include all of the assumpt o is, data, and results used in the analysis in order to f eilitAtc review. The evaluation should provide sufficient informa- tion to allow a reviewer to independently confirm the results. The potential for reasonable interactions be- tween the exempted radioactive material and the public should be assessed. 2.0th., impacts. The analysis of other radiological impacts such as those from transportation, hAndling, processing, and disposal of exempted materials should be evaluated. Nonradiological impacts on humans and the environment should also be evaluated in accordance with NRC requirements in 10 CFR Part 51. The analysis should also coithder any adverse impact of the measures taken to provide nonradiological protection on radiation exposure and releases of radioactive material. Any NRC action to exempt a practice from further regulatory con- trol would not relieve persons using, handling, process- ing, owning, or disposing of the radioactive material from other requirements applicable to the nonradiological properties of the material. E. Cost-Benefit Considerations (as required). A cost/benefit analysis is an essential part of both environmental and regulatory impact considerations. The analysis should focus on expected exposures and realistic concentrations or quantities of radionuclides. The cost! benefit analysis should compare the exposures and eco- nomic costs associated with the regulated practice and alternatives not subject to regulation. Benefits and costs should be considered in both quantitative and qualitative terms. Costs of surveys and compliance verification dis- cussed under Item V.0. should also be covered. Any legal or regulatory constraints that might affect an exemption decision should be identified. For emmple, one such con- straint might stem from Department of Transportation ------- BRC Policy Statement APPENDIX-DOSE AND HEALTH EFFECTS ESTIMATION L Dose Estimation In estimating the dose rates to members of the pub- lic that might anse through various practices for which esemptions are being considered, the Commission has decided to apply the concept of the “total effective dose equivalent.” This concept, which is baded on a comparison of the delayed health effects of ionirmg radiation expo- sures, permits the calculation of the whole body dose equivalent of partial body and organ exposures through use of weighting factors. The concept was proposed by the International Commission on Radiological Protection (ICRP) in its Publication 26 issued in 1977. Since that time, the concept has been reviewed, evaluated, and adopted by radiation protection orgam i’ntions throughout the world and has gained wide aceeplance. The “total effective dose equivalent” concept is incorporated in “Ra- diation Protection Guidance to Federal Agencies for Oc- cupational Exposure-Recommendations Approved by the President,” that was signed by the President and pub- lished in the Federal Register on January 27,1987(52 FR 2222). The Commission recognizes that, in considering specific exemption proposals, the total effective dose equivalent must be taken into a unt. II. Estimating Health Effects From Radiation Exposure A. Individual Risks. In the establichment of its radiation protection poli- cies, the Commission has considered the three major types of stochastic (i.e., random) health effects that can be caused by relatively low doses of radiation: cancer, genetic effects, and developmental anomalies in fetuses. The NRC principally focuses on the risk of fatal nc r devel- opment because (1) the mortality risk represents a more severe outcome than the nonfatal iicer risk, and (2) the mortality risk is thought to be higher than the risk associ- ated with genetic effects and developmental effects on fetuses. 5 However even though radiation has been shown to be carcinogenic, the development of a risk factor appli- cable to continuing radiation exposures at levels equal to natural background 3 requires a ergnifia nt extrapolation Further do of thare ii ci i poutided in lourom. and Rike of Icumani RadlaXs . United Natiour Scienta5c Committee on the Effecte of Atomic Radiation (UNS AR), 1988 Report to the General Anembly with $ Natural radiation can wit, with time and location. In Wmbingtcn, .C.. natural background ndiation (eacluding in- don) om in individual dmm of about 90 anem per year (0.9 mSv r), while in Denier. Colouado the value i about 160 mama per year (1.6 mSv fl In both mans, naturally oomrnng tile material in the human body ccnthbutes approumately 40 orem per year. Radiation from inhalation of the daughterprod- ucte of radon ountnbutea an awrage additional dose of 200 mama per year(2 mSv yr) to “ “ ef a of the U.S. population (NCRP Report No 93, lonidas Radiation Eaposure of the Population of the United Stata ) . from the observed effects at much higher doses and dose rates.’ This results in significant uncertainty in risk esti. emmple, the Committee on the Biological Effects of Ionizing Radiation (BEIR LU) of the National Academy of Science cautioned that the risk values are “...based on incomplete data and involve a large degree of uncertamnty especially in the tow dose region.” This Committee also stated that it “...docs not know whether dose rates of gunin or x-rays (low LET; low linear ener v transfer radiation) of about 100 mrads/year (1 rnGy/year) are det- rimental to man.” More recently, the BE V Committee of the National Academy of Science/National Research Council stated that it “recognizes that its risk estimates become more uncertain when applied to very Law doses. Departures from a linear model at low doses, however, could either increase or decrease the [ estimation of J risk per unit dose.” The Commission understands that the Committees’ statements reflect the uncertainties in- volvedin estimating the risks of radiation exposure and do not imply either the absence or presence of detrimental effects at such low dose levels. The United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) stated in their 1988 Report to the General Assembly that “...there was a need for a reduction factor to modify the risks (derived at high doses and dose rates ) ..Jor low doses and dose rates.... [ AJn appropriate range (for this factor) to be ap- plied to total risk for low dose and dose rate should be between 2 and 10.” This factor would lead to a risk coeffi- cientvaluebetween7x lO t and3.Sx t0 4 perrad(7x 10 and 3.5 x iO per Gy) based on an LINSCEAR risk coeffi- cient of 7.1 x 10 ’perrad (7.lx lO t pergray)for lOOrad (1 gray) organ absorbed doses at high dose rates. The report also stated, “The product of the risk coefficient appropriate for individual risk and the relevant collective dose will give the expected number of cancer deaths in the exposed population, provided that the collective dose isat least of the order of 100 person.Sv (10,000 person-rem). If the collective dose is only a few person-Sv (a few hun dred person-rem). the most likely outcome is zero deaths.” In December 1989, the BEIR V Committee pub- lished a report entitled “Health Effects of Exposure to Low Levels of Ionizing Radiation,” which contained risk estimates that are, in general, c miInr to the findings of The health . ff . tu dearly amibutable to radiation haw o armmapally ennui early radiation workexe, uulimaa of the atomic bomb ezijiomous at Hir ’ ”’ . and Nag’ frk individuala - iqrtWl for medical purpoura. and laboratmy anamab. Natural background radiation causes an annual dose that eat leant No orderi of magnitude than the dma . . .J human palm. latiora from which the canear cake are deri . axpenmeuw at the orUular level. b . ,.. .. puvnde m1 r indications of biolagi- ml effecte at Ion doom. ------- BRC Policy Statement S Ill. Dose and Risk Estimation The Commission recogniz i that it is frequently not possible to measure risk to individuals or populations directly and, in most situations, it is linpractiod to meas- ure annual doses to individuals at the low levels a&socl- ated with potential ese ption dc sions. 1 ’pieally, radionuclide concentrations or radiation dose rates ean only be measured before the radioactive material is re- leased from regulatory controL Estimates of doses to members of the public from the t)pes of practices that the Co”ni nn would consider aempting from regulatory control must be based on input of these measurements into esposure pathway models, using assumptions related to the ways in which people might become esposed. TheSe assumptions incorporate sufficient conservatism to ac- count for uncertainties so that any actual doses would be espected to be lower than the ealculated doses. The Corn- mict ,ç believes that this isan appropriate approach to be taken when determining if an esempuon from some or all regulatory controls is warranted. The ddftionul views of Commissioner Curtin and Chairman Carrr’s comments are attached. Dated at Rockville, Maryland, this day of 1990. F the Nuclear Regulatory Commission. Seeretaryof e Commie i& n. Tabisi Hypothetloal Incremental Annual D.se l na ment.1 Annual Rlak° Hypothetleal Ufethne Risk From Continuing Annual Dose l0Omrern (1.OmSv) 5ziO 3.5z10 3 10m (0.lmSv) 5z10’ 3izio 1 mrem (0.01 mSv) 5 a 10’ 3.5 a 0.lmrem (0.OOlmSv) 5z10’ 3.5x10 -’ The -. asion of dose refers to the Total Effective Dose Equivalent. This term is the sum of the deep [ whole body) dose equivalent for sources eternal to the body and the committed effective [ whole body) dose equivalent for sour internal to the body. Risk ci, ffi’*nt of S a 10’ per rem (5 a 10 per Sv) for low linear ener ’ transfer radiation has been conserva- tively based on the results reported in UNSCEAR 1988 (Footnote 2) and BEIR V (see also NUREGICR-4214, Rev. 1). ------- BRC Policy Statement the mdivjdual and collective dose criteria can be desig- nated below regulatory concern, it is unclear why the Commission would thert go on ro y that it expeas addi- tional steps to be t fr n to keep exposures AL.ARA. Ma general matter, I do nor object to the ALARA concept. Indeed, I support the notion that collecth,e dose and ALARA analyses should be performed in a manner that is consistent with basic national and international radia- tion protection principles. But in the context of a Policy Statement on Below Regulatory Concern, for the Cam- to my on the one hand that the individual and collective dose criteria reflect levels below which no regu- latory raso should be expended, while at the mine e encouraging voluntary ALARA efforts to achieve lower doses sends a confushig regulatory message. 3 For the sake of regulatory darisy, I would explicitly identify the individual and collective dose criteria as floors to Justification of Practice On the issue of justification of practice, the Policy State- ment is unclear as to when and under what circumstances the justification of practice principle would be applied. At one point, the Policy Statement provides that: The Commission believes that justification decisions involving so l and cultural value judgments should be made by affected ele- ments of society and not the regulatory agency. Consequently, the Commicsion will not consider whether a practice is justified in terms of net societal benefit. A L another point, the Policy Statement indicates that The Commission may determine on the ba- sis of risk esthuates and associated uficer- tainties that certain prilctices should not be considered candidates for en inption, such as the introduction of radioactive materials into products to be consumed or used pri- marily by children. This bifurcated approach to justification of practice. which appears to distinguish pv tth i involving children .— . , ‘1 am iso £ri . 54 that the as ALARA am st In the Policy Statement appmn t&be inutivited. in psrt by a r .w rn thai the Environmental Pmitectioa may at sema future point set more athegern aiteria fur C. p.r enuar mile the sta t that.- ‘ Lrp ” osAliAJ.pSllienladypeItiae@t m the aimi of de m ” ” 1ion aed in$...wbeeotherfgdcznj9Pu.iPsaie in the psu es of dcwl g rin r may a ct those ie- — emmpo In my view . t e ALARA emie should be ap is. d edth the abje th of furmulatina a sound and • than Mth an e e touarè u ang as antanpate wba might establish in the future. from all other practices, will inevitably lead to oonlusaon. Moreover, this approach poses the very real potential that the Commission could, on the one hand, reject a practice involving children (e.g., baby food, pacifiers, and the like) on the ground that the risk posed by such a practice is too high, yet authorize a practice directed at the general public that could, coincidenta l ly, expose an even greater number of thildren, even though the prac- tice itself is not specifically directed at children. In my view, this ambiguity should be resolved in favor of a clear and unequivocal statement endorsing the principle of justification of pr rtice. While I acknowledge that the principle of justification of practice calls upon the Com- mission to make decisions involving so-called questions of “societal value,” that is an insufficient reason, in my view, to step back from this widely a epred health-physics principle. Indeed, the Commission already takes such considerations into aocount, either explicitly or implicitly, in many of the decisions that it renders. Acoordingly, in view of the central role that the justifica- tion of practice principle has played in health physics practice, as well as the complexity and confusion that will invariably result from the approach set forth in the Policy Statement, I would state explicitly in this Policy State- ment that the Commission retains the prerogative to de- termine that specific practices may be unsuitable for ex- emption, regardless of risk, documenting such deterrnina- tions on a case-by-case basis . Agreement State Compatibility With one exception, I concur in the general approach that this Policy Statement takes on the issue of Agreement Stare compatibility. The one area where I disagree in- volves the treatment of matters involving low-level radio- active waste disposaL MI understand the position of the majority, the approach established in this Policy Statement, and to be imple- mented in the context of subsequent rulemaking initia- tives, will be considered a matter of strict compatibility for Agreement State programs. As a consequence, the ap- proach taken by individual Agreement States on BRC issues must be identical to the approach taken by the Commission. I disagree with this approach for the follow- ing reasons: When Congress enacted the Low Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA), it vested in the States the responsibility for developing new low-level radioactive waste disposal capacity. Indeed, the Congress recognized at the time that the States were uniquely equipped to handle this important responsibil- ity A rding1y, the States were given a great deal of latitude in deciding how best to proceed with the develop- ment, construction, and operation of new low-level waste disposal facilities. To take one exampLe, Congress Ii ------- BRC Policy Statement Chafrrn_ Carr’s Response to Commicsioner Curtiss’ Views on the BRC Policy Statement I am proud of the Commission’s a mp1ishinent In completing a comprehensive Below Regulatory Concern policy statement. I appreciate Commissioner Curtiss’ en- thn i and strong support for the policy. COinJnJsdOn deliberation of such views has helped to forge a compre- hensive risk framework for ensuring that the public is protected at a consistent level of safety from existing and future exemptions and releases of radioactive materlajs to the general environment. The framework should also be helpful in allowing NRC, States, and the public to focus resources on reducing the more significant risks under NRC’s jurisdiction. I offer the following response to Commissioner Curtiss’ thoughtful views in the spirit of the constructive process that has culminated in the BRC policy. As with many of the issues that the Commission deals with, there were very few right and wrong solutions to the issues associated with the BRC policy. The Corn. ink i, n reached its decisions on the policy by selecting preferred solutions from among a spectrum of possible policy options. These decisions were made based on the Corn’nission’s technical analysis of the issues associated with regulaiory exemptions, legal interpretation of gov- erning legislation, and regulatory experience in approving exemptions since the birth of civilian uses of nuclear materials in the 1950’s. I believe Commissioner Curtiss’ views on selected issues constitute pan of the continuous spectrum of policy options. However, for the reasons articulated below, I affirm the Commii inn’s demvion to approve the policy statement in its present form and reject the differing views put forth by Commi ioner Cur- Commissioner Curtiss dearly endorses the policy and the concept of establishing a comprehensive frame- work for m kiirg decisions on regulatory exemptions. However, he r fres issue with five elements of the policy (1) the interim nature of the l-millirem-per-ycar criterion for practices with widesprwathlistrlj,ution, (2) selection of the 1000 -pe on-rem.per..year criterion for collective dose, (3) the maimer in which the Comm ’ ion views the BRC e i aasatoA ,(4)offi nofthC principle of justification of practice, and (5) Tn frfitg BRC rules an item of compatibility for Agreement State pro- grams. These issues were fully considered by the Commis- sion and the NRC staff in the course of developing the BRC policy. Indeed, Coimnjssj ,n Curries voted in Sep which IS preserved in the final BRC policy in today’s Interim Individual Dose Criterion On the first issue, Commissioner Curtiss would pre- fer to establish the l-millirern-per-year criterion as a final criterion, rather than an interim value. As stated in the BRC policy, the Comm ipn is establishing the l-milhirem-per-year criterion as an in- terim value until after it develops more experience with the potential for individual exposures from multiple li- censed and exempted practices. The widespread practices to which this criterion applies are primarily consumer products, which could involve very small doses to large numbers of people. The 1-millirem criterion was selected specifically to address the possibility that members of the public may be exposed to several exempted practices . Simply put, exposure of an individual to a handful of exempted practices could result in annual doses dose to 100 millirem if each practice were allotted individual doses up to 10 milhirern per year. This is highly ünprob- able given the Commission’s plans to closely monitor any overlap of exposed populations from exempted practices as well as the aggregate dose to the public from exemp- tions. Nevertheless, NRC does not presently know how many exemption requests will be submitted by the public, how many will be approved, and what types of doses will be associated with the exemptions. If few exemptions are requested and granted, the probability of multiple expo- sures from exempted and licensed practices exceeding a substantial fraction of 100 millirem per year is consider- ably reduced. Therefore, the l-millirem-pcr-year crite- rion may be too restrictive and the regulatory resources associated with its implementation may be better spent to control more significant risks. Consequently, the 1-rail- lirem-per-year criterion was selected as an interim indi- vidual dose criterion to ensure that the sum of all expo- sures to an individual from exempted practices does not exceed a substantial fraction of 100 millirem per year. This criterion will remain an interim value until after the CoII Pvtht ’ in gains experience with the potential for mul- tiple exposures to exempted and licensed activities. The initial rulernakings to implement the policy, particularly in the area of consumer product exemptions, should provide valuable insights into the validity and ap- propriateness of the 1-millirem criterion in terms of its need to protect the public against multiple exposures to nuclear materials. Although I agree with Cor!rnuvvinner Curries that a final criterion would be desirable from the standpoint of “administrative finality it would be prerna- tore to establish the 1-millirem criterion as a final crite- rion until after the Commission gains more experience ------- BRC Policy Statement cleanup for con 1m2 1,d sites. Sp 1 ”y does the col. lective dose criterion apply generiosily to the practice of decoimnissioning or would it be applied on a site-specific basis? Similarly, how should the collective dose criterion be applied in eases where nuclear operations have con- tAminited groundwater resources that could pol ntially supply municipal drinking water systems? Resolution of these and other issues could ceuse the Commindon to revise its selection of the magnitude of the collective dose erion through future rulernakings and develop!nent of generic gui nce. However, based on the terhn ’ I infor- mation and recommendations currently before the Corn- initti , 1000 person-rem ,ear appears to be an appre- priate g’”tudc for the collective dose criterion. For all of these reasons, the CofrnI 4 on established a collective dose criterion of 1000 person—rcma year for each practice. AM Commiccinner Curtiss would prefer to define the individual and collective dose criteria as “floors” to ALARA, that is. that the regulated community and NRC are relieved from the regulatory obligation to perform further ALARA analyses below these levels if individual doses are 1 millirem/1O inilhirem and the collective dose is 100 person-rem. Specifically, Commissioner Curtias be- lieves that the BRC policy sends a confusing message by encouraging voluntary efforts to achieve doses below the BRC criteria. In responding to Commissioner Curtiss’ view on this issue, it is important to begin from the d finitinn of the term ALARA ALARA is the regulatory concept that radiation eaposures and effluents should be reduced as low as is reasonably achievable taking into a unt the state of technology, and the economies of improvements in relation to the benefits to public health and safety and other societal and sociocumomic considerations, and in relation to the utiliration of atomic energy in the public interest (10 CFR 20.1(c)). The AL.ARA concept Is one of the fundamental tenets of radiation protection and has been a keystone in NRC’s regulatory framework. Public comments on the proposed BRC policy s’”’e’ ent and on proposed revisions to 10 CFR Part 20 urged the Commis. non to define “floors” WAIARA or thresholds below which NRC would not require further reductions in doses or effluents, The Co?nmi t 1n responded to these comments in the policy by stating that”. . . a licensee t sing the eseznp . lion would no longer be required to apply the ALMA principle to reduce doses further for the eseinpied prac- tice provided that it meets the conditions specified In the regulation” established for a part 4 cular .- mptIcn. In other words, the BRC criteria and implementing regula. lions will provide “floors” to ALMA for the .-mpted pz iicie In this regard,! agree with Commissioner Cur. tiss because the truncation of further efforts to reduce doses is one of the principal regulatory motivations for stabflchiiig the BRC policy. However, I disagree with the rest of Commissioner Curtiss’ view on this issue. It would be inappw jate to tell the regulated community that they flflo reduce dose , below the BRC criteria. In short, although we will not reqilire licensees to reduce doses further, we do not want to discourage their efforts to do so either. This would be tantamount to telling a licensee how to operate his or her business regardless of whether any health or safety issues are involved. Such a direction would be mappropi- ate because it dearly falls outside of the health and safety focus of the NRC. In formulating the BRC policy, the Commi c ’on rec- ognized that new technologies being developed today promise to reduce doses, and therefore risks, at lower costs than present technologies. Indeed, technological and cost considerations are erplicitly recognized in the d finit’c,n and application of the term “AL.ARA.” Thus, I believe it would be inappropriate to tell licensees that they eanitot implement new technologies and health physies practices to further reduce doses if they want to. Justification of Practice Commktvmer Curtiss would prefer to endorse the principle of justification of practice (i.e., whether the potential impacts of a practice are justified in terms of net societal benefits) and retain the prerogative to reject ap- plications for er ”ptions regardless of the risk they pose. I disagree with Commi inner Curtis’ view on this matter because it puts the Comn icaon in a position of m kMg decisions in areas outside the normal arena of its apertise, where the agency would be especially vulner- able, perhaps justifiably so, to critir icm Consistent with the ! nft nn of the NRC, the Co ,nmit inn should base its judgments on an esplicit, objective, and rational consid- eration of the health, safety, and environmental risks associated with practices , rather than on what many would peree ve as personal preferences of the Commic sioners. Such an approach fosters long-term stability in regulatory decisloninAfring on potential acemptions. Decisions on justification of practice involve social and cultural considerations that fail outside the Commis- sion’s primary focus and sapertise for ensuring adequate protection of the public health and safety from the use of nuclear materials. Such decisions should be made by af- fected elements of society, such as residents near a con- taminated site, potential customers, suppliers, and other members of the general public, rather than NRC. I be- lieve that this position is consistent with regulatory prac- tices of other Government agencies that generally do not regulate on the basis of whether a particular practice is ------- BRC Policy Statement Atomic Ener r Act of 1954, as amended. Absent the erecuzionofaSection 274b Agreement with the NRC,a State ts preempted by Federal law from erercising regula- tory authority over the radiological hazards of these mate- rials. The Commission is authorized to enter into an agreement with a State only upon a finding that the State program is compatible with the Corrnnitvinn’s program for regulation of radioactive materials and adequate to protect the public health and safety. Section 274d.(2). The legislative history of Section 274 stresses throughout the importance of and the need for continuing compati- bility between Federal and State regulatory programs. In comments on the legislation, the Joint Committee on Atomic Ener p (JCAE) stated that 5. The Joint Committee believes it important to emphasize that the radiation standards adopted by States under the agreements of this bill should either be identical or compatible with those of the Federal Government. For this reason the comn inec removed the language ‘to the estent frasible’ in subsection g. of the or iginAl AEC bill considered at hearings from May 19 to 22,1959. The committee recognizes the importAnce of the testimony before itby numerous witnesses of the dangers of conflicting, overlapping and inconsis- tent standards in different jurisdictions, to the hindrance of industry and jeopardy of public safety. Sen. Rept. No. 870, September 1, 1959, 86th Cong., 1st. Sem. The potential problems from conflicting standards identified by the JCAE in 1959 are fully apparent in the contest of BRC and demonstrate why the scope of com- patibility findings to be made by the NRC cannot be drawn to eaclude low—level radioactive waste disposal. For instance, the Commission intends to use the risk criteria identified in the policy statement to establish decoi1unic ’nning criteria, that is, the level at which a formerly licensed site may be rel a ed for unrestricted use. If the States are permitted to require that low-level waste streams d ignated BRC by the Commission be disposed of in a low-level waste facility, it could result in a site in one state being released for unrestricted use, while soil or materials in an adjacent State at that level would be required to be confined in a low-level waste facility. If a patchwork of disposal criteria were to develop, it would be virtually impossible to establish decommissioning fnnding requirements that would be adequate to assure that all licensed facilities will set aside sufficient funds over the confusion from these conflicting standards could well re- sult in delays in adequate decommissioning of contami- nated sates and certainly in unnecessary concern on the part of the public. I continue to believe that reserving to the NRC the authority to establish basic radiation protec- tion standards, including de gnating which waste streams are below regulatory concern, is fully justified to ensure an adequate, uniform and consistent level of protection of the public health, safety and the environment. ------- UNITED STATES ENVIRONMENTAL PROTECI.... __..... 9441.1990(25) P UG Mr. John Randall Hi-Tech Industries, Inc. 17029 Devonshire Street, #124 Northridge, California 91325-1679 Dear Mr. Randall: This is in response to recent inquiries by yourself and Mr. Travis Cutter of your company concerning the regulatory status of spent anti-freeze coolant (specifically, ethylene glycol). If this material is intended for disposal, it is regulated as a “solid waste” by the Resource Conservation and Recovery Act (RCRA). Per authority provided by RCRA, EPA has developed a Federal regulatory scheme for the proper treatment, storage, and disposal of hazardous waste, a subset of solid waste. These hazardous waste regulations may be found in the Code of Federal Reaulations , Title 40, Part 261 (40 CFR 261). The waste anti—freeze you have described is not listed as a hazardous waste under EPA’S hazardous waste regulations (40 CFR 261, Subpart D). However, as a generator of a solid waste, you are obligated to determine either from knowledge of the waste coolant or by appropriate testing, whether the waste exhibits any of four characteristics, namely ignitability, corrosivity, reactivity, or extraction procedure (EP) toxicity. EPA has anecdotal information that spent anti-freeze often contains lead levels sufficiently high to classify the waste as EP toxic. If your waste coolant fails to exhibit one or more of the hazardous waste characteristics, then your waste is deemed to be a nonhazardous, solid waste by Federal regulations. You should, however, inquire about State and local regulations that may apply to your waste anti—freeze. ------- We appreciate your efforts to dispose of these wastes responsibly. If you have any further cluestions about Federal regulations applicable to this antifreeze, please contact the RCRA/Superfund Hotline at (800)424-9346. Sincerely, David Bussard Director Characterization and Assessment Division 2 ------- 9441.1990(26) tD S74, j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 SEP20 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE John Huber Counsel Petroleum Marketers Association of America (PMAA) 1120 Vermont Ave., NW Suite 1130 Washington, DC 20005 Dear Mr. Huber: Thank you for your July 18, 1990, letter regarding the Toxicity Characteristic (TC) rule outreach and implementation programs, and on clarification with regard to the date by which small quantity generators must notify. As you know, the TC rule will be effective on September 25, 1990. At that time all large quantity generators (LQG) of hazardous waste must be in compliance with all applicable Subtitle C standards under the rule; small quantity generators (SQG) must comply by March 29, 1991. In order to reduce the burdens imposed by the TC rule before the effective dates, the Environmental Protection Agency (EPA) has developed and implemented TC outreach activities for affected industries (enclosure). Specifically, our records indicate that PMAA requested through our outreach program to receive copies of: 1) SQG and LQG brochures which contain industry-specific inserts (e.g., vehicle maintenance); 2) used oil brochures; and 3) waste minimization booklets. Currently, PMAA’s orders are being filled through our Cincinnati warehouse. We are pleased with your interest in helping with such outreach and trust these materials will be helpful in that effort. Regarding guidance from EPA on whether a particular substance handled by petroleum marketers should be characterized as a hazardous waste and on whether used oil should be characterized as a hazardous waste, EPA does not determine whether a particular waste exhibits a characteristic. Such a determination is the responsibility of the generator under the hazardous waste program, and each generator of a solid waste is responsible for determining if he or she is generating a hazardous waste (40 CFR 262.11). We have, however, taken recent samples of used oil. We will be releasing that data this fall in a Reaister notice. While individuals may still choose to evaluate their specific used oil, this data should provide useful information for those choosing to apply knowledge of typical used oil characteristics. We will promptly notify you as soon as that data can be released. ?,i tsdai R. yckdhpr ------- Fuel oil that has escaped from a tank may be subject to regulation under the hazardous waste program if it is not promptly cleaned up. However, the Subtitle C program (hazardous waste) does not regulate “household waste” exempted under 40 CFR 261.4 (see 49 44978, November 13, 1984). EPA would generally consider leaks from household tanks to be “household waste” and thus not hazardous waste, regardless of whether the contaminated material is removed by the homeowner or a contractor. Further, reclamation of petroleum products from the contaminated material (soil) and the burning of that material for energy value is also exempted from the hazardous waste regulations. With regard to clarification of the date by which SQGs must notify to be in compliance with the TC rule, EPA has addressed this issue in the correction notice (enclosure) published in the B 1 gj on August 2, 1990 (55 31387). Due to the inconsistences observed in the March 29, 1990 Re ister notice (55 11798), EPA is providing SQGs with an additional three months to submit notifications. This extension applies to SQGs only. Therefore, generators of 100 or more and less than 1000 kg/mo (SQGs) of total hazardous waste who are newly regulated by the TC rule must notify the appropriate EPA Regional office by November 2 . 1990 , not October 31, 1990. The October 31, 1990 date printed in the August 2 notice was a misprint at the Office of the Federal Register. A correction notice correcting this misprint was published on August 10, 1990 (enclosure). I hope this information is of assistance. For further information concerning the applicability of the TC rule, please contact Steve Cochran, Chief of the Characteristics Section, at (202) 475-8551, or write me. If you are willing, we would also like feedback you may be able to provide us on how your membership reacts to the brochures and similar outreach materials, and what other specific questions they most want additional information on. Enclosure Sincerel our,€, syZvia K. Lowrance#L /irector Office of Solid Waste ------- UNITED STATES ENVIRONMENTAL PROTECT 9441.1990(27) NOV Mr. William A. Anderson, II Bracewell and Patterson 2000 K Street, Northwest Washington, D.C. 20006—1809 Dear Mr. Anderson: This is in response to your letter of November 5, 1990 concerning the applicability of the Agency’s used oil definition to your client’s open-gear lubricant, “Gearite.” This lubricant is described as a petroleum-based, semi-solid material which becomes liquefied when heated, and is sprayed onto the bull gears of cement kilns for lubrication. The spent Gearite is collected in drip pans at the bottom of the enclosed gears and is eventually piped back into the original product drums, where it solidifies upon cooling. The Gearite is TC hazardous but can be reused as a fuel in cement kilns. You contend that Gearite fits the definition of “oil” and not “grease” because it lacks the saponification agent necessary to classify it as a grease (as described in the Agency’s Development Document for Effluent Limitation Guidelines). You also referred to the Agency’s November 29, 1985 definition of used oil, which included spent “gear oils.” Although EPA has not yet finalized the used oil definition proposed on November 29, 1985, the Agency agrees with your interpretation that spent Gearite should be classified as a used oil. As you indicated, used oils that exhibit the characteristics of hazardous waste ar. either exempt when recycled or subject to special used oil standards under 40 CFR 266 Subpart E when burned for energy recovery in industrial furnaces and boilers per 40 CFR 261.6(a) (3) (iii) and (a)(2)(iii). State regulations for used oil, however, may be more stringent than the Federal standards and should be consulted. ------- S Should you have any further questions on used oil, please feel free to contact Ms. Denise Wright of my staff at (202) 245—3519. Sincerely, Sylvia K. Lowrance Director Office of Solid Waste 2 ------- 9441.1990(28) i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 ?4 ,. , 0 itC OCT I 8f O ’CE OF MEMORANDTJM SOLID WASTE AND EMERGENCY RESPONSE SUBJECT: Status of Used Refrigerants under 40 CFR 261.2 FROM: Michael Petruska, Acting Chief (OS—332) Waste Characterization Branch TO: Docket for F-90-CFIF-FFFFF This memorandum documents EPA’s position on the status of used refrigerants under 40 CFR 261.2. Several parties have informally petitioned EPA for a determination on whether used refrigerants can be classified as commercial chemical products, rather than as spent materials; if so classified, the used refrigerants would not be “solid wastes” under 40 CFR 261.2, when reclaimed. There are two scenarios that are at issue when a refrigeration equipment servicer decides to remove used refrigerants from refrigeration equipment. In the first scenario, the equipment servicer collects the used refrigerant and then elects to reuse the refrigerant directly (i.e., without any filtration or other processing) as a refrigerant. (The equipment servicer could elect to reuse the refrigerant either with or without conducting analyses or tests - any such analyses may be recommended by the equipment manufacturer, or possibly required under future Clean Air Act regulations, but are not relevant to determining whether the used refrigerant is a solid waste under RCRA.) This type of reuse is similar to reuse of a solvent that has been used once, but can still be used for its solvent properties. See the January 4, 1985 Federal Register , 50 624. In this situation, the equipment servicer is r ot managing a waste, but is merely continuing to use a commercial ‘chemical product. In the second scenario, the equipment servicer collects the used refrigerant for reclamation prior to reuse. Such reclamation could range from simple filtration to reinsertion into a chiorofluorocarbon manufacturing unit. The used refrigerants meet the definition of a “spent material” in 40 CFR 261.1(c) (1), and are solid wastes when reclaimed, according to 40 CFR 261.2. See 54 31336, July 28, 1989, for an explanation of why used refrigerants are classified as “spent materials” rather than “commercial chemical products.” A more detailed analysis of specific points raised by the Alliance for Responsible CFC Policy is attached. Attachment PriiiMd R cyckd P pr ------- Attachment Definition of Solid Waste Arguments Made by the Alliance for Responsible CFC Policy Point #1: The Alliance states that “in many cases removed refrigerant may simply be re-inserted in refrigeration and air conditioning equipment after testing, without any processing.” Under the current regulations, used refrigerant that is re- inserted into equipment for further use is not a solid waste (and thus, is not a hazardous waste). Some, but not most, CFC’s would fall into this category. Point #2: The Alliance states that “in some cases removed refrigerant must be processed -— for example, to remove contamination —- before re- inserting in refrigeration and air conditioning equipment.” The Alliance argues that the removed refrigerant is not a “spent material” but rather is a commercial chemical product, and thus is not a solid waste when reclaimed. Under the current regulations, 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. Spent materials are solid wastes when reclaimed. We stated clearly in a 1989 Federal Register notice clarifying the applicability of RCRA to used refrigerants that used refrigerants that are reclaimed are spent materials and not “commercial chemical products.” The Alliance argues that the refrigerant has not been “used” the way we define the term in the regulations, because it has not been “employed in a particular function or application as an effective substitute for a commercial product” but rather, is the commercial product. When we said “used” in the definition of spent material, we meant the ordinary, plain language definition of “used.” However, because CFC recycling is analogous to very common hazardous waste recycling operations (i.e., solvents, used oils, batteries), the interpretation requested by the Alliance would have far-reaching implications. 1 ------- Point #3: The Alliance pbints out that, if classified as “by—products,” the used refrigerantS would not be solid wastes when reclaimed. However, in their analysis of the definition of by-product, they conclude that the term does not apply to used refrigerants. Point #4: Finally, the Alliance argues that a variance from the definition of solid waste should be granted if EPA decides not to suspend the TC rules and continues to consider the used refrigerant as a solid waste. They propose a variance under Section 260.31(b). There are two problems with this approach: • These variances are case—by—case determinations for the Regional Administrators to decide, rather than national policy decisions for entire wastestreams. • The variance under Section 260.31(b) is for materials that are reclaimed and then reused as feedstock within the original primary production process where they were generated, if the reclamation is an essential part of the production process. The vast majority of used refrigerants would not fall in this category. (Any operations that do fall into this category are of course eligible for the variance.) 2 ------- (,7 . ,f 9441.1990(29) (,Io ST 4 . UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 OFFICE OF MEMORANDUM SOLID WASTE AND EMERGENCY RESPONSE SUBJECT: Implementation Issues Arising from the Toxicity Characteristic (TC) FROM: Don R. Clay Assistant Administrator TO: Henry F. Habicht II Deputy Administrator The purpose of this memorandum is to summarize five issues/problems associated with implementation of the TC. A brief summary of each of the issues/problems follows, along with a general indication of the time frame in which we expect to present a recommended solution or options to you for your consideration. 1. Reinjection of contaminated (i.e., TC-hazardous) ground water in association with petroleum product recovery and remediation programs would be prohibited under the TC, thus slowing or curtailing these activities. An interim final rule has been published extending the TC compliance date to January 25, 1991 for these activities. A proposal for a 2— year extension, to allow time for further study, is being finalized for the Administrator’s signature. This proposal will be forwarded to you within two weeks. 2. Certain CFCs contaminated with residual carbon tetrachioride and/or chloroform would be brought under RCRA. This will negatively impact ongoing efforts by OAR to implement voluntary recycling programs. OSW is finalizing an interim final rule that would suspend the TC compliance date for these CFCs in anticipation of regulations OAR will be required to promulgate in response to expected CAA amendments. This rule will be combined with the above proposal and will be forwarded to you within two weeks. 3. Large volumes of fluff generated by scrap metal processing (primarily automobiles and appliances) could be TC—hazardous and thus subject to RCRA. Regulation under Subtitle C may be impractical and would involve significant economic impacts. OSW is evaluating options. At present, I anticipate a briefing for you in mid to late November to go over the options. Pràusd R.c’yckd Pepir ------- 4. New York has petitioned EPA to exclude from the TC contaminated media from above ground oil cleanups conducted under state order/oversight. OSW has developed some options which we plan to send to the Regions for review. A follow- up teleconference is also planned. After receiving and considering their positions, I anticipate a briefing for you to review the options and the Regions’ views. This should occur by the end of November. 5. As a result of EPA’S definition of the scope of the oil exploration and production (E & P) exemption, off-site crude oil reclaimers fall outside of the exemption and, as a result of the TC, will likely be subject to RCRA Subtitle C. Essentially the same operations at the well head are exempt. Some reclaimers have shut down and insist that many more viii. Regulation under TC may discourage reclamation and waste minimization. OSW has developed some options and is collecting data. I anticipate a briefing for you on the options before the end of November. ------- 9441.1990(30) CO tg 1 .P, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 4?4( Ii O1 OCT 3 0 1990 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Regulatory De rm or% 1 j Used Oil Filters FROM: Sylvia Lowra e, Off ice of Solid TO: Robert L. Dupre , Director (8HWM-RI) Hazardous Wa . ..e Management Division EPA Region VIII Thank you for your memorandum of August 30, 1990, requesting a regulatory interpretation of the status of used oil filters under the new Toxicity Characteristic (TC). In your memorandum, you inquired about used oil filters that are crushed in vehicle maintenance shops, where a certain portion of the residual used oil in the filter is separated from the filter. The answers to the specific questions you ked are listed below. 1. The Toxicity Characteristic Leaching Procedure (TCLP) is performed on used oil filters by crushing, cutting or grinding the waste (filter plus contents) until the pieces are smaller than 1 centimeter in their narrowest dimension (and thus are capable of passing through a 9.5 nun standard sieve). See Step No. 7.3 of the TCLP. The surface area criterion referred to in Step 7.3 does not apply to used oil filters. (Note: If the generator recycles both the used oil and metal, you do not need to test because recycling of both type of materials is exempted from hazardous waste regulation as discussed below.) 2. and 3. Assuming a used oil filter exhibits the TC, you had inquired whether the act of crushing filters is regulated treatment or exempt recycling. Generally, the types of used oil filter crushers you described would not be regulated if the used oil was being recycled (see 40 CFR 261.6(a)(2)(iii) and (a)(3)(iii)). That is, since the purpose of the crushing is to remove the used oil for recycling, we view the crushing to fall within the used oil recycling exemption. The crushing may be performed on— or off-site, for profit or not. The determining factor is whether the used oil will be recycled. The filter may be shipped off-site for crushing under the used oil exemption, providing the oil is collected for recycling. Pru sed Recycled Paper ------- 2 4. Generally, automotive oil filters are not considered to be ,ontainers because they are designed to filter particulates from oil that circulates through them, not devices for the storage of oil. As a result, a filter could not be an “empty container” under 40 CFR 261.7. However, as described next, a drained or crushed filter is considered scrap metal, and scrap metal is exempt from regulation when recycled. Under the definition of “solid waste,” EPA has determined that “recycled hazardous scrap metal is a solid waste when disposed of or recycled” (see 50 624, January 4, 1985). However, pursuant to section 261.6(a) (3) (iv), hazardous scrap metal is exempted from Subtitle C regulation when recycled. The scrap metal recycling exemption in 40 CFR 261.6(a) (3) (iv) is applicable to used oil filters (scrap metal) that are going to be recycled. However, an undrained or uncrushed oil, filter would contain too much oil to qualify for the scrap metal exemption. The January 4, 1985 preamble provided examples of items qualifying for the exemption, such as bars, turnings, rods, sheets, wire (i.e., scrap metal that is going to be recycled to recover their metal content) and examples that do not qualify, including metal-containing waste with a significant liquid component, such as spent batteries. To increase the probability that the used oil filter (hazardous scrap metal) will qualify for the scrap metal recycling exemption, ‘he generator or recycling facility should drain (gravity) the filter or an amount of time sufficient to ensure that all free—flowing oil. is removed. The amount of drain time will vary based on a number of variables, including the size of the filter and temperature (both ambient and that of the filter). Alternately, the generator or recycling facility could crush the oil filter using the most appropriate crushing method that will force excess residual oil from the filter. We will be examining this issue further, but we currently have no information indicating that substantial amounts of oil will remain in the filter after either sufficient draining or adequate crushing. As a best operating practice, the Agency r.ecominends that the generator or recycling facility both drain and crush used oil filters to be certain that the used oil filters would qualify for the hazardous scrap metal recycling exemption. If the crushed or drained filter will be recycled, it is unnecessary to determine whether it exhibits the TC because the scrap metal exemption is applicable. It would also be unnecessary to manifest these used oil filters if they will be recycled. However, if the filter will be disposed of, the generator must determine if it is hazardous under the TC. If the filter is hazardous waste, the Part 262 and 268 regulations apply to the generator, and Parts 264 and 265 apply to the treatment, storage and disposal facilities. Non-hazardous waste filters may be disposed in a Subtitle D facility. ------- 3 Finally, in the sales brochures you sent, there was mention of an open container used to accumulate the used oil after the filter was crushed. (Currently, used oil accumulation by generators is not regulated if the used oil is recycled, but EPA did propose that such containers be kept closed. See 50 £R 49252, November 29, 1985.) Storage or accumulation of characteristically hazardous used oil is regulated if the used oil is to be disposed of; in that case, the containers must be closed except when adding or removing the used oil (per §265.173(a)). Please contact Daryl Moore at (202) 475-8551 if you have any additional questions on the applicability of the Federal hazardous waste regulations with respect to used oil filters. cc: Waste Management Division Directors, Regions I - VII and IX - X Jeff Denit RCRA/Superfund Hoti me Regional TC Contacts ------- 9441.1990(31) RCRA/SUPERFUND HOTLINE MO1rrw Y SU)O(ARY OCTOBER 1990 2. Regulatory Status of Petroleum Contaminated Media and Debris Under the Toxidty Characteristic UST Temporary Deferral The owner/operator of a petroleum urtdergTound storage tank (UST) is conducting a corrective action pursuant to Subpart F of 40 CFR Part 180. During corrective action, sludges are removed from the inside of the tank. These sludges exhibit the toxicity characteristic (TO for benzene. Pursuant to 40 CFR Section 261.4 (b) (10) “...(p)eti’oleum-contanunated media and debris that fail the test for the toxicity characteristic of Section 261.24 and are subject to the corrective action regulations under Part 280 of this chapter...” are excluded from the definition of h rdous waste. The preamble to the March 29, 1990, Federal gj does not explicitly define petroleum contaminated “media” and “debris.” (55 EB 1 11836). Would the deferral apply to those sludges that are removed from the tank, or is the deferral intended only for environmental media such as soil and groundwater? ------- RCRA/SUPERFUND HOTLINE NOlqiiiLY SUPOIARY OCTOBER 1990 2. Regulatory Status of Petroleum Contaminated Media and Debris Under the Toxicity Characteristic UST Temporary Deferral (Cont’d ) In the March 29 preamble, the Agency stated that “further evaluation of the impacts of applying the TC to soils and ground water contaminated by petroleum from UST’s and subject to the Subtitle I program is necessary in order to determine whether an exemption for such materials is warranted....” (55 EE 11836) The deferral only applies to contaminated ground water, soil and debris, but not to wastes such as sludges generated in a raw material storage tank. Section 261.4(a) states ‘(a) ha ardous waste which is generated in a product or raw material storage tank,...is not subject to regulation under Parts 262 through 265, 268, 270, 271 and 124 of this chapter or to the notification requirements of Section 3010 of RCRA, until it exits the unit in which it was generated “ Therefore, sludges removed from Underground Storage Tanks during corrective actions pursuant to Part 280 Subpart F do not meet the criteria of “media and debris” and, therefore, the deferral from ‘It regulation does not apply. NOTE The June 29, 1990, Federal Register contains a clarification of the deferral which states,” (t)his exclusion applies only to petroleum contaminated media and debris which exhibit the TC for any one or more of the newly identified organic constituents, and which are subject to corrective action under Part 280.” (55 f.3. 26986) Therefore, those constituents previously regulated under the EP Toxicity rule (D004-D017) and now regulated under the TC are not eligible for the IC underground storage tank deferral even if they meet the criteria of media and debris. A generator must still determine if the media and debris is a characteristic hazardous waste for the TC constituents D004-D017. Source: Steven Cochran, OSW (202) 382-4769 Research: Mic LeBel, CRC ------- e ° P 9441.1990(32) w UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 iqc OFFICE OF SOLO WASTE AND EMERGENCY RESPONSE Ms. Kathleen Ream American Chemical Society 1155 Sixteenth Street, N.W. Washington, D.C. 20036 Dear Kathy: Thank you for your letter of November 5, 1990, requesting that the Environmental Protection Agency (EPA) give special consideration to the impacts of the Resource Conservation and Recovery Act’s (RCRA’s) regulations on laboratories. I am pleased to be able to provide some insights on your very thoughtful comments. Some of the concerns identified in your White Paper appear to relate to the Department of Transportation’s (DOT’s) regulations that govern the transport of hazardous materials. Thus, you may wish to contact DOT directly on those issues. A contact there is George Cushmae at (202) 366—4488. With respect to the RCRA regulatory issues, as you have pointed out, some of the concerns your White Paper identifies as problems do not require regulatory changes, and may result from an incorrect reading of the regulations. For example, the question of when a chemical becomes a waste is not addressed ‘directly in the regulations; EPA views commercial chemical products as non-wastes until a decision is made to discard them. Surplus chemicals that are intact and unused are classified as commercial chemical products. In contrast to the statement made on page 2 of the White Paper, 40 CFR Section 261.1(c) (8) does not require that at least 75 percent of commercial chemical products be recycled or transferred for recycling in a calendar year. Under Section 261.2(c) (4), commercial chemical products that are accumulated speculatively are not solid wastes, and thus are not subject to the RCRA regulations. Your proposed solution, “Guidelines for Chemical Exchange,” is consistent with EPA’S reading of the applicability of RCRA Subtitle C regulations for reagent chemicals and solvents in their original condition and original containers. P,i RwjrcIsd Popt’ ------- Thank you once again for the useful infor atjon you provided. If you need further assistance, please contact Becky Cuthbertson of my staff at (202) 475 9715. Sincerely yours, Don R. Clay Assistant Administrator ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9441 . 1990(33) NOV 30 Mr. William A. Anderson, II Bracewell and Patterson 2000 K Street, Northwest Washington, D.C. 20006—1809 Dear Mr. Anderson: This is in response to your letter of Nov?nlber 5, 1990 concerning the applicability of the Agency’s used oil definition to your client’s open—gear lubricant, “Gearite.” This lubricant is described as a petroleum—based, semi—solid material which becomes liquefied when heated, and is sprayed onto the bull gears of cement kilns for lubrication. The spent Gearite is collected in drip pans at the bottom of the enclosed gears and is eventually piped back into the original product drums, where it solidifies upon cooling. The Gearite is TC hazardous but can be reused as a fuel in cement kilns. You contend that Gearite fits the definition of “oil” and not “grease” because it lacks the saponification agent necessary to classify it as a grease (as described in the Agency’s Development Document for Effluent Limitation Guidelines). You also referred to the Agency’s November 29, 1985 definitiofl.Of used oil, which included spent “gear oils.” Although EPA has not yet finalized the used oil definition proposed on November 29, 1985, the Agency agrees with your interpretation that spent Gearite should be classified as a used oil. As you indicated, used oils that exhibit the characteristics of hazardous waste are either exempt when recycled or subject to special used oil standards under 40 CFR 266 Subpart E when burned for energy recovery in industrial furnaces and boilers per 40 CFR 261.6(a) (3) (iii) and (a)(2)(iii). State regulations for used oil, however, may be more stringent than the Federal standards and should be consulted. ------- Should you have any further questions on used oil, please feel free to contact Ms. Denise Wright of my staff at (202) 245—3519. Sincerely, Sylvia K. Lowrance Director Office of Solid Waste 2 ------- RcRA/SJP’ HOTLINE MONThLY StThQARY 9441.1990(34) NOVEMBER 1990 1. Mixture Exclusion A generator meets the mixture rule exclusion of 40 CFR Section 25L3(a)(2)(iv)(A), by proving that the concentratior s of trichioroethylene in his waste 3 eam before it enters th headwor of waszewater trea ent facility Is below one part per million. s was’ s ’.tc-r teatment facility produces a sludge which exhibits a hazardous ch- - ..c. Does the mixture rule exclusion also apply to the sludge produced In the generator’s wastewater treatment facility? Or Is this sludge a newly- generated hazardous waste subject to full RCRA regulation? A ahsdge generated from a wastewa mixture that meets all of the criteria édfied In Section 261.3(a)(2XIv) would beex mpt d from the hazardous waste listing because the original wastewater mixture became exempt at the beadworks of the WWTF. The exemption prevents the mixture and derived- from rules from operating for certain listed wastes. (They can only apply when the original material Is a hazardous waste.) In addition, the mixture rule exemption would g1 apply if the wastewater met another listing. 1. fIxture Exclusion ( Coned ) The sludge, moreover, might be a hazardous waste for other reasons. For example, the exemption a iteria in Section 2613(a) (2) ( lv) are carefully limited. They do not apply to any waste that exhibits a hazardous waste characteristic. Consequently as the question already states, the sludge would be a hazardous waste if it failed any of the characteristic tests . Source: Ron Josephson, OSW ( 202 ) 475-6715 Research: Kenneth Sandier, CRC ------- 9441.1990(35) I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 I3EC2IiggO OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Earl F. Bouse Vice President Minerals and Environmental Services Pacific Basin Resources 3480 Busldrk Ave., Suite 205 Pleasant Hill, California 94523 Dear Mr. Bouse: ‘This responds to your letter dated September 13, 1990 to Mr. Bob Holloway concerning the regulatoiy status of using K048-K052 filter cake as an ingredient in the manufacture of cement. Specifically, you requested a determination regarding whether such use will be allowed under the final rule for burning hazardous wastes in boilers and industrial furnaces (BIF rule), which has not yet been promulgated. I am unable to address whether the process described in your letter will be allowed under a rulemaking that we are still in the process of evaluating and finalizing. The proposal published in the October 26, 1989 FEDERAL REGISTER (54 FR 43718) is the best guide available for you to use in making your assessment of what our final rule may require until the final rule is promulgated. We currently expect the final rule to be promulgated by January 1991. As current Federal regulations provide at 40 CFR 261.2(e)(2)(i), the filter cake used to produce cement would meet the definition of a solid waste (and thus be _classifled as hazardous waste K048-K052) because it is being used as an ingredient (i.e., a substitute for raw materials) to produce a product that is used in a manner constituting disposal (i.e., placement on the land). However, this does not answer the question of whether such use of the filter cake is legitimate recycling. This regulatory determination is made on a site-specific basis by the regulating agency (i.e., the State regulatory agency or EPA Regional Office) in the State in which the activity occurs. Additional, more specific information to supplement the information in your letter will be required to make such a determination. Some of the criteria used in evaluating such situations at the Federal level may be of assistance to you in preparing your request for a regulatory determination should you continue to seek such a determination. To evaluate whether a hazardous waste is being legitimately recycled as a substitute for, or being used as, a.i ingredient in a manufacturing process, a comparison must be made between the onstituents contained in the hazardous waste and the constituents in the analogous raw material. Because the Rsrj,clsd Papr ------- 2 hazardous wastes and raw materials may change at each different site, this pnalysis is required on a site-specific basis. There are several factors to consider in determining whether a hazardous waste is being used as a legitimate substitute in a mpnufacturing process. It is not enough to say that because a hazardous waste can be used as an ingredient and still result in a marketable product such usage is legitimnte recycling (rather, this is a demonstration that the hazardous waste-derived product itself may be an effective substitute for a nonwaste-derived product, not a demonstration that the hazardous waste is a legitimpte ingredient). Nor is it enough to say that such use of the hazardous waste does not have an adverse impact on the environment (rather, this may be a demonstration of a good hazardous waste treatment technology, not a demonstration of legitixnatew exempt recycling). One key consideration is the extent to which a hazardous waste contains hazardous constituents not otherwise found in analogous raw materials (e.g., volatile organics), or contains hazardous constituents at levels significantly higher than those found in the raw materials (e.g., lead and chromium). In such cases, the hazardous waste is generally determined to not be used as a legitimate substitute for raw materials in a manufacturing process, but rather is to be treated and/or disposed of by incorporation into a product. If such a determination is made, the process may require a hazardous waste treatment permit. (However, you may make a demonstration that the hazardous constituents are useful to the manufacturing process such that the hazardous waste actually functions better than the raw material it is replacing.) Again, this is a site-specific determination that is more appropriately made by the regulating agency. If you have further questions regarding the factors considered in evaluating whether the use of the hazardous wastes is legitimate recycling under Federal regulations, you may contact Mitch Kidwell, of my staff , at (202) 475-8551. If you have questions regarding the regulatory status of the use of K048-K052 as an ingredient in the manufacture of cement, (or other site-specific regulatory determinations) you should contact the appropriate regulatory agency (i.e., authorized State agency or EPA Regional Office) in which the facility is located. For your information and reference, I am -enclosing a list of EPA Regional offices and telephone numbers. Sincerely, David Bussard Director Characterization and Assessment Division Enclosure cc: Bob Holloway ------- WASTE ! NAGD T DIVISION DIRECTORS EPA REGIONAL OFFICES Region 1: Merrill S. Hohinan, Director Waste Management Division USEPA Region I John F. Kennedy Bldg. Boston, !‘ 02203 Region 2: Conrad Simon, Director Air & Waste Management USEPA Region II 26 Federal Plaza New York, New.York 10278 Region 3: ‘tephen R. Wassersug, Director azardo as Waste Management Division USEPA Region III 841 Chestnut Street Philadelphia, PA 19107 Region 4: Patrick M. Tobin, Director Waste Management Division USEPA Region IV 345 Courtland Street, N.E. Atlanta, GA 30365 Region 6: Allyn M. Davis, Director Hazardous Waste Management Division, USEPA Region VI First Interstate Bank Tower 1445 Ross Avenue Dallas, TX 75202—2733 Region 7: David Wagoner, Director Waste Management Division USEPA Region VII 726 Minnesota Ave. Kansas City, KS 66101 Region 8: Robert L. Duprey, Director Hazardous Waste Management Division USEPA Region VIII 1 Denver Place, Suite 500 999 18th Street Denver, CO 80202 Region 9: Rich Value, P.E. Assistant Director Toxics & Management Division USEPA Region IX 215 Fremont Street San Francisco, CA 94105 Region 5: William E. Muno Associate Division Director Waste Management Division USEPA Region V (5HS-13) ‘30 S. Dearborn Street hicago, Ill 60604 Region 10: Charles E. Findley Director Waste Management USEPA Region X 1200 6th Avenue Seattle, WA 98101 Division -Division ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9441.1991(01) JAN 3 1991 Mr. Lynn Cooper Michelin Tire Corporation P.O. Box 2846 Greenville, South Carolina 29602-2846 Dear Mr. Cooper: This letter is in response to your November 7, 1990 letter regarding modifications to Michelin’s Sandy Springs wastewater treatment system. According to your letter and our December 11, 1990 telephone conversation, you have already changed to a new belt filter press which produces a higher percent solids and processes higher rate of sludge production. In addition, according to your letter and our telephone conversation, you will soon institute other modifications to the current wastewater treatment system to address greater capacity needs resulting from ongoing production expansion at Sandy Springs. Specifically, the planned modifications are: o The existing turbocirculators are to be replaced by a lamella clarifier and sand filter. o The existing Diapac sanitary package plant will be replaced by a pair of sequencing batch reactors (SBR) for sanitary treatment and organics removal. o The wastewater will be routed to the new SBR for biological treatment prior to discharge. When the original exclusion for the waste generated at Michelin’s Sandy Springs facility was granted by the Agency, it was conditioned by stating that “the exclusion remains in effect unless the waste varies from that originally described in the petition (e.g., the waste is altered as a result of changes in the manufacturing or treatment process).” Although you submitted results of TCLP testing on the sludge conducted by RMT Laboratory to show that the original exclusion should still apply to the waste that is currently being generated, these data are not sufficient for our evaluation. As discussed further below, we cannot fully assess the impact of the modifications on the exclusion of your wastewater treatment sludge without knowing more details about these modifications and their impact on the composition of t e filter press sludqe. ------- We are concerned about the modification you have already implemented (the new belt filter press) and the others you are planning to implement. The increase in the amount of wastewater treated, improved metals removal, higher degree of biological treatment, and higher percent of solids in sludge may change the chemical form/composition of the waste. In order to make certain that the original exclusion still applies to the waste that is currently being generated at Michelin’s Sandy Springs facility, we request that you submit the information specified below. If you decide to not submit the information requested below, you must notify the Agency within two weeks of the receipt of this letter. A. Process Information We need more detailed information on the modifications plajmed. Therefore, you must submit the following: o A description of the Lamella clarifier, the sand filter, the biological treatment (sequencing batch reactors), the belt filter press (including the percent solids), and any other process information that you believe might be pertinent. The drawings referenced on page two of your letter (62005P01 and 62006P05) might provide some of this information but they were not attached to the letter we received. A description and revised drawing similar to those submitted in the letter to Myles Morse on January 20, 1986 would be appropriate (see Enclosure I). o An estimate of the new average and maximum sludge generation rates on a monthly and annual basis. o If there are any other reasons, besides those already stated in your November 7, 1990 letter, which make your planned modifications necessary (e.g., NPDES permit requirements). B. Sampling and Analysis Information o An explicit statement explaining why the three samples collected in June and July 1990 (and future samples undertaken in response to today’s letter) are representative of any process or waste variability. o Total constituent analysis results for at least four representative samples collected over a one—month period for the eight metals listed in 40 CFR §261.24 and nickel. We request that you quantify total levels to support your claim that the system modifications are minor and “will not change the characteristics of the sludge”. o Total sulfide and total cyanide analyses for four representative samplis. You must also submit results from 2 ------- reactive sulfide and reactive cyanide testing if total sulfide and total cyanide levels exceed 500 and 250 parts per million (ppm), respectively. Leachability analysis for cyanide, using the TCLP, is also required if total cyanide levels are greater than 100 ppm. When testing for leachable cyanide, deionized water should be used in place of the acid leaching medium. o Total oil and grease analysis for four representative samples. We are concerned that your waste may have an oil and grease content above one percent because in your original petition the filter press sludge had a maximum oil and grease content of five percent. If the total oil and grease content is greater than one percent, you must use the oily Waste Extraction Procedure (OWEP, SW-846 Method 1330) to analyze at least four representative samples for leachable concentrations in lieu of the TCLP. When using the OWEP, please substitute the TCLP for the extraction procedure in Step 7.9 of the OWEP. Leachable nickel and cyanide concentrations must also be quantified. o If total levels of oil and grease are less than one percent, you must submit results of TCLP analyses for at least four representative samples for the eight metals listed in 40 CFR §261.24, nickel, and cyanide. o Total constituent and TCLP analysis data for all hazardous organic constituents listed on 40 CFR Part 261, Appendix VIII (including acetone, ethyl benzene, isophorone, 4— methyl-2-pentanone, styrene, and xylene) which are likely to be present in your waste. (Michelin initially identified 182 Appendix VIII hazardous constituents which could be expected to be present or released during the facility’s operation, and provided total constituent analyses for these Appendix VIII hazardous constituents.) We are especially concerned about toluene, ethyl benzene, styrene, malaeic anhydride, and thiuram (these were detected in samples submitted in support of your original petition). We recognize that the Appendix VIII list presents a number of analytical problems for some constituents. For analytical testing purposes, you must analyze the samples for those compounds which can be accurately quantified using appropriate SW-846 methods. It should be noted that SW-846 analytical test methods exist for all constituents listed in 40 CFR Part 264, Appendix IX. For any hazardous constituents for which analytical results are not provided, a rationale must be provided explaining why the constituent is not expected to be present. 3 ------- In lieu of analytical testing, you may present mass balance arguments that demonstrate that constituents cannot be present in the waste at levels of concern. You should submit the above requested process information and any other information you believe to be pertinent to our office as soon as possible. Please submit the sampling and analysis information, along with the appropriate QA/QC information, to our office within 90 days after the planned modifications have been implemented. Following implementation of the planned modifications, we suggest that you treat the waste as hazardous until we have made a decision regarding the status of your exclusion. This should be viewed as a precautionary measure in case our evaluation of your new waste data results in a decision that your original exclusion is no longer applicable to the waste being generated. If Michelin decides not to implement any of the proposed changes to the process (or if these process changes are delayed), you must still provide further sampling/analysis data to demonstrate that the change in filter press has not adversely affected the waste. Therefore, we may accept the TCLP data you have already submitted (provided they are from representative samples with total oil and grease levels of less than one percent). However, even in this case, you need to supplement the existing data to include total constituent and TCLP analyses such that all of the above requested analyses are provided for at least four representative samples. If you have any questions about this correspondence, please feel free to contact Narendra Chaudhari of my staff at (202) 382- 4770. Sincerely, Robert Kayser, Chief Delisting Section Enclosure cc: Narendra Chaudhari, EPA HQ Jim Kent, EPA HQ Doug McCurry, EPA Region IV James Scarbrough, EPA Region IV Sarah Bennett, SAIC 4 ------- MICHELIN \dASTE SANDY SPRINGS TREATMENT PLANT . LAWx AND iLU( VASTf (1500 GP.D.) I R tWl( pRlrrt JA Tt (II mn iS IOUU 5 BB111k bLO JD(F1N (.FJOU L.PD ( Ltt1 IPJI. fflILR h1IIfl Th ___________ DIAPAC I SANITARY (PArKALII.D —1 IiI IVAGL I IiPqTi I.. ® H _____________ _____________ I PRBCCSS I I PRIMARU 1 PQ YCI IC IROI V rc SIJ P ..1jSCP*RAT-..-.._ j LIZ II 5L’ )‘ I VA II 111 Ah 1I FLOCCULATOR ‘fl nA?APDUU’: I ANOFIsI. .itc. I PUt iii t-tiI1Ik s ii: IQiJAL IZATION TAP ibI1’ sI 5t. I __________________________ RI I\INI i1 iimii -______________________ mill LciN9 .1 APIIII k CIRCULAIflRS ] s.I’W I AH ______________ ______________ .I UIJti I suu1 IIilrrUb kI AN I I.1IAN •N.ut ,/I Di, l.IH’ I • tiI ill IL. IkUL ( II bI1 ‘I IhA kI ION iI ; ;II, ‘ I fri. ii lI:kj IA U ] RAPID NIX(R CII I ___ ORIP& 1 ‘. lIuuuI..I rII’1rA I is p.j I IU iO-(IRCILA (OR I SANITARY cr.aAtr II N 1 G.PD.) 4. p C.ONP. PI nrI .vc cr%JrD (1401W / b’ 1. °kOCI’;S ‘JA IC tr )OJ ‘i Li 114 ri t ii i s I cut n t. !.rsta ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9441 . 1991(02) FEB I2 99I MEMORANDUM SUBJECT: Applicability of the TC to Mixed Waste FROM: Sylvia K. Lowrance, Director Office of Solid Waste TO: Regional Waste Management Division Directors Regions I — X Pu r o se The Environmental Protection Agency (EPA) promulgated the Toxicity Characteristic (TC) rule on March 29, 1990 (55 FR 11798). That rule will bring a large number of waste generators, including mixed waste handlers, under Subtitle C regulation for the first time. However, the preamble to the TC rule does not discuss mixed waste. Regional staff have indicated that there is some confusion regarding the applicability of the TC to this category of waste, and have requested a clarification statement on the issue. The purpose of this memorandum is to clarify the applicability of the TC to mixed waste in authorized and unauthorized States, as well as the Federal regulatory status of those wastes. Backaround Mixed wastes are defined as wastes which contain both a radioactive component subject to the Atomic Energy Act ((AEA) i.e., source, special nuclear, or by—product material) and a hazardous component subject to the Resource Conservation and Recovery Act (RCRA). Up until 1986, the applicability of RCRA to mixed waste was unclear, in part because of uncertainty about the effect of the exclusion in RCRA Section 1004(27) (the definition of solid waste) for AEA-regulated materials, and because of disagreements about the scope of the definition of “by-product material. “ ------- —2— To clarify the applicability of RCRA to mixed waste, EPA issued a clarification notice on July 3, 1986 (51 FR 24504). In that notice, the Agency announced that the hazardous component of mixed waste is subject to RCRA requirements and that the radioactive portion of the waste (source, special nuclear, and by-product material) is subject to AEA. EPA also required States which had obtained RCRA-base program authorization prior to the July 3 notice to revise their programs to clarify the regulatory status of mixed waste (i.e., to include the hazardous component of mixed waste in their program definition of solid waste), and to apply for EPA authorization of their revised program. The Department of Energy (DOE) clarified the term “by-product material” in an interpretative rule on May 1, 1987 (52 FR 15937). That rule stipulated that, in mixed wastes, only the actual radionuclides are considered by—product material. DOE’s interpretative rule is consistent with EPA’s earlier clarification notice. EPA’s July 3, 1986 clarification notice described three general regulatory scenarios for mixed waste based on the authorization status of a State’s hazardous waste program: o In a State which is not authorized for the RCRA-base program, mixed waste is subject to the Federal hazardous waste management requirements, and EPA administers and enforces the requirements for mixed waste until the State receives mixed waste authorization. o In a State with both RCRA-base program and mixed waste authorization, mixed waste is subject to the hazardous waste management requirements, and the State administers and enforces its requirements for mixed waste (of course, if the waste were newly listed or identified pursuant to a Hazardous and Solid Waste Amendments (HSWA) provision, and the State was not yet authorized for that listing or characteristic, EPA would administer the requirements). o In a State which is authorized for the RCRA-base program, but not specifically authorized for mixed waste, this waste is not subject to the Federal hazardous waste requirements until the State revises its program and receives authorization specifically for mixed waste. (A State may, however, regulate mixed waste under State law under any of these three scenarios). The chart in Attachment 1 shows the regulatory scenarios for mixed waste in authorized and unauthorized States. The section below describes the applicability of the TC to mixed waste in these regulatory scenarios. ------- —3— A plicabi1itV of the TC to Mixed Waste The status of mixed waste that fails the toxicity characteristic (i.e., the Toxicity Characteristic Leaching Procedure) follows the scheme described above. Specifically, the TC rule brings some additional mixed waste streams into the RCRA Subtitle C system in States that are not authorized for the RCRA- base program, and in States that are authorized for mixed wastes. However, in States that are authorized only for the RCRA—base program, mixed wastes that fail the TC will not be considered hazardous under Federal regulations. Once those States become authorized for mixed waste, then this waste will be subject to the TC. The Agency’s position on the applicability of the TC to mixed waste is consistent with an earlier determination on a related issue regarding the land disposal restrictions program. EPA determined that HSWA’s land disposal restriction provisions in Section 3004(d)—(h) do not apply to mixed wastes in States with only RCR.A-base program authorization (see Attachment 2, Mixed Waste Position Paper, Issue 3). The basis for that determination is that the land disposal restrictions apply to “solid waste” which is hazardous. As mentioned above, mixed waste is not a solid waste in a State with only RCRA-base program authorization. Therefore, the land disposal restrictions do not apply to mixed waste in a RCRA-base authorized State until the State revises its program (i.e., defines this material as a solid waste) and receives EPA authorization for mixed waste. Similarly, the TC, which was also promulgated pursuant to HSWA, does not apply to mixed waste in a State with RCRA-base program authorization until the State revises its program and receives authorization for mixed waste. This is because the TC only applies to material included in the definition of “solid waste,” which is part of the authorized RCRA-base program. As noted above, the definition of “solid waste,” upon which HSWA requirements depend, is determined solely by State law in authorized States. Therefore, in scenarios 1 and 2 described in the background section above, new HSWA requirements such as the land disposal restrictions and the TC would apply to mixed wastes. In scenario 3, however, new HSWA requirements like the TC would not apply to mixed wastes until the State becomes authorized for these wastes. Current Regulatory Status of Mixed Waste Currently, mixed waste is regulated as a Subtitle C solid and hazardous waste in 33 States and territories (24 States and territories have received authorization for mixed waste, 9 States and territories are unauthorized even for a RCRA—base program). ------- —4— In these 33 States, mixed waste is subject to the TC (scenarios 1 and 2 above), and EPA administers and enforces the program for toxicity characteristic mixed waste until the State receives authorization for the TC program. In the remaining States and territories, which have only RCRA—base program authorization (scenario 3), mixed waste is not now a solid waste according to the Federal hazardous waste management requirements, and this waste is not subject to the TC. A list of States and territories with mixed waste authorization as of January 31, 1991, is provided in Attachment 3. The effective date of the TC rule was September 25, 1990 for large quantity generators and treatment, storage, and disposal facilities and March 29, 1991 for small quantity generators. The key compliance dates for the TC rule, including requirements for Section 3010 notification, submission of permit applications (Part A’s and B’s), and permit modifications are summarized in Attachment 4. These compliance dates apply to facilities which handle toxicity characteristic mixed waste in States which have mixed waste authorization and in States which have not yet received RCRA-base program authorization. In States which have only RCRA-base program authorization, mixed waste is not subject to the Federal hazardous waste regulations until the State becomes authorized for mixed waste. Once a RCRA-base authorized State becomes authorized for mixed waste, facilities in that State will be required to submit a Part A permit application, amended Part A permit application, or permit modification for TC wastes as well as other hazardous waste no later than six months after the effective date of the State’s mixed waste authorization. In this type of situation, a Section 3010 notice would not be required for newly regulated generators and treatment, storage, and disposal facilities. However, newly regulated generators and treatment, storage, and disposal facilities are required to obtain an EPA identification number, following the authorized State’s procedures. If you have additional questions regarding this matter, please feel free to contact Jared Flood of my staff at FTS: 475—7066. If you have questions about other specific issues related to the TC, please contact Steve Cochran of my staff at FTS: 382—4769. Attachments ------- 1tOS?4P p 9441.1991(03) j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 lIqØ t MAR I 9 OF ,CE OP SOLID WASTE ANO EMERGENCY RESPONSE Melanie K. Pierson Assistant U.S. Attorney U.S. Department of Justice Southern District of California United States Courthouse 940 Front Street, Room 5-N-19 San Diego, California 92189 Dear Ms. Pierson: This responds to your February 26, 1991 letter to Ms. Becky Cuthbertson regarding the regulatory status of solder dross generated by the periodic skimming of molten solder baths used in the production of printed circuit boards to remove contaminants acquired through use of the molten solder baths. Your specific question concerns whether this solder dross meets the description of a “by-product” or a “spent material” in the context of the hazardous waste regulations. Although it is not specifically defined, the term “dross” is used as an example of a by-product in the January 4, 1985 Federal Register preamble to the current definition of solid waste (see 50 FR 625). Further, there is an example in EPA’s “Guidance Manual on the RCRA Regulation of Recycled Hazardous Wastes” (March, 1986) in which solder drosses generated in soldering integrated circuits to printed circuit boards are determined to not be solid wastes because they are identified as “characteristic by-products that are reclaimed.” Typically, a “dross” is generated prior to using a metal or alloy by melting the metal or alloy and skimming off the contaminants and oxides that have developed since the metal or alloy was refined. In the soldering of integrated circuits to printed circuit boards (as in the example given in the guidance manual), the dross is generated as a by-product (of the solder) when the solder is melted during its use. However, although the generator may claim that a secondary material is a “dross” (and the material may, in fact, appear to be a “dross”), that does not automatically mean that the material is a by-product rather than a spent material. The determining consideration in classifying a secondary material is how the material is generated, not the term used to describe it (e.g., “dross”). As a product that has been used in the process, the solder skinunings, when removed (i.e., skimmed Printed ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCI 9441.1991(04) M R 261991 John E. Ely Enforcement Director Virginia Department of Waste Management 101 North 14th Street Richmond, virginia 23219 Dear Mr. Ely: At the request of Carlyle C. Ring, Vice President and General Counsel of Atlantic Research Corporation, I am sending this letter to summarize the Agency’s current position on the “contained—in” interpretative policy. It is my understanding, based upon Mr. Ring’s letter, that there was some question as to whether the “contained-in” interpretative policy applies to all environmental media or only to ground water. Mr. Ring’s letter also suggested that a letter from my Office would help resolve this matter. I hope this letter viii answer this question and further clarify the policy. I have also enclosed, for your information, a memorandum from Jonathan Cannon to Thomas Jorling dated June 19, 1989. 1 hope that you will find these helpful. The “contained-in” interpretation addresses environmental media (i.e., ground water, soil, and sediment) contaminated with RCRA listed hazardous waste. Our federal regulations at 40 CFR Part 261.3 identify hazardous wastes. Among other things, these regulations state that a solid waste mixed with a hazardous waste is a hazardous waste. However, these regulations generally do not specifically address environmental media, which are not solid wastes, mixed with listed hazardous waste. The Agency’s position continues to be that mixtures of environmental media and listed hazardous waste (i.e., contaminated ground water, contaminated soil, and contaminated sediments) must be managed as if they were hazardous waste. This position is known as the “contained—in” policy. EPA’S applicati,on of the “contained-in” policy to contaminated media was upheld by the D.C. Circuit Court of Appeals in Chemical Waste Management. Inc . V. !JJ....E I 869 F.2d 1526 (D.C. Cir. 1989). Consistent with this approach, the Agency further interprets the regulations to mean that environmental media contaminated with listed hazardous waste must be managed as if they were hazardous waste until the media no longer contain the listed hazardous waste (i.e., until decontaminated), or are delisted. ‘ Pr )p nt issu d arn definitive euidan a as to ------- when, or at what levels, environmental media contaminated with listed hazardous waste no longer contain that hazardous waste. Until such guidance is issued, the Regions or authorized States may determine these levels on a case-specific basis. However, as you know, States that are authorized to implement the RCRA hazardous waste program, as virginia is, are not bound by EPA’s interpretation of the Federal regulations. Although they usually follow Federal interpretations, authorized States may interpret their own regulations more strictly than EPA interprets the Federa2. regulations. Related to making a determination as to when contaminated media no longer contains listed hazardous waste, we suggest that a risk assessment approach be used that addresses the public health and environmental impacts of hazardous constituents remaining in the treated soils. And as stated above, the authorized State could apply more stringent standards or criteria for contaminated environmental media than those recommended by the Federal EPA if the authorized state determined it to be appropriate. (Note: However, this approach does not apply to residuals from the treatment of listed hazardous waste or mixtures of solid waste with listed hazardous waste under our current regulations, which must be delisted.) I hope that this letter will be helpful to you in establishing and implementing Virginia’s hazardous waste policies on related issues. Should you have any questions concerning EPA’s “contained-in” interpretative policy, please contact Steve Cochran, Acting Chief of the Waste Identification Branch, at (202) 382—4770. Sincerely yours, Sylvia K. Lowrance Director Office of Solid Waste cc: C. Ring D. Freedman ------- 9441.1991(05) itO S74 4 4% TI UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 ‘ t F. O tc’ APR 22 1991 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Ms. Corinne A. Goldstein Covington & Burling 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20044 Dear Ms. Goldstein: This letter is in response to your correspondence to Randolph Hill dated November 16, 1990, and December 13, 1990, concerning DuPont’s “chloride—ilmenite process.” As you are aware from telephone conversations with Mr. Hill and the brief filed by the Agency with the U.S. Court of Appeals for the D.C. Circuit in Solite CorD . v. EPA , the Agency continues to believe that wastes from this process are appropriately classified as mineral processing, not beneficiation wastes. This letter specifically addresses Dupont’s proposed changes in the process discussed in the November 16 and December 13 letters, and the impact that these process changes would have on the Bevill status of the new wastes produced. The Agency’s determination that chloride process waste acids (including Dupont’s chloride—ilmenite process waste acids) are a processing waste was a one—time decision based on a “snapshot” of the industrial processes in place at the time of the decisions. It was, and remains impossible for us to address the Bevill status of wastes from proposed changes in current processes. The Lgency clearly stated this in the September 1, 1989, Final Rule (54 36592). Such new wastes, unless determined to be either a beneficiation waste or among the 20 temporarily exempt mineral processing wastes (which Dupont’s proposed wastes would not be), would be non-exempt mineral processing wastes and would need to be managed in accordance with RCRA Subtitle C if they are characteristically hazardous. If DuPont implements the changes it has proposed (or other changes), the Ag ’ncy will evaluate the resulting wastes to determine if some portion is indeed a beneficiation waste. We cannot, however, guarantee that a decision that these are beneficiation instead of processing wastes would be made. Based on process descriptions in your November and December letters, P ia .d R.c d .d Pap.r ------- —2— along with other information you provided in our November 20, 1990, meeting, the Agency already has some reservations as to DuPont’s ability to generate a waste only containing residues from beneficiation. Operations producing combined beneficiatjon and processing wastes are appropriately classified as processing operations for purposes of determining whether or not they produce wastes that are exempt mineral processing--wastes.--- - If you have further questions concerning this matter, please contact Bob Tonetti at (703) 308-8426. • rector Office of Solid Waste ------- 9441 . 1 99 1(05a) f Tj UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 “ 4 .ua ’ - MAY 21 t99 1 MEMORANDTJM OFFICE OF SOuO WASTE AND EMEROENCV RESPONSE SUBJECT: Classification of Waste Fluids Associated with Clean Up of Crude Oi Active Oil Fields FROM: Sylvia K. Lowrance Office of Solid Wasi TO: Max H. Dodson, Director Water Management Division, Region 8 On January 3, 1991, Paul Osborne of your staff sent a memo to Mike Fitzpatrick in our Special Wastes Branch. This memo inquired about the RCR.A regulatory status of certain ojlfjeld clean-up waste and requirements for disposal. The waste in question is described as snow-melt contaminated by crude oil spilled from a pipeline leak. The location of the pipeline leak is identified as occurring after the point of custody transfer of the crude oil. The January 3 memo also asks whether any additional standards and rules are applicable prior to disposal of a hazardous waste in a Class II well, and points out an apparent regulatory conflict between the RCRA and UIC regulations. After careful review of the information provided in the memo and in follow up telephone discussions, we believe that the contaminated snow-melt is not covered by the oil and gas exemption under RCRA (see attachments for further discussion) and must be handled under the provisions of RCRA Subtitle c if it exhibits one or more of the hazardous characteristics. Furthermore, we do not believe there is a Conflict between the RCRA and UIC programs in regard to the status of a non-exempt waste fluid that previously was allowed to be injected in a Class II well but now, due to changes in the RCR toxicity characteristic, is a hazardous waste. In implementing the UIC program, EPA and the states are required to comply with other applicable environmental laws including the relevant provisions of RCRA. Thus, neither EPA nor the states can authorize the disposal of hazardous wastes in a Class II well even though the waste was an authorized Class II fluid prior to the change in the RCRA toxicity characteristic. Regardless of the RCRA status of the wastes from these pipeline leaks, the more fundamental question involves the prevention of any future leaks. We suggest that Region 8 look into other state and federal authorities (e.g., Section 311 of the Clean Water Act, and the Oil Spill Prevention Act) and undertake a review of existing regulations designed to prevent Pnngea ,, Recycled Paper ------- —2— leaks or contamination from pipelines. In addition to enforcement actions that may be pursued, these other authorities may also provide incentives for the responsible operator to repair, replace or maintain existing pipelines rather than to simply attempt clean-up after a release has occurred. If you or your staff have any further questions on this matter, please contact Mike Fitzpatrick at FTS 398-8411. Attachments cc: Waste Management Division Directors, Regions 1 - 10 Tina Kaneen, OGC James R. Elder, Director, OGDW ------- Attachment 1: Discussion of RCRA Exempt Status and UIC Requirements a The RCRA exemption for oil and gas exploration and production (E&P) wastes is limited by statutory language to “drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil or natural gas or geothermal energy.” The legislative history discusses the term “other wastes associated” as being those wastes “intrinsically derived from the primary field operations.” As is made clear by the legislative history, this phrase is intended to differentiate E&P operations from transportation and anufacturiflg operations. The point of transfer of the custody of the crude oil or natural gas products has been identified by Congress in the legislative history as one factor in determining when transportation begins and E&P operations end (H.R. Rep No. 1444, 96th Cong., 2d Sess. at 32 (1980)). In the absence of custody transfer, the point of production separation and dehydration can be used to determine the end point of E&P operations. Transportation may be for short or long distances, including both .. main trunk pipelines and smaller local pipelines. For the purpose of the RCRA exemption, non exempt transportation-related wastes are those resulting from any mode of transportation, including pipelines, after the point of custody transfer or point of production separation or dehydration. Since the waste in question is generated after the point of custody transfer, it would not be included within the scope of the RCRA exemption. Therefore, if this waste exceeds the toxicity characteristic for benzene (or any other hazardous characteristic), then it is a hazardous waste subject to the regulatory requirements of RCRA Subtitle C. Because the RCR.A exempt status of an oilfield waste is based on the relationship of the waste to E&P operations, and not on the chemical nature of the waste, it is possible for an exempt waste and a non-exempt hazardous waste to be chemically very similar. Hazardous waste must be managed according to the requirements of RCRA Subtitle C regardless of the chemical similarity of a hazardous waste (contaminated snow-melt) to an exempt waste (produced water). The January 3 memo fails to identify other wastes that may be generated by the pipeline leak such as waste crude oil or soil contaminated at times when there is no snow, nor does it address current waste management practices for these’ other wastes. Since al]. wastes generated by the pipeline would be nonexempt. the above discussion of the contaminated snow-melt would apply other wastes equally as well. The January 3 memo also asks whether any additional standards and rules are applicable prior to disposal of a hazardous waste in a Class II well. This question may be best answered by quoting from a February 26, 1990, letter (copy ------- attached) to the Chairman of the Alaska Oil and Gas Conservation commission from Ronald A. KreizeflbeCk, Acting Director, Water DiviSiOn, EPA Region 10. This letter states: Finally, in implementing the UIC program, EPA and the states are required to comply with other applicable env .ronmefltal laws. Specifically, we must comply with the relevant provisions of the Resource Conservation and Recovery Act of 1976 (RCR.A) as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA). Thus, in implementing the program we are required to be consistent with the temporary hazardous waste exemption granted to wastes produced by oil and gas development and production activities. In a similar vein, underground injection is one of the forms of land disposal of hazardous waste that is prohibited under the “land ban” provisions of RCRA as amended by HSWA. Thus, neither EPA nor the states can authorize the disposal of hazardous wastes of any kind in a Class II well. The full text of this letter is included as Attachment 2. ------- U d st s a9’o, io A t1 z c nf 2 ivv mei I Prst r I Q 5 t Av fwo IdaJi Açinoy Seme WA 99101 Wu i I1’ A FE : * , tQ £ o • W 1 C.V. Chatterton, Chairman Alaska Oil and Gas Conservation Commission 3001 Pori.zpin. Drive Mchorage. Alaska 99 01 -3192 Dear Mr. Chatterton: I am writing in response to your August 3. 1989 Letter dis .assing the Comrtission ’s position on the purpose of the Underground Injection Cont’o (UCC) progran and the approa whien we should take to regulating Class IC Injection wells. The discussions in your latter give us a goco understanding of your perspective on the program. We apolog 2e for the relatively long hiatls oetween cur receipt of your letter and the comple crt of this reply. We used that time to develop the reply In consultation with our attorneys and appropriate EPA Headquarers oersonnel. We believ. that it would be worthwhile for us to aitculate our understanding of the UIC program as it relates to Class II injection wells and the fluids which may be 1 detfried” as Class I I fluids, before we continue our discussion of what changes, if any, are needed in our Memorandum of Agreement (MOA). SI ’Ar%rTOm’ Di aciiow Our understanding of the UIC program and ite application to oil and gas development activities derives from the provisions of §1421 of the Safe Drinking Water Act (SDWA) wrlich control how the program would ir.teract with oil and gas activities. First. EPA agrees that the purpose of the UIC program is to protect Underground Sources of Drinking Water (USDWs) from contamination. However, we disagree with ycur conclusion that §1 42t does not create a waste management program and that we (EPA and the State) are not In the business of regulating wastes. The SOWA is silent on how EPA and the states are to actually go about protecting USDWs, other than to say that, a tar the effective dat. of a state UIC program, the states regulations must prohibit injection unless it Is authorized by a permit or by rule. We draw two conclusions from this silence in the statute. First, EPA can choose essentially whatever means it deems are appropriate to protect USOWs. Second, no legal psrsorr has an inherent right to inject; that is. EPA or a state could, as some states have done, prohibit all injection In some class or dasses of wofis as a at pratec ng USDWs. ------- •2- EPA In faa, has chosen to design and operate the UIC program as, essentially, a waste managemSflt program. Thus, the regulations often classify wells based upon trte types of wastes (fluids) that would be injected in a well and the location of the inlection zone With. ’fBSPSCt to US WS. Although Class I I and Ill wells are explicitly øetined in terms of their uses rather than the fluidS they inject or the location of the injection zone with respect to USOWs, each at the definitions contains implicit assumptions about the fluids which are likely tO be injected and the likely location of the injection zone with respect to “tearby USOWs. Similarly, the regulations specify the conditions under Which injection may ocour and impose a collection of design 1 construction, and operating requirements on the owners and operators at various classes of injection wells including Class Ii wells. We would, therefore, conclude that the UIC program has become a waste management (regulation) program. This iS. in our vtew, the conceptual foundation for the operation of the program. PA is not limited, however, in its authority tO regulate a underground injection activity which may er.danger USDWS. including those which may not technically constitute “waste management” (such as ground water reiniection). Second, we also agree that the SDWA does restrict the manner in which the UlC program may regulate oil and gas development activities. Specifically, the statute provides th RegulatioflS of the Administrator under this section foe State underground injection control programs may not prescribe requirements which interfere with or impede” (A) the underground injection of brine or other fluids which are brought to the s - .:e in connection with oil or natural gas production or natural gas storage requirements. or (B) any underground Injection forthe secondary or tertiary recovery of oil or natural gas, unlss 5 such requirements are essential to assure that underground sources of drinking water will not be endangered by such Injection.” §1421(b) (2) Emphasis supplied. This statutory language does specify what types of fluids may or may not be injected in a weli being used In oil and gas exploration, development, or production. That decision is left tO the discretion of the MmlrtistratOt. The statute further states that a regulation prescribed by the Administrator under this section shall be deemed unnecessary only if, without such regulation, underground sources of drinking water will not be endangered by arty underground iniectiart ” Thus, EPA and states with primacy may res ict, interfere with or impede these injection actMtles in arty manner we deem necessary to prevent the endangerment a USOW. This conclusiOn 5 consistent with tne fact that the primary’ purpose of this portion of the statute Jhe orotection of USOWS . Finally, in implementing the UIC program. £PA and the states, are required to comply with other applicable environmental laws. Specifically. we must comply with the relevant provisions at the Resource Conservation and Recovery Act of 1976 (RCRA) as amended by the l’4 ardouS and Solid Waste Am.ndmems of 1984 (HSWA). Thus, in implementing the program we are required to be consistent with the temporary hazardous waste exemption ------- -3- - granted to wastes produced by oil arid gas dsv.lcprnettt and production activities. In a similar vein, underground frtj.cUor Is one of the forms of land disposal of hazardous waste that Is prohibited t s der the land ban’ provisions of RCRA as amended by HSWk Thus, neither EPA nor the states can authorize the disposal of hazardous wastes of any Idrid in a Class Ii iJeU. We can also not authorize the injection of arty hazardous wastes tailing WtthItt th. scope of the land ban In injection well, except under a very limited set of circumstances 1 . When all of these statutory provisions are taken together with EPA’S chosen approach of regulating injection activities based ott the scurce and type of fluid involved, the definition of Class I I fluids becomes a more critical question. This is thJe because the injection of any fluid determined to be a Class II fluid is ‘e Ued ” to the less restictive r.gulatlon provided for by §1 421 (b)(2) of the SOWA. RCRA HAZARDouS WASTES As stated above, no RCRA hazardous waste may be injected down any Class I I well. To determine whether a waste from oil arid gas production is hazardous under RCRA, a two to three-step analysis must be performed. First, the program director must determine whether the waste would fall within the scope of the exemption from RCRA regulation for drtlling fluids, produced wastes, arid other wastes associated with the exploration. development, or oroduction of crude oil or natural gas or geothermal energy.” RCRA §3001 (b)(2)(A). The two RCRA documente we discussed previously provide guidance for answering thiS question. First, e regulatory deterrninabOfl published on July 6, 1988 (53 25448) provides a list of wastes (fluids) which fall within the scope of the temporary exemption. It also provides a list of wastes which ar. not covered by this exemption. (Pages 254$3-25454j. If the fluid le riot one of the ilsted exempt wastes, the next (second) step which the program director must take is to determine whether it me. the RCRA definition of hazardous waste: Is the waste sted as hazardous under 40 CFR §5 261 .31-34 and/cr does the waste . dtibit one of the hazardous characterIstics under 40 CFR if 261.11 -.14? if the fluid is a listed or characteristic waste, then the program director must make en. more check (the third step) to determine whether the fluid may still fall vdthin the scope of Ui. RC A exemption. The most logical guidanc. for this deterrnirtatlon Is the general language in the Report to Congress (enclosed) quoted in the recommendations made in our performance idR of the Commission’s UIC program. There is one additional point of dariflcatiort which needs to be made with respect to this determination. Your letter suggests that states need to be able to make case .by ’caSe 1. AI r tie spçflc.bL. i t, ve dg or et. land bin far tie , ,&a i in çgs i (e.g., May 9, 1990 for w ss & th sz?%Lbb$ ha Iaaua arigre e) tue w u may be land ( posmd (inii Sr y I O il W I (i mss appUca Im i ns ndwds. (b) I Oil j Itt it in lpQri d isna ot ’ to Oil qlf. vS 4 I d Oil laud bat ’, or (c$ . s tbJ.d of an aawcv.d ‘flu miz sii ’ pI Q’I . Vi all csa suefi giI ’ - ’ mud be in s Clw I welL ------- -4- deterndnatiofl3 whether a fluid Is an a 5 sociated wastV within the scope of the RCPA exemoton In order to adapt to the differences among oil fi.lds. This is not what EPA means by iflteW’I’y atititiiflSiCaity associated with oil and gas production. The terms (integral and/or inDinsie) are meant to be applied to the industry as a whole, and not to any particular bil field. Thus. if a fluid Is a characteristic or listed hazardous waste, Is not listed in the regulatory determination as being exempt, and 1$ used or produced by operations other than oil and gas production operations (for example in ariothsr IndusDy). then it iS not covered by the RCRA temporary sxemptlcn and may not be disposed of via a Class Ii well or used in an erthanced recovery inje Ofl well. Cuss II F u’ Once a determination has beert made that the waste in question is not hazardous under RCRA. the UIC program director must then determine whether th. waStO may be injected into a Class 11 well. Class II wells are defined explicitly In the terms contained in the statute. The sections of the UIC regulations which your Ister cites 140 CFR §144.6(b) and 40 CFR §146.5(t)J mostly reiterate the statutory language at §1 421 (b)(2) as a definition for Class H wells. The one arnolification in the definition is, as described above, that fluids cannot e injected If they are classified as hazardouS wastes at the time of the pro posed injection. Class II fluids are not completely defined in the UIC regulations. However, we can derive at least a partial definition from the statutory language and the related regulatory Language implementing the relevant provisions of RCRA as amended by NSWA. First, for Class li-D (disposal wells), bnnes or any other fluid brought to the surface in connection with natural gas storage operations or conventional oil and gas production may be injected as long as it is not a bazardous wüte. These fluids may be commingled with waste waters from gas plants which are an integral part of production operations. unless those waters are classified as hazardous at the time of in ect1on. The July 31, 1987 memorandum from Michael Cook does not alter or expand the list of a1lowa Ie fluids in any substantial way. it clarifies what fluids fall within this M class and indicates that fresh water added to or substituted for the brine may also be injected, as long as the only use of the water is ror purposes integrally associated with oil and gas production or storage. Its purpose is simply to guide a state program director’s decision when a fluid is prooosed for injection that is not explicitly listed anywhere else as either a Class II or non-Class II fluid. Second, we have net attempted to develop a generic definition for ths ypss of fluids which can be ected in enhanced recovery wells (li.R or EOR wells). EPA, as a whole. has not done tIlt, in part, because of the wide range of fluids which have been arid are used lot enhanced recovery especially in tertiary oil recovery projects. Th. only explicit rest?lctforl in current law and Agency policy is that hazardous waste (listed or character.stc) as defined under RCRA, HSWA,, arid their implementing regulations, may not be injected in enhanced recovery injection weLls. ------- .5- As you wil recall, ARCO asked for and received permission from the Commission to r .ct tested sanftaiy waste in some of ite EOR wells at Prudhoe Bay. Similarly, Bri sh Petroleum (BP) Is currently designing a waste management and disposal project in which it is contempleting injecting tested Industhal waste effluent in EOR walls. In each of these instances, we have concluded that it Is within the scope of the Commission’s delegated authority under the SDWA to approve this practice. However, an essential part of such an approval would be a requirernerrt that the operator demonstrate that the fluids proposed for injection would be chemically similar to other fluids used for EOR such as produced waters from the field or the treated waler being produced at the Prudhoe Bay Waterflood Project. This demonSV ’8 On would need to e made with respect to all substances of concern that might exceed acceptable levels in groundwater. Alternathiely, the operator could be required to demonstrate that the proposed injectate is chemically similar to fluids tvoica1i used for secondary recovery in the industry. If tertiary recovery is ever proposed on the North Slope, then the appropriate comparison would be to fluids r,oicailv used in the industry for tertiary recovery. As a general rule, this demonstration would Include injectete sampling under appropriate data quality assurance and quality control procedurss. Additionally, if USDWs are present within the area of review of the EOR wells, then the approval would need to confirm that the injection of the specific proposed fluids would not contaminate or otherwise endanger these USDWs. COPCtJJaIONS We recogruze, from our conversations with you and the content of your letter, that this issue is vary important to the Commission. Due to the significance of your concerns, we developed this response with the assistance of our Offid. of Regional Counsel, EPA’s Office of General Counsel, and with the advice of the Office of Drinking Water’s Underground Injection Control Branch (UICB) at EPA’s Headquarters. All of these offices have concurred with the views expresse in this letter concerning how a UIC program director should determine whether a particular fluid may be Injected down a Class It injection welt. We would like very much to bring these issues to closure with you, as we know that thrl Will continue to arise (as in the case of EP Masl ’s proposed North Slope Waste Management Project). We recognize that Alaska’s situation is, in many cases, unique, and that certain wastes can be safely injected in a manner that represents the most environmentally protectiv, disposal alternative. Nonetheless, we are bound to interpret existing (duty adopted) regulations in a consistent marr er nationwide. Alter you have had a chance to review this lever, please contact Janis Hastings, Chief of the Drlrddng Water Prograr.i Branch at (208) 4424092 to discuss our next steps, including changes tO the MOA, to resotve the Issues. Sincerely, Director Water Divialon Enclosure ------- The test of whether a particular waste qualifies under the exemption can be made in relation to the following three separate criteria. No one criterion can be used as a standard when defining specific waste streams that are exempt. Thu. criteria are as follows; 1. Exempt wastes must be associated with measures (1) to locate oil or gas deposits, (2) to remove oil or natural gas front the ground, or (3) to remove impurities from such substances, provided hat v ie purification process is an integral part of primary field operations. 2. Only waste streams intrinsic to the exploration for, or the development and procuction of. crude oil or natural gas are Subject to exemption. iI&StI streams generated at oil or gas facilities :nat are not uniquely associated with exploration, development, or procuctiori activities are not exempt. (Exampes would include spent solvents from equipment claanuB. or air emissions from diesel engines used to operate drilling rigs.) Those substarte es that are extracted from the ground or Injected into the ground to facilitate the drilling, operation, or maintenance of a well or to enhance the recovery of oil and gas are considered to be uniquely associated with exploration, development, or production activities. Additlonifly, the injection Into the weilbore of materials that keep the pipes ?r m freezing or serve is solvents to prevent piraffin accumulation is intrinsically associçed with eiploratlon, development, Or production activities. With regard to injection for enhanced recovery, the inject materials must function primarily to enhance recovery of oil and gas and must be recognized by the Agency as being appropriate for enhanced recovery. Arm exampli would be produced water. In this context, function primar11y means that the main reason for injecting the materials is to enhance recovery of oil and gas rather than to serve as a means for disposing of the injected mna:erials. 3. DrIlling fluids, produced waters, and other wastes intrinsically derived from primiry field operations associated with the exploration, development, or productiQn of Crude oil, natural gas or ge thar al energy are subject to exemption. Primary field Operations encompass productlon-pe latec activities but not transportation or manufacturing activities. With respect to oil production, primary field operations encompass those activities - usually Occurring at or near the ellhud, but prior to the • iP j . ses iuo iai,. .‘:— u.c ; x ug i iI rsfi.iutq a :etr? , ,).e,la . i ct e ie : :.ea.s. ‘u :r uI,s a , c: v et’:aqral aa; ;9 ;r gr 7 ft.Li CIra:ec,i,. 7 ------- transfer of oil from an Individual field facility or a centrally located facility to a carrier (i.e., pipeline or trucking concern) for transport to a ref inery or to a rsfiner. With respect to natural gas production, primary field operations are t!iosa activities occurring at or near the welihead or at tne gas plint but prior to the point at which the gas is trans’srred from an indiv idual field facility, a centrally located facility, or a gas plant to a carrier for transport to market. Pr’mary field operations encompass the primary, secondary, and tertiary production of oil or gas. Wastes generated by thi transportation process Itself are not exempt because they are not intrinsically associated with primary f eld operations. An example would be pigging waste from pipeline pumping stations. Transportation (for the oil and gas industry) may be for snort or long distances. Wastes associated with manufacturing are not exempt because they are not associated with exploratlpn, development, or production and hence are not Intrinsically associated with primary ‘ield operations. Manufacturing (for the qll and gas industry) is defined as any activity occurring within a refinery or other manufacturing facility the purpose of which is to render the product conm ercially saleable. Using these definitions, Table 1 presents defIn1t1 ns of exempt wastes as defined by EPA for the purposes of this study. Note that this Is only.; partial if s t. Although it includes all the major waste streams that EPA has considered In the preparation of this report, others may exist. In that case, the definitions listed above would be applied to determine the status of these wastes under SectIon 8002(m). CHARACTERIZATION OF W&STES Organic constituents, present at levels of potential concern in oil and gu wastes, are shown on Table 2. These includi the hydrocarbons benzan• and phenanthrene. Inorganic constltuents,of concern Include lead, arsenic, birlum, antin ny, and fluoride. 8 ------- aI UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION VA) 999 18th STREET - SUiTE 500 DENVER, COLORADO 80 202-2405 Ref: 8WM-DW 1 MN 311 MEMORANDUM TO: Mike Fitzpatrick Special Waste Bra ch, 0 9 W / “ ‘ / FROM: Paul S. Osborne.’ 1 -- Regional Grou d Water Expert SUBJECT: Classification of Waste Fluids Associated with Clean Up of Crude Oil Leaks in Active Oil Fields In response to our December 27, 1990, conversation regarding the coverage of the RCRA Oil and Gas Exemption as it relates to oil spills and pipeline leaks in active oil fields, I took a more detailed look at those portions of the UIC regulations and guidance relating to well classification. I was specifically looking at how the waste fluids from pipeline leaks would be classified for UIC purposes if they are not covered by the oil and gas exemption and fail the Modified Toxicity Characteristic Rule. As indicated in my draft memo, which describes the issue in question, the fluids from the clean up of oil spills and leaks within an oil field are presently detined as Class II wastes under the UIC Program. This is based on the tact that the fluids were generated by a clean up of waste crude which meets the criteria of being “produced at the surface.” A change of ownership of t e oil within an active oil field would not affect the status of the UIC waste classification. You have indicated that the change of ownership of oil moving out of the oil field to the main pipeline via collector lines could result in this crude oil not being covered by the RCRA Oil and Gas Exemption. The absence of the oil field exemption will most likely result in fluids associated with clean up of crude oil being classified as hazardous because benzene levels exceed the limits established by the Modified Toxicity Characteristic Rule. The UIC regulations do not contain provisions to alter the Class II status of a given waste stream which has become hazardous because of a RCRA rule change. This appears to create a situation where the regulatory status is in conflict between the two programs. The question created by the scenario outlined in the previous paragraph is: What additional standards and rules must the operator comply with prior to disposal of such a waste in a ------- Class II well? The existin’ LflC requlations do not address such a situation. If it is determined that clean up of crude oil leaks from collector lines in active oil fields, where the oil has changed ownership, is not covered by the Oil and Gas Exempt ofl Rule, I will need input from the office of Solid Waste on the specific regulator actions required for disposal of hazardous Class II waste. I would recommend that you ask OGC to consider how the change in the status of a particular UIC waste classification can be carried out. cc: FrancoiSe Brasier, Chief UIC Branch, ODW Felix Flechas, RCR? Don Olson, Chief Compl. & Enf. Sect., ODW 2 ------- 9441.1991(06) % TI UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 puIc%(tC MAY 2 9 1991 Mr. Philip S. Bell o 1CEoF Amerock Corporation SOLID WASTE AND EME.IGENCY RESPONSE 4000 Auburn St P.O. Box 7018 Rockford, IL 61125—7018 Dear Mr. Bell: This is in response to your April 5 letter regarding the regulatory status of certain electroplating wastes and associated waste management activities. Our responses to your specific questions follow: 1. Anode bags a. When, and under what conditions, do they become a hazardous waste? The anode bags become a solid (and hazardous) waste when they are removed from the plating bath. At this point, they are considered to be a “spent material” that is reclaimed (i.e., washed to remove the cyanide solution) prior to reuse. b. If they are washed and reused, are they hazardous waste during the time between removal and washing (if the washing does not occur in the same process tank)? As described above, during this period, they are a “spent material” and a hazardous waste. c. If and when they become a hazardous waste, when one washes the bags to remove the plating solution, must one have a RCRA Part B permit, or can one perform “treatment while accumulating” by meeting the requirements of 40 CFR 262.34 and 40 CFR 265 Subparts I and 3? Washing of the bags constitutes treatment of a hazardous waste. However, a RCRA permit would not be required if this treatment occurs in tanks or containers during the accumulation period of not greater than 90 days and meets all of the requirements of 262.34(a). PnnredoriR . ------- d. If and when they become a hazardous waste, is the proper waste code for them solely D003 for CM content or do they also become a listed waste (such as F007) by virtue of some application of the mixture rule? (The assumption is that there are no hazardous characteristics other than reactivity due to cyanide.) The waste would be considered both D003 and F007 (spent cyanide plating bath solution from electroplating operations). This is because the anode bag is both reactive and contains (has been soaked in) spent plating bath. 2. Filtered residues from cyanide platina baths When a filtering apparatus which has been filtering a cyanide plating bath is opened for cleaning, is the residue and filter media (if it is to be discarded) solely D003 or a listed waste code (F007?/F008?) in addition to the D003? These wastes would be considered both D003 and FOOB (spent plating bath residues from the bottom of plating baths from electroplating operations where cyanides are used in the process). While any F008 waste would contain some of the F007 plating solution from the tank in which it was generated, the F008 listing is the more specific description; thus, use of the F007 designation would not be appropriate. 3. A detergent cleaner and rinse prior to a cyanide plating bath a. Was it USEPA’s intent to include the Detergent Cleaner Solution (when spent) in the F009 listing? The F009 listing applies to cyanide-containing cleaning and stripping baths (i.e., “where cyanides are used in the process” refers to the cleaning and/or stripping process). If the cleaning solutions are not cyanide-containing, the F009 listing is not applicable. Should you have any questions regarding these interpretations, feel free to contact David Bussard, Director of the Characterization and Assessment Division, at (202) 382-4637. Sincerely, Sylvia K. Lowrance ------- 9441.1991(08) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 ..N I 0 SOI.iO WASTE ANO EMERGENCY RESPONSE Ms. Jacqueline E. Schafer Assistant Secretary (Installations and Environment) Department of the Navy Washington, D.C. 20360—5000 Dear Jackie: Thank you for your letter of April 12, 1991, regarding issues concerning the Naval Air Station (NAS) in Pensacola, Florida. Specifically, I understand that you are troubled by the Environmental Protection Agency’s (EPA’s) interpretation that volatilization of solvents must be counted as solvent use in calculating a facility’s ability to qualify for the solvent exemption in 40 CFR 261.3 (a) (2) (iv) (B). As you may be aware, current regulations establish that any mixture of a solid waste with a listed hazardous waste renders the mixture a hazardous waste. The purpose of this regulation is to prevent hazardous waste generators from loading the environment with pollutants by simple dilution. In 1981, however, EPA promulgated a set of regulations designed to exempt certain dilute mixtures of solvents or other listed hazardous wastes from regulation as a hazardous waste when these mixtures reach the headworks of the facility’s wastewater treatment system (46 FR 56582, November 17, 1981). The purpose of the rule was to keep the large volumes of treatment sludges from falling within the scope of the listing(s) when, in fact the wastewater treatment system could handle the amount of solvents contained in the wastestream as it entered the headworks of the treatment system. In the preamble to the rule, EPA outlined certain procedures for calculating whether a facility meets the criteria for an exemption (for example, containing no more than 25 ppm of methylene chloride in the untreated wastevater stream). EPA said that a facility must use its records of solvent consumption (such as from invoices) to establish the amount of solvent in the Pnnted on Recyclea Parer ------- wastewater, but may subtract the amount of solvent that does not flow into the headworks of the wastewater treatment system. In a footnote to the preamble, EPA stated that the amount of solvent volatilized may not be subtracted from the calculation. This language was added to prevent facilities from qualifying for the exemption by volatilizing their solvents, and thus causing negative environmental impacts. I appreciate very much the detailed information you have provided, showing that the wastewater mixture entering the headworks at NAS contains far less solvent than the 25 ppm threshold described in the rule. However, according to the information collected by EPA staff in our Region IV office and at Headquarters, much of the solvent used at Pensacola NAS for aircraft paint stripping volatilizes during use and is not otherwise collected. Our current regulations do not allow me the flexibility to permit a subtraction of the volatilized amount. As a result, it appears that Pensacola NAS cannot qualify for the exemption, unless the Navy can show that the solvents that do not go to tne wastewater treatment system are not otherwise volatilized. There is another important aspect to this issue. When the 25 ppm provision was promulgated, none of the solvents to which it applies was considered a suspected carcinogen. Now, however, methylene chloride is considered to be a probable human carcinogen. Any reassessment of this regulatory provision would necessarily reflect this new information and possibly further restrict this wastewater exemption. I realize that very little solvent goes to the wastewater treatment system. The Navy has made an outstanding effort to reduce the amount of such pollutants being managed as hazardous wastes. I urge you to continue your efforts in this regard. We will continue to work with the Navy as it addresses the next steps for the Pensacola NAS. Sincerely yours, ------- 9441.1991(09) itO ST4p g 4 flqL Q 0 t UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 JUN 2 I 1991 OFFICE O SOi’O WASTE AND EMERGENC. RESPONSE Mr. Basil G. Constantelos, Director Environmental Affairs Safety-Kleen 777 Big Timber Ro d Elgin, Illin,isI 1 0123 Dear Mr. elos: Thank you for your letter of April 17, 1991, requesting comments on a position paper on spent absorbent materials. We have completed reviewing your paper and have included a number of comments in the enclosure to this letter for you to consider, as this is a complex area of the Resource Conservation and Recovery Act. Please note that these comments are of a generic technical nature and are therefore not specific to a given factual situation. We appreciate the opportunity to review your position paper. The Environmental Protection Agency is glad to help ensure the safe and effective disposal of hazardous waste. Sincere. Enclosure s of Solid Pnnted on Recycled Paper ------- ENCLOSURE The opening statement (basis) of the paper states that absorbents used to collect used oil, fuels, or solvents may not be disposed of in a sanitary landfill when they are generated by a small or large generator. This is not entirely correct. Under federal rules, a conditionally exempt small—quantity generator (SQG producing less than 100 kg/mo.) in compliance with 40 CFR 261.5 may dispose of hazardous waste in a sanitary landfill if that facility is permitted, licensed, or registered by the state to manage municipal or industrial solid waste per 40 CFR 261.5. In the discussion pertaining to mixtures of spent absorbent and “F or U” listed hazardous waste, it says that these mixtures must be shipped and manifested as “F or U” wastes. There is an exception to this classification, however, for mixtures of listed wastes that are listed only for a characteristic. If the listed hazardous waste is mixed with contaminated absorbents (a solid waste), and those mixtures no longer exhibit a hazardous characteristic, the mixture rule exclusion in 40 CFR 261.3(a) (2) (iii) applies, and these mixtures are not classified as listed “F or U” wastes and are not subject to further regulation. The deliberate mixing of absorbent and hazardous waste to render the mixture non-hazardous may, however, be interpreted as “treatment” per 40 CFR 260.10 and may require a permit and compliance with Part 268 land disposal restrictions. The discussion of absorbents and non—listed waste mixtures addresses mixtures involving flammable liquids. The discussion on flammable liquids, test methods, and resulting classification is hard to follow. A waste liquid or mixture containing a free liquid phase (as defined by our paint filter liquids test-method 9095) is ignitable under the Resource Conservation and Recovery Act (RCRA) if the waste (or liquid phase) has a flashpoint < 140°F using the methods specified in 40 CFR 261.21(a)(l). If the mixture has no free liquid phase, then it is considered a solid. Solids that meet the criteria in §261.21(a) (2) concerning .the ability to cause fire through friction, absorption of moisture, or spontaneous chemical changes such that they ignite and burn vigorously thereby creating a hazard are classified as ignitable hazardous wastes. If a mixture of a characteristic waste absorbent has a free liquid phase with a flashpoint < 140°F, it is ignitable. If there is no free liquid phase, then the qualitative criteria for solids apply; if the mixture meets those criteria, it is classified as ignitable. With respect to Department of Transportation (DOT) classification of these materials, please note that the definitions and criteria for hazardous materials under DOT are often different from those of RCRA hazardous wastes. RCRA hazardous ‘;astes are, in fact, a subset of DOT hazardous materials. However, the DOT hazard classes do not directly correspond to RCRA hazard characteristics. For example, DOT ------- classifies materials as “flammable” if the liquid has a flashpoint < 100 F, and classifies liquids with flashpoints between 1000 and 200°F as “combustible.” EPA classifies hazardous wastes as “ignitible” with a f]ashpoint < 140°F Therefore, some EPA ignitibles may be DOT flammable, and some may be DOT combustible, depending on flashpoint. You should consult DOT to further clarify its nomenclature and criteria. In that same discussion of absorbent mixtures, there is also a reference to liquids containing TCLP constituents. The mixture - would be classified as TC hazardous if it exceeded the regulatory levels in §261.24. In the discussion on used oil, there also seems to be some • confusion. The basis for the statement that “used oil is assumed to exhibit a characteristic of hazardous waste due to its use...” is unclear. Such a blanket statement is not supported by recently collected EPA data, which will be noticed and discussed in an upcoming used oil proposal in September. Generators are responsible for making a hazardous waste determination if they plan to dispose of used oil. If the oil or oil/absorbent mixture exhibits a hazardous characteristic, then disposal options depend on the generator’s status (i.e., conditionally exempt SQG waste may be disposed of in municipal or industrial landfill that is permitted, licensed, or registered by the state). If a used oil/absorbent mixture is to be burned for energy recovery, then 40 CFR 266 Subpart E applies. ------- 9441.1991(10) UNITED STATES ENVIRONMENTAL PROTECTION AGEN WASHINGTON. D C. 20460 gOltC JJN2 1199 OFr ICE O SOLID WASTE ANO EMERGENCY RE5PO’ iSE Melanie K. Pierson Assistant United States Attorney Southern District of California United States Court Rouse 940 Front Street, Room 5-N-19 San Diego, California 92189 Dear Ms. Pierson: This responds to your May 3, 1991 request for a regulatory interpretation regarding the status of solder skimmings, based on information supplied to you by Mr. Karl S. Lytz. In Mr. Lytz’s letter to you dated April 29, 1991, he presents more specific information regarding the actual process used by a Fisher-Price facility that generates solder skimmings. The principal determinat .on focuses on whether the solder skimmings are defined as “spent materials” or “by—products.” This determination is based on how the solder skimmings are generated. As stated in our March 19, 1991 letter tà you, EPA has previously indicated in regulatory interpretations (including Federal Register preamble discussions and guidance manuals) that dross or skiminings are typically considered by—products. However, because the terms “dross” and “skimmings” can refer to secondary materials generated by a variety of processes, a more studied assessment of how a specific secondary material is generated is necessary to determine its actual regulatory status. In other words, the term used to describe a secondary material (e.g., dross or skiminings) is not necessarily determinative of its regulatory status. To the extent that a material has been used in a process, and is subsequently removed due to contamination, the Agency would consider the material to be “spent.” The term “by-product” refers to materials that result from a production process that are not the intended product and are not fit for a desired end use without substantial further processing (i.e., they are not co—products), and are not otherwise classified as spent materials or sludges. In very general terms, dross generated in the production of solder is a by-product; dross generated in the use of solder is a spent material. As stated in our March 19, 1991 letter to you, the Agency interprets “by-product” to also include drosses (or skinimings) that are generated from solder that is melted prior to use (which is analogous to the further refinement Pnnted on Recycled Paper ------- 2 of a product). However, dresses generated from the solder during or after its use are defined as spent materials. In Mr. Lytz’s letter, he describes the various steps in the process that generates the solder dross. It appears that tdrosst is generated both as a by-product and as a spent material. In the reservoir, which is used “. . . exclusively for melting solder rods to produce molten solder for use in the bath,” the dross generated would meet the Agency’s definition of a by- product. However, the dross generated by skimming the solder bath and the wire tinning operations would be considered spent materials, because the solder has been used in these operations. The basis of this differentiation is not a consideration of the chemical composition of the material (e.g., whether it is similar, or indeed identical, to the dross generated in the reservoir), or in how the material became contaminated (e.g., by oxidation with the air). The determining factor is that the solder has been used, is contaminated, and is being removed from the process. Athough Mr. Lytz states that the solder has not been contaminated, but rather the oxides are “impurities” that occur naturally through use (as opposed to being residual contaminants from the parts that are soldered), the Agency would nevertheless consider the oxides to be the contaminants that cause the solder to be skimmed and removed from the process. (The Agency notes that the entire solder bath is not considered spent merely because the bath has been contaminated by the oxides rather than the small portion that must be removed or skimmed of f. The “spent material” classification is only applicable to those materials that are removed from the process, and are thus “generated.”) Thus, all things being equal (i.e., the oxide contaminant), the difference between the status of the reservoir dross and the dross generated by the solder bath and the wire tinning operations is whether or not the dross is skimmed from a used or unused solder. For example, if the reservoir was to also receive - previously used solder for remelting (e.g., solder returned from the solder bath) then this dross, too, would be classified as a spent material. To the extent that the different dresses can be segregated and managed without mixing, they would be subject to different regulatory requirements. As Mr. Lytz stated, 95% of the dross is generated by skimming the reservoir; this relatively large amount would not be subject to regulation as a hazardous (or solid) waste. The other dresses, however, would be subject to the applicable regulatory requirements as a hazardous waste. In reference to the confusion raised by the Electrum letter (i.e., the July 20, 1989 letter from Mr. Devereaux Barnes to Mr. Jack Douglas of Electrum Recovery Works, Inc.), our focus in making the regulatory interpretation was whether the dross met the regulatory definition of a scrap metal. Insufficient information was provided on how the dross was generated to make a ------- 3 determination of its status at the point of generation. (Indeed, the status of the dross as a by—product vs. a spent material was never raised; had the same information been provided regarding the generation of the dross, the Agency would have determined that the dross was a spent material.) We took Mr. Douglas’ assessment that the “dross” was a characteristic by—product at face value without evaluating how the material was generated and erroneously agreed with this classification in a letter written for the purpose of addressing his claim that the dross was a scrap metal (see the enclosed June 5, 1989 letter from Mr. Douglas to Mr. Straus and the May 22, 1989 letter from Ms. Deborah S. Rinburn to Mr. Matt Straus). • I hope this has helped to clarify the regulatory status of the dross generated at the Fisher-Price facility. Generally, a determination regarding the regulatory status of a specific secondary material is made by the State regulatory agency or the appropriate EPA Regional office because of the site-specific factors that may warrant consideration. However, this letter presents the factors the Agency would consider in making such a determination. If you have any further questions regarding this issue, you should contact Mitch Kidwell, of my staff, at (202) 475—8551. Enclosures Sincerely, David Bussard, Director Characteristics and Assessment Division ------- UN$TED STATES ENVRONMENTAL PROTECTION AGENCY 9441. 1991(11) JJN 28 1991 Mr. Rudy Leutzinger Burns & McDonnell P.O. Box 419173 Kansas city, MO 64141—6173 Dear Mr. Leutziriger: This is in response to your April 10 letter to Steve Cochran regarding the regulatory status of CCA treated wood when disposed. Discarded wood and wood products that would be hazardous only because they fail the Toxicity Characteristic for the 14 hazardous constituents originally regulated through the EP Toxicity Characteristic (i.e., D004-D017) are not hazardous wastes, per 40 CFR 261.4(b)(9). When we promulgated the Toxicity Characteristic, we modified the hazardous waste regulations to replace references to the EP Toxicity Characteristic with references to the Toxicity Characteristic. In the case of the exclusion for wood, our rewording inadvertently narrowed the scope of the exclusion to refer only to wood wastes that fail the characteristic for arsenic (as opposed to failing the characteristic for any of the 14 EP constituents). We are currently writing a Federal Register notice to correct this language. Should you have any further questions regarding this issue, please feel free to contact Dave Topping of my staff at (202) 382—7737. Sincerely, Sylvia K. Lowrance Director Office of Solid Waste ------- UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY 9441.1991(12) MEMORANDUM IL 3 1 1991 SUBJECT: Response to Request for TC Rule Hazardous Waste Determination FROM: Sylvia K. Lowrance, Director Office of Solid Waste TO: Stephanie Wallace Region 8, Montana Office This memorandum responds to your February 8, 1991 memorandum in which you requested guidance on five questions related to pulp and paper mill operations under the Toxicity Characteristic Rule. The scenario was described as follows: a pulp and paper mill generates wastewater in its bleach plant which, at the point of departure from the unit (for our purposes, assumed to be the plant outlet), fails the TC for chloroform. This wastewater is diluted with other wastestreams prior to entering a clarifier. At this point the diluted waste no longer exhibits a characteristic. The non—TC—hazardous wastewater then passes through a series of surface impoundments for aeration and settling prior to discharge to a surface water under a NPDES permit. The surface impoundments are designed to infiltrate greater than 50% of the flow to groundwater. The following are answers to your questions. Q: To determine whether the facility is managing a TC waste, is the appropriate sampling point at the outlet from the bleach plant (prior to the point where it mixes with any other wastestream)? A: Yes. The appropriate point to determine whether a material is a solid waste, and if so, a hazardous waste, is at the point of generation or prior to commingling (mixing) with other vastestreams. Q: If the waste is TC hazardous at this point (that is, at the outlet from the bleach plant, prior to the point where it mixes with any other vastestream), but not when it enters the first surface impoundment, would the surface impoundments be regulated? Why or why not? A: The answer to this question is no, unless TC waste is generated in the impoundment. Whether a TC waste is ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY generated depends on both the influent and physicochemica ]. activity within the surface impoundment. For example, if a non—TC hazardous influent is pumped into an impoundment which contains other non-hazardous wastes, a hazardous waste could result even if constituent levels in the influent are below TC regulatory levels (for example, from concentration of the various hazardous constituents). Another example is where solids settling out of the non-hazardous influent result in the generation of a hazardous sludge, again from concentration of the trace hazardous constituents. In each case, the impoundment would become subject to all applicable Subtitle C requirements (see September 27, 1990, 55 39410). Furthermore, each surface impoundment in a series of impoundments is treated separately for regulatory purposes. Q: Does the land ban allowance for dilution of toxic characteristic wastes subject to a NPDES permit (providing the treatment standard is not a method), allow mixing of the bleach plant effluent with other dilute wastestreams before treatment? (This is not an issue yet, but will be of concern when treatment standards for TC wastes are established. The preamble to the 3rd (Third Third) rule indicates that EPA can apply LDRS at the point of generation rather than at the point of disposal). A: Yes. As discussed in the Third Third final rule (June 1, 1990, 55 22665), dilution is considered to be an acceptable method of treatment for most non—toxic characteristic wastes. For toxic characteristic wastes, including TC wastes previously regulated under the EP, dilution is not acceptable. However, there are two exceptions to this. The one that applies here is for characteristic wastes treated for purposes of CWA compliance (such as for NPDES permitting requirements), provided there is no specified method as the treatment standard. Dilution of TC organics will be evaluated during development of treatment standards. Q: If it is determined that the surface impoundments are regulated, would they be exempt from the minimum technology requirements of RCRA 3004(0) (1) (A) based on the exemption in 3005(j) (1) (3) for units which contain treated wastewater at facilities subject to a CWA 402 (NPDES] permit? A: Yes. Surface impoundments that meet the conditions of RCRA (HSWA) § 3005(j) (3) are exempt from the minimum technological requirements of RCRA (HSWA) § 3004(0) (1) (A). Section 3005(j) (3) applies to units containing treated waste water during the secondary or subsequent phases of an aggressive biological treatment facility (as opposed to any treatment facilitvl. ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Q: Es the definition of “aggressive biological treatment” in this case the same as that laid out in the recent petroleum refinery listings? A: No. The petroleum listing definition of “aggressive biological treatment” applies specifically and only to petroleum refinery waste surface impoundments (see 55 FR 46354, November 2, 1990). A general discussion of the term can be found in footnotes 7, 8, and 9 on p. 46357 — 58. I hope we have answered your questions. Additional information is attached should you need to reference it. If you have further questions, please call Steve Cochran of my staff at FTS 382—4769. cc Regional Waste Management Division Directors Regional RCRA Branch Chiefs ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ADDITIONAL INPORXATION ON NAZARDOU8 WASTE DETERXINATION o In a discussion on sampling points, the preamble of the TC final rule (March 29, 1990, 55 11830) reads as follows: “The current rule requires that determination of whether a waste is hazardous be made at the point of generation (i.e., when the waste becomes a solid waste). (A waste must be a solid waste before it can classified as hazardous waste under RcRA). EPA believes that determination of the regulatory status of a waste at the point of generation continues to be appropriate, especially since the Agency is not developing a separate mismanagement scenario or set of regulatory levels for wastewaters.” o EPA developed a TC clarification notice which includes examples of regulated surface impoundments managing newly identified TC wastes (September 27, 1990, 55 39409). The following language on page 39410 may be applicable to the first surface impoundment you describe in question 2: “A (third] example is where a TC waste is generated within the unit from non—hazardous wastewater on or after the TC effective date. This could occur where the hazardous constituents in the wastewater become concentrated, or if a new TC sludge is formed by settling. In these examples, once the TC waste is generated and stored or disposed of in the unit, the unit is subject to subtitle C.” The additional surface impoundments would be regulated in the following manner: if the first surface impoundment generated a TC hazardous sludge or wastewater, and the hazardous effluent was received in subsequent surface impoundments, then the subsequent surface impoundments would also be subject to subtitle C requirements (see 55 11830, and 55 39410). o The dilution prohibition exception is codified in 40 CFR 268.3(b) and reads as follows: “Dilution of wastes that are hazardous only because they exhibit a characteristic in a treatment system which treats wastes subsequently discharged to a water of the United States pursuant to a permit issued under section 402 of Clean Water Act (CWA) or which treats wastes for purposes of pretreatment requirements under section 307 of the CWA is not impermissible dilution for purposes of this section unless a method has been specified as the treatment standard in Section 268.42.” o In order to qualify for the WWTU exemption, the device must meet three criteria: 1) be part of a wastewater treatment facility that is subject to regulation under either section 402 or 307(b) of the Clean Water Act; 2) receive, and treat or store influent wastewaters or wastewater treatment sludges which meet the definition of a hazardous waste in 40 ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY CFR 261.3; and 3) meet the definition of tank or tank system (see “wastewater treatment unit,” 40 CFR 260.10). Assuming that the first two criteria are met, an evaluation needs to be made for the third condition. If the clarifier meets the 40 CFR 260.10 definition of tank, then a determination must be made on the conveyance structure (in your letter, you marginally referenced the “means of conveyance”). The 40 CFR 260 • 10 term “tank system” includes the tank and its associated ancillary equipment and containment system. In turn, “ancillary equipment” means: “any device including, but not limited to, such devices as piping, fittings, flanges, valves, and pumps, that is used to distribute, meter, or control the flow of hazardous waste from its point of generation to a storage or treatment tank(s), between hazardous waste storage and treatment tanks to a point of disposal on-site, or to a point of shipment for disposal off-site (see “ancillary equipment,” 40 CFR 260.10). The conveyance structure may or may not meet the definition of ancillary equipment depending on whether it is designed to distribute, meter, or control the hazardous waste flow between the generation point and a storage or treatment tank (which is designed to contain an accumulation of hazardous waste). For example, a conveyance structure which is simply a ditch constructed of dirt would not meet the definition. Determining whether a given conveyance structure meets the definition of ancillary equipment is necessarily a site- specific judgement, dependent on the circumstances and facts at the facility in question. The state or regional authority reviews the facts in question to determine whether a specific conveyance structure meets the terms of the exemption. Finally, if an exempt WWTU renders the wastewater non— hazardous, the storage of the wastewater in the surface impoundments would not be under RCRA Subtitle C regulation, unless conditions described in the answer to your second question occur (i.e., the surface impoundment generates a hazardous wastewater or sludge). ------- 9441.1991(13) RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY JULY 199]. RCRA 1. Truck Transport of Wastewater for Purposes of Section 261 . 3(a)(2)(iv)(A ) A treatment, storage and disposal facility manages a wastewater which is a mixture of a solid waste and trichioroethylene in minimis quantities as defined in Section 261.3(a)(2)(iv)(A). If the facility transports the wastewater in trucks from an on-site sump to its on-site NPDES-permitted wastewater treatment unit, does the waste still qualify for the exemption from the definition of h ,ardous waste under Section 261.3(a)(2)(iv)? Yes, the waste still qualifies for the exemption. Section 261.3(a)(2)(iv) does not limit the means by which the wastewater may reach the wastewater treatment unit in order to be eligible for the exemption from the definition of a hazardous waste. The exemption requires only that that the wastewater be treated in a wastewater treatment unit at a fadlity subject to regulation under either section 402 or section 307(b) of the Clean Water Act and the wastewater must meet the minimis levels established in paragraphs (A) through (E). Source: Ron Josephson, 05W (202) 260-6715 Research: Melicent Brenner ------- 9441.1991(14) R A/SUP FUND BOTLINE MONTHLY SUMMARY AUGUST 1991 1. Regulatory Status of Off-Specification Circuit Printing Boards Periodically, in a drcuit board manufacturing process, individual arcuit boards are not considered to meet manufacturing specification standards. These units are dismantled, and the materials are reclaimed for use in the construction of new drcwt boards. Assuming the circuit boards would exhibit a characteristic of 40 CFR Subpart C, would the dismantling and recycling of the boards be subject to RCRA Subtitle C h2 2rdous waste regulations? No, reclamation of the off-specification circuit boards would not be subject to the RCRA Subtitle C hazardous waste regulations because the arcuit boards are not haz2rdous wastes. By definition , for a waste to be a hazardous waste, it must be a solid waste t40 CFR §261.3). To determine whether a material is a solid waste when recLaimed, it must first be determined whether the material is a spent material, sludge, by-product. c mercial chemical product, or saap met3i (See 40 CFR §261.2(c)(3).) An ‘ ed circuit board is classified in the chemical products category. A.u ugh the conmteraal in the chemical products category in Table I or 4 J LFR §261.2(c)(3) is labeled Acommerci. chemical products listed in 40 CFR l 33,’ as explained in a FederalEt’ i notice published on April 11, 19 ”5. ‘) E3 14219) the status of commera.U chemical products not listed in 40 C FR §261 (i.e., those that exhibit haz r * s wastes characteristics) is “the same as those that are listed in Section 261.33.” These materials are normally solid wastes only if thrown away, and so are not solid waste if reclaimed. Further, the Agency interprets commercial chemical products to include all types of unused commercial products that exhibit characteristics, whether or not they would commonly be considered chemicals (e.g., circuit boards, batteries, and other types of equipment). Once it has been determined that the circuit boards are commercial chemical products, 40 CFR §261.2(c)(3) indicates that they are not solid wastes when they are to be reclaimed. Since the arcuit boards are not solid wastes, they are not h272?dous wastes and the reclamation is not subject to the RCRA Subtitle C lv%7ardous waste regulations. It should also be noted that the 40 CFR §261.2(0 requirement (persons who raise a daim that a material is not a solid waste document must meet the teru s of the exemption) may be applicable. Source: Charlotte Mooney, 05W (202) 260-6926 Research: Cynthia Hess ------- DEC- 2-92 WE& :3:01 WBN F X SC’. 2029623E8 9441. 1991( 14a) ur cri STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. 0 C. 20460 AUG —5 i99 oFc;ceoP SOt.IO WASIE t OEP.C FS OPd3! MEMORANDUM SUBJECT: Regulatory Status of Residues From Secondary Lead Smelters That Recycle K069 Wastes FROM: Sylvia K. Lowraflce, Directgk A ‘1( 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 ct wastes such as slags and drosses that result from secondary lead smelting when the smelter returns its emission control dust/sludge (Hazardous Waste X069) to the smelting furnace as feedstcck. 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. Req. 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 ,6; 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 DOOB wastes. However, a subsequent decision by the U.S. CoUrt of Appeals, in American Petroleum Institute v. EP , 906 F.2d 726, 740—42 (D.C. Cir. 1990), called inte question the validity of the “indigenous principle” as EPA had applied it. (See BIF Rule, 56 Fed. Req. at 7142, 7144, for a brief discussion of the court’s decision.) Although 9A maintained in the BIF Rule that residues from treating listed hazardous wastes in metals recovery processes ------- tEC- 2-92 WED 13:02 WBN FAX NO. 2029628587 P.03 generally are subject to the “derived from” rule, the Agency overlooked the ecycling practices in the secobdary lead industry in promulgatin,.. chat rule. It was not our intent that the “derived from” rule apply to secondary lead smelting residues that result when 1 (069 dusts are recycled to the smelting process as feedstoc)c. 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 Bronnn, OWPE RED 2 ------- 9441.1991(15) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 SE (-3 99I OFFICE OF SOLID WASTE ANO EMERGENCY RESPONSE Ms. Mary R. White Corporate Environ enta1 Director Quaker State Corporation P.O. Box 989 Oil City, Pennsylvania 16301 Dear Ms. White: Thank you for your letter of March 27, 1991, requesting a delay in the imposition of the toxicity characteristic (TC) rule on oil filters, because of its impact on the recycling of used oil and oil filters. The Environmental Protection Agency (EPA) has addressed this issue in the enclosed used oil supplemental proposal notice, which was published in the Reaister on September 23, 1991. The notice covers the used oil listing alternatives and alternative standards for managing recycled used oil. EPA will issue the final used oil regulation by May 1, 1992. For the following reasons, EPA does not believe a TC exemption for used dil filters is needed at this time: • the available TC data related to used oil filters suggest that crushed filters may not exhibit the TC; and • as I explained my October 30, 1990, memorandum to Robert L. Duprey of EPA Region VIII, there are existing exemptions for recycled used oil and recycled used oil filters; no TC determination is necessary for oil filters destined for recycling. As discussed in the supplemental proposal (Appendix A contains the pertinent portion of the proposal), analytical data suggest that used oil filters devoid of free-flowing oil are likely to be non-hazardous (i.e., they will pass the TC test). In addition, the supplemental proposal requests comment on specific issues on used oil filters, such as: what methods (e.g., draining, crushing, dismantling, centrifuging, and cleaning with solvent) could be employed to remove used oil from oil filters; Pnnted on Recycled Paoer ------- what criterion defines adequate “crushing”; • should the “one—drop” approach be used to determine when a used oil mixture ceases to become “oil—free” solid waste; and • should oil filters containing insignificant quantities of free—flowing oil be disposed of in municipal landfills. Depending on public comments, EPA may finalize standards for managing used oil filters when finalizing the used oil regulation. If the used oil rule becomes final as proposed, used oil collected from oil filters would be subject to §3014 used oil management standards; crushed or oil-free filters would continue to be managed under the RCRA scrap metal exemption, or may be disposed of in municipal landfills, provided the State allows such disposal. In the interim, EPA may issue a directive discussing management alternatives for generators of used oil filters who are unable to recycle drained and crushed filters under the scrap metal exemption for economic or technical reasons (e.g., reluctance of scrap metal handlers to accept oil filters). If you have any further questions concerning the supplemental notice, feel free to contact Ms. Rajni Jog]ekar at (202) 260—3516. Thank you for your interest in the safe and effective management of hazardous waste. Enclosure ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9441. 1991 ( 1f) ocr 2 2 v9gi Mr. Kevin S. Dunn Project Manager Environmental Policy Center Law Companies Environmental Group 1828 L Street, N.W. Suite 711 Washington, D.C. 20036 Dear Mr. Dunn: Thank you for your letter of May 28, 1991 regarding the regulatory status of industrial equipment which formerly contained a hazardous waste. I apologize for the delay in responding to your inquiry. In your letter, you described a situation in which pumps containing elemental mercury were taken out of service and used as containers for temporary storage, transportation and handling of the mercury before its treatment and disposal. You asked whether the pumps could be regulated as non—hazardous wastes if the mercury were removed from the pumps in a manner consistent with the requirements of 40 CFR 261.7 for empty containers. It is our view that if the pumps meet the definition of “container” in 40 CPR 260.10, they are exempt from regulation Under Subtitle C of the Resource Conservation and Recovery Act (R RA) after they are emptied in accordance with 40 CFR 261.7. Section 260.10 defines “container” as “any portable device in which a material is stored, transported, treated, disposed of, or otherwise handled” • If the pumps you describe are portable, they may be managed as a non—hazardous waste under federal law. This interpretation reflects the federal regulations governing hazardous waste. States with authorized RCRA programs may impose more stringent requirements. Such States also have the authority to make regulatory determinations about the materials which constitute hazardous wastes under their systems. ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 2 I hope this letter has addressed your concerns. If you have any further questions, please contact Mitch Kidwell of my staff at (202) 260—8551. Sincerely, David Bussard, Director characterization and Assessment Division ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9441.1991(17) NOV 4 1991 MEMORANDUM SUBJECT: Response to Region V Fuel-Blending Concerns FROM: Sylvia K. Lowrance, Director Office of Solid Waste (OS—300) TO: David A. Ulirich, Director Waste Management Division (SH-12) This memorandum responds to your September 24, 1991, memorandum requesting Headquarters views on the regulatory interpretations made by Region V specific to hazardous waste fuel-blending facilities. Your memorandum raised three issues which will be presented separately along with our reaction to the Regional interpretation. ISSUE 1 A facility, in requesting a determination concerning RCRA permit requirements, described its process as receiving waste liquid and solid fuel stock, recycling the stock, and shipping waste fuel to a kiln. The facility indicated that it considers the fuel a recyclable material pursuant 40 CFR 261.6(a) (2) (ii) and exempt from regulation. ANSWER — We agree with the Region’s interpretation that any unit that meets the definition of a “tank” or a “tank system” is subject to regulation. Blending or other treatment to produce a hazardous waste fuel is not exempt. In fact, the facility seems to have misread 40 CFR 261.6(a) (2) (ii) which states recyclable materials such as hazardous wastes burned in boilers and industrial furnaces (BIF): “... are not subject to the requirements of this section (i.e. 261.6] but are regulated under Sections C through G of Part 266 of this chapter and ... Parts 270 and 124.” Thus, these units are subject to permitting. The facility’s rebuttal of the Region’s earlier determination attempts to define the unit’s purpose as different from storage. The “purpose” of the unit is moot; if it’ treating ------- 2 or storing hazardous waste, then it is regulated. The diagrammed process, including grinders, filters, etc., appears to meet the definition of a tank and its ancillary equipment. If the unit or a component is not a tank or a tank system, or if it has additional features that would potentially affect emissions or releases to the environment, then it would be regulated under Subpart X (miscellaneous units) or permit conditions may be added based on the omnibus authority of Section 3005(c) (3) of RCRA, as amended. ISSUE 2 Considering the BIF rule, can a fuel-blending TSD accept low-BTU (less than 5000 BTU/lb.) into its mixing program? ANSWER A marketer of hazardous waste fuel currently can, and has previously been able to accept low BTU fuel. However, there are certain factors which govern whether a BIF can accept waste fuel originating from low-BTU waste. Under the sham recycling policy BIFs have not generally been allowed to burn hazardous waste fuel that had a heating value of less than 5000 BTU/lb. A low-BTU fuel (as generated) had to be processed to increase the heating value to greater than 5000 BTU/lb. by a means other than blendina (e.g., decanting aqueous liquids) before it could be burned. Now that the BIF rule has been promulgated, the BIFs can burn low—BTU waste after they conduct compliance emission testing with low—BTU waste and certify compliance under the new interim status standards. See section 266.103(a)(6) (56 FR 7213, Feb. 21, 1991). ISSUE 3 Will the unit processes used to increase the heating value of low—Btu waste (i.e., phase separation, centrifugation, and air stripping) require a RCRA permit for their operation? ANSWER The unit processes used to raise the Btu value would require a permit for their operation. If the units do not meet the definition of units for which minimum technology standards have been established (e.g., tanks or tank systems), then the unit can be permitted under Part 264, Subpart X. The need for a permit for these types of processing units comes from the language in Section 261.6(a) (2) which separates recyclable materials used in a manner constituting disposal or burned, including treatment prior to being burned for energy recovery, from other recycling activities like reclamation of a solvent in a distillation unit. ------- 3 If you have any question concerning our interpretation of these fuel—blending issues, please call Sonya Sasseville (260- 3132) or Chester Oszinan (260—4499) of my staff. Attachment cc: - Hazardous Waste Division-Director-, Regions 1-4 & 6—l0 Regional Subpart X Contacts Regional Incineration Contacts Sonya Sasseville, OSW Chester Oszman, 05W ------- 9441.1991(18) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 DEC —91991 SOLID WASTE AND EMERGENCY RESPONSE Mr. James C. Brown c/o American Electronics Association 1225 Eye St., N.W., Suite 950 Washington, D.C. 20005 Dear Mr. Brown: Thank you for your letter of October 2, 1991, describing your concerns about our recent interpretation of Resource Conservation and Recovery Act (RCRA) regulations that apply to solder dross generated in manufacturing printed circuit boards. To briefly restate the issue, you are concerned about a March 19, 1991 letter from David Bussard that classifies solder “drosS” generated by the use of solder in printed circuit board manufacturing as a spent material under the RCRA hazardous waste regulations (and thus, as a solid and hazardous waste). The March 19 letter was based upon the information that we had at the time, and differentiates between spent materials and by-products. As you noted in our October 16 meeting, previous EPA statements about the status of solder dross and solder skimmirigs from printed circuit board manufacturing were that skimmings and drosses are by-products — and thus are not solid or hazardous wastes when reclaimed, under the federal RCRA regulations (40 CFR 261.2). The term “dross” is frequently used by industry to refer to an oxide layer that forms on the surface of molten metal, regardless of whether the metal is a virgin metal being reshaped into a different form, or is a metal in use (such as solder). Previous statements, and an example in the January 4, 1985 Federal Register preamble, have generally referred to “drosses” as by-products under the RCRA hazardous waste regulations. Although some drosses are by-products under federal rules, the language of the regulations and the circumstances of a material’s use, including whether the material becomes contaminated, Printed on Recycled Pacer ------- 2 determine how it is classified. For example, when circuit board manufacturers have to change their solder baths due to contamination, the material removed from the bath is a spent material. It appears that our imprecise use of the term “dross” and previous statements that solder skimmings or drosses are “by- products” may have led to widespread practices in the electronics manufacturing industries, where the skimmings have been managed as if they were by-products (and thus, neither solid nor hazardous wastes when reclaimed). We think it is important to obtain additional information. We are currently in the process of gathering information to determine how the solder drosses or skiinmings generated in printed circuit board manufacturing should be regulated, if at all, under RCRA Subtitle C. That information will include the levels of contamination in dross and skimmings as solders are used in circuit board manufacturing as well as a broader look at information bearing upon the handling of dross and skimmings after removal from the solder bath. The information, as well as the issues raised about classifying dross in the future under RCRA, are also relevant in the broader context of revisions to the definition of solid waste. We hope to publish an Advance Notice of Proposed Rulemaking discussing these revisions by the end of the year, to engage public debate on these important questions. Many of the issues you raised in your October 2 letter are part of larger questions, such as whether to use the regulations as a tool to encourage safely conducted resource recovery. Therefore, until we have gathered more data on the industry’s practices (both at generator sites and recycling facilities), we will continue to treat solder drosses generated from soldering printed circuit boards as by—products, rather than as spent materials. As a result, solder drosses from printed circuit board manufacturing that are reclaimed would not have to be managed as solid or hazardous wastes under RCRA regulations (40 CFR 261.2). Please note that this letter relates only to the federal hazardous waste regulations. States may have requirements that are more stringent or broader in scope; thus, you would need to contact individual states to determine their requirements in a specific situation. With respect to the particular solder drosses in question, this letter is based on specific factual circumstances, including your reliance on prior Agency statements. Thus, this letter has no application to other industries or materials. ------- 3 Thank you once again for your interest in this matter. If you have further questions please contact David Bussard of my staff at (202) 260—4637. Sincerely yours, . $ (/ Don R. Clay / Assistant Administrator ------- 9441.1991(19) RCRA/SUPERFUND HOTLINE MONTHLY SU)O(ARY DECEMBER 1991 1. Reclaimed Spent Wood Preservative ExclusIon In 40 CFR Section 261 .4(a)(9) In the December 6, 1990, Federal Re isrer (55 E& 50450), EPA promulgated hazardous waste listings for three wastes generated from wood preserving processes: F032. F034, and F035. These listings include spent wood preseri’ing solutions which are often collected on drip pads. reclaimed (usually by means offlirranon or oil/ water separation), and reused again in wood preserving processes. If a wood preserving faciliry uses reclaimed spent preservative (P032. P034, or F035) to treat wood products which are •w bsequently placed on the land, would the reclaimed spent preservative be regulated as a ;la:ardoLgs waste under the derived-from rule (40 CFR §261.3(c)(2)) since it is derived from the treatment (reclamation) of a listed waste? No. Although in the general case, macenals reclaimed from hazardous wastes that are used in a manner constituting disposal continue to be regtzlated as solid and, if hazardous, hazardous wastes, an exclusion from regulation as solid and, thus, as hazardous wastes was promulgated with the new listings for reclaimed spent wood preserving solutions that are reused for their intended purpose. Generally, the derived-from rule in 40 CFR §261.3(c)(2) classifies any solid waste derived from the tieatment. storage. or disposal of a listed hazardous waste as that hazardous waste. There is an exception to this rule. In §261.3(c)(2)(i). a material that is reclaimed from a hazardous waste and used beneficially, e.g., used as a product, is no longer considered a solid waste, and thus is not a hazardous waste. This exception does not apply, however, when a reclaimed material is used, burned for energy recovery, or used in a manner constituting disposal. Because in this case the wood products tieated with the reclaimed wood preserving solutions are placed on the land (used in a manner constituting disposal), the §261.3(c)(2)(i) exclusion would not apply to the reclaimed preservatives or to the tieated wood products. Thus, the preservatives and the wood products would be regulated as derived-from listed hazardous wastes. In the December 6. 1990, final rule, however, the Agency stated that “regulating reclaimed spent preservative and products made with reclaimed spent preservative was not and is not EPA’s intent.” To implement this intent, an exclusion from the definition of solid waste was promulgated under §261.4(a)(9). which excludes from the definition of solid waste those spent wood preserving solutions and waste waters that have been reclaimed and will be reused for their original intended purpose. Thus. under 40 CFR §261.4(a)(9), once spent wood preserving solutions axe recl2imed and have been returned to the process (i.e., the work tank), the reclaimed solutions used for their intended purpose (wood preserving) are not solid wastes and thus riot hazardous wastes.. Note that this exclusion does not apply to the recycling process (the recycling unit would be exempt from permitting under §261.6(c)), or to any prior management of the spent preservative. Also. note that the wording of the §261.4(a)(9) exemption was corrected in the July 1, 1991, Federal Register notice. (56 , 30192). ------- 9441.1992(01) UH TED STATES ENVLRONMENTAL PROTECTION AGENCY JAN 5I992 Ms. Rhonda Redd Senior Environmental Compliance Analyst Browning-Ferris Industries, Inc. 757 N. Eldridge at Memorial Houston, Texas 77079 Dear Ms. Redd: This letter is in response to your September 3, 1991 request for a determination of the regulatory status of your laboratory wastewater. Our policy on facility—specific determinations is that the Regional Office should be the primary decision maker, and we have forwarded your letter to Ms. Guanita Reiter, Chief, RCRA Programs Branch, EPA Region VI. However, given the nature of the issues you raise, some perspective on the Federal rules may be helpful. Of course, keep in mind that State environmental agencies have the power to interpret regulations more strictly than the Federal government and to promulgate their own stricter regulations. The appropriate EPA Regional Office (in your case, Region VI in Dallas, Texas) can assist in making hazardous waste determinations that are necessarily facility—specific. As we understand your question, you would like to know if laboratory wastewaters containing characteristic hazardous wastes (as defined in 40 CFR 261.20 — 261.24) and dilute laboratory standards meet the conditions for the laboratory wastewater mixture rule exemption under §261.3(a)(2)(iV)(E). The wastewater treatment exemptions of §261.3(a) (2) (iv) (A) —(E) are oriented towards mixtures of wastewaters and listed hazardous wastes discharged to a facility’s wastewater treatment system. The characteristic hazardous wastes to which you refer in your letter (such as corrosive groundwater samples) will probably lose the hazardous characteristic upon treatment and not cause any wastewater treatment sludge to be hazardous. If you are discarding listed hazardous waste from your laboratory operations into the wastewater treatment system, the Federal rules would require you to perform one of the calculations specified under §261.3(a)(2)(iV)(E). Examples of CONCURREHC!S SYMBOL I JRNAME) — I... t jO e - ‘1 •1 1 ..fl SS•S•t •.....a..S..•.t ,.w.a.........n ..— . . a.... • fl , OFFICI ..._.•_ AL FILE COPY E P A o’m 1320-IA (1190) Prinjeda ,RwicledPaper I ------- 9441.1992(02) it0 g UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ____ WASHINGTON. D.C. 20460 .W J I 5 1992 OFFICE OF SOLID WASTE AND EYE RGE\CY RESPONSE Ward B. Stone Associate Wildlife Pathologist Wildlife pathology Unit Wildlife Resources Center New York State Dept. of Environmental Conservation Delmar, New York 12054 Dear Mr. Stone: Thank yr u : - -our letter of December 10, 1991 in which you expressed concern ..‘ er the contamination problem resu’..ting from the use of lead at shooting ranges and asked if the Agency’s interpretation of RCRA control has changed. As you pointed out, in a letter dated September 6, 1988 to the State of Indiana, this office stated that the deposition of lead at shooting ranges was within the normal and expected use pattern of the manufactured product and that the resultant contamination was not subject to the RCRA regulations. Since that time, we have not changed our opinion. Notwithstanding the above, we believe that there are alternative approaches the ranges can take to reduce the possibility of lead contamination. These include installation devices that can intercept and collect the shot and bullets fo- recycling, and substituting less hazardous materials (e.g., plastic and steel shot) for the lead shot. If you have any questions regarding our interpretation or would like to discuss the issue further, please feel free to contact Chester Oszman of my staff at (202) 260—4499. cc: Chester Oszman, OSW of Solid Waste Pr pje_ . . — . ------- 1i E ’ i New York State Department of Environmental ConWñ,ation Wildlife Pathology Unit Wildlife Resources Center Delmar, New York 12054 Thomas C. Jorling Commissioner December 10, 1991 Ms. Sylv 4 a F.. Lowrance Director Office of Solid Waste and Emergency Response U.S. Environ. Prot. Agency Washington, D.C. 20460 Dear Ms. Lowrance: I am inquiring if your opinion is still the same as in the attached letter to Jane Magee (9/6/88) on the contamination of shooting ranges with lead birdshot, lead bullet fragments, and lead bullets not constituting hazardous waste. Since the Federal Government has shown great interest in decreasing the U.S. population’s exposure to lead, I thought that you may have re-examined this issue. The lead could be a threat, in some instances, to workers and users of shooting ranges. The lead contaminated soil and sediments can pose threats to the health of fish and wildlife, and a number of cases of birds dying from lead intoxication after ingesting lead shot from shooting ranges have been documented. In addition, shooting ranges can change to other land usages (e.g. lawns, schools, shopping areas, agriculture) where the lead would be more likely to intoxicate humans and/or domestic animals. Whether the shooting of various lead mIssiles is analogous to pesticide applications (I think they are not analogous) does not negate the fact that shooting ranges can have severe lead contamination that needs to be remediated and hopefully prevented by installation of devices that can intercept and collect shot and bullets for recycling. Sincerely, Ward B. Stone Associate Wildlife Pathologist Attachment WBS:rd cc: C. Kimble L. Skinner ------- j UP4 T O ITA ItS £ P OT&CTION AGENCy WA 5MIriQ Qj. DC U41Q asv.jp o•J’cl 0’ *‘Ie IhIa ii.., SEP 6jg Ms. Jane Magic Assistant Comr i..ionsr fez Solid and Hassrdous Was s anaq,m.nt rnd1a Dept. ot £nvironm.ntal Manag• .nt P.C. ior 6i13 ndLinapoiis, Indiana 46 V -Iø.2S Dear Janet This is in response to your 1ittar on th. appllcablltty of Resource Cons.r..ition and Re:overy Act CRCM) requlat ons t mooring rançes. In your l.ttet you indicated that th. Tndlirts University In B1 om ngton has received a priltatinary notlee of ann. to sue under RC a ), al.aqlnq that the univ•rsity shooting enges are hazs;do .a waste landfills, fully subject to the r.qulr.t.rtt for en operat ng psrztit and all sppliesbl facility standards. The disoharg. of ball and sport am ’u’Lticn at shooting ranges doss nor, In our opinion, constitute ssardoua W*$te disposal. Thu is bscii . we do not consider thi rounds to be diseard.d. which I. a necessary criterion to be sat before a rs.t,rial can be conildered a solid vasts and, iubsequ.ntly, a hazardous waits (lie 45 CFR 2i1.3(s)). Rather, the shootIng f bullets is within the nor ai and expected use pattern .1 the itanufactured product. This Interpretation eater di to the .tp.ndid cartridges and nsspLsded bullets thit IaU tb the ground during the ah*otinq •xe:cLss. The a1t sat1on, In our 1nd, Is analogoua to the us. of pesticides whereby the expected normal us. of • peeticid. may result In some discharge to the soils. Thu is a discharge incident to nornal product us. and is not conlidazed a hazardous or solid wiste activity falling under the rIudict1on of *C*A. ------- 2 If you )‘ ave arty queations r.gird1g’ q ouz Lflt$ p tat on o vc a1d lik. to discuss t) . Issu. f thir, p1.4.. c i i i !lizab.tpi Cotsworth (212) 392—31 .32 a: Chut Oai .s (292k à lflc .z, iy, - 2% 1 t 1<%3 J Sylvia . Lôv,gnc. D iuctog OffIce of Solid Waste ecs Liliaboth Cotcwcrth P att Mali 05W ?r.d Chanan a, 0CC sr1 !r•n er, R.gic’ Chit Osz an, OSW ------- 9441.1992(03) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION JANUARY 1992 1. Regulatory Status of Waste from Oil Gathering Pipelines An oil production facility uses gathering pIpelines to transport oil from fts production site to a size owned by another facility. The oil has already widergone initial ail/waser separation. Waste forms in the gathering lines during the transportation of the oil. Is the waste that forms subject to the hazardous waste exclusion a: 40 CFR §261.4(b)(5)? The answer depends on the ownership of the oil at the time the waste forms. Section 261.4(b)(5) excludes drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy from the definition of hazardous waste. Waste generated after legal custody of the oil changes hands during transportation will not meet the exclusion because it is not intrinsic to the exploration, development, or production of crude oil. The July 6, 1988, Federal Register (53 ER 1 25446, footnote 1) defines associated wastes as those wastes other than produced water, ngwash, and driUing muds and cuttings that are intrinsic to exploration, development, and production of crude oil and natural gas. The Report to Congress: Management of Wastes from the Exploration. Development, and Production of Crude Oil. Natural Gas. and Geothermal Energy. VOL 1 of 3 (EPA/530-SW-88-003-A, Dec. 1987) states on page 11-17 that “ [ tihe phrase ‘intrinsically derived from the primary field operations’ is intended to differentiate exploration, development, and production operations from transportation (from the point of custody transfer or of production separation and dehydration) and manufacturing operations.” Accordingly, any waste generated after a change in the custody of the oil or, in the absence of the change in custody after the initial oil/water separation, is not subject to the §261.4(b)(5) hazardous waste exclusion because it is not intrinsic to the exploration, development, or production of crude oil. ------- FRI 16:14 P. 02 9441.1992(04) I RCRA/SUPERFUND/OUST HOTLINE FEBRUARY MONTHLY REPORT QUESTION 1992 1. SpeculatIve Accumulation Calculation J4 March 1991, afaclllry generated 200 kg of sludge that exhibited the toxiclry characteristic (TC)for lead (L)008). The operator of the facility placed these materials In storage to await reclamation of lead. At that rime, the facility was nor accwnulazing any other recyclable materials. Since the sludge will be reclaimed 1 It Ls nor considered a solid waste while stored prior to reclamation (40 CFR 526) .2(c)(3)). On December 31, 1991, the facility still had no: recycled any of this material. Is the sludge accumulated speculatively under §261.1(c)(8), since 75 percent was not recycled in the year, and therefore subject io management as a solid and hazardous waste? No, the sludge would not be accumulated speculatively. Although it is accumulated before being recycled, it is not accumulated speculatively if the person accumulating ii can show that (1) the material is potentially recyclable and has a feasible means of’ being recycled, and (2) dwing the calendar year (commencing on iariuary 1) the amount of material that is recycled or sent for recycling equals at least 75 percent of the amount of that material accumulated at the beginning of the period ( 26l.1(c)(8)). A facility Owner/ operator must show that he OT she has recycled 75 percent of the material in storage on January 1 of that year. “Under this provision, the amount of material turned over in a year is critical, not the total amount accumulated at the end of the year” (48 14490; April 4, 1983). For the above facility, the amount of material in storage on Januazy 1, 1991, was zero, so on December 31. 1991, the operator does not have to show that any amount was recycled during the calendar year. On Ianuaiy 1, 1992, however, 200 kg of D008 sludge are In storage. Thus, the facility must be able to show that 75 percent of this material, or 150 kg, has been recycled or sent for recycling by December 31, 1992. If the operator cannot demonstrate this 75 percent recycling rate, the sludge remaining in storage is said to be accumulated speculatively and becomes subject to regulation as a solid waste. Because it exhibits a characteristic, the generator must begin to handle the material as a hazardous waste. The Agency notes that “this approach could allow essentially a free year to accumulate where a generator starts a year with little or no waste” (48 .ft 14490; April 4, 1983). The period of one calendar year starting on January 1 was selected, however, to facilitate enforcement and achieve uniformity (50 EE 635; January 4, 1985), In making the above calculation, the 75 percent requirement applies to all materials of the same class being recycled in the same way. If this facility also generated a by- product that exhibited the TC for chromium (D007) and reclaimed it, the owner/operator would make a separate speculative accumulation calculation for this by-product (50 EE 1 635-6; January 4, 1985). ------- T RCRA/SUPERFUND/OUST HOTLINE FEBRUARY MONTHLY I EPORT QUESTION 1992 (CONTINUED) The RCR.A regulations provide that certain materials, which would otherwise be considered hazardous waste, will not be regulated as solid waste (and therefore hazardous waste) when they are reclaimed ( 2 61.2(c)(3)). The requirement that materlais accumulated speculatively be regulated as solid waste was intended to prevent abuse of this exemption. It is only applicable to certain situations, including the reclamation of characteristic sludges and by-products, materials used or reused as Ingredients, commercial product substitutes, black liquor, sulfuric acid, and precious metals reclamation. The rule is not applicable to spent materials being reclaimed, listed sludges being reclaimed, or listed by-products being reclaimed, because these materials are already considered solid wastes when awaiting recycling (50 EE 635; Januai 4, 1985). Ic also does not apply to commercial chemical products that are stored prior to reclamation, because, by definition, these materials are not regulated as solid wastes until they are abandoned or Intended for discard (48 ER 14489; April 4, 1983), 1 ------- 9441.1992(05) IO ST4p UNITED STATES ENVIRONMENTAL PROTECTION AGENCY / WASHINGTON. D.C. 20460 ‘ L pg 0 i5’ MAR —6 1992 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Rock 3. vitale Environmental Standards Inc. The Commons at Valley Forge Unit 4 1220 Valley Forge Road P.O. Box 911 Valley Forge, PA 19481 Dear Mr. Vitale: In response to your letter of March 2, 1992 regarding hexavalent chromium, method, 3060 for hexavalent chromium digestion indcluded in the 2 Edition of SW-846 is still valid until the 3’ Edition of SW-846 is promulgated. The method does not work well on some matrix types, but if you have good quality assurance data on your analyses, you may be able to prove it works fine on your samples. It is being dropped from the 3’ Edition of SW-846 because errors have been found in the analyses of hexavalent chromium in certain sample matrices. For your information, the hazardous waste regulations under RCRA require that specific testing methods described in SW-846 be employed for certain applications. The following sections of 40 CFR require the use of SW-846 methods: 1) Section 260.22(d) (1) (i) — Submission of data in support of petitions to exclude a waste produced at a particular facility. 2) Section 261.22(a) — Evaluation of wastes against the Corrosivity Characteristic. 3) Section 261.24(a) — Evaluation of wastes against the Toxicity Characteristic. 4) Sections 264.314(a) and 265.314(d) — Evaluation of wastes to determine if free liquid is a component of the waste. 5) Section 270.62(a) (2) (i) (C) — Analysis of wastes prior to conducting a trial burn in support of an application for a hazardous waste incineration permit. Pnnted on R... ------- For all other applications, including your situation, the use of SW-846 testing methods is not mandatory. Other methods may be used, such as those put out by the American Society for Testing and Materials (ASTM). Sincerely, 97 Oliver M. ordham, Jr. Chemist Methods Section (OS—331) cc: Alec McBride Gail Hansen ------- 9441.1992(06) STd, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 ‘ L IuIlO1 ’ WR 26 (992 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Nathan M. Burton, General Manager Lee Solder Incorporated 300 Tunnell Street P.O. Box 455 Seagoville, Texas 75159 Dear Mr. Burton: Thank you for your letter of February 20, 1992, regarding solder scrap and its status as a hazardous waste under the Resource Conservation and Recovery Act (RCRA). I apologize for the delay in responding to your December 11, 1991, letter on this subject. Because our interpretations may have important impacts on industrial operations such as yours, we wanted to respond both careru1 .y and fully to the concerns raised in your letter. First, and most important, you question whether you will need a RCRA permit for your Texas facility. As the state agency authorized to implement the RCRA hazardous waste program in the state of Texas, the Texas Water Commission’s regulations and their interpretation of those regulations would determine what RCRA requirements apply to your facility. Please note that some of the RCRA requirements may also be implemented by the Environmental Protection Agency’s (EPA’S) regional office in Dallas, Texas. Second, you asked about our federal perspective on “scrap” solder that is used in an electronics assembler’s solder bath, but is removed due to its contamination level. We can provide some general guidance on this issue although the Texas determination will be controlling for your facility. This material appears to meet the definition of a “spent material” in the federal hazardous waste regulations at 40 CFR 26l.l(c)(1 , and would be a “solid waste” when reclaimed ( 261.2(c)(3)). A pent material” is defined as “any material that has been used However, there could be situations where the used solder is not considered “spent” and thus not a “solid waste” under the RCRA regulations. For example, used solder that is sold and reused as solder by another user, with no processing (i.e., direct reuse), is not a “solid waste” if it meets the criteria in 40 CFR 261.2(e). You would need to discuss these provisions with Texas if you believe they pertain to your situation. Pnnted on Recycled Paper ------- and as a result of contamination can no longer serve the purpose for which it was produced without processing.” In your letter, you pointed out that used, slightly contaminated solder would have environmental impacts similar to those from unused solder. You are correct in pointing out that the federal hazardous waste regulations, as currently structured, can require vastly different levels of control based on what may appear to be minor details about the circumstances of a material’s use or generation. We are concerned that our current distinction based on a material’s use may not be valid, just as you raised in your letter. In response to important reasons (such as yours), we are currently involved in a major effort to reevaluate the federal definition of solid waste to determine if it functions as a barrier to environmentally sound recycling practices. One of the main objectives of the reassessment is to see if the controls imposed under RCRA can be better matched to the environmental risks that a material or process poses. We may decide that used materials are not -- cessarily wastes, at least not when managed in specified envirc. imentallY sound ways. In that contqxt, I very much appreciate the issues you have raised and will ensure that they are considered as part of our broad assessment of the definition of solid waste. If you have any further questions on this issue, or on the assessment that we are conducting, please feel free to contact David Bussard, Director, Characterization and Assessment Division, Office of Solid Waste, at (202) 260—4637. Sincerely you s, Don R. Assistant Administrator ------- 9441.1992(07) I C UNITED STATES ENVRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 WR3I ia a OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Jane Vogt Rt. 1, Box 37C Naper, NE 68755 Dear Ms. Vogt: Thank you for your letter of February 19, 1992 regarding the content and management of mixed waste. I have attached guidance and other related mixed waste material referenced in my response to enhance your understanding of commercial mixed waste management. Your first request is for a detailed list of the “elements” contained in low-level mixed waste. Low-level mixed waste is defined as a waste that meets the definition of low-level radioactive waste (LLW) in the Low-Level Radioactive Policy Amendments Act of 1985 and contains a ha ardous waste as defined in regulations issued under the Resource, Conservation and Recovery Act (RCRA) and codified at 40 CFR Part 261. Since Environmental Protection Agency’s (EPA) jurisdiction applies to the hazardous component, the information below includes general types of hazardous components most commonly found in low4evel mixed waste. Based on earlier reports and from preliminaiy results from a joint survey issued by Nuclear Regulatbiy Commission (NRC) and EPA, LLW mixed waste typically consists of the following categories of wastes: (1) Organic liquids including cleaning and degreasing solvents, scintillation liquids (which typically contain toluene and xylene as the hazardous component); organic lab liquids; sludges; and other various solvents. (2) Oil mixtures used in operation and maintenance activities, such as spent lubricants from radiologically cont minnted equipment. (3) Heavy metal contamin ted wastes such as discarded lead shielding and/or containers, chromium contninng ion exchange resins and corrosion inhibitors, and decont mfn tion resins containing cadmium. (4) Aqueous corrosive liquids such as those used at nuclear power plants or in industry to clean cont minated containers and as back-flush ion-exchange resins. Your second request is for a list of entities which produce mixed waste and a list of Printed on Recycled Paper ------- those entities that hold licenses or permits for the storage of mixed waste. Although the EPA tracks permitted hazardous waste facilities on a national basis, we do not distinctly track haz dous waste facilities that generate or hold storage permits for mixed waste. Therefore, the specific list that you requested Is not aw’fl’ ble. However, I have provided you with information (attached) on the potential universe of mixed waste generators compiled for an EPA mixed waste tr bi ng course from various reports. You also may try csilling individual State hazardous waste agencies and EPA Regional Offices to obtain information on mixed waste producers and mixed waste facilities with storage permits. (See the contact list in the back of your booklet entitled ‘Low-level Mixed Waste: A RQ A Perspective for NRC Licensees.)” For Information on licensees that store mixed LLW, you should contact the NRC, which Is the agency with the authority over the radioactive component of commercial mixed LLW. Your next question asks for the amount of mixed waste being held by producers. Currently, we only have rough estimates on the amount of mixed waste that is being generated in the United States. Estitrn’tes from past State and industry surveys conclude that mixed waste constitutes between 3 and 10 percent of commercially generated low-level waste which translates roughly to between 45 thousand and 150 thousand cubic feet annually. Because of the lack of specific Information on the types and amounts of mixed waste generated, EPA and NRC launched a joint survey of potential commercial mixed waste generators in November 1991. The survey will compile data from 1990 mixed waste m n gement activities, and it is currently in the Thi 1 stages of collection and nn lysis. The fin 1 report presenting the 1990 annual mixed waste generation rates and the characteristics of mixed waste is expected this summer. Attached is a memo announcing the intent of the survey. You also asked about the point at which the producers are required to report the amount they are holding. Hazardous waste generators and owners/operators of hwiardous waste treatment, storage and disposal facilities (TSDFs) are required to report biennially on their hazardous waste generation and m n gement activities. Generators and TSDFs should provide, as part of the report, a description of the type and quantity of mixed waste managed during the previous calendar year, and the treatment, storage or disposal process practiced, if applicable. For mixed waste generators, this may be the point at which they first report the amount of mixed waste they are holding in storage. Another point at which mixed waste quantities have to be reported Is in a hazardous waste permit application. Large quantity generators (i.e., those who generate 1000 kilograms per month of total hazardous waste or more) that store hsi,’ardous waste (indurHng mixed waste) over 90 days, are required to obtain a RCRA permit and thus report on the types and quantities of hazardous waste (including mixed waste) they have in storage. Generators who generate less than 100 kilograms month of hazardous waste (including mixed waste) per month are conditionally exempt from the RCRA hazardous waste requirements including reporting. Your next question asks about the availability of disposal sites for mixed waste produced in the United States. Currently, the only commercial disposal facility that is permitted for certain types of mixed waste is Envirocare of Utah, Inc. Of course, the facility is restricted in the hazardous waste permit as to what types of wastes it can accept, and the ------- facility’s current permit would authorize disposal of mixtures that are very low activity, “naturally occurring” or NORM wastes, not the “mixed wastes” defined above. Envirocare, as I understand, is in the process of building their mixed waste disposal cell and is not yet disposing of mixed LLW. To address your question about the current charge per cubic foot, I have attached a General Accounting Office report that discusses (see page 27) estimates for LLW and mixed waste disposaL The authority to issue a mixed waste disposal permit for the hazardouS component lies with EPA and/or a RCRA authorized State with an approved mixed waste program. Depending on the scope of a State’s authorized RCRA program, the authority to issue a RCRA permit may lie solely with the State, solely with EPA, or be shared by EPA and the State. Please keep in mind that commercial mixed waste disposal facilities would also have to be licensed by NRC or an NRC agreement State. The attached July 3, 1986 and September 23, 1988 fpderal Register notices explain the rationale for requiring States to adopt the authority for mixed waste and what this mixed waste status involves. Mixed waste is not regulated under RCRA in authorized States until the State is specifically approved by EPA for a mixed waste program. Of the 46 States Including the District of Columbia that are currently authorized for RCRA programS, 29 also have approval for mixed waste programs. The same agency with the authority under State and Federal law to site, construct, operate, and regulate a LLW facility can do the same for a mixed waste disposal facility (because mixed waste is a subset of LLW). However, additional agencies (EPA or an authorized hazardous waste agency) may regulate the mixed waste disposal facility, because of the distinct authority over the hazardous component of mixed waste. Finally, you ask if there is any means for a State or Compact to ban mixed waste from outside its State or Compact region from being disposed of within its State or Compact Region. Because mixed waste is a subset of LLW, States and Compacts can impose restrictions under the authority of the Low Level Waste Policy Amendments Act of 1985. Of course, there is room to negotiate with other States and Compacts to accept LLW including mixed LLW from outside their State or compact Thank you for your interest in mixed waste regulation. If you have any questions concerning this response, please contact Susan Jones of my staff at (202) 260-2210. Sincerely, State and Regional Programs Office of Solid Waste ------- February 19, 1992 Suzanne Rudzinski, thief 1) 4 i c- State Programs Branch J2 12.. U Office of Solid Waste (05-342) 401 M Street, SW Washington, DC 20460 Dear Ms. Rudzinzki: My questions regarding mixed waste information were referred to you by Mr. Randolph Wood, Director of the Nebraska Departhen .of vironmental Control. C - i Specifically, I would like a detailed listing of the elenents captained J o J. yel_Mixed Wasj e Also, please supply me with a list of those entijiej ) which produce mixed wastes well as those_entities which hold licerisesor peits!6i_storage of mixed waste. _---.--- . What art unt of mixed waste i being J lciI by produgers, and at which point arêthey r q€ th rejort the anou it th y re.j oldipg? Where is the mixe& ) waste produced in the United 3 ates disposed of? What is the current charge per cubic foot for disposal of mixed waste? J re there currer&ly any cxxinercial mixed waste disnosal nermit is ned / nationally? 1ho has the a’uthority to issue a permit ..fo dlspd aT [ otñff . waste? Wat agency has the authority to site, oonstruct, operate and regulate thixed waste dIsposal? Is there any way a State or a O npact can ban mixed wast3 fran outside * —itt State or Oxnpact region from being disposed of within its State or O npact Region? • ytinally, please explain what a State does to acquire the status of a RQ ,4 uthOriZed state wi th mixed waste authorization and what this status ines. I look forwarc to t pr x pt response. I vwe ?ersp ctive for NRC LicensE 35 ?oo)de . Zinceroly, 2& Jane Vogt Rt. 1, Box 37C Naper, NE 68755 ------- 9441.1992(08) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 OFFICE OF 501.10 WASTE AND EMERGENCY RESPONSE APR 23 10Q2 Mr. Hugh Allerton, Manager Environmental Affairs TRW Inflatable Restraints TRW Vehicle Safety Systems, Inc. 4505 West 26 Mile Road Washington, Michigan 48094 Dear Mr. Allerton: Thank you for your letter of November 8 1991 regarding the regulatory status of undeployed automotive airbag inflators under the Resource Conservation and Recovery kct (RCRA). Thank you also for meeting with my staff on January 9, 1992 to discuss jour concerns. We understand that the airbag inflators in question are sealed metallic devices containing propeliants that generate a prescribed volume of nitrogen gas when they are activated. Some of the manufactured infiators are not used because they fail your quality control testing program. The undeployed inflators are then reclaimed off-site for their metal value. We also understand that the undeployed inflators are not characteristically hazardous under RCRA. According to the facts you presented, the imdeployed inflators appear to be doff- specification” commercial chemical products. Under the RCR.A regulations (40 CFR 261.2(c)(3)), commercial chemical products (even if they are listed hazardous wastes) are not considered solid wastes when reclaimed. They are therefore not subject to the federal hazardous waste manAgement program under Subtitle C of RCR.A. This interpretation reflects only the federal regulations governing hazardous waste. States with authorized RCRA programs have the authority to make regulatory determinations about the materials which constitute solid and hazardous wastes under their programs, and they may impose more stringent requirements. I urge you to contact each State in which your company conducts operations to ascertain their requirements. Pnnfod on RscvcIp4 Paoe, ------- -2- I hope this letter has addressed your concerns. If you have any further questions, please contact Marilyn Goode of my staff at (2G2) 260-8551. Sincerely yours, Sylvia K. Lowrance Director Office of Solid Waste ------- F ILE 9441.1992(09) , O UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ( _____ WASHINGTON. D.C. 20460 4 ‘ L RO1 t4AY — 4 1992 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Arlifle H. Seeger Morgan,. t,qwis, & Bockius Counselors at Law 1800 H Street, M.W. Washington, D.C. 20036 Dear Ma. Seeger: Thank you for your letter of April 23, 1 92, inquiring about the applicability of RCRA hazardous waste export requirements, found in 40 CFR 262 Subpart E, to treatability study samples. Treatability study is defined in Section 260.10 as “a study in which a hazardous waste is subjected to a treatment process to determine: (1) Whether the waste is amenable to the treatment process, (2) what pretreatment (if any) is required, (3) the optimal process conditions needed to achieve the desired treatment, (4) the efficiency of a treatment process for a specific waste or wastes, or (5) the characteristics and volumes of residuals from a particular treatment process. Also included in this definition for the purpose of the Section 261.4 (e) and (f) exemptions are liner compatibility, corrosion, and other material compatibility studies and toxicological and health effects studies. A “treatability study” is not a means to commercially treat or dispose of hazardous waste.” Sections 26i. e(e) and 261.4(f) allow exemptions from regulation under RCRA to persons who generate or collect samples for the purpose of conducting treatability studies, as defined above, and to the samples themselves. EPA promulgated thess regulations on July 19, 1988. In the preamble to the rule, the Agency exempted “...samples sent for treatability studies from Subtitle C requirements. These include the requirement to notify EPA prior to export of hazardous waste...” 53 Fed. Reg. 27, 290, 27, 293 (July 19, 1988). Persons who generate or collect samples for the purpose of conducting treatability studies must meet the requirements of Section 261.4(e) to be eligible for the exemption. As you stated in your letter, Section 261.4(e) (2) (iv) requires that “The sample is shipped to a laboratory or testing facility which is exempt der Section 261.4(f) or has an appropriate RCRA permit or interim .tatus.” In addition, Section 261.4(e)(2)(v)(C)(2) requires the generator or sample collector claiming the exemption to keep records of the EPA identification number of the laboratory or testing facility receiving the waste. Laboratories or testing Pnnted on Recyded Paper ------- facilities outside of the jurisdiction of the United States, however, are not subject to RCRA regulation and, therefore, cannot be permitted or be assigned an EPA identification number. As a result, it would appear to be impossible for a generator or sample collector seeking the exemption to satisfy either condition and thus qualify for the exemption for a treatabi]jty study sample bound for export. Mowever, as the preamble language quoted above indicates, we do not believe that these Conditions were intended to deny the exemption to samples destined for study in another country. Therefore, persons who generate or collect samples for the purpose of conducting treatability studies outside the U.S. and who meet all of the requirements set forth in section 261.4(e), except for 261.4(e) (2) (iv) and 261.4(e) (2) (v) (C) (2), meet the terms of the exemption. Your letter also alluded to the Basel Convention on the control of Transboundary Movements of Hazardous Wastes and Their Disposal and its entry into force on May 5, 1992, for certain countries which have ratified it. Prance, the country to which you are proposing to send the treatability study sample, has ratified and is, therefore, a Party to the Convention, whereas the U.S. has not ratified. On May 5, 1992, the Convention requires that Parties prohibit transboundar’y movements of hazardous and other wastes with non-Parties, except when a separate international agreement exists for tho$e movements. The agreement must be compatible with environmentally sound management, under the terms of Article 11 of the Convention. Both the U.S. and France, as Members of the Organization for Economic Cooperation and Development (OECD), have adopted an OECD Council Decision, C(92)39/FINAL (March 30, 1992), so that certain transboundary movements of recyclables may continue after entry into force of the Basel Convention. However, this multilateral arrangement pertains to movements of wastes destined for recovery operations; it does not include movements of hazardous waste samples destined for treatability studies. Because exports of hazardous waste treatability study samples are not covered by the OECD Council Decision, and because the U.S. is not a Party to the Basel Convention, a person seeking to export wastes from the U.S. to a Basel Party should determine if the government of the importing country (the Party) considers the movement subject to the terms of the Basel Convention. If the country, in this case France, interprets the Convention to cover treatability study samples, it will likely be a prohibited shipment as of May 5, 1992. Y’. Francis Combrouze of the French Environment Ministry may be contacted at 33.1.47.58.12.12 for assistance in determining if such a movement would be subject to the Basel Convention, in the judgment of the French government. Please note that 40 CFR Section 262.53 requires that notifications of intent to export wastes subject to the RCRA regulations ...“should be submitted sixty (60) days before the initial shipment is intended to be shipped of f site.” ------- Thank you for your interest in the safe and effective management of hazardous waste. If you have any further questions, please contact Angela Cracchiolo of my staff at (202) 260—4779. Sincerely, ‘ jy , Sylvia K. Lowrance, Director Office of Solid Waste ------- 9441.1992(10) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 MAY 151992 OFFICE OP SOUD WASTE AND EMERGENCY RESPONSE Gary A. Santti, P.E. Hazardous Waste Administrator Division of Waste Management Florida Department of Environmental Regulation-Southwest District 4520 Oak Fair Boulevard Tampa, Florida 33610—7347 Dear Mr. Santti: Thank you for your letter dated April 23, 1992, requesting assistance in interpreting the scope of the Bevill Amendment as it applies to phosphate mining, phosphoric acid production, and ancillary facilities. We will be pleased to take part in the site visits conducted by your office to assist you in determining which wastes produced by these facilities fall within the scope of the Bevill exemption. I understand that Bob Hall of my staff has been in contact with you and is arranging for our participation in your site visits. Bob will be accompanied by Van Housman. In response t. yo .ir request for guidance regarding the Bevill Amendment as it applieB to this indt try, am including with this letter copies of two important and relevant dera1 Reaister notices. The first of these two notices, published July 3, 1986, (51 FR 24496) permanently exempted minina extraction and beneficiation wastes from R RA Subtitle C regulation. The rule explains that in order to be an exempt mining extraction and beneficiation waste, the waste in question must be uniquely associated with these operations. This concept has been used consistently by the Agency as a factor in determining which wastes would remain under the Bevill Amendment. (See 45 FR 76619, November 19, 19980 and 54 FR 36616, september 1, 1989.) Wastes not uniquely associated with mineral extraction, beneficiation, or processing include discarded commercial chemicals (such as finished mineral-derived products found to be off-specification), many cleaning wastes (such as a spent commercial solvent that was used in cleaning production ------- -2— vessels) and used lubricating oils. Wastes that are uniquely associated with phosphate extraction and beneficiatjon include mine tailing, and sand and clay from beneficiation operations. The second notice, published June 13, 1991, (56 FR 27300) permanently removed from the exemption all but 20 mineral Drocessing wastes. Among those twenty mineral processing wastes retained within the exemption are phosphogypsum and process vastewater from phosphoric acid production. All other mineral processing wastes, including all other mineral processing wastes generated at phosphoric acid plants, were removed from the exemption in that final rule. (It should be noted that while removed from the exemption, these wastes will only be subject to Subtitle C regulation if they are specifically listed or exhibit one or more of the hazardous waste characteristics.) The end result of these two rulemakings is that all phosphate mining and extraction wastes are permanently exempt from RCRA Subtitle C regulation, but only phosphogypsum and process w tewater from phosphoric acid production remain within the exemption. As you requested, a copy of the 1988 Report to Congress on Mineral Processing Wastes is included with this letter. Chapter 12 of the Report is of particular relevance to your current interests. Once you have determined which sites you will visit in your upcoming inspections, notify us and we will be glad to share with you the information from our records concerning those specific facilities. Most of the data in our files was collected during preparation of the Report to Congress. We are pleased to assist you in your analysis of the status of the wastes generated by the phosphate mining and phosphoric acid production industry. If you have any additional questions or concerns, please contact Bob Hall at (703) 308—8412. Enclosures cc: Alan Farmer, EPA-Region IV ------- 9441.1992(11) FILL uuri UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 J 4 • AY 28 OFFICE OP SOLID WASTE AND EMERGENCY RESPONSE Mr. Mark A. Johnson Treasurer Crush-A-Matic 2805 Urbandale Lane N. Minneapolis, Minnesota 55447 Dear Mr. Johnson: Thank you for your letter of November 5, 1991 regarding the regulatory status under the Resource Conservation and Recovery Act (RCRA) of reclaiming solvent from used dry c1e rning filters. I apologize for the delay in responding to your inquiry. You requested a regulatory determination regarding a process to crush spent dry clepning ifiters to remove the solvents froir the solid portion of the filters. This office cannot provide you with a definitive determination on how waste generators using your process would be regulated because, in the 46 authorized States, RCRA has been delegated to the State to administer as a matter of State law. However, under the federal regulations were they to apply, crushing the spent dry cleaning filters before removing the solvents and the subsequent reclamation of the removed solvents would generally be considered a recycling activity, subject to 40 CFR 261.6(c). Thus, the actual recycling activities themselves would not require a RCRA permit; however, the storage of the spent dry cle rning filters prior to recycling may be subject to permitting requirements, or may be subject to reduced requirements under 40 CFR 262.34 or 261.5, depending on factors unique to each generator. The use of a crushing device is not prohibited by federal regulations, and in fact the use of a crusher will not affect the regulatory status of most generators under federal rules. However, as mentioned above, each authorized State would have to make these determinations based on its own individual State law provisions. According to your letter, you have not yet designed your crushing unit. Even under federal law, the applicable regulatory requirements for waste generators may vary greatly according to several site-specific circumstances. Examples of such circumstances include whether (or how long) the filters are stored before and after recycling or whether the reclamation takes place on the premises of the dry cleaning facility. Because a regulatory determination for each generator is dependent upon such site-specific factors, you may wish first to consult the Waste Management Division of EPA’s Region V Office in Chicago, Illinois. By discussing in advance which requirements would apply under different scenarios, you may be able to minimi7e your costs while helping your customers maintain full compliance with RCRA regulations. Pnn?p 1 tm R rvc’pd ------- 2 I also urge you to contact each State in which your operations will be located. As emphasized earlier, States with authorized RCRA programs may impose more stringent requirements, and they also have the authority to make regulatoiy determinations about the materials which constitute hazardous wastes under their programs. I hope this letter has addressed your concerns. If you have any further questions, please contact Marilyn Goode of my staff at (202)-260-8551. Sincerely, Office of Solid Waste ------- 9441.1992(12) RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION MAY 1992 1. Lead Used as Shielding in Low-Level Radioactive Waste Disposal A generator of low-level radioactive waste places the waste in lead or lead-lined - containers. These containers, used to dispose of radioactive waste, also serve as shielding. Would the containers, once disposed olin a landfill, be regulated as a mixed waste under both RCRA (because the containers exhibit the toxicity characteristic for lead) and the Atomic Energy Ac: (because they contain radioactive waste)? No, the containers or container liners would not be regulated as a mixed waste if their primary use is for shielding in disposal operations. Because the containers would be fulfilling their intended use and thus would not be considered discarded under RCRA, they do not meet the definition of a solid waste (40 CFR §261.2(c)(I)(ii)). Since the containers would not meet the definition of solid waste, they would not meet the definition of hazardous waste. A1987 internal Agency memorandum states, “ [ i)n this instance, containers or liners may be analogous to commercial chemical products (e.g., pesticides) where as a product, their normal use is placement on the land. Therefore, lead whose primary use is shielding in low-level waste disposal operations is not subject to Federal hazardous waste regulations when placed on the land as part of its normal commercial use.” In this example, the containers are not subject to RCRA and are not regulated as mixed waste. The radioactive waste would, however, be subject to any applicable Atomic Energy Act regulations. EPA notes, however, that “...lead containers and liners may be equally hazardous to human • ealth aiid the environment whcn placed in the ground independent of [ the) legal classification as a waste or container. Therefore, EPA recommends that all lead containers and lead liners be managed in an environmentally safe manner (e.g., managed in a permitted hazardous waste facility or treated such that it no longer exhibits its characteristic)” (OSWER Directive 19432.00-2; October 4, 1989). ------- 9441.1992(13) T RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION I MAY 1992 2. Secondary Materials Used as Effective Substitutes for Commercial Products Section 261 2(e)(1) excludes certain recycled secondary materials from the definition of solid waste. Section 261.2 (e)(1)(ll) excludes materials which are recycled by being used or reused as effective substitutes for commercial products. Can a material that must be reclaimed prior to use or reuse as an effective substitute for a commercial product qual4fy for the exclusion in §26 12(e)(1)(ii)? No, this exclusion applies only to materials which are used or reused without prior reclamation. The January 4, 1985, Federal Register (50 EB 619) discusses this exclusion and states that “(w]hen secondary materials are directly used as substitutes for commercial products. ..these materials are functioning as raw materials...and, thus, are not wastes.” A material that must be reclaimed prior to use (or reuse) as an effective substitute for a commercial product is not being directly used (or reused), and so would not qualify for this exclusion. ------- _.‘ I I — — — a .-. . — — — — 9441.1992(14) Ms. Elizabeth R. Walker Quality Assurance Officer tJSPCI 4322 South 49th West Avenue Tulsa, Oklahoma 74107 Dear Ms. Walker: This letter is in response to your inquiry of May 7, 1992, concerning the holding times for ground water in Chapter 11 of SW- 846. Please disregard the holding time tables for volatiles and seinivolatiles in Chapter 11, since they are in the process of being deleted from the manual. The appropriate holding times for aqueous samples are listed in the holding time tables in Chapter 2 and Chapter 4 of SW-846. The holding time for volatiles is 14 days. The holding time for seinivolatiles is 7 days for extraction of the sample, and 40 days after extraction for analysis of the extract. If you have any questions, please call me at 202-260—4761. Sincerely, Barry Lesnik, Chemist OSW-Methods Section (OS-331) RCRA Organic Methods Program Manager — co$cuu,,Ic!s — JRP. ca.rr . .___I .. . . . ,L, SNSJd /. frt4 i. l 6-3-921 4’/J)?& I .....fl....SI..IS ...S • • I. .. I. .. S • • .. I • • I S .. ._ OFFICI S SS• — S CCPY AL June 3, 1992 EPA Form 13204 (12.70) •U.S.CPO:a9B9—624—’ I IUIB6 ------- 9441.1992(15) ,ID ST UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 ‘ 4( amO JUN 31992 OFFICE OF 504.10 WASTE AND EMERGENCY RESPONSE Ms Elaine Carlin Executive Director Northwest Interstate Compact on Low— Level Radioactive Waste Management Washington Department of Ecology P.O. BoX 47600 Olympia, WA 98504—7600 Dear Ms Carlin: Thank you for your letter of February 28, 1992, in which you listed some questions and concerns of the generators in the Northwest Interstate Compact region. The first two questions were directed specifically to the Agency, while the remaining questions required input from both EPA and the Nuclear Regulatory Commission (NRC). Members of my staff have recently been in contact with Dominick A. Orlando, NRC Mixed Waste Project Manager, to develop joint responses to those questions. I shall address the questions in the order in which they were asked. 1. Can there be created a short, concise list of organic chemicals/materials (used within the biomedical community) which are common components of mixed wastes? Currently, we understand that the chemical component of biomedical wastes consists of acids and bases, as well as a host of solvents (e.g., alcohols, esters, aldehydes, ketones, toluene, benzene, xylenes, and other aromatics). EPA believes that the soon to be completed Mixed Waste Generator Survey may contain more detailed information to address this request. One of the information requests made to the generators was the types of hazardous waste (hazardous waste codes and sources) contained in their wastes. The most complete and accurate information will be developed from the survey results. We currently anticipate that a draft report of the survey will be published for comment around mid—summer, 1992. 2. The RCRA Part B permit needed for storage of mixed wastes) concentrates primarily on hazardous waste disposal and involves a complicated application. Can a different and less difficult application process be developed leading to a RCRA permit issued specifically for mixed waste storage? Pnnted on Recycled Paper ------- on January, 13, 1992 the Utilities Solid Waste Activities Group (USWAG) submitted a petition to the Administrator, requesting regulatory amendments that would reduce the permitting burden for many commercial generators who store mixed waste. EPA staff met with USWAG representatives and other interested parties on May 28, 1992, to discuss the Agency’s options in responding to this petition. The RCRA permitting strategy currently differentiates between the requirements necessary for a hazardous waste storage permit as opposed to a disposal facility permit. While all hazardous waste facilities seeking a permit under RCRA are required to meet certain general standards for safe treatment, storage, and/or disposal of hazardous wastes, the specific requirements currently necessary to operate a storage facility are quite different (and less technically demanding) than those required for a disposal facility. EPA strongly suggests that facilities seeking a RCRA permit initiate discussions with the regional EPA office and the authorized State. This procedure will help alleviate some of the time delays associated with the permitting process. 1. How should a low-level radioactive waste, otherwise dischargeable to a sewer, be disposed of if a hazardous component is present? similarly, how must low-level waste be classified and managed when, under hazardous waste rules, the generator is a small quantity generator? Can de minimis quantities for both constituents of the waste stream be identified? In the case of small quantity generators, the requirements under RCRA are found at 40 CFR 261.5 (conditionally exempt small quantity generator requirements) and 262.34 (accumulation time for small generators). With respect to de minimis quantities of the hazardous portion of the waste stream, the Agency is considering alternative ways of addressing the problems posed by waste mixtures and by the waste streams and residual materials associated with the treatment of hazardous waste. One option would be a rule which would establish concentrations of hazardous constituents below which a waste, mixture, or residue would no longer be considered hazardous. EPA proposed several options (including concentration-based exemptions) for identifying concentration based exemption criteria (CBEC) in the Register of April 30, 1992. Finalization of the Hazardous Waste Identification Rule (HWIR) is tentatively scheduled for April, 1993. The Agency believes that these concentrations should preferably be based upon an assessment of the health and environmental risks posed at varying concentrations. Concentration levels could also be based on attributes of particular wastes or materials, or the management regimes imposed by other applicable regulatory programs. ------- 3 2. Is there available a list of testing labs which are able to analyze mixed wastes? How can one be obtained? EPA currently has no standardized list of testing labs which are able to analyze mixed wastes. Our advice is to contact the State agencies within your compact to determine if they can provide lists of contract labs within their borders. 3. Is there a data base or source which can be accessed to provide answers to technical questions about mixed waste? If not, can EPA and NRC develop one or agree on a single source for this type of information? For information concerning mixed waste at the Headquarters level, at the NRC, the point of contact is Dominick A. Orlando (who was contacted by the Agency in order to develop joint responses to your questions), NRC Mixed Waste Project Manager, at (301) 504-2566. At EPA Headquarters, contact Richard LaShier, Chief of the Regional Coordination and Implementation Section (RCIS), or Reid RosniCk, Mixed Waste Coordinator, RCIS, at (202) 260-2210. You are also encouraged to contact the mixed waste liaison within your EPA Region, particularly if your question relates to a specific facility. 4. Why can’t mixed waste management regulations be relaxed to allow companies to do research, leading to a treatment capability, on their own waste stream? There are some possible avenues that may be explored. One is found at 40 CFR 261.4 (d), (e), and (f), for samples undergoing treatability studies at laboratories and testing facilities. Such samples may be excluded from a large part of the regulations if a number of requirements are met, such as mass limitations and shipping requirements. You may wish to have the generators in the compact contact the EPA regional office or authorized State for further information. 5. Generators within the compact ask for a redefinition and clarification of storage rules which relate specifically to mixed waste. As discussed earlier, EPA is currently considering ways to avoid any unnecessary regulatory burdens on parties who store mixed waste, in connection with a petition for a rulemaking from the Utilities Solid Waste Activities Group (USWAG). A meeting with interested parties is scheduled for May 22, 1992, at which we hope to explore the merits of a variety of options. 6. What is the proper sampling method for a drum containing non-homogeneous dry mixed waste? ------- 4 EPA currently has no recognized standard procedure for sampling non—homogeneous mixed waste in drums. This issue is one that is not unique to mixed waste; it is an issue more generally for many hazardous waste facilities. This issue is also a prominent one within the DOE weapons complex, and DOE will soon be briefing EPA on its related concerns and recommendations. We have, however, recently produced (in conjunction with the NRC) a guidance document that specifically relates to testing procedures for mixed wastes. This document was announced for public comment in the March 26, 1992 Federal Reaister . Of particular interest to the generators in your compact may be the section in the document that outlines the use of process knowledge for waste characterization. In any event, we invite comments from you, other Compacts, and Generators in your Region, which would identify both the extent of the problems with sampling non- homogeneous waste, and the possible solutions that might be addressed in the final document. 7. What disposal options are available for disposing of scintillation cocktails contaminated with radionuclides other than tritiuin or carbon-14? Similarly, is there a minimum nuclide level for either source or byproduct nüclides which make a hazardous waste a mixed waste? At this time there is no disposal option available for disposing of scintillation cocktails contaminated with radionuclides other than tritium or carbon—14. Similarly, I know of no minimum nuclide level which makes a hazardous waste a mixed waste. I suggest that you contact Mr. Orlando of the NRC for a more detailed answer and the opportunity to discuss possible alternative options. Again, thank you for the opportunity to address your concerns. If you have further questions, please call Reid Rosnick at 202—260—4755. Sincerely, - Devereaux Barnes, Director Permits and State Programs Division cc: Michael Flynn Richard LaShier Reid Rosnick Susan Jones Dominick A. Orlando, NRC ------- ALASKA WASHU1GTO ANA Northwest Interstate Compact On Low-Level Radioactive OREGON IDAHO Waste Management UTAH WASHINGTON DEPARTMENT OF ECOLOGY. P.O. BOX 47600. OLYMPIA. WA 98504 7600 HAWAII February 28, 1992 Mr. Reid Rosnick Office of Solid Waste MS-OS-342 U. S. Environmental Protection Agency 401 M Street, SW (OS-520) Washington, D.C. 20460 Dear Mr. Rosnick: Recently, we conducted meetings with low-level radioactive waste generators from the Northwest Interstate Compact region. At the meetings we discussed generator and the Compact concerns regarding the generation, storage and disposal of mixed wastes from within the region. The generators described several concerns, some of which appear to be within your area of expertise. Would you please address the two items listed below? I. Can there be created a short, concise list of organic chemicals/materials (customarily used within the biomedical community) which are common components of mixed wastes? If such a list can be developed, providing it to biomedical research groups would facilitate proper management of mixed wastes in the research industry. 2. The RCRA Part B permit (needed for storage of mixed waste) concentrates primarily on hazardous waste disposal and involves a complicated application. Can a different and less difficult application process be developed leading to a permit issued specifically for The generators had additional concerns, set out below, that apply to both the Nuclear Regulatory Commission and the Environmental Protection Agency. We believe that your two offices will appropriately have input into these generator concerns. They are being simultaneously submitted to both agencies. I. How should a low-level radioactive waste, otherwise dischargeable to a sewer, be disposed of if a hazardous component is present? Similarl st low-level waste be c jfje nd managed when, under hazardous waste rules, the generator is a snia - - quantity generator. Can de minirn:s quantities for both constituents of the waste stream be i iiified ? ——.-—- - .— ------- Reid Rosnick, EPA February 28, 1992 Page 2 2. Is there available a list of testing labs which are able to analyze mixed waste? How can one be obtained? 3. Is there a data base or source which can be accessed to provide answers to technical questions about mixed waste? If not, can the EPA and NRC develop one or agree on a single source for this type of information? 4. hy can’t mixed waste management regulations be relaxed to allow companies to do re earch, leading to a treatment capability, on their own waste stream? 5. G erators within the Compact ask for a redefinition and clarification of storage rules relate specifically to mixed waste. 6. What is the proper sampling method for a drum containing non-homogeneous dry mixed waste? 7. What disposal options are available for disposing of scintillation cocktails contaminated with radionuclides other than tritium or carbon- 14? Similarly, is there a minimum nuclide level for either source or byproduct nuclides which make a hazardous waste a mixed waste? Thank you for your attention. If you have any questions, please contact Bob Cordts (206/459- 6863). Line Carlin, Executive Director EC/BC:dr ------- 3 11 ’ 9441.1992(16) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ____ WASHINGTON. D.C. 20460 F L E tHu I a a . OFc ICE O JUI I I I L SOLID WASTE AND EMERGENCY RESPONSE Mr. Douglas H. Green Piper & Marbury 1200 Nineteenth Street, N.W. Washington, D.C. 20036—2430 Dear Mr. Green: Thank you for your letter of April 30, 1992, requesting clarification of the Environmental Protection Agency’s (EPA’S) interpretation of the applicability of certain Resource Conservation and Recovery Act (RCRA) requirements to common excavation-type activities. The particular situation which you presented in your letter involves excavation of soils, such as trenching operations for pipeline installation, where the soils may be hazardous by characteristic, or may contain listed hazardous wastes. We understand that your questions specifically relate to excavations being conducted on public roadways or at other similar locations that are not necessarily associated with or are part of a RCRA— regulated treatment, storage, or disposal facility. In the example which you cited in your letter, the soils from the excavation or construction activities are temporarily moved within the area of contamination, and subsequently redeposited into the same excavated area. In these situations, we agree that such activity does not constitute treatment, storage, or disposal of a hazardous waste under RCR.A. The activity of placing waste in the ground would not normally meet the regulatory definitions of “treatment” or “storage” (40 CFR 260.10). In addition, as you noted in your letter, movement of wastes within an area of contamination does not constitute “land disposal” and thus does not trigger RCRA hazardous waste disposal requirements (55 8666, March 8, 1990). Thus, RCRA requirements such as land disposal restrictions would not apply. With respect to generator requirements, as you indicated, a hazardous waste “generator” is one, by site, who produces a hazardous waste or first causes the waste to be regulated as hazardous (40 CFR 260.10). In the circumstances you described, the excavation does not “produce” the hazardous waste, nor does it subject the waste to hazardous waste regulation since, as f:.: Printed on Recycled Paper L.. -- - ------- discussed above, the activity you described is not “treatment,” storage,” or “3.and disposal” of hazardous waste. Therefore, we agree that the activity is not subject to any generator requirements. Please let me know if you have any further questions regarding this issue. Sincerely yours, ivia K. Lowr nce, Director Office of Solid Waste ------- 9441.1992(17) , iO 87 I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20480 4’ iuuiio4 JUN I 6 1992 OFFICE OF SOLID WASTg AND EMERGENCY RESPONSE Roger L Scott, Manager National Low-Level Waste Management Program EG&G Idaho, Inc. Idaho Falls, Idaho 83415 Dear Mr. Scott: Thank you for forwarding your report entitled “Designation of Americium Beryllium Sources under RCRA’ to the Office of Solid Waste. We greatly appreciate your effort in characteriii :g americium beryllium (AmBe) sealed source wastes. The resolution of the issue is important, because as you indicate, there are several thousand discarded sealed sources which may enter the radioactive waste stream annually. My staff in the Permits and State Programs Division and the Characterization and Assessment Division have reviewed the report, and view it as a very thorough and well done report. As a general matter, we agree with your tentative determination that AniBe sealed sources are I hazardous under the Resource Conservation and Recovery Act (RCRA). As your report suggests, discarded AmBe sealed sources would not be P-listed commercial chemical product or chemical intermediate wastes, despite_their beryllium content (P015), since the commercial chemical product listings in 40 CFR 261.33 do not extend to manufactured products which are discarded after their end use. In addition, we agree that there would not be any corrosive, ignitable, or reactive properties associated with these sealed sources, nor do we expect stainless steel casings to fail the Toxicity Characteristic (TC). Situations that may cause stainless or specialty steel components (NI, CR) to fail the TC are where a pipe or piece of machinery takes a physical beating (e.g., is etched) by material in contact with it. It is less clear whether the solder will pass the TC. Given the safety concerns with mixed wastes, a combination testing/mass balance approach may be appropriate to characterize solder from sealed sources. Either information on the composition of the solder, or TCLP testing (on a non-radioactive sample) would be a starting point. Then. based upon the percentage of the whole material that is solder, a “theoretical” TCLP concentration may be determined, using an assumption of no contribution of TCLP con.stituents from the non-solder portion of the waste. It also appears to be unlikely that any trace amounts of TC metals in the americium Pnnted on Recycled Pa,oer ------- and beryllium will cause the sealed sources to fail the TC unless there is a large amount of Am or Be in the capsule. My staff offers the following specific comments on your report: 1. On page 11-3, Figure 11-1, the third decision triangle in the series asks ¶s the wuteListeduPorUWasteln4OCFR26L33? Thedecisiontotheright of the triangle says ‘Yes or Maybc. We suggest you remove the word maybe beca”- e it Is vague and not explained. 2. On page 11-5, Section 2,1.3, the last sentence refers to identifying Ubelyllium powder” as P015 waste. We suggest you delete the word ‘powder” since P015 is designated as Uberyllium” not ‘beryllium powder” In 40 CFR 261.33. 3. On page 11-6, in the last paragraph, you may want to mention that discarded beryllium residues generated during the m tnnfacturing process for sealed sources e considered P015 wastes. 4. On page 114, we suggest you delete the word ‘powder” in the second full paragraph for the reason set forth in comment 2. Again, I commend the thoroughness of your effort to characterize discarded Americium Beryllium sealed sources as potential mixed waste streams. While we agree generally with the conclusions you have reached under the Federal RCRA requirements, I should remind you that States authorized under RCRA for mi7ed waste may have more stringent hazardous waste regulations than the Federal requirements. Should you have any additional questions, please call Richard LaShier or Susan Jones at (202) 263-2210. Sincerely, of Solid Waste ------- UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY 9441 .1992(19) July 7, 1992 Ms. Sara C. Brothers Cperations Manager, New Mexico Groundwater Technology, Inc. 2501 Yale Boulevard, S. E. Suite 204 Albuquerque, New Mexico 87106 Dear Ms. Brothers: This letter is in response to your June 24, 1992, “Request for Clarification of Preservation Techniques for Volatile Organic Analysis in accordance with EPA SW—846 Methods 8010/8020 and 8240”. I am limiting this response only to water samples to be analyzed under RCRA using the SW—846 Methods (5030/8010/8020 and 8240) listed in your letter. Questions concerning the Office of Water Methods 601/602 and 624 need to be directed to: Ms. Nancy Uliner Environmental Monitoring Systems Laboratory 26 W. Martin Luther King Blvd. Cincinnati, OH 45628. In the RCRA Program the recommended preservation procedure for water samples containing volatile organic analytes is acidification to a pH less than 2 using either a mineral acid (e.g. hydrochloric acid) or solid sodium bisulfate (NaHSO 4 ). These recommended preservation procedures can be found in the appropriate Holding Times and Preservation Tables in Chapter Two and Chapter Four of SW—846. We do not recommend the use of mercuric chloride as a preservative for RCRA samples. If the mercury concentration of spent laboratory water samples exceeds 0.2 mg/L, these samples must be managed as a hazardous waste which exhibits the RCRA Toxicity Characteristic. On the other hand, acid—preserved spent laboratory water samples which do not contain hazardous constituents can simply be neutralized and discarded by pouring them down the drain. .— ......... S..... ...........SS .. J RHAME •, ciV’I .••..••e....... • .•. . ..... .•ss ._ DATE 7!’192. ?Tj/1 i I,/ /i1 EPA Farm 1320.1 (12.70) 5U.S.GPO .I989426 .48 I10IB6 OFFICIAL ‘ - ‘ ------- I am enclosing a copy of a recent paper published by the U. S. Geological Survey in Environmental Science & Technoloav on this issue. I hope that you find it useful. If I can be of any further assis’ance, please call me at (202) 260—7459. attachment Sincerely, Barry Lesnik, Chemist Methods Section (OS-331) RCRA Organic Methods Program Manager ------- 9441.1992(20) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 ‘111091992 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. John C. Chambers, Jr. McKenna & Cuneo 1575 Eye St. N.W. Washington, D.C. 20005 Dear Mr. Chambers: Thank you for your letter of May 14, 1992 regarding the regulatory status of coal tar distillates manufactured by Koppers Industries, Inc. I apologize for the delay in responding to your earlier inquiries. According to the facts stated in your letter, the coal tar distillate produced by Koppers is sold to steel manufacturing facilities for material recovery value and fuel use. In a typical coal tar manufacturing operation, several product streams are produced, including distillate oils. Some of the distillate oils are formulated to meet fuel specifications and sold into fuel markets. You stated that Koppers had been selling the oils (“middle oils”) into the fuel market for over fifty years, and that the heat value typically ranged from 149,000 btu to 155,000 btu per gallon. From the facts that you have provided us, we have concluded that coal tar distillate marketed for fuel use is a co-product rather than a waste. This judgment is based upon the historical use of the substance as a fuel and the fact that it is apparently manufactured to specifications. We also wish to clarify that this interpretation is consistent with the Agency’s pending proposal to list certain coke by-product residues as hazardous wastes. As we understand your description of the material, it is different from wastes the Agency proposed to list as hazardous in the coke by-products listing determination (56 FR 35787, July 26, 1991). In that notice, the Agency proposed to list various storage and distillation residuals (i.e., tank bottoms, distillation bottoms, etc.) and not distillate products. Your client’s product is a coke by-product process distillate, not a residue. Moreover, unlike the residues EPA proposed to list, It has an historical use as a fuel product. Thus, the interpretation in this letter does not reflect any inconsistency with interpretations discussed in the proposed coke by-products listing determination. Pnnted on Recycled Pape’ ------- In addition, this letter addresses only the status of the distillate itself. If the distillate were to be mixed with hazardous waste, the mixture would normally become a hazardous waste-derived fuel subject to applicable regulations found principally in 40 CFR Part 266 Subpart H. This interpretation reflects only the federal regulations. States with authorized RCRA programs have the authority to make regulatory determinations about the materials which constitute solid and hazardous wastes under their programs, and they may impose more stringent requirements. I urge you to contact each State In which your company conducts operations to ascertain their requirements. Thank you very much for your patience. If you have any questions, please contact Marilyn Goode of my staff at (202) 260-8551. Sincerely, Office Of Solid Waste ------- 9441.1992(21) ei 4 , I I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 L ‘ , F ENPORCE) WT CONPIDBNTIMUNOT FOR P 3LIC RZL3 B! OFFICE OF j ji I 6 1992 80 1 -ID WASTE AND EMERGENCY RESPONSE SUBJECT: Request for Regulation Determination -— Spent Solvent Listings and the Mixture R is PROM: Sylvia K. Lowrance, Direct I) 3 pu.,u._.ui. Office of Solid Waste TO: Earl E. Devaney, Director off ic ,f Criminal Enforcement Thank you for your memorandum of June 17, 1992, in which you requested a regulatory interpretation of the spent solvent listings as they relate to the mixture rule. Specifically, you wished to know if the Shell oil decision on the mixture rule would affect interpretations of the scope of the listings and the status of materials as listed hazardous wastes. I will answer your questions in the order you presented them. 1. with regard to listed spent solvents (e.g., FOOl or F002), the Criminal Enforcement Counsel Division advises that the combination of a solvent with the contaminants which cause the solvent to be spent does not involve the “mixture rule” at all. Therefore, the Shall Oil decision would have no impact. Does OSW agree? ANSWER: The Office of Solid Waste agrees with your assessment that the Shell Oil decision does not affect the scope of the spent solvent listing. The Fool P005 listings cover approximately 30 different substances that, when used as a solvent and are “spent,” become listed hazardous wastes. The Agency defines a “spent” solvent as one that “has been used (for its solvent properties) and is no longer fit for use without being regenerated, reclaimed, or otherwise reprocessed.” (See 50 FR 53316, December 31, 1985.) From a practical standpoint, it is the combination of the solvent with the contaminants (acquired from use of the solvent) that causes the solvent to become a spent solvent and thus meet the listing deBcriptiofl. According to 40 CFR 261.3(b), “A solid waste ... becomes a hazardous waste when ... (1) in the case of a waste listed in subpart D, when the waste first meets the listing description set forth in subpart D.” The contamination of the Pn&mvl nn aad’w d P .na, ------- ENPORCEIIBNT CON IDENTIAL-NOT POR PUBLIC RBLZABN solvent from use causes the waste to become a listed hazardous waste, and this determination is not affected by the mixture rule. 2. CECD also advises that a listed spent solvent does not lose it status as a listed hazardous waste just by virtue of its being transported, treated, stored, or disposed of in a manner which involves combining it with some other solid waste. Of course, absent the “mixture rule,” the entire mixture of the listed waste and the solid waste would not be considered a listed waste. However, the listed spent solvent itself would remain a listed hazardous waste, and the Shell Oil decision would have no impact. Does OSW agree? ANSWER: The Office of General Counsel is currently looking into this question with respect to several listed hazardous wastes, not just spent solvents. For the moment, we will defer responding to this question. Thank you for your memorandum. If you have any questions on this response, please contact Ron Josephson at 260-6715. 2 ------- 9441.1992(22) Ms. L.T. Kelly JUL 2; 392 Ceram Research Queens Road Penkhul 1 Stoke-on-Trent, England ST47LQ Dear Ms. Kelly: This is in response to your telefax of June 8, 1992, regarding regulations for disposal of ceramic materials and content limits of substances used in ceramic tiles. The U.S. EPA regulates disposal of these materials only if they meet the definition of a hazardous waste. For these types of materials, it is expected that the relevant hazardous waste test would be the Toxicity Characteristic, which defines wastes as hazardous based upon their ability to release various toxic materials, including toxic metals that may be present in the ceramic material and/or glazes or oper coatings that may be present on discarded ceramic tiles. The Toxicity Characteristic rule requires that a representative sample of the waste be subjected to the Toxicity Characteristic Leaching Procedure (TCLP), a leaching test designed to predict the potential of toxic constituents in the waste to migrate into groundwater. The results of the TCLP are compared to concentration limits (“regulatory levels”) for specified toxic constituents (e.g., 5.0 mg/i for lead). Should the TCLP result equal or exceed the limit for any of the constituents, the waste is defined as a hazardous waste. A copy of the TCLP method and the regulatory levels is enclosed for your reference. If the waste is identified as a hazardous waste, it may be subject to the Land Disposal Restrictions regulations. These regulations require that the waste be treated to certain specifications prior to its disposal in a hazardous waste landfill. If the material is identified as a hazardous waste, it would most likely be due to the fact that it contains lead, arsenic, chromium or some other hazardous metal at concentrations 1 The Toxicity Characteristic rule, promulgated in 1990, replaced the Extraction Procedure characteristic, which had been in effect since 1980. Among other things, the Toxicity Characteristic changed the leaching test used to characterize the waste. ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY above the TC levels. Assuming that is the case, the waste would have to be treated to where it is no longer considered a hazardous waste (e.g., the metal concentrations are below the TC regulatory levels), before it would b allowed to be land disposed. The EPA regulations define land disposal to include surface impoundments, waste piles, injection wells, land treatment facilities, salt dome/salt bed formations, and underground mines and caves. The treatment technologies we have identified for this sort of waste include chemical stabilization and vitrification, depending on the metals identified in the waste. I hope that this information answers your questions. Should you require any further information, please feel free to contact Dave Topping of the Characteristics Section at (202) 260-7737 (fax (202) 260—0225). Enclosure Sincerely, Rick Brandes, Chief Waste Identification Branch CONCURR IW’!S I . 9JRNAME DATE I I I. .’ al... . .4...........a.n.i I ... .4................. I •..._...s...s.... •...se ..s..s• s •............s••s ..... — ......SSIS.SS,Sr ._.e_. .a EPA Fonn 3204 (% 4Q) OFFiCIAL FILE COPY ------- 9441.1992(23) Sr 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 JUL 23 1992 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Regulatory Interpretation on Rinse ter from A1um m Anodizing FROM: David Bussard, Director Characterization and Assessment Division TO: Robert Duprey, Director Hazardous Waste Management Division Region VIII I am writing to respond to concerns raised in your memorandum of May 26, 1992 from Terry Anderson to Mitch Kidwell requesting that Headquarters issue a response on the regulatory status of rinsewater from aluminum anodizing that is reused to provide a source of phosphoric acid for fertilizer. As the previous Headquarters correspondence you attached indicated, it has been the long standing interpretation of Headquarters that rinsewater from aluminum anodizing operations that is reused as a source for phosphorus for fertilizer manufacture is not solid or hazardous waste under the Resource Conservation and Recovery Act (RCRA) when “purer in acid content, and no more contaminated than virgin phosphoric acid” (quoting from the June 4, 1986 letter from Steve Silverman to Daniel McCaskill). As the previous correspondence indicates, this determination is specific to this material and facts. If you believe additional facts or case-specific factors need to be taken into consideration in making this determination for a specific facility, we think it us appropriate that the relevant EPA Region make the necessary determination. We wiN be glad to provide guidance or work with your staff as necessary. If your staff have questions regarding any of the Issues in this memorandum, please contact Paul Borst of my staff at (202) 260-8551. cc: Steve Silverman, OGC Pn,aed o R.r cIed Pap ------- 9441.1992(24) UNITED STATES ENVIRONMENTAL PROTECTION AGENC 3 WASHINGTON. D.C. 20460 4L AUG 17 1g92 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Jack E. Wilson, P.E. Vice President Engineering The Environmental Company, Inc. 1230 Cedars Court, Suite 100 P.O. Box 5127 Charlottesville, Virginia 22905 Dear Mr. Wilson: This is in response to your letters of May 22 and July 22, 1992, in which you request confirmation of the characterization of one of your client’s waste streams. Specifically, you wish to know if a waste generated in the manufacture of polyurethane foam products is considered hazardous under the Resource Conservation and Recovery Act (RCRA). According to your description of the process, your àlient sprays a base coat and a top coat of polyurethane to make their product. The base coat consists of a polyurethane resin mixture in toluene and a separate polyurethane curative mixture in ethyl acetate. When these mixtures meet in the nozzle of the spray gun, they begin reacting to form the polyurethane elastomer. The polyurethane elastomer hardens on the sprayed surface shortly after contact. The top coat is made up of a more dilute mixture of polyurethane resin in toluene as well as a more dilute mixture of polyurethane curative in toluene. These two mixtures are sprayed and react in much the same way as the base coat mixtures do. In your letter, you stated that your client needs to clear the residual of one mixture from the nozzle of the spray gun before spraying another mixture. This is accomplished by directing the spray gun towards a waste drum and then using a top coat mixture to clear out base coat or vice versa. After the spray gun is cleared, the nozzle may be used for normal spraying applications. You wished to know if the material in the waste drum is classified as a listed hazardous waste under RCRA. The spent solvent regulations cover those solvents that are used for their solvent properties, i.e., to solubilize, mobilize, degrease, dilute, extract, etc. other constituents. (See 50 FR 53315, December 31, 1985.) The definition of spent solvent does not extend to cases in which the solvents are strictly reactants or ingredients in a commercial chemical product formulation. From what you described of the process, your client Pnnted on Recycled Paper ------- is using a product formed by the solvent-containing materials to clear the spray gun nozzle; thus, the waste in the drum is not considered a listed hazardous waste according to the Federal interpretation. Our analysis, however, is based solely on the description you provided us, and assumes that your client is not, in clearing the spray gun nozzle, using either toluene or ethyl acetate for their solvent properties. We therefore reserve the right to abandon this assumption, should an inspection or other fact-specific evaluation of the process present information to lead us to a different conclusion. You should be aware of a few provisions which could affect this interpretation. If your client uses either the resin or the curative mixture individually to clean the spray gun, the waste in the drum could be considered F003 and/or F005 hazardous waste since the solvent constituents are greater than 10% before use. If your client uses the pure solvent (such as toluene or ethyl acetate), the waste in the drum would be considered a listed hazardous waste. Moreover, if the waste in the drum, regardless of its composition or the process from which it originates, exhibits any characteristic of hazardous waste identified in 40 CFR 261.20 — 261.24 (i.e., ignitability, reactivity, corrosivity, and/or the toxicity characteristic), the waste would be considered hazardous under RCRA. We further recommend you advise your client of the limitations of a Federal interpretation of the Federal RCRA regulations. In states which have the final authorization to operate the RCRA base program, the approved State program becomes the RCRA program in that State (RCRA § 3006). Also please be aware that the State in which you client operates aay have stricter regulations than those of the Federal government (RCRA § 3009). Accordingly, we recommend you consult with the appropriate State government agency. Thank you for your inquiry. If you have any additional questions or concerns, please call me at (202)260—4770. noelY j A Rick Br ndes Chief Waste Identification Branch 2 ------- 9441.1992(25) ,IO S7 “ UNITED STATES ENVIRONMENTAL PROTECTION AGENCL. _____ WASHINGTON, D.C. 20460 ! r r r - . OfFICE OF AUG 2 5 1992 SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Clarification of the Conditionally Exempt Small Quantity Generator (CESQG) Provisions of 40 FROM: Sylvia K. Office of Solid TO: William Muno, Director Waste Management Division, Region V This is in response to David Ullrich’s December 24, 1991, memorandum in which the Waste Management Division (WMD) requested guidance on a number of questions pertaining to 40 CFR 261.5(g)(3). In response to WMD’s general question, the term “either of which” in the introductory paragraph of § 261.5(g)(3) refers to both on-site and off-site treatment or disposal facilities, which ever option the generator chooses for management of any particular waste. Thus, if a conditionally exempt generator chooses to treat or dispose of his or her hazardous waste on-site at the generator’s own facility, the facility must meet one of the five conditions listed in § 261 .5(g)(3)(i) through (v). Similarly, if the conditionally exempt generator chooses to send his or her hazardous waste to an off-site facility for treatment or disposal, the off- site facility must meet one of the same five conditions. Based on the answer to this question, your questions 2a and 2b are addressed below. Question 2b has been amended after discussion with Mirtha Capiro of your staff. Question: Would a conditionally exempt small quantity generator be required to file a notification for hazardous waste activity and to have a permit under Part 270 and 265 if his on-site facility does not satisfy the conditions stated under § 261.5(g)(3)(iii), (iv), and (v)? Answer: If a conditionally exempt generator disposes of or treats his or her hazardous waste on-site, the generator’s facility must meet one of the five Printed on Recycled Paper ------- 2 conditions listed in § 261 .5(g)(3). Therefore, if, as in your question, the generator’s on-site facility does not meet the conditions of 9 261.5(g)(3)(iii), (iv), or (v) 1 , the facility must meet the conditions of either § 261 .5(g)(3)(i) or (ii). Therefore, such a facility must be permitted under 40 CFR Part 270, or in interim status under 40 CFF Parts 270 and 265. In either case the facility would be required to file a notification of hazardous waste activity and obtain an EPA Identification Number (see §9 264.11 and 265.11). Question: If a conditionally exempt small quantity generator exceeds the generation quantity limits of § 261.5, does management of his or her hazardous waste remain subject to § 261 .5(g)(3)? Answer: No. If a generator generates greater quantities of hazardous waste in a calendar month than the quantity limits set fo, n in § 261.5, he or she is not a conditionally exempt small quantity generator during that month. Thus, management of any hazardous wastes he or she generates during that month is not subject to § 261.5, but is instead subject to the applicable small quantity or large quantity generator provisions of 40 CFR Part 262. Thank you for your interest in the conditionally exempt small quantity generator regulations. I hope this information is useful to you and your staff. If you have any further questions please contact Charlotte Mooney, of my staff, at (202) 260-6926. 1 Thus is not: (1) Authorized to manage hazardous waste by a state with a hazardous waste management program approved under 40 CFR Part 271; (2) Permitted, licensed, or registered by a state to manage municipal or industrial solid waste; or (3) A facility which (a) beneficially uses or reuses, or legitimately recycles or reclaims its waste; or (b) treats its waste prior to beneficial use or reuse, or legitimate recycling or reclamation. ------- 9441.1992(26) 1tO $74p ! ti j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 pRd PUG 26 1992 OFFICE OF SOLIO WASTE ANO EMERGENCY RESPONSE Mr. W. Z. Baumgartfler W. Z. Baumgartfler & Associates, Inc. 110 Westwood Place, Suite 101 Brentwood, TN 37027 Dear Mr. Baumgartner I am writing in response to your letter of July 30, 1992 to Ms. Gail Hansen, Chief of the Methods Section in the Office of Solid Waste of the U.S. Environmental Protection Agency, in which you request clarification and guidance from EPA on sampling and data interpretation. The Office of Solid Waste is currently revising Chapter 9 of SW-846 to make it more user-friendly, scientifically correct, and statistically sound. This is a massive undertaking and it will be at least a year before the first draft is ready for review. As interim guidance, as your letter suggests, we recommend first testing the normal distribution and if that fails then testing the lognorinal distribution. The Shapiro-Wilk test is a robust method for determining goodness-of-fit to statistical distributions. We do not recommend the arcsine or square root transformations. They are difficult to apply and don’t model real distributions of natural or environmental chemical data. If both of these distributions fail, then non-parametric statistics or attribute testing may have to be employed. As we have no guidance on this at this point, I would go back and use the normal mean and standard deviation to calculate your upper confidence level. See what reasonable, justifiable, common-sense solution OU can work out with your regulators. We do not require generators to test or to specifically use the methods listed in SW-846 including Chapter 9, except under the five circumstances listed in the following sections of 40 CFR: (1) 260.22(d) (1) Ci) — Submission of data in support of petitions to exclude a waste product at a particular facility (delisting petitions). Pnnted on Recyclea Pwvv ------- (2) 261.22(a) — Evaluation of wastes against the Corrosivity Characteristic (corrosivity). (3) 261.24(a) — Evaluation of wastes against the Toxicity Characteristic (mobility of toxic species). (4) 264.314(c) and 265.314(d) — Evaluation of wastes to determine if free liquid is a component of the waste (free liquid). (5) 270.62(b) (2) Ci) (C) — Analysis of wastes prior to conducting a trial burn in support of an application for a hazardous waste incineration permit (incinerator permit). SW-846 is only intended to serve as guidance for the regulated community. If you can demonstrate that your method of sampling and data interpretation is scientifically and statistically correct, then you may use that procedure in place of a SW-846 method. I hope that this information will be of use to your analytical program. If you have any questions, please feel free to call me at (202) 260—4778. Sincerely, :94 ‘ 4Lc Oliver M. Fordham, Jr. Chemist Methods Section cc: Alec McBride, TAB Gail Hansen, TAB Tom Beisswenger, OGC 2 ------- 9441.1992(27) 7% ‘ 1 ’ L ppØ t 6 ’ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 FILE COPY ALk3 26 I9 2 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Boards MEMORANDUM SUBJECT: Regulatory Status FROM: Sylvia K. Lowra Off ice of Solid Wa TO: Waste Management D 4 kision Directors, Regions I-X printed electronic circuit boards are major components of personal computers in widespread use in the U.S. today. As updated computer equipment becomes available, the older (but still usable) equipment is often placed into surplus, or is reclaimed/reused. The old equipment may be disassembled and the usable parts salvaged. Parts may also be scrapped and processed for metal values due to their obsolescence, even though they are still usable. After the printed circuit boards themselves are disassembled, recovering usable components, the boards are often shredded or otherwise processed, and/or burned as part of the reclamation process. Later, base metals (lead, copper) or precious metals (e.g., gold, silver, or platinum) can be reclaimed through additional processing. The International Precious Metals Institute (IPMI) has written to EPA and requested a determination under RCRA Subtitle C for the status of used printed circuit boards. The regulatory status of unused circuit boards (considered commercial chemical products) and by-product wastes from circuit board production are not affected by this memorandum. The Agency is planning to study the area of used printed circuit boards in more depth; however, our interim interpretation is discussed below. The EPA believes that based upon the way in which used printed circuit boards are originally generated, these materials most clearly meet the definition of spent materials ( 261.1(c) (1)). However, we have further examined whether these boards can also be classified as scrap metal under § 261.1(c)(6). Scrap metal is defined based in large part on the physical appearance of a secondary material, dependent on the presence of metal, and includes secondary materials that would otherwise be spent materials or by-products. I, Pnnted on Recycled Paper ------- 2 As a matter of policy, the Agency has decided that unprocessed, spent (i.e., used) printed circuit boards are subject to regulation as scrap metal for the purposes of § 261.6(a) (3) (iv), and are therefore exempt from RCRA Subtitle C regulation when recycled. The Agency has made this determination largely because 1) metals can be recovered from the pieces of metal parts that are an integral part of these circuit boards, and 2) unprocessed circuit boards are in a physical state similar to the type of recycled materials the Agency intended to be exempted by providing examples in the scrap metal definition (e.g., “metal parts . . which when worn or superfluous can be recycled”). The physical state of the unprocessed spent circuit boards limits the dispersion of metal constituents during the handling and transport of the spent printed circuit boards similar to the materials defined as scrap metal in the regulatory language. (Note that this determination is limited to spent circuit boards and does not apply to other spent materials.) After the boards are processed (including shredding, grinding, burning or smelting), the resulting material (e.g., shredded pieces, sweeps/ash, fluff, or baghouse dust) may no longer be similar to the materials that meet the definition of a scrap metal. The Agency believes that certain materials generated from the processing of spent printed circuit boards may be in a physical state which is inherently different from the more “traditional” scrap metal materials, the latter of which includes bars, turnings, rods, sheets, wire, bolts, etc. Spent circuit board processing, particularly those reclamation steps that do not involve simple physical processing, may generate materials in a form which allows the dispersion of hazardous constituents during subsequent handling. Therefore, some of these materials may not meet the definition of, nor the intent of, the scrap metal definition (analogous to the fluff generated by the shredding of scrap automobiles). Thus, at this point, the processed material may no longer be exempt from regulation as scrap metal, and could be subject to regulation as a spent material (e.g. shredded boaras derived from spent circuit boards), a by—product (e.g. sweeps/ash), or a sludge (e.g. baghouse dust). The processor must determine whether the processed material is a solid waste, and if so, whether it exhibits a characteristic of a hazardous waste, and manage the material accordingly (assuming the material no longer meets the definition of scrap metal). If the generator/processor determines that a material meets the regulatory definition of solid waste but believes the processed (i.e., partially reclaimed) material should be classified as a product rather than a solid waste , an application can be made to the Regional Administrator or authorized State regulatory agency for a case-by-case variance under section 260.30(c) of RCRA. In addition, if the processed material is a hazardous waste that contains economically significant amounts of recoverable precious metals then the materials would be subject to reduced regulations ------- 3 under Part 266, Subpart F. This determination is limited to circuit boards. For further information about this interpretation, please contact Allen Maples or Ross Elliott of the Regu .atory Development Branch at (202) 260- 8551. cc: RCRA Enforcement Branch Chiefs, Regions I—X NEIC OWPE OE I P141 ------- 9441.1992(28) - ‘U .110 ST 4 ; ,. i T UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 3 WASHINGTON. D.C. 20460 • 4 OFFICE O SOLID WASTE AND EMERGENCY RESPONSE AUG 28 1992 MEMORANDUM SUBJECT: Follow-up on FROM: Richard J. Deputy Assi Assistant TO: Richard Vaille, Chief State Programs Branch Hazardous Waste Management Division EPA Region IX Thank you for forwarding to my office a copy of your recent letter which details events regarding the issue of solder skimmings (e.g. solder dross) and a lawsuit brought by the State of California. This memorandum is intended to eliminate any confusion that might exist on the status of Don Clay’s letters of November 27, 1991 and December 3, 1991 on solder skimmings. EPA’S current position is that, in light of historical events including previous official statements from the Agency and reliance on those official statements, oxidized skimmings from solder baths (solder dross) are treated as by—product material. We understand that such skimmings contain base metals like lead and tin as well as other materials, such as fluxes. As stated in the November 27th letter, EPA would need to gather more data on industry practice and undertake the proper rulemaking procedures prior to the time that any change in the status of solder skimmings as by—product would occur. I trust that this information will clarify our position at this time. Of course, California, as recently authorized to administer the RCRA program, is now fully empowered to make its own prospective determinations under its own RCRA authority. ille Affidavit ------- - 9441.1992(2) ,Io I74 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 FP! E COPY OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE SEP —d 1992 Angus MacBeth, Esq. Sidley & Austin 1722 Eye St. N.W. Washington D.C. 20006 Dear Mr. MacBeth: Thank you for your letter dated May 12, 1992 regarding your request for a determination on the regulatory status under the Resource Conservation and Recovery Act (RCRA) of absorbent material such as uncontaminated sawdust product or similar natural fibrous material when mixed with hazardous waste prior to incineration. You ask two specific questions: 1) Is the process of mixing raw material sawdust, or similar material with hazardous waste prior to incineration in order to facilitate incineration, “treatment” as that term is defined in 40 CFR Section 260.10? and, 2) Does the volume of raw material sawdust which has been mixed with the hazardous waste that is being staged for incineration become a hazardous waste and therefore count against the TSD facility’s maximum permissible hazardous waste inventory or mass feed limits (i.e., hazardous waste management limits)? In response to your first question, on the basis of the information you have provided in your letter, it appears that the mixing of raw material sawdust or other absorbent material prior to incineration does constitute treatment as defined in the 40 CFR Section 260.10. EPA does not consider the mixing to be a separate process independent of the treatment train. Rather, the mixing of the absorbent material with hazardous waste that is destined for incineration is the first step in the treatment train and part of the incineration process. Because incineration constitutes treatment as defined in 40 CFR Section 260.10, the mixture of absorbent material and hazardous waste destined for incineration constitutes treatment. Pnnled on Recycled Paper ------- 2 In the first part of your second question, you asked EPA whether the mixture of sawdust or absorbent material with hazardous waste prior to incineration itself becomes a hazardous waste. Based upon information provided in your letter, the mixture of absorbent material and hazardous waste does become a hazardous waste. 40 CFR Part 261 .3(c)(2) provides: ...any solid waste generated from the treatment (emphasis added)...of hazardous waste...is a hazardous wasteu. Because the mixture of sawdust or absorbent material and hazardous waste is a solid waste generated from the treatment of hazardous waste, the mixture itself is a hazardous waste. In addition, in any case, the mixing of a listed waste does not render the waste non-listed. In the second part of your second question you ask whether the entire volume of the mixture of absorbent material and hazardous waste is counted against the facility’s maximum permissible hazardous waste inventory or mass feed limits. Because this determination requires more detailed information generally contained in the incinerator’s operating permit, EPA requests that you contact the EPA Region or state that has issued the incinerator’s operating permit. You should also consu t with the appropriate EPA Region or state on the other questions mentioned above because this determination may depend upon case- specific factors as well as applicable state law. Under RCRA, individual states may be authorized to implement the RCRA Subtitle C program and to specify additional regulatory requirements that are at least as stringent as the Federal regulations. If you have any questions regarding this letter, please call Mike Petruska of my staff at (202) 260-8551. Sincerely, cc: Incinerator Permit Writers’ Workgroup Subpart X Permit Writers’ Workgroup Devereaux Barnes Matthew A. Straus K. Lowrance, Director of Solid Waste ------- 9441.1992(30) FILE COPY UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 4?4( OF ,CEOP SEP09 WU SOLID WASTE ANOIMEROENCY RESPONSE Joseph S. Paulick Department of the Army Tooele Army Depot Tooele, Utah 84074-5000 Dear Mr. Paulick: This responds to your letter of November 12, 1991 requesting clarification of the federal Resource Conservation and Recovery Act regulations concerning notification for treatability studies. You ask whether, under 40 CFR 261 .4(f)(1), the owner/operator of a facility is required to submit a one-time notification to the Regional Administrator (or State Director if located in an authorized state) no less than 45 days before beginning to conduct treatability studies, or to submit a notification 45 days before conducting each individual treatability study. To provide some context for the answer to your question, the general intent of this provision is to ensure that the U.S. EPA Regional Office (or state agency) is aware that a facility is conducting treatability studies. More specific information about the individual treatability studies is obtained through the other reporting requirements found in § 261.4(f). More specifically, § 261 .4(f)(1) requires only that the owner/operator of a faciity submit a one-time notification indicating that treatability studies will be conducted at the facility under the provisions of § 261.4(f). § 261 .4(f)(1 1) then requires that the owner/operator again notify the Regional Administrator (or State Director) when he or she is no longer planning to conduct treatability studies at the facility. 1 In addition, there are several other reporting requirements for facilities conducting treatability studies found in § 261.4(f). First, records must be maintained for three years demonstrating compliance with the treatment rate limits and the ‘If treatability studies were later to be resumed at the facility after notifying of the cessation of such studies under § 261.4(f) (11), the facility would again be required to notify of the intent to conduct treatability studies 45 days before conducting any studies under § 261.4(f) (1). Printed on Recycled Paper ------- 2 storage time and quantity limits ( 261 .4(f)(7)). Second, copies of treatability study contracts and treatability sample shipping papers must be maintained for three years ( 261.4(0(8)). Finally, annual reports must be submitted to the Regional Administrator (or State Director) by March 15 of each year Including detailed information about treatability studies conducted the previous year, and estimates of the number of treatability studies to be conducted and the amount of wasta to be used in these studies during the current year ( 261 .4(0(9)) Please note, however, that state agencies generally implement the RCRA program within each state (although some parts of the program may be implemented by the U.S. EPA Regional Office), and that state regulations may be different (although no less stringent) than the federal regulations. Thus, you should contact the appropriate state environmental agency or U.S. EPA Regional Office to determine how the regulations of that particular state will apply to any treatability studies you are planning. Thank you for your interest in the safe and effective management of hazardous waste. Sincerely, David Bussard Director, Characterization and Assessment Division ------- 9441.1992(31) i ii.i. w ’r i I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY / WASHINGTON. D.C. 20460 A d r ‘ ‘4LPRO t em A • .r — OFFICEOF SOLID WAS E AND EMERGENCY RESPONSE Mr. Jay D. Hair National Wildlife Federation 1400 Sixteenth Street, N.W. Washington, D.C. 20036-2266 Dear Mr. Hair: Thank you for your letter of July 30, 1982, regarding lead shot at shooting ranges. We share your concerns with the complex issues surrounding the application of RCRA requirements to shooting ranges. We are currently considering how the Environmental Protection Agency (EPA) should address this issue. On August 28, 1992, EPA filed an amicus curiae brief with the U.S. Court of Appeals for the Second Circuit concerning whether or not expended lead shot and target fragments are solid and hazardous waste under the Resource Conservation and Recovery Act (RCRA). In that brief, EPA indicated that regulations requiring prospective controls on management through the RCRA permitting process do not apply to the discharge of ball and sport ammunition at shooting ranges. However, EPA also stated that remedial authority does exist under RCRA Sections 7002 and 7003, where an imminent and substantial endangerment to health or the environment may have been created by expended shot and other debris. Therefore, federal district courts retain the authority to compel remedial actions at shooting ranges where an imminent and substantial endangerment to health or the environment may exist, and citizens may bring lawsuits in federal courts requesting such relief. EPA has initiated discussions with industry and other representatives on issues relating to waste minimization and improved management practices at shooting clubs and ranges. We understand that there are opportunities and challenges for improving existing practices and for minimizing the potential release of lead into the environment. EPA is committed to identifying and encouraging ways of reducing potential hazards associated with the use of lead shot and bullets at shooting c ubs and ranges. Printed on Recycled Paper ------- Thank you for your interest in this issue. S erely yours, h pcay44 Assistant Administrator ------- 9441.1992(32) RCRA/SUPERFUND/OUST HOTLINE SEPTEMBER MONTHLY REPORT QUESTION 1992 1. Filters Used to Reclaim CFC Refrigerant While servicing air conditioners, afaciltsy generates spent CFC-1 1 which exhibits the toxicity characterLctic for carbon tetrachloride (D019). The generator reclaims the used refrigerant for subsequent reuse, and during the reclamation process generates contaminated filters which also exhibit the TC for carbon tetrachloride. According to §261.4(bX12), the used CFC refrigerant is exempt from the definition of hazardous waste if it is going to be reclaimed for further use. If the spent filters are being discarded, would they also be excluded from regulation as a hazardous waste under s 261.4(bX12) since they are generated by the reclamation of an excluded waste? As explained in the February 13, 1991, Federal Register (56 E 5910), the purpose of the exclusion provided in §261.4(bXl2) is to encourage the recycling and reuse of CFC refrigerants and discourage the practice of venting them to the air. Wastes derived from the CFC reclamation process itself, however, are exempt, and the filters would not be covered by the exclusion. Since the filters exhibit the toxicity characteristic, they must be managed as hazardous waste. Any other residues generated by the reclamation process would also need to be evaluated for characteristics, either through testing or application of knowledge. ------- 9441.1992(33) .itO S’ . UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C 20460 OFFICE OF SOLID V.ASIE AND E%qEPGE?..JCY RESPONSE OCT — 8 1992 Gerald A. Dumas RSR Corporation 1111 West Mockingbird Lane Dallas, Texas 75247 Dear Mr. Dumas: Thank you for your letters dated 18 August and 9 September, 1992, concerning your proposed process ‘emove sulfur and chloride from the slurried baghouse dust. We appreciate your aoi ir . provide timely information in response to our requests. Our assessment is that if your process is built as you have described, then under the current regulations this process is considered a form of recycling. We appreciate the reasons you cited in favor of removing the sulfur and chloride from the baghouse dust; your company should be commended for proposing to modify your operation to prevent pollutants from escaping into the atmosphere, and we would en.courage you to do so. i3owever, our assessment of the information you provided is that the emission control dust appears to be a solid waste; nevertheless. the units described in the desulfurization process are exempt from RCRA permitting either by being exempt recycling units per 40 CFR Section 261.6(c)(1), or by being a wastewater treatment unit exempt from permit requirements (40 CFR Section 264.1 (g)(6)). Finally, you should know that the Agency is considering changes to the existing regulations that may affect the definition of solid waste. Your situation will be considered in developing any such changes to the current regulatory framework and we would be pleased to continue our dialogue on these issues. Thank you for your interest in hazardous waste recycling, and should you have any further questions. please call Mike Petruska at (202) 260-8551. Sincerely yours, D. Denit Deputy Director Office of Solid Waste Printed o —tc c’ ’C P3oer ------- ( .ht’ ’ ‘1-fl ic i CORPORATION October 4, 1991 Via Hand DeliverY Sylvia K. Lowrance, Esquire Director Office of Solid Waste u.s. Environmental Protection Agency Mail Stop OS-300 401 M Street, S.W. Washington, DC 20460 Re: Request for Regulatory Clarification on the Definition of Solid Waste Dear Ms. Lowrance: This request for clarification on the definition of solid waste under the Resource Conservation and Recovery Act (“RCRA”) is submitted on behalf of RSR Corporation. Specifically, RSR seeks clarification on the application of the exemption at 40 C.F.R. Section 261.2(e) (1) (iii) to the processing of emission control dust generated from the secondary smelting of lead (EPA Hazardous Waste Code K069) returned to the smelting process without first being reclaimed. RSR operates secondary lead smelters that recover lead from lead-acid batteries and other lead-bearing materials. EPA believes that the emission control dust generated from RSR’s operations would, if disposed, meet the K069 listing at 40 C.F.R. Section 261.32. RSR returns, however, its emission control dust via an enclosed screw conveyor to its smelters for lead recovery, without first reclaiming or processing the dust. The dust LS excluded from the definition of solid waste under 40 C.F.R. Section 261.2(e) (1) (iii). Over time, chlorides accumulate in the smelter due to the recycling of the dust, occasionally increasing the emissions of chlorides from the smelter. To reduce these chloride emissions. RSR is considering implementing a process that will remove Coe 1111 Mock gburdLarelDaHaS S67 47 ------- Sylvia K. Lowrance, Esquire October 4, 1991 Page 2 chlorides and sulfur from the dust without affecting the lead content of the dust. This process is described below. The dust will be transferred from its point of generation via an enclosed screw conveyor to a 1000 gallon tank equipped with a mixer and water controls. Water will be added to the dust, resulting in a slurry that then will be piped to a desulfurizing reactor. This reactor is a 15,000 gallon tank equipped with a 40 horsepower mixer. The mixer will keep all solids in suspension. Sodium carbonate will be added to the solution for pH adjustment and to react the sulfur in the dust with the carbonate solution. The slurry then would be piped to a 10,000 gallon overfill tank and subsequently to one of two filter presses, where the slurry will be dewatered. Th .iastewater from the operation would be transferred to an on-site . iastewater treatment unit and discharged. The dewatered dust then would be charged to the reverberatory furnace for reclamation of its metals content. Section 261.2(e) (1) (iii) exempts from the definition of solid waste materials that are returned to the original process from which they were generated, provided the materials are not reclaimed prior to their return. Based upon RSR’s understanding of this provision, processing steps that do not themselves regenerate or recover material values and are not necessary to material recovery are not reclamation. See 48 Fed. Reg. 14489 (April 4, 1983); 50 Fed. Reg. 639 (January 4, 1985). The purpose of RSR’s chloride reduction process is to remove both chlorides and sulfur from the dust. The dust can be, and currently is, returned to the process from which it was generated without prior processing or reclamation of any kind. The processing steps described above are not intended to alter in any fashion the concentration of recoverable metals in the dust, but simply to remove chlorides. These processing steps will not themselves regenerate or recover material values and are not necessary to material recovery. Based on the foregoing, RSR believes that the processing of the dust in the manner described above is consistent with the exclusion at Section 261.2(e)(1)(iii). We respectfully request that EPA confirm our understanding or, alternatively, explain why the understanding is incorrect. ------- Sylvia K. Lowrance, Esquire october 4, 1991 page 3 Please call me at (214) 631—6070 if you have any questions on this request or if you require additional information. I boat foLward to your prompt response. Sincerely, Gerald A. Dumas Manager, Environmental Services ------- _ CORPORATION ,.• - August 18, 1992 t Via Hand Delivery Mr. Jeffery D. Denit Deputy Director Office of Solid Waste u.s. Environmental Protection Agency Room M2101 401 M Street, 5.W. Washingt:r , DC 20460 Mr. Matthew A. Straus Director A Waste Management Division J ? Off ice of Solid Waste ( 1’ u.s. Environmental Protection Agency 10 2800 Crystal Drive - Sixth Floor Arlington, Virginia 22202 Re: RSR Corporation Dear Jeff and Matt: In preparation for our meeting scheduled for 9:00 A.M. on August 31, RSR Corporation (RSR) herein provides further detail on RSR’S proposed process for removing sulfur and chlorides from emission control dust generated at RSR’s three facilities. This letter also supplements discussions our counsel, Lynn Bergeson, and Messrs. Tom Ovenden and Rob Wilkins of Environmental Information :r tegieS have had with you regarding the regulatory status of RSR’S proposed process by responding to your questions regarding that process. RSR operates three secondary lead smelters located in City of Industry, California; Indianapolis, Indiana; and MiddletoWn, New York. RSR’s facilities manufacture lead through the reclamation of lead-acid batteries and other lead—bearing materials. EPA believes that emission control dust generated from RSR’s operations would, if disposed, meet the K069 listing found at 40 C.F.R. Section 261.32. RSR returns this emission control dust Corporate Offices 1111 West Mockingbird LarleIDallas Texas 75247 Telephone (214)631-6070 Telex 213-750 Fax (214) 6316146 ------- Mr. Jeffery D. Denit Mr. Matthew A. Straus August 18, 1992 Page 2 via an enclosed screw conveyor to its smelters for lead recovery, however, without first reclaiming the dust. Consequently, RSR believes the dust is excluded from the definition of solid waste under 40 c.F.R. Section 261.2(e) (1) (iii). Over time, chlorides accumulate in the smelters due to the recycling of the dust. This buildup of chlorides occasionally causes an increase in emissions of chlorides from the smelters. To reduce these emissions, RSR is considering implementing a process that will remove chlorides and sulfur from the dust without affecting the lead content of the dust. This desulfurizatiOn and dechlorination rrc ss would occur as follows. First, the dust will be conveyed f: its point of generation via an enclosed screw conveyor to a i,ooo gallon tank which is equipped with a mixer and water controls. Water will be added to the dust, resulting in a slurry that then will be piped to a dusulfurizing reactor. The reactor is a 15,000 gallon tank equipped with a 40 horsepower mixer. The mixer will keep all solids in suspension. Sodium carbon e will be added to the solution for pH adjustment and also to react the sulfur in the dust with the carbonate solution. The • slurry next will-be piped to a 10,000 gallon overfill tank and subsequently to one of two filter presses, where the slurry will be dewatered. Wastewater generated from the process will be • transferred to an on—site wastewater treatment unit and then will • be discharged. The dewatered sludge then would be charged to the reverberatory furnace for reclamation of its metals content. Section 261.2(e) (1) (iii) exempts from the definition solid waste materials that are returned to the process from they were generated, provided the materials are not reclaimed pr. :r to their reinsertiOn into the process. Based upon RSR’s understanding of this provision, processing steps that do r. t themselves regenerate or recover material values and that are r. t necessary to material recovery are not considered reclamation ::r purposes of this provision. See 48 Fed. Reg. 14489 (Apr. 4, 19 ’a 50 Fed. Reg. 639 (Jan. 4, 1985). The purpose of RSR’s proposed process is to remove t - 1orides and sulf n r m the dust to reduce emissions of chlor i.s ‘and sulfates. The dust can be, and indeed is, returned to process from which it was generated without prior processing r reclamation of any kind. The processing steps described above not alter in any manner the concentration of recoverable metals . the dust; the process simply will remove chlorides and sulfates k,These processing steps will not themselves regenerate or recov.r -• material values and are not necessary to metal recovery at RSR’s • - • _I ------- Mr. Jeffery D. Denit Mr. Matthew A. Straus August 18, 1992 Page 3 facilities. For some time, RSR has sought EPA’S concurrence that the proposed process would be eligible for the exemption under Section 261.2(e)(l)(iii). Along those lines, Messrs. Tom Ovenden and Rob Wilkins, and, more recently, Lynn Bergeson, RSR’s counsel, have discussed this matter with you and others in the Office of Solid Waste. During one of these discussions you provided questions you wished RSR to answer regarding the process. These questions and RSR’s answers are provided below. Is the removal of dust intermittent or continuous? cS’) k Dust is removed from the smelter furnace by screw conveyor on a near continuous basis. The only instance in which the removal is not continuous is when the furnace and baghouse are shut down for maintenance. 2.a. Describe the wastewater treatment process. The wastewater treatment system is designed and operated to produce a metals—rich sludge that is amenable for recovery in RSR’s furnaces. The system is a step reaction during which the pH is controlled to maximize the removal of lead, cadmium, antimony, zinc and copper. As you know, these metals precipitate at varying pH levels; thus, a controlled pH environment is necessary to maximize their removal. Wastewater treatment generally consists of pH adjustment, followed by iron precipitation, clarification and filtration. 2.b. What percentage of total effluent is the effluent that is generated from the treatment of the dust? Effluent from the treatment of the dust constitutes approximately six percent of the total effluent. 2.c. What are the concentrations of heavy metals n liquids: i. Prior to WWTS before treating dust? The average concentrations in parts per million (“ppm”) are as follows: Pb: 80 - 100 La ------- Mr. Jeffery D. Denit Mr. Matthew A. Straus August 18, 1992 Page 4 ppm; Sb: 20 — 50 ppm; Cd: 4 — 10 ppm; As: 20 — 40 ppm. ii. After treating dust? After treating the dust the average concentrations are identical to those listed above. Specifically, the concentrations are as follows: Pb: 80 — 100 ppm; Sb: 20 — 50 ppm; Cd: 4 - 10 ppm; As: 20 — 40 ppm. .i. In discharge to POTW prior to treating dust (presently)? Average concentrations in the discharge to the POTW are: Pb: < 0.3 ppm; Sb: < 2.0 ppm; Cd: < 1.0; As: < 1.0. iv. In discharge to POTW after treating dust? After treating the dust the discharge to the POTW would be identical to those listed immediately above. Specifically, the concentrations are as follows: Pb: < 0.3 ppm; Sb: < 2.0 ppm; Cd: < 1.0; As: < 1.0. The following chart summarizes the answers to the above four questions. Average Concentration (ppm) __________ Pb Sb Cd As Prior to WWTS before treating dust 80—100 20—50 4—10 20—40 Prior to WWTS after treating dust 80—100 20—50 4—10 20—40 In discharge to POTW prior to treating dust < 0.3 < 2.0 < 1.0 < 1.0 In discharge to POTW after treating dust < 0.3 < 2.0 < 1.0 < 1.0 ------- Mr. Jeffery D. Denit Mr. Matthew A. Straus August 18, 1992 Page 5 3. List present concentrations of metals in WWTS sludge now versus wnat the concentrations will be after treatment of dust. The sludge currently contains approximately six percent total heavy metals. RSR expects no change in concentrations. The foregoing illustrates that RSR’s proposed desulfuriZatiOfl/deCh10riflatj0 process does not reclaim metals values from the dust. The process thus is not “reclamation” and should not preclude RSR from using the exemption under Section 261.2(e) (1) (iii). RSR looks forward to meeting with you and others of your staff you deem appropriate to discuss this matter in detail. I understand this meeting is to take place at 9:00 A.M. on August 31, 1992. If you will require additional information before the meeting, please call me at (214) 631—6070 or Lynn Bergeson at (202) 962—8577. Sincerely, Vice President Environmental Services cc: Lynn L. Bergeson, Esquire ------- I IC CORPORATION September 9, 1992 Via Hand Delivery Mr. Jeffery D. Denit Deputy Director Office of Solid Waste U.S. Environmental Protection Agency Room M210l 401 M Street, S.W. Washington, DC 20460 Mr. M tt w A. Straus Director Waste Management Division Office of Solid Waste U.S. Environmental Protection Agency 2800 Crystal Drive Sixth Floor Arlington, Virginia 22202 Re: Desulfurization Process Dear Jeff and Matt: At our August 31 meeting, I promised to send additional information regarding RSR Corporation’s proposed desulfurization process for emission control dust generated at RSR’s secondary lead smelting facilities. This letter fulfills that promise. RSR currently returns emission control dust to the smelting furnaces from which the dust was generated. The total :ount of dust returned at all of RSR’s facilities is approximately 0 tons per day, or approximately 35,000 tons per year. RSR would like to remove sulfur and chlorides from the dust before it is returned to the furnaces. This process would n no way alter the concentration of lead in the dust. It would, however, eliminate approximately 1300-2500 tons per year of sulfur dioxide from the atmosphere and help extend the useful life of our .1’ EPA believes this dust would meet the K069 hazardous waste listing at 40 C.F.R. 261.32 when disposed. Corporate Ot’. es 1111 West MockuV bira Lar e’DaIlaS Texas 75247 ( 14 1. fl7fl Thi . 71 .7 fl x t214 6 1-6145 ------- Mr. Jeffery D. Denit Mr. Matthew A. Straus September 9, 1992 Page 2 pollution control equipment by reducing corrosion-causing contaminants from the dust. RSR seeks confirmation from EPA that the removal of these contaminants is not “reclamation” under RCRA and that the process would qualif ’ for the exclusion codified at 40 C.F.R. Section 261.2(e) (1) (iii) . 1 During our meeting, Mr. Straus stated that whether RSR’s desulfurizatiOn process would be is considered reclamation for purposes of Section 261.2(e)(l)(iii) may have little regulatory impact on whether the process would be subject to RCRA permitting or interim state uireinents. Mr. Straus stated that even if the process were . - red “reclamation,” the entire process or the unit(s) in whic :e reclamation is conducted may bc axempt from permitting under 40 C.F.R. Section 261.6(c)(1). Mr. Straus also stated that alternatively those units that re part of the process, but in which reclamation is not conducted, may be wastewater treatment units and excluded from RCRA permitting or interim status standards pursuant either to 40 C.F.R. Sections 264.1(g)(6) or 265.l(c)(1O). Since under either analysis the desulfurization process could be excluded from RCRA permitting or interim status requirements, Mr. Straus questioned the need to reach the “reclamation” issue. RSR believes that the determination of whether the proposed desulfurization process constitutes reclamation f or purposes of Section 261.2(e) (1) (iii) is a separate issue from the permitting status of the reclamation process itself, or the units in which reclamation occurs. Otherwise, the phrase “without first being reclaimed” in Section 261.2(e) (1) (iii) is rendered some hat superfluous. In addition, there is no good reason to characterize this process as reclamation if it is not reclamation, or to avo i characterizing the process at all merely because the dust s reclaimed in a recycling unit and is thus exempt from regu1at under current law. / This provision excludes from the definition of solid -as. materials that are returned to the primary production process from which they were generated, provided the materials are - reclaimed prior to being returned. Although RSR’s operat.:-s are “secondary” production processes and ostensibly would r:t qualify for this exclusion, RSR understands that in the PP ase II LDR rule EPA will propose to amend this provision to apply to secondary production processes. ------- Mr. Jeffery D. Denit Mr. Matthew A. Straus September 9, 1992 Page 3 Finally, the characterization of an activity as a form of reclamation could result in unnecessary regulatory scrutiny. An activity that is properly deemed to constitute incidental processing may not be regulated at all, whereas a process that is deemed to constitute “reclamation” may be subject to permit requirements even though the processes are identical. To avoid characterizing the desulfurization process simply because the smelting process itself is a recycling process ignores the “in the field” implications of the term “reclamation” as used in the RCRA context. Even if RSR concurred with the suggestion that the characterization of the desulfurization process is reclamation by classifying the smelting process as recycling, RSR does not believe that the entire desulfurization process could be considered an exempt recycling process. The process is described in detail in my letter dated October 4, 1991, to Sylvia Lowrance. Briefly stated, the desulfuriZatiOn would begin with the dust being conveyed from the baghouse via an enclosed screw conveyor to a 1,000 gallon tank. There, water would be added to the dust, creating a slurry that would be piped to a desulfurizing reactor. The reactor, a 15,000 gallon tank equipped with a mixer, would keep all solids in suspension. Desulfurization of battery wrecker material is already occurring in this tank. Sodium carbonate would be added to the solution for pH adjustment and to react the sulfur in the dust with the carbonate solution. Wastewater generated from the process would be transferred to an on-site wastewater treatment unit and then discharged. The dewatered sludge then would be charged to the reverberatory furnace for reclamation of its metals content. RSR believes it may be difficult to classify the entire process as a recycling process that is exempt from RCRA permitting or interim status standards. The desulfurization process is a series of steps, some of which may involve recycling, while others may not. For example, arguably no recycling would be conducted in the 1,000 gallon tank, where water would be simply added to the dust to turn it into a slurry. If the entire process is not an exempt reclamation process, RSR is not convinced that each of the units in which the process would occur could be considered “recycling units” or “wastewater treatment units.” For example, the 1,000 gallon tank likely would not be considered a wastewater treatment unit because it does not appear to meet the definition of wastewater treatment in Section 260.10. The tank would not be managing a wastewater or wastewater treatment sludge. ------- Mr. Jeffery D. Denit Mr. Matthew A. Straus Septe tber 9, 1992 Page 4 In summary, RSR’S proposed process is not t1rec1amation 1 for RCRA purposes. The process is good for the environment, and is good for business in that it extends the useful life of pollution control equipment by inhibiting the corrosion process. The desulfurizatiofl process itself is distinct from the recycling process, and should be viewed on its own merits. Finally, to the extent that EPA has an opportunity to construe the application of RCRA rules in a way that promotes pollution prevention and helps the ecor.omy by conserving business assets, it should do so. This result is consistent with EPA’S RCRA Ref orin Initiative and Mr. Bush’s moratorium on Agency initiatives that impose unnecessary burdens on ind :’. RSR appreciates the opportunity to discuss this issue with you. Please call me at (214) 631-6070 if you have any questions or require additional information. I look forward to hearing from you soon. rald A. Dumas Vice President Environmental Services cc: Fredric Chanania, Esquire Mr. Richard Kinch Lynn L. Bergeson, Esquire Mr. Chris Bryant S. ------- Proposed DesuThutrizafion Process ¶S&In m FlowDia rairn Catbonatoj 1,000 Gallons IIIJ Slurry Sludae Sludcie Wastewater Wastewater Dust [ Dust •1 Filter Press POTW ------- os 9441.1992(34) fg% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 PR Ø ” OFFICE OF OCT I 5 1992 SOLID WASTE AND EMERGENCY RESPONSE Mr. William L. Warren Cohen, Shapiro, polisher, Sheikman and Cohen 1009 Lenox Drive, Building Four Lawrenceville, NJ 08648 Dear Mr. Warren: I am pleased to respond to your letter of August 26, 1992, in which you requested clarification of several issues relating to the regulatory status of soils contaminated from releases of commercial chemical products. The example outlined in your letter dealt specifically with leakage of carbon tetrachioride from a tank Since the carbon tetrachloride has been “discarded” in this case, it would be identified as U-211 listed hazardous waste. The key question posed in your letter is whether the resulting contaminated soil is hazardous waste, and under what circumstances it would be subject to hazardous waste management requirements. Under EPA’S regulatory definition of hazardous waste in §261.3(C) (1), soils that contain hazardous wastes must be managed as if they were hazardous wastes until or unless they no longer contain the listed waste, exhibit a characteristic, or are delisted (see 57 Fed. Reg. 37225, Aug. 18, 1992). Under the “contained-in policy” the authorized State or EPA has the discretion to determine contaminant—specific health-based levels, such that if the concentrations of the hazardous waste .constituentS were below those levels the media would no longer be considered to contain the waste. This applies to “U” listed wastes, and other listed wastes. The health—based levels used in making contained—in determinations are established on a site— specific basis, in accordance with general State or Federal guidelines, or by means of a site specific risk assessment. This discretion is available to the State Administrator in an authorized State, or otherwise is vested in the EPA Regional Administrator. In the example outlined in your letter, you state that the contaminant levels are below the State’s remedial requirements. As such, it may be that the State would determine that the soils do not contain hazardous wastes. If such is the case, and Pnnted on Recycled Paper ------- assuming the State is authprized for the RCRA program, there would be no RCRA hazardous waste management requirements applicable to the soils before or during excavations incident to removal of the tank. - I hope this has helped to clarify the issues you raised. If you have any further questions, please contact Dave Fagan at 202 260—4497. Office of Solid Waste ------- •CNNCTT AAR0H LLRII LLR CR CHARLLS SCHDCR SARA SC•TH II*&A ROBCRT L SLACNSSCRG JONATHAN L ICVN SUSAN S SI2(NOV MIGNON 0 & S.u’ SAUCC iUOITZ? SUZAMNC C eI.ANcHAR0 STEWART.. I.APAYOWICR .I CFrRCY I. SRAFP C 3C0’T MCYCR PAU l. S011 CIJZASCTU o uFTC.N DAVID d SROOIIAN J rRCV IVAN PASCII 6 GHRISTOPNCR W SOY%.E tORI A. MlU.3 SYI.VAN — CONCH RICHARDS PCARI. I.CSUC THOMAN SRADLC JAIIIS A CICNCIS .U CDWARD N POUSUCR DAVID W OUZZCLL AtJSC A PAIIITCH ROSCAT RCCDMAN ROStYN 0 P0I .t CII VERNON A SYRD. .JR STCVCN N PI.0N W jcrrRcy GARSON IVAN .1 PUNCHATZ Cl.ARC H DICI4CA LAURIE H POIJNSIIY VINCENT C. GCHTILCA’ Eu.CN PAOOP MANN A. OPOGAtJ5 HOU Y T. Rei.z • MICHAEL 14 GLUCN HERSHEl. J RICHMAM CIXTNAI.. DtJPrVt JUDITH I.. ROSCNTHAL DAVIDJ GOI.0SC G p” p u SHICIIMANA JOHN A (AICNSON POSER? R055 ROSCRT C GOLDS” Y” RICHARD N SOUIRC .iA MCS 0 FCARONA L#MRCHCC .1 SCHCMPP RICNARDJ G0L STC ” •Cl STERN JOHN N GCRSCR PAUI.G 5 ..ap.RQ•A? 00(005’ 0 0O5?IC&.D STf.RNCII C 5MAN .IUOITM I GLLAAON AMY ?. STCCRMADI DAVID GUiI” PORCH ’ I YUT(UA RORSATA A. OO l .0(N 0Oi.OA W(RCR ITCIER. 11(11. II HAIMMA HRANCCS N VISCO CURTIS I. GOUIOR JEANNE H STIC CL? SPLICE S HAIWCS WARRCN•A? (NIC A. HCINZ CHRISTINA WOODAARD SYRONOI KIMON C I4ATZA RICHARD N WEINER MANN 5 HERR.? STCPHCN TAANON5III ANDREW S MILLIIAN 0.. .C SOSCCRANS VENDER SUSAN C. HOPFMAN C?HCMIOS V(LAI.03 ? RONAM”C C JAYNC NAOINC HOU..ANOCR AMY L VCNTRY ALAN NLLIN DAVID I.. HYMAN RICHARD A. WCSTA? MURRAY .1 NI.(1N 0 COUNSEL. UNDA T .,aCOS5 ROREHY .J YARSROUG” MICHAEL J I%UNC PETER 0 SHCRIDAN 6 ? . 10MM P .IUDOE STCPMCH V YARNCL&. •IANC•T 5 IIOI.C JUDAM I LASOVITZA • 0.IITCDI ICRIC SUSANHA C. LAC”S AI I1TED N COUNSEl. PORCH’ LAP 11Y t o’ .c —,YTco 1 .Vu PCMO J SUTCRA GCORGC WARREN 6 ? Ms. Sylvia Lowrance Office of Solid Waste U.S. Environmental Protection Agency 401 M. Street, S.W. Washington, D.C. 20460 Dear Ms.Lowrance: This is a follow up to my letters of January 20, July 16 and August 26, 1992. As stated in that letter, I am attempting to determine whether contaminated soils under certain very specific circumstances are considered to be a RCRA hazardous waste. The specific circumstances for which I require guidance are as follows: 1. A tank containing virgin carbon tetrachloride leaks. As a waste, carbon tetrachioride is listed by the Agency as U-211. 2. The soil around the tank is sampled and found to be contaminated with carbon tetrachioride. However, the contamination is below state remedial requirements. State policy and/or regulations does not require any remedial activity with respect - :- to the contaminated soils. Under these circumstances, I would like to know whether the undisturbed cont2minated soil is deemed by the EPA to be a RCRA hazardous waste or is required to be managed as a RCRA hazardous waste. If it is deemed to be a RCRA hazardous waste or required to be managed as such, could you please explain the basis for this determination. If it is not deemed to be a RCRA hazardous waste or required to be managed as such, I would like to now whether any of this contaminated soil which is excavated incident to the removal of the tank (as opposed to four purposes of addressing the spill; something which state law does not require because of the low level of contamination found in the soil) is deemed to be a RCRA hazardous waste required to be managed as such, or whether, because it was not excavated to address the spill and therefore is not waste or for any other reason, it is not deemed to be a RCRA hazardous waste and may therefore be returned to the excavation. - r. - LAW OFFICES COHEN. SHAPIRO. POLISHER. SHIEKMAN AND COHEN .‘ PRINCETON PIKE CORPORATE CENTER 1009 LENOX DRIVE-BUILDING FOUR LAWRENCEVILLE. NEW JERSEY 08648 (609) 895-1600 FAX (609)6931329. 895 0587 TEN AI4LN STREET. SUItE lB TONS RIVER. NEW JERSEY 08734 (908) 914 8873 FAX (908)9148893 PENNSYLVANIA OFFICE PSFS eUlI.OING. IS SOUTH 12TH STREET PHILADELPHIA. PENNSY).VANIA 19107.3981 ( 215) 922-1300 FAX (213) 5924329 CASL.L COSAC October 19, 1992 DIRECT DIAL REPLY TO k ioi iiI iü I L ------- LAW OFrIGCS COHEN. SHAPIRO. POLISHER. SH EI MAN AND COHEN I look forwird to hearing from you in the near future and appreciate your kind assistance in this matter. Yours y,qry truly, WLW:np ------- 11 L.AW OFTICCS COHEN. SHAPIRO. POLISHER. SHIEKMAN AND COHEN PRINCETON PIKE CORPORATE CENTER 1009 LENOX DRIVE.BUILOING FOUR LAWRENCEVILLE. NEW JERSEY 06646 (609) 695.1600 rAX. (609) 605’329. 6050567 PSFS BuILDING. 12 SOUTH 12TH STRCCT PHILAD(LPHIA. PCNNSYLVANIA 19107 396’ (215)9221300 rAX (215) 592-4329 CABt.C COSAC COUN NL L 5(50. 1 SUTSNA GCONGC aaa •A? August 26, 1992 ...NNCTT L S 5 NQN ALAN N i.LPNC 0 MICNCIJ.C 54 5 55.SPtANMAN USDA V .jNCOS5 NOSCNT i.. S.AC. 5SC 5 G JONAYAN L LCVIN DAISY S S*RNCTO JOHN P .IU0GC MDAANO & SLIJ” SNUCC LUSCTZ? C .I.&3 5 (50(5 SsCNNY A. NA.gDAIs _ICrrNCY L C SCOrT NCYCN SuSAn S •uZCNOV• 144* aCTS 5A(.S DAvID . 1 SNO0N*” .JCTrNCV IVAN PASLII $ULAM”C C. 5I .AIICNA5D MIGNON 0. ALlIS. 5YI.VAI — C0”C’ NCI.APDS PCARL PAII SOHI ITCWAWT N LAPA AC NO..ND .i DCSCN14U 105*50 5 POUSMC 5 CI .NSTOP”CN S So1LC• CUZANCTM C UYYCN QSCRT INCCDM*” O5 YN 0 P0LL LCSUC YNOIIAII SAADL&Y 1.051 *. NII.LA S J(,YNCY 0*450” IVAN .1 PUNCHA?2 DAVID S SUU(U•• AUSC N PASII?C5 VISCCNT C. 0CTILl t (ILLS A*OO VCNNON• SYNO. .I IYCVCN N. PI.0N MICI4ACI N OLUCS 5(545(1. . 1 NICHIIAN Cl.*AC N 0I(NCR s.*us.c s pOussS’ DAVID .1 G0 DSC5G PIIILIP — SI .ICSI .*46 15*55 A. 0500A 1J5 MOL (.V V NINLCY MOS (PT C OOI.OS NICAND — SOUINC CLITnA 1.. OurYv•? 505(0? 5035• N,Cs*N0 . 1 GO1.D5’C ’” CSIC L 5TCNN .IONN (AICANOM. LANRCNC( .1 SCI4CNP.• GSCO0 C OOSf ICID ST(P’ICN C SUISHAN .1*15(40 1CA40N ANY P $TCLAIIAII DAVID GUTIN. UOSCSTI TUTCUN JO. .N U GCPSCN 501.05 W(4(N 57(j(4 ..C’i. 5AJ1 5N 4 PNANCCS — v,SCO .iU0’TN I OL&ASON .,CANNC U SYI(P(L l •NuCC S MAINCZ SIWAI l I. WANRCN t N0S(NY* A. 0OI.DCN CI5N 3YIN* WOODAAND SY.O.I0’ i . .ON C sAYZA PICUAND N WCIUCN CUPVIS I.. OO1..00W 91(55CM YA0N05 5 51 *NORCW S NIU . UA 5 DIAIIC NOSCC ANS WCNOCP (SIC A. NCINZ CrTN(M.OS VC.A5 105 1 NO,’*. .N( C. .flArNC .IANS S M (PN i AMY L VCN ?NY . ALAN Sl.CIN SUBAN C N0 PPMAN NICUAND A. W(3T61 UNN*V . 1 SI.CIN O COUIISCI LIADINC MOI.LA15DC 5 — NQSCNT . 1 YA*S50UGII MICIIA(L.J SUNC CP DAVID I . HVI5A1I •YC.NIJ . y*as (I.i. .1*NCT S SOIL JUDA S I 1.*SOVITZ° • .,,CbU 5DII.ICP 5C NUSANNA C. LAC”S 6 .c...Y ’CO 5(5 .osCsY L.4 50 5 5 51 ? so’ . .TTID — IV 55UHA DIRCCT OIAL RCPLY TO Ms. Sylvia Lowrance Office of Solid Waste U.S. Environmental Protection Agency 401 M. Street, SW. Washington, D.C. 20460 Dear Ms.Lowrance: This is a follow up to my letters of January 20 and July 16, 1992. As stated in that letter, I am attempting to determine whether contaminated soils under certain veiy specific circumstances are considered to be a RCRA hazardous waste. The specific circumstances for which I require guidance are as follows: 1. A tank containing virgin carbon tetrachioride leaks. As a waste, carbon tetrachloride is listed by the Agency as U-21 1. 2. The soil around the tank is sampled and found to be contaminated with carbon tetrachioride. However, the contamination is below state remedial requirements. State policy and/or regulations does not require any remedial activity with respect to the contaminated soils. Under these circumstances, I would like to know whether the undisturbed contpminated soil is deemed by the EPA to be a RCRA hazardous waste or is required to be managed as a RCRA hazardous waste. If it is deemed to be a RCRA hazardous waste or required to be managed as such, could you please explain the basis for this determination. If it is not deemed to be a RCRA hazardous waste or required to be managed as such, I would like to now whether any of this contaminated soil which is excavated incident to the removal of the tank (as opposed to four purposes of addressing the spill; something which state law does not require because of the low level of contamination found in the soil) is deemed to be a RCRA hazardous waste required to be managed as such, or whether, because it was not excavated to address the spill and therefore is not waste or for any other reason, it is not deemed to be a RCRA hazardous waste and may therefore be returned to the excavation. ------- LAW OF’CCS CoHEN. SHAPIRO. POLISHER. SHIEKMAN AND COHEN I look forward to hearing from you in the near future and appreciate your kind assistance in this matter. Yours very truly, W/14 n WLW:np ------- 9441.1992(35) Slate j) g% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE OCT 2 3 1992 Mr. Dennis 1. Ruby President R Way Services Inc. P.O. Box 7296 FredrickSbUrg, Virginia 22404 Dear Mr. Ruby: Thank you for your letter of July 9, 1992, requesting clarification of whether paper filters corcunonly used as engine oil filters in locomotives are exempt from EPA’S hazardous waste regulations under the Resource Conservation and Recovery Act. As explained below, we have concluded that locomotive oil filters when subjected to a proper oil removal step (e.g., draining or crushing) to separate used oil are not likely to exhibit the characteristic of toxicity and therefore, are exempt from the definition of hazardous waste. Used oil Filter Exemption As indicated in EPA’S May 20, 1992, rulemaking (see 57 FR 21524), we determined that non-terne-p] .ated used oil filters are exempt from the definition of hazardous waste when used oil is gravity drained or is removed by draining and crushing, dismantling and draining, or any other equivalent oil removal method. This exemption, which is based on the available toxicity characteristic data, covers used oil filters from automobiles, trucks, heavy equipment, and off-road vehicles. Toxicity characteristic data submitted by the Filter Manufacturers Council (FMC) did not include locomotive filter data. In the preamble to the May 20, 1992, rule, therefore, the Agency stated that “EPA received inadequate data to make a determination on other types of filters, such as fuel filters, transmission oil filters, or specialty filters (such as cloth railroad oil filters). Since there is a lack of quantitative data on these types of filters, they are not included in the scope of the exemption finalized today”. During your September 1, 1992, conversation with Rajni Joglekar of my staff, you indicated that: Printed on Recycled Paper ------- (a) Oil filters used in locomotives are made of paper except for the steel core cylinder and end plates. Locomotive oil filters are changed every 45 to 90 days and they are generally disposed of in industrial landfills and are not recycled. (b) Typically, a used oil filter containing used oil weighs 2.5 times its original weight after use and as much as 1 gallon of oil can be removed from a typical (e.g., 30-inch tall and 6.5-inch diameter) used locomotive oil filter by crushing. Crushed filters then can be dismantled to separate paper and steel for recycling. (C) Limited analytical data that you have suggest that used locomotive oil generally does not exhibit the characteristic of toxicity for any metals. Since receiving your letter, we also contacted manufa ..turers of both heavy equipment filters and cartridge-type paper filters used by the locomotive industry. The manufacturers indicated that cartridge-type locomotive filters and cartridge-type heavy equipment filters are very similar in terms of metal and paper contents. They also suggested that the metal content of cartridge-type filters and the spin-on type filters is significantly different’. Based on the Agency-collected used oil characterization data, we believe that used oil from diesel-powered locomotive engines, like used oil from diesel-powered engines does not exhibit the characteristic of toxicity for metals. We, therefore, have concluded that locomotive oil filters when subjected to a proper oil removal step (e.g., crushing) to separate used oil are not likely to exhibit the characteristic of toxicity and therefore, would be exempted from the definition of hazardous waste under Section 261.4(b) (15). The May 20, 1992, rule is federally enforceable in all States as of June 19, 1992. EPA has authority to enforce State requirements that may be equivalent to the federal standards or that may be more stringent than the federal requirements, when promulgated by States and authorized by EPA. Some 10 States regulate disposal of used oil filters, while many other States regulate disposal of used oil filters under State law. In the FMC Study mentioned earlier, only spin-on type heavy equipment filters were tested to determine whether these filters exhibit the characteristic of toxicity. The results indicated that unused spin-on type heavy equipment filters that are terne-plated are likely to exhibit the characteristic of toxicity for lead. 2 ------- Used Oil Manaaement Standards Used locomotive oil filters from which used oil has not been removed are subject to the management standards promulgated on September 10, 1992 (57 FR 41566). This rule addresses the listing status of used oil destined for recycling and establishes used oil management standards. All oil filters including locomotive filters that contain used oil are subject to 40 CFR 279.10(c). In addition, owner/operators of railroad yards generating used oil and used oil filters are subject to the used oil generator standards (40 CFR Part 279, Subpart C). The disposal of locomotive filters is covered under 40 CFR Part 279, Subpart I requirements, unless crushed or drained, as discussed above. - The September 10, 1992, rule, will be effective on March 10, 1993, in the unauthorized States (e..g, Alaska, Hawaii, Iowa, and Wyoming, and territories). This rule, however, will not be effective in the authorized States until they adopt the Part 279 requirements. Finally, both the May 20, 1992, and September 10, 1992, rules encourage recycling of used oil and under certain circumstances it may also encourage recycling of non-hazardous solid waste associated with used oil (e.g., oil filter components). Thank you for yot interest in safe management of locomotive oil filters. If you have additional questions, please call Ms. Eydie Pines of my staff at (202)260—3516. Sincerely, 1 IL k Sylvia K. Lowrance, Director Office of Solid Waste 3 ------- 9441.1992(36) q UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON, D.C. 20460 L RO ’ OCT28 1992 OPPICE OP SOLID WASTE AND EMERGENCY RESPONSE Mr. Basil G. Constantelos, Director Environmental Affairs Safety—K leen 777 Big Timber Road Elgin, il1i .,f 60123 Dear Mr. C n itelos: Thank yo ’ for your letter of May 22, 1992 requesting clarification on the regulatory requirements pertaining to the management of waste solvents and used oil. We understand your desire to provide your customers with a clear interpretation of the federal regulations governing the mixing of hazardous waste solvents into used oils. Of course, as you know, state regulations can be more stringent and broader in scope than the federal program. The enclosures to this letter individually address your series of questions regarding characterization requirements, waste minimization definitions, and the regulatory status of mixtures of waste solvents and used oil. Our iesponses reflect only EPA’s federal regulations, and not individual state regulatory provisions. Thank you for your interest in the safe and effective management of used oil. If you have any further questions, please contact Michael Petruska of my staff at (202) 260—9888. Enclosures sincerely yours, Pnnted on Recycsec joe’ ------- 3 I. QUESTIONS 01 WASTE CHARACTERIZATION RZQUIRENBNTS Question 01: What degree of testing, or burden of proof with respect to knowledge of the waste is needed to ensure that waste mineral spirits is not a hazardous waste? Persons who generate solid waste are not specifically required to test their wastes to determine whether it exhibits any of the hazardous waste characteristics. Instead solid waste generators are required to make a determination as to-whether or not their wastes are hazardous (40 CFR 262.11). This determination may be made either by testing the waste or by applying knowledge of the characteristics of the waste, in light of t 4 a Laterials or the processes used in its generation. If a waste is determined to be hazardous, the generator must keep records establishing the basis for that determination (40 CFR 262.40(c)). These records must be maintained for at least three years from the date that the waste was last sent to on-site or off-site treatment, storage, or disposal. Question $2: If the waste solvent does not exhibit the characteristic of ignitability, is a generator required to test the waste for the TCLP characteristic prior to classifying the waste as nonha zardous? If the waste solvent does not exhibit the characteristic of ignitability, the generator is not specifically required to test the wastes to de’ rine whether the waste solvent exhibits any of the other hazardous waste characteristics identified in Subpart C of 40 CFR Part 261 (corrosivity, reactivity, or toxicity). Instead solid waste generators are required to make a determination as to whether or not the wastes are hazardous (40 CFR 262.11). This determination may be made either by testina the waste or by applying knowledge of the characteristics of the waste, in light of the materials or the processes used in its generation. If a waste is determined to be hazardous, the generator must keep records establishing the basis for that determination (40 CFR 262.40(c)). These records must be maintained for at least three years from the date that the vast. was last sent to on—site or off-site treatment, storage, or disposal. Question 03: If the waste solvent exhibits the characteristic of ignitability, must a generator also test hia waste for the TCLP characteristic in order to comply with the land ban restrictions? If the waste solvent exhibits the characteristic of ignitability. the generator must determine whether the waste exhibits any of the other characteristics of hazardous waste identified in ------- 4 subpart C of 40 CFR Part 261. This is the case because the generator must determine each EPA hazardous waste number (waste code) applicable to the waste in order to comply with the land disposal restrictions (40 CFR 268.9(a)). In addition, you may be aware of the recent D.C. Circuit opinion concerning the “Third Third” land disposal restrictions regulations. While there are no obvious implications of that decision for the scenario you have described here, we have not concluded our analysis of the case, so it is possible there could be some implications for your situation. -. Question 04: Can a generator rely on an analysis of his unused mineral spirits (e.g., for ignitability and TC characteristics) plus knowledge of his operations to conclude that the resulting waste solvent will not exhibit any hazardous characteristic? A generator can rely on analysis of unused mineral spirits plus knowledge of the operation to determine whether or not the resulF3n j waste solvent exhibits any hazardous characteristic provided that he/she has sufficient information to make an accurate determination. Persons who generate solid waste are not specifically required to test their wastes to determine whether it exhibits any of the hazardous waste characteristics. Instead solid waste generators are required to make a determination as to whether or not their wastes are hazardous (40 CFR 262.11). Thu determination may be made either by testing the waste or by applying knowledge of the characteristics of the waste, in light of the materials or the processes used in its generation. Qu.stion 05: If a generator can rely on an analysis of his unused mineral spirits, and knowledge of his operations to conclude that his waste solvent us not hazardous, can Safety-Kleen, as a transporter storer, and recycler rely on the generator’s certification? Transporters, storers and recyclers who use knowledge or information supplied by others are still responsible for the accuracy of the determination. If transporters accept a wast. e.g., mineral spirits, that is sometimes hazardous, the transporters should discuss with either generator whether their particular wastestream is or isn’t hazardous. In some cases. analysis may be appropriate to help make this determination. Question *6: If the waste mineral spirits contains a listed hazardous waste (e.g., waste brake cleaner or iss other chlorinated solvent), and the mineral spirits/listed waste mixture is blended into used oil, is the entire mixture defined as a listed hazardous waste? ------- 5 If the entire mineral spirits/listed waste mixture is blended into used oil, the entire mixture is subject to regulation as a hazardous waste under 40 CFR Parts 260 through 266, 268, 270, and 124 rather than as a used oil (see 40 CFR 261.3(a) (2) (iv), and the new 40 CFR 279.10(b) (1) Ci)). II. QUESTXON8 OX IASTX XIIIXIZATIOX Question #7 : Is the practice of diluting a characteristically hazardous waste into us d oil to render the mixture nonhazardous considered waste minimization on a hazardous waste manifest, may generators use this practice as waste minimization in their annual reports, and is it considered waste minimization with respect to the SARA Title III and pollution Prevention Control Act requirements? Waste minimization, as defined by HSWA, means (1) reduction of the total volume or quantity of hazardous waste; (2) reduction in the toxicity of hazardous waste; or (3) both, as long as the reduction is consistent with the goal of minimizing present and future threats to human health and the environment. Source reduction is the reduction or elimination of hazardous waste at the source, usually within a process. Recycling is the use or reuse of waste as an effective substitute for a commercial product, or as an ingredient or feedatock in an industrial process (1991 National Biennial RCRA Hazardous Waste Report). This type of dilution does not reduce volume and does not appear to reduce the amount of toxic constituents in the mixture. III. QUIBTIONS OX TEl RIGULATORY STATUS OF MIXTURES OF VA8T1 B0LVUTS AID USED OIL Question 08: If a generator mixes its characteristic hazardous waste into its used oil, and the resulting mixture continues to exhibit a hazardous waste characteristic, is the resulting mixture regulated a a hazardous waste or as a used oil? (Note: does the answer to this question depend on the characteristic exhibited by the solvent and the oil. For example, if the solvent is hazardous du to ignitability, and the mixture is hazardous only for lead.) If a generator mixes characteristic hazardous waste into used oil and the resultant mixture exhibits a hazardous waste characteristic, the resultant mixture is subject to regulation •• hazardous waste under 40 CFR Parts 260 through 266, 268, 270, •rd 124 rather than as a used oil (40 CFR 261.3(a)(2)(iii)). When the new Part 279 used oil management standards become effective, mixtures of used oil and waste which is hazardous solely because it exhibits the characteristic of ignitability will be subject to ------- 6 regulation as used oil provided that the resultant mixture does not exhibit the âharacteristiC of ignitability (40 CFR 279. 10(b) (2) (iii)) Question $s : If the mixture is regulated as a hazardous waste, and is destined to be burned for energy recovery, is it regulated in accordance with 40 CFR Part 266 Subpart H? If the used oil/solvent mixture is regulated as a hazardous waste, and is destined to be burned for energy recovery, it must be managed in accordance with the requirements in 40 CFR Part 266 Subpart H. Qu.stiOn 010: If the mixture is regulated as a used oil, is it subject to the used oil exclusion in 40 CFR 261.6(a)(2)(iii)? That is, if the mixture is destined to be burned for energy recovery it is excluded from most of the RCRA regulations and managed in accordance with 40 CTR Part 266 Subpart E? If the used oil/solvent mixture is subject to regulation as used oil, and is destined to be burned for energy recovery, it must be managed in accordance with 40 CFR Part 266 Subpart E. When the new Part 279 standards become effective, 40 CFR Part 261.6(a) (4) will indicate that mixtures which are regulated as used oil and recycled (destined for energy recovery as well as recycled in some other manner) are subject to Part 279 rather than Parts 260 through 268. The new Part 279 standards will replace 40 CFR Part 266 Subpart E. Question 033.: If the mixture is regulated as a used oil, is it also subject to the used oil exclusion in 261.6(a)(3)(iii)? That is, if the mixture is destined to be recycled in some manner other than burning for energy recovery it is essentially excluded from regulation under RCRA? If the used oil/solvent mixture is subject to regulation as us.d oil, and is destined to be recycled in some manner other than burning for energy recovery, it is not subject to regulation under Parts 262 through Parts 266 or Parts 268, 270 or 124 and is not subject to the notification requirements of Section 3010 of RCRA. When the new Part 279 standards become effective, 40 CFR Part 261.6(a) (4) will exclude mixtures which are regulated as used oil and recycled (destined for energy recovery a. well as recycled in some manner other than burning for energy recovery) from the requirements of Parts 260 through 268. Rather, such recycled used oil mixtures will be subject to the requirements of Part 279. ------- 7 Question f 12* Is the resulting mixture regulated as a hazardous waste or as a used oil? If the resultant used oil/solvent mixture no longer exhibits a hazardous characteristic, it is subject to regulation as a used oil (40 CFR Part 261.3(a) (2) (iii)). Question 013* If the resulting mixture is regulated as a used oil, is it subject to the used oil exclusions included in 40 CFR 261.6(a) (2) (iii) and - 261.6(a)(3)(iii)? If the resultant mixture is subject to regulation as used oil and the used oil is destined for energy recovery or recycled in some manner other than burning for energy recovery, the used oil mixture is eligible for the exclusions in 40 CFR 261.6(a) (2) (iii) and 261.6(a)(3)(iii). When the new Part 279 standards become effective, 40 C 261.6(a) (4) will exclude used oil that is recycled (destined for energy recovery as well as recycled in some manner other than burning for energy recovery) and is also a hazardous waste solely because it exhibits a hazardous characteristic from the requirements of Parts 260 through 268 and such used oil will instead be subject to the requirements of - Part 279. Question #14: If a generator mixes her characteristic hazardous waste with used oil to generate a nonhazardous mixture destined for recycling, does this constitute treatment? (It may be assumed that this activity is taking place in a 90-day accumulation tank.) The mixing of characteristic hazardous waste with used oil in an accumulation tank does constitute treatment if the purpose of the mixing is to make the waste more amenable for recovery (e.g., energy recovery), and/or to make the waste less hazardous (i.e., to remove the solvent’s ignitable characteristic) (40 CFR 260.10). Question 015$ If the practice of mixing hazardous waste mineral spirits with used oil is considered treatment, is this typ. of treatment regulated under RCRA? That is, ar. generators allowed to treat their hazardous wastes on-site without a permit? If the hazardous waste mineral spirits are mixed in the same accumulation tank (or container), the tank is regulated both as a hazardous waste tank under 40 CFR Section 262.34 and as a used oil tank when the new Part 279 standards become effective. Regardless of whether the resultant mixture is used oil or hazardous waste, both sets of standards apply. EPA does not require a permit to treat hazardous waste in an accumulation tank, provided the generator meets the requirements of Sections ------- 8 262.34 and 268.7(a) (4) as well as Part 279, Subpart C when it becomes effective. Question 13.61 If generators are allowed to treat their hazardous wastes on-site without a permit, what burden of proof must the generator have to ensure that the resulting mixture is no longer a hazardous waste? Is analysis required to ensure that the characteristically hazardous waste has been treated such that It no longer exhibits the characteristic? Regardless of whether or not hazardous waste is being treated on- site without a permit, generators are required t make a determination as to whether or not their wastes are hazardous (40 CFR 262.11). This determination may be made either by testing the waste or by applying knowledge of the characteristics of the waste, in light of the materials or the processes used in it. generation. Question 117: Does the treatment of mineral spirits exhibiting a hazardous waste characteristic in used oil to render the mineral spirits nonhazardous constitute dilution? If so, is this practice prohibited under 40 CFR 268.3? The treatment standard for nonwastewater ignitable wastes containing greater than or equal to 10 percent total organic carbon is fuel substitution, recovery of organics, or incineration (40 r T 268.42 Table 2). Mixing mineral spirits exhibiting a hazardous waste characteristic with used oil that will ultimately be treated by the specified treatment technology is aggregation of like wastestreams and therefore not impermissible dilution (55 22532). As mentioned in our answer to Question 3, there was a new D.C. Circuit opinion on the Third Third regulations, and while we saw no obvious connection to your question here, we have not fully concluded our analysis of that case, so we cannot be completely definitive at this time. ------- 9441.1992(37) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 OCT 29 1992 OFFICEOF SOLID WASTE AND EMERGENCY RESPONSE Mr. Richard S. Wasserstrom Miles and Stockbridge Metropolitan Square 1450 G Street, NW, Suite 445 Washington, DC 20005 Dear Mr. Wasserstrom: This is in response to your letter of September 10, 1992, in which you wanted a clarification of the “no land disposal” condition as it applies to the recycling of coke by-product residues (40 CFR 261.4(a)(10)). Specifically, you want to know in what kinds of units recycling operations can be performed (prior to the residuals being reinserted into a coke oven or mixed with coal tar) and still qualify for this no land disposal condition. The Agency agrees with your concern that some members of the regulated community may not be complying properly with the no land disposal provision in the coke by-products recycling exclusion. Briefly, the Agency intends for facilities in the coke by—products industry to be able to recycle hazardous wastes to coke ovens, the tar recovery process, or coal tar. During the development of the final coke rules (57 FR 27880, June 22, 1992, and 57 FR 37284, August 18, 1992), the Agency researched recycling of these residuals and determined that the technology existed to recycle several residuals in this industry without the residuals becoming part of the “waste disposal problem” (57 FR 27880), and thus promulgated the recycling exclusion for coke by—products wastes. Using the wrong kind of unit for recycling can lead to waste becoming a disposal problem. In particular, open pits or flat or low-walled concrete pads that do not contain the recycled materials effectively are not units that qualify for the recycling exclusion. Where the waste is managed on the ground, or the construction of the unit causes the waste(s) to spill or otherwise be disposed onto the ground, the Agency feels that those units or facilities are inadequate to perform the recycling task without the wastes being land disposed. However, tanks, containers, and (as you pointed out) containment buildings, when they are designed properly to keep the recycled materials from being emitted beyond the zone of engineering controls, axe units that qualify for the recycling exclusion. Pnnted on Recyclec Paper ------- The Agency feels that, for the recycling of wastes in this industry, certain criteria must be met. The units used in the recycling operations must be able to keep the recycled materials contained by being properl i sealed (in the case of concrete units) or welded (in the case of metal units). The operators must perform the pperations in such a way as to prevent releases of recycled materials. Operators of the recycling units must comply with all other applicable requirements, as well (e.g., air emissions, run-on/run-off, etc.) You should be aware of some factors that may affect the implementation of the rule in specific areas. Some States might not adopt the recycling provisions of the coke rule as promulgated on August 18, 1992, so regulation of the wastes from this industry may be more strictly controlled. In addition, the determination as to whether a specific tank, container, containment building, or other unit meets State design criteria for “no land disposal” is site—specific, and may vary from place to place. While the Agency clearly intends for the uniti to contain the wastes adequately, the Agency leaves the creation of such site—specific criteria to local authorities. Clearly, the Agency does not want to limit the possibility for future process changes that may lead to the recycling of coke by-products waste. in a more efficient manner by setting inflexible guidelines. Thank you for your inquiry. If you need any further assistance on this topic, please contact Ron Josephson of my staff at (202)260—4770 or the EPA Regional Office or State agency responsible for implementing the regulations on recyclables. bcc: Steve Silverman, OGC (LE-132S) Ken Gigliello, OWPE (OS-520) Waste Management Division Directors, Regions II—VI, VIII S ince*e ly, Office of Solid Waste 2 ------- 9441.1992(38) iI0 ST4pe tg UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 4Lp OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE NOV 51992 Mr. Larry Northup Executive Director Convenient Automotive Services Institute Post Office Box 34595 Bethesda, Maryland 20827 Dear Mr. Northup: Thank you for your letter of July 24, 1992 regarding the regulatory status of mixtures of mineral spirits and used oil. We understand your desire to provide your members with a clear interpretation of the regulations governing the mixing of hazardous waste solvents into used oil. On August 11, 1992, the Agency promulgated management standards for recycled used oil. If a generator mixes characteristic hazardous waste into used oil and the resultant mixture exhibits a hazardous waste characteristic, the resultant mixture is subject to regulation as hazardous waste under 40 CFR Parts 260 through 266, 268, 270, and 124 rather than as a used oil (40 CFR 261 .3(a)(2)(iii)). When the new Part 279 used oil management standards become effective, a mixture of used oil and waste which is hazardous solely because the mixture exhibits the characteristic of ignitability will be subject to regulation as used oil provided that the resultant mixture does not exhibit the characteristic of ignitability (40 CFR 279. 10(b)(2)(iii)). Because this rule is less stringent than the previous rule, states are not compelled to pick up the rule. In fact, states may choose to develop their own rules that are more stringent. If the generator’s mineral spirits and used oils are placed in the same accumulation tank (or container), the tank is regulated both as a hazardous waste tank under Section 262.34 and as a used oil tank under the new Section 279.22 standards when the new Part 279 standards become effective. Regardless of whether the resultant mixture is used oil or hazardous waste, both sets of sets of standards apply as the used oil and hazardous waste are being mixed in the same tank. However, the only additional requirement that is added in Section 279 is that the tank must be labelled with the words “used oil”. This mixing may be considered treatment, since the purpose of the mixing is to make the waste more amenable for recovery (i.e., energy recovery), and/or to make the waste less hazardous (i.e., to remove the solvent’s ignitable characteristic) (40 CFR 260.10). However, as a matter of Pnnted on R ’n “ipp. ------- policy (51 FR 10168, March 24, 1986), EPA does not require a permit to treat in accumulation tanks, provided the generator meets the requirements of Sections 262.34 and 268.7(a)(4) as well as Part 279, Subpart C when it becomes effective. Thank you for your interest in the safe and effective management of used oil. If you have any further questions, please contact Mike Petruska of my staff at (202) 260-9888. Sincerely yours, - p S via K. Lowrance Director Office of Solid Waste ------- 9441.1992(39) 10 S?4% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 NOV I 0 1992 O PICEOF SOLID WASTE AND EMERGENCY RESPONSE R. Brian Burke Rode & Qualey 295 Madison Ave. New York, NY 10017 Dear Mr. Burke: Thank you for your letter of June 8, 1992 in which you requested EPA’S opinion on the regulatory status of spent photo- conductor drums from photocopying machines. I apologize for the delay in our reg cr.se. For ease of explanation, I will separate your questions in:o two categories. First, I will address the regulatory status of the drums, then I will address their export status. The spent drums meet the definition of spent material, and are therefore solid waste. They may also be characteristic hazardous waste due to the presence of cadmium (the characteristic regulatory level for cadmium is 1.0 mg/i (40 CFR 261.24)]. In your letter you describe the drums as cadmium sulfide-coated aluminum pipes. Based on your description, the drums would also meet the federal definition of scrap metal at 40 CFR 261.l(C)(6) (“...bitS and pieces of metal parts, (e.g. bars, turnings, rods, sheets, wire) or metal pieces that may be combined together with bolts or soldering (e.g. radiators, scrap automobiles, railroad box cars), which when worn or superfluous can be recycled.”) Secondary materials that meet the definition of scrap metal are excluded from RCRA regulation if they are recycled (40 CFR 261.6(a)(3)(iV)]. If the drums are managed as you have described, then they would qualify for the exemption from the definition of solid waste. As you know, it is the generator’s responsibility to make these determinations. The export regulations at 40 CFR Part 262 are triggered by the federal program; in other words, only wastes considered hazardous under the federal program are subject to the export regulations. However, other state regulations may apply to wastes considered hazardous by a particular state while they are in that state. You should contact each state in which you conduct your operations for more information regarding applicable state regulations. csu .- ------- 2 If you have further questions on the domestic RCBA regulatory status of spent photo-conductor drums, please call Ross Elliott of my staff at (202) 260—8551. If you have questions regarding the RCRA export regulations, you may call Angela Cracchiolo at the same number. Sincerely, ------- 944l.1992(4 0) IO SY4 j g T 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 L . 1 0 d N J I 1 1992 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUX SUBJECT: RCRA Regulation of DDT-T eated Wool Blankets as Hazardous Wa, .e j\(\ - FROM: Sylvia K. Lowrhn 4( . ;I ’ Director, Office of/ ólTd Wa&t e TO: Douglas D. Campt Director, Office of Pesticide Programs, Office of Prevention, Pesticides and Toxic Substances You have asked us whether wool blankets that have been treated with the pesticide dichlorodipheflYltriChlOrOethafle (DDT) would be regulated as a hazardous waste under the Resource Conservation and Recovery Act (RCRA). Based on a review of the relevant regulations, we do not believe that such blankets, when disposed of, would be considered a hazardous waste under federal law. You should note, however, that some states may have more stringent hazardous waste laws and regulations that may apply. As a preliminary matter, until the blankets are discarded they are riot considered a solid waste under EPA regulations, and therefore, would not be a hazardous waste. However, if the blankets are considered discarded (for example, if they are to be disposed of), they must be assessed under our regulations at 40 CFR Part 261 to determine if they are a hazardous waste subject to federal regulation. There are two mechanisms by which a solid waste is deemed to be a hazardous waste under RCRA. The waste may either be specifically listed as a hazardous waste by the Agency, or the waste may exhibit one of the four characteristics of hazardous waste (ignitability, corrosivity, reactivity, or the toxicity characteristic). The regulations governing each of these mechanisms are found at 40 CFR Part 261, Subparts C and D, respectively. We have reviewed the lists of hazardous waste and conclude that the DDT-contaminated blankets are not a listed hazardous waste. Although DDT appears as a listed hazardous waste on the list of discarded commercial chemical products ( see 40 CFR § Panted on ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY —2— 261.33(f)), a discarded blanket contaminated with DDT would not be considered a discarded commercial chemical product. The hazardous wastes identified at § 261.33 are the discarded chemical substances themselves, not discarded products which have been treated with the chemical. In addition, based on our knowledge of DDT, we do not believe that the DDT treated wool blankets would be considered a characteristic hazardous waste. Further, we have reviewed the chemistry of DDT to evaluate reactions that could occur following application of DDT to the blankets. As the DDT breaks down over time, primarily through reaction with light, no RCRA hazardous compound would be formed that would cause the blankets to become a RCRA hazardous waste. If you have any further questions regarding this matter, please contact Mr. David Topping of my staff (260-7737). cc: Mark Badalalnente, OGC Barbara Pace, OGC ------- ,ZDS?4i 9441.1992(41) j UNITED STATES ENVIRONMENTAL PROTECTION AGENC\ 3 WASHINGTON. D.C. 20460 4 L NOV 30 1992 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. John L. Andersen Environmental Control Director Georgia Pacific Corporation Post Office Box 1236 Bellingham, Washington 98227-1236 Dear Mr. Andersen: Thank you for your letter of September 21, 1992, requesting a determination of the regulatory status of one of the waste streams generated by your treatment process. r ,; _r letter and attached materials, you identified the feed materials to the treatment process as a mixture of D009, K071 and K108. Under current federal regulations, specifically 40 CFR 261.3, streams consisting of listed hazardous waste retain the same waste codes even after mixing and/or treatment. In addition, residuals bearing such waste codes must meet the waste code specific treatment standards specified in 40 CFR 268 prior to land disposal. Given the facts presented in your letter, the treatment residuals would retain the D009, K071, and K106 waste codes. This would, in turn, determine your obligations under the land disposal restrictions program. We hope this information clarifies the matter. Sincerely, ector Office of Solid Waste Printod on Recycled Paper ------- 9441.1992(42) UNITED STATES ENViRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 OFFICE OF OEC f $01.10 WASTC AND EMERGENCY RESPONSE Mr. William M. Guerry, Jr. Collier, Shannon, Rill & Scott 3050 K Street, NW. Suite 400 WashingtOfl D.C. 20007 Dear Mr. Guerry: As a followup to our meeting with you and representatives of Glassiflcation ;nternationa . mited (GIL) on September 22, 1992, EPA has considered the information you have provided on the GIL glassification process for electric arc furnace (EAF) dust or 1(061 when the EAF dust Is a hazardous waste. Based on the nforrnatiOfl that you have provided us, EPA understands that GIL utilizes EAF dust from steel milis to produce a glass frit which is then sold for use as abrasive blast, and as ar ’ ingredient in making roofing granules, glass ceramic and ceramic glaze. Throughout our discussions, the main Issue regarding the regulatory status of the GIL process and glass fit product has been whether EAF dust Incorporated Into GIL glass 4 rit meets the definition of a solid waste (and therefore also a hazardous waste, i.e., K061) under the Resource Conservation and Recovery Act (RCRA). You specifically sought EPA Headquarters’ concurrence that these uses are exciuced from the definition of solid waste under Section 261.2(e). The focus of this determination is the ultimate end use of the secondary material or the product containing the secondary material. When secondary materials or products containing secondary materials are applied to or placed on the land in a manner that constitutes disposal, the material or the product containing It is a solid waste and also a - ::rdou s waste (See 40 CFR Sections 261 .2(c)(1) and 261 .2(e)(2)(i)). Products used in a manner constituting disposal are not eligible for the exclusion. As mentior.ed above, GIL intends to sell its glass fit for use as abrasive blast, and as an ingredient In producing roofing granules, glass ceramic and ceramic glaze. Regarding abrasive blast, EPA believes that in general this end use Is not applied to or placed on the land in a manner constituting disposal. The other end uses (roofing aranu’es, glass ceramics, ceramic glaze) are also not typically applIed to or placed on the iand in a manner constituting disposal. nnte on Recyc’ed Papei ------- 2 So, when EAF dust is legitimately used as an ingredient to make a product that is not used in a manner constituting disposal (e.g., glass frit used to produce abrasives, roofing granules, glass ceramics or ceramic glaze), it Is not a solid waste under RCRA. Therefore, when producing glass frit for the end uses mentioned above, the GIL process would not be subject to RCRA permitting requirements. 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 Region 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. Thank you again for your Interest in this matter. If you have further questions, please contact Mike Petruska of my staff at (202) 260-8551. Sincerely, Depthy Director Office of Solid Waste ------- 9441.1992(43) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, DC. 20460 c ‘oq2 flFC I I SOLID WASTE AND EMERGENCY RESPONSI Mr. Ron Rodriguez California Regional Water Quality Control Board Colorado River Basin, Region 7 73-720 Fred Waring Dr., Ste. 100 Palm Desert, CA 92260 Dear Mr. Rodriguez: Thank you for 3ur August 5, 1992 letter to Michaei Petruska of my staff in which you inquired about the status of a regulatory interpretation regarding pesticide applicator washing rinse water. You specifically asked whether a July 22, 1985 memorandum from John Skinner to William Hathaway was still valid. The memo is still valid. EPA has not changed its policy regarding pesticide applicator washing rinse waters under the Resource Conservation and Recovery Act (RCRA) since the memo was written. Consequently, such rinse waters are defined as hazardous wastes only if they exhibit one or more of the characteristics of hazardous waste identified at 40 CFR Part 261 Subpart C. Thank you for your letter. If you have further questions, please call Julie Lyddon of my staff at (202) 260—8551. Sincerely, Sy ia K. Lowrance, Director 0 f ice of Solid Waste Enclosure ------- 9441.1992(44) r i t I UNITED STATES ENViRONMENTAL PROTECTION AGENCY 3 WASHINGTON. D.C. 20460 L OFFICE OF DEC 2 2 1992 SOLID WASTE A%O EMERGENCY RESPO 4SE Mr. Jac)’ . Wilson Vice President, Engineering The Environmental Company, Inc. 1230 Cedars Court, Suite 100 Post Office Box 5127 Charlottesville, Virginia 22905 Dear Mr. Wilson: - This letter clarifies the position of the Office of Solid Waste (OSW) regarding the identification of spent solvents in certain industrial processes. The determination of what constitutes “use as a solvent” is critical in this definitional issue. Your letter of inquiry was received by 05W on May 22, 1992. In it, you asked for confirmation of your conclusion that waste polyurethane generated in the manufacture of marine buoys and fenders is not a listed hazardous waste under RCRA. As we understand the process, two different coats of foam materials, top and bottom, are sprayed onto a core. During the process, one spray gun is used to spray the coating materials. The coats are spr ’-’ed separately, in sequence. Since the coating materials cannot come in contact with eaci’ rths r in the gun, the gun must be cleared of the previous coating material before the other coat can be shot through the nozzle. The coating materials themselves are used to clear the nozzle prior to applying the other coat. The clearing spray, designed to ensure that only t e coat to be applied is present in the gun’s nozzle, is sprayed into a waste drum during the nozzle clearing process. Waste polyurethane is generated in this way. We interpret your inquiry to ask whether this clearing of the nozzle constitutes “solvent use” thereby generating spent solvent (waste code F005) meeting the RCRA hazardous waste listing definition. EPA regulations at 40 CFR 261.31(a) state that the following solid wastes are F005 listed hazardous wastes: spent non-halogenated solvents: Toluene, . . etc.; all spent solvent mixture/blends containing, before use, a total of ten percent or more (by volume) of one or more of the above non—halogenated solvents . . ------- your inquiry suggested that although the top and base coats do contain greater than ten percent toluene, they are not used for their solvent properties when used to clear the spray gun nozzle. The waste generated during the manufacturing process includes only residues of the based and top coats used to produce the final product. Toluene is present only as contained in the waste polyurethane. As this processing waste is not a spent solvent, it is not an P005 waste. In a response dated August 17, 1992, Rick Brandes, Chief of the Waste Identification Branch in OSW concluded the waste generated in this specific case did not meet the regulatory definition of a spent solvent hazardous waste for the following reasons: o the regulations only cover those spent solvents that are used for their solvent properties, i.e., to solubilize, mobilize, degrease, dilute, extract, etc., other constituents. o the preamble to the regulations (see 50 FR 53316, December 31, 1985 at section II.A.) states ‘. . rocess wastes where solvents were used as reactants or ingredientB in the formulation of commercial chemical products are not covered by the listing.” o therefore, the definition of spent solvent does not extend to cases in which the solvents are strictly reactants or ingredients in a product formulation. The response vent on to say that this interpretation was based solely on the information provided in the inquiry. If the clearing spray is used for its solvent properties or if the resin or curative mixtures which make up the top and bottom coats were to be used individually to clean the spray gun, the waste could then be considered P005 hazardous waste. Mr. Brandes reserved the right to change this interpretation in the event that other information became available indicating the clearing spray was using toluene or ethyl acetate for their solvent properties. In clarifying this interpretation, we note that in this specific case the clearing spray of the gun’s nozzle is a - y- nical process using the unaltered top and bottom coats to pnysically clear the gun’s nozzle from the undesired coating. This is, to OSW, different than a process in which the clearing spray uses a solubi]izing property, such as the chemical ability to dissolve or dilute, to clean the gun’s nozzle. In this case, the fact that the top and bottom coats contain high concentrations of toluene does not mean the toluene is being used to solubilize the small amount of coating material remaining in the nozzle after one coat is sprayed. The coating materials merely push the residue of the previous coating out of the nozzle 2 ------- so that pure top or bottom coat can be applied to the products. The toluene is there as part of the manufacturing process itself. It is therefore part of the formulation of the commercial chemical product and not covered by the listing. For this or any other case in which it is shown that a material used to clear the nozzle is used for its solvent properties, that is, to solubilize or mobilize other constituents, the material would be a spent solvent and thus, would meet the definition of Hazardous Waste Nos. F003 and F005. OSW realizes that a definitional distinction like this can result in two compositionally similar materials being separated into two different classes of waste (hazardous and non-hazardous) simply by the way in which the waste is generated. RCRA listing determinations must make these differentiations to avoid bringing an unnecessarily large universe of materials into specific hazardous waste listings. To avoid leaving unregulated wastes which pose a true fr:ard, we rely on another mechanism for bringing wastes i.r ’. the hazardous waste management system. If a waste exhibits one of four “characteristics” of hazardcus waste (ignitability, corrosivity, reactivity, toxicity) of 40 CFR 261 Subpart C, it is considered a hazardous waste. This insures that wastes which fail to meet a listing definition are not exempted from the hazardous waste management system if they exhibit one or more of these characteristics. One application of this principle was pointed out in the preamble to the solvents final rule: “Since the threshold level (ten percent solvent) promulgated today is not based on health criteria, but rather on typical use patterns, we are not applying this threshold to all wastes that may contain one or more of these solvents. Instead, we will rely on (the toxicity] characteristic to bring these waste streams into the hazardous waste management system.” (See 50 FR 53317, December 31, 1985.) In conclusion, while the process described may not produce a listed hazardous waste, any wastes produced may be characteristically hazardous. Generators of waste are responsible for making a determination of hazardousness. Since the distinction is a complex one, any case in which the definition of “use as a solvent” is raised should be dealt with on a case-by-case basis. 3 ------- Please be aware that niany states are authorized to implement Federal regulations and may be more strict. ThUS, you should always check with the appropriate State environmental authority. of Solid Waste 4 ------- 9441.1993(01) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 FEB ‘, ‘ OPPICEOF Q I SOLID WASTE AND EMERGENCY RESPONSE Mr. Larry 1. Perry, P.1. Divisional Environmental Manager Frito-Lay, Incorporated P.O. Box 660634 Dallas, Texas 75266—0634 Dear Mr. Perry: Thank you for your letter of December 31, 1992, in which you inquire about the proper disposal of silver nitrate and chloroform as laboratory chemicals. Specifically, you wished to know how the laboratory wastewater exclusion of 40 CTh 261.3(a)(2) (iv) (1) applies to your facilities. As we understand your situation (based on your letter and telephone conversation between your company and my staff), you use silver nitrate and chloroform in quality control experiments in the laboratory. These laboratories have quality control (QC) functions incidental to production. However, the filtrate fr use of these particular chemicals contains them at levels above the regulatory levels for chloroform and silver specified in 40 CFR 261.24 (the Toxicity Characteristic, or TC). In additi . you noted the presence of chloroform as a commercial chemical product, EPA Hazardous Waste No. U044, in your wastevater. On December 22, 1992, Messrs. Abrams, Brandes, and Josee of my staff participated in a conference call with you and y .s consultant, Advantage Engineering. In that conversation, my staff confirmed to you that based on the information you provided, your facilities may qualify for the laboratory wastewater exclusion, but only if ther. is a listed waste involved. I would like, again, to stress several additional points to remember in qualifying for this exclusion: 1) This exclusion pertains only to Jjj.t . hazardous wastes (that are designated as toxic CT)) from laboratory operations and only at the headworks of the wastewater treatment facility. As we understand it, your faciliti would only qualify for this exclusion if unused chlorofor was disposed of in your laboratory sinks or drains (U044). Chloroform is not an FOOl or F002 solvent, but is on the toxicity characteristic list and on the commercial cheai I product list (40 CFR 261.33(f)). Chloroform used as a solvent and then disposed would not meet the listing description for U044. Pflnte — a— ------- 2) Th. Sxclusion applies to incidental losses of li ted hazardauB wastes (in your case, unused chloroform) from laboratory operations, not deliberate bulk, discharges of chemiCals that are not part of laboratory operations. 3) Thi. exclusion applie, to wastewater discharges that are subject to regulation under either section 402 or 307(b) of the Clean Water Act. Many facilities receive indirect discharge permits based on the operational parameters of the local publiClYO med treatment works (POW). The POW, in turn sets indirect discharge standards to avoid plant upsets, generation of hazardous sludges, health hazards to their employees, and violation of it own discharge permit. 4) The laboratory wastevater exclusion is based on the total quantity of listed wastes froa laboratory operations. The introduction of other listed wastes into the plant wastewater system (outside the conditions set forth in 40 CF’R 26l.3(a)(2)(iV)(A) — (E)) may void the exclusion for the facility. 5) If any of the wastes in the laboratory wastewater dischargs are subject to the Land Disposal Restrictions (40 CFR 26$) the facility must keep records showing their generation as disposition according to §268.7(a). 6) Your letter states that you have investigated “specific representative cases.” As you know, the exclusion at 40 CFR 261.3(a) (2) (iv) (E) must be met by each individual facility, and this letter should not be construed as a regulatory determination on any particular vastestream. regulations at 40 CFR 262.11 require each generator of oltd waste to determine if that waste is hazardous. You note in your letter that 1) the total annualized aver f low of laboratory wastevater is below one percent of total facility flow, and 2) the total laboratory chemical concentrat$ at the headworks of the facility wastewater treatment system, based on facility purchase and inventory records is less than part per million. A facility must meet one of these two crits . in order to qualify for the wastewater exclusion. Laboratory wastes that are hazardous because they exhibit one of the characteristics of a hazardous waste (see 40 CFR 26% Subpart C) are not addressed by the exclusion in 40 CFR 26l.3(a)(2)(iv)(E). Therefore, TC hazardous levels of silver and chloroform in your laboratory wastevater would be dealt with under the Clean Water Act, especially since the ar discharged to publicly owned treatment works (POTWe). Howev• the pretreatment (before discharge to POTWS) of laboratory wastewaters could generate a sludge that would be under RCRA 2 ------- subtitle c control if it exhibited any of the hazardous waste characteristtc.. You should be aware that, even if the fecilities meet the terms of the laboratory wastewater exclusion according to Federal regulation., states may have more stringent hazardous waste regulations. Plea.. check with the applicable state agency for further details on state regulations. Thank you for your inquiry. If you have any questions, please contact Ron Josephson of my staff at (202)260—4770. Sincerel Ø th D rector Office of Solid Waste cc: Ken Gigliello, OWPE (OS-520) Mark Badalanente, OGC (LE-l32S) Ron Josephson, OSW (OS—333) 3 ------- 9441.1993(02) RCRA/SUPERFUND/OUST HOTLINE FEBRUARY MONTHLY REPORT QUESTION 1993 2. Closed-Loop Recycling Exclusion Under the closed-loop recycling exclusion in 40 CFR §261 .4(a)(8), secondary materials that are reclaimed and returned to the original process or processes in which they were generated are excluded from Subtitle C of RCRA, provided they are reused in the production process and the criteria in 40 CFR §261.4(a)(8) are me:. Would secondary materials managed in a system that includes storage in open-top tanks fall within the exclusion in §261.4(aX8)? Secondary materials managed in a system that includes storage in open-top tanks may qualify for the closed-loop recycling exclusion as long as the system meets the four requirements in §261.4(a)(8). EPA views closed-loop recycling operations as an integral part of production processes. not as distinct waste management operations (51 ER 25443; July 14, 1986). Typically, owners or operators of such closed-loop recycling operations handle the secondary materials as commodities; i.e., in a manner designed to avoid loss or release. Although EPA does not preclude owners or operators from storing secondary materials in open-top tanks under the closed-loop recycling exclusion, there are other factors that prevent most materials, especially volatiles, from being stored in them. These factors include possible contamination from rain or dust and the threat of explosive conditions. Owners or operators of open-top tanks should therefore ensure secondary materials are managed as valuable materials prior to reclamation in order for the tank to be considered a part of a closed-loop recycling system and excluded under §261.4(a)(8). Determinations regarding the closed-loop recycling exclusion are usually case-specific. Thus, if EPA discovers a situation where highly volatile materials are stored in an open-top tank and large volumes of the materials are lost prior to reclamation, the exclusion may not apply because the secondary materials are not being managed to prevent loss or release prior to reclamation, causing the material to become regulated as a waste under Subtitle C of RCRA (51 25443; July 14, 1986). ------- 9441.1993(03) ,iO 374 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 FILE COpy OFFICE OF SULID WASTE AND EMERGENCY RESPONSE “- R 5 1993 Mr. Christopher G. Swanberg Senior Vice President Separation and Recovery Systems 1762 McGaw Avenue Irvine, California 92714-4962 Dear Mr. Swanberg, Thank you for your letter dated November 12, 1992, concerning the use of the Separation and Recovery Systems (SRS) SAREX Process for the recycling of petroleum refinery oily wastes, and the status of this activity under the Resource Conservation and Recovery Act (RCRA). I apologize for the delay in responding to your inquiries. We appreciated the opportunity to meet with SRS personnel and Mr. Daniel Steinway (of Anderson, Kill, Olick and Oshinsky) on October 23, 1992, to discuss the issue in detail. You specifically requested that EPA concur with you that the SAREX Process, operating in the manner you described, meets the definition of “closed-loop” reclamation as provided in 40 CFR 261.4(a)(8). You also requested that EPA concur that if the SAREX Process was receiving listed hazardous wastes (e.g., K048 - K051), and met the conditions delineated in §261.4(a)(8), then the secondary materials within the process would no longer meet the definition of solid waste; and, residues exiting the SAREX Process (exclusive of recovered petroleum’) would be subject to RCRA only if exhibiting a characteristic of hazardous waste. Based upon the information provided by SRS, Mr. Steinway, and a careful review of the RCRA regulations, EPA does not agree that the SAREX Process meets the definition of “closed-loop” reclamation as defined in §261.4(a)(8). We would characterize the operation of the SAREX Process unit (as described by you) as meeting ‘With regard to wastewater effluent from the SAREX Process that is returned to the refinery’s wastewater treatment system, EPA policy has been that if the refinery can show that the return water stream is chemically equivalent to the non-listed wastewater influent to the wastewater treatment device that originally generated the listed waste, then the return water stream is not derived-from hazardous waste. Return water that is “chemically equivalent” is defined for purposes of this policy as water that does not contain significantly higher levels of Appendix VIII constituents and total suspended solids (TSS). Pnnted on Recycled Paper ------- 2 the definition of recycling, and therefore would not require a RCRA permit under the federal RCRA regulations (40 CFR 261.6(c)(1)); however, listed sludges and by-products being reclaimed in the process would remain solid and hazardous wastes within the unit, as would any non-reclaimed residues exiting the unit (see Footnote 1 concerning wastewater). The rationale for this determination is described below. One condition of the closed-loop exclusion is that the reclaimed material cannot be used to produce a fuel, or to produce a product used in a manner constituting disposal ( 261.4(a)(8)(iv)). Because the oil recovered using the SAREX Process is being returned to the refinery where it will be used to produce a fuel (or possibly to produce a product applied to the land), the closed-loop exclusion does not apply. 2 If the oil is returned to part of the refining process where non-fuel (or non-land application) petroleum products are produced, it is possible that the SAREX Process might be eligible for the closed-loop exclusion. However, the SAREX Process must still be configured in a manner consistent with the other conditions of the closed-loop exclusion. EPA promulgated the closed-loop exclusion as part of the revised hazardous waste tank rules (51 fE 25422; July 14, 1986 Federal Register) . Based upon comments received during the development of that rule, EPA determined that there was a substantial number of potentially regulated tanks engaged in “types of reclamation operations [ that] are best viewed as part of the production process, not as a distinct waste management operation.” 51 ER 25442. One of the conditions for the closed-loop exclusion that reflects the Agency’s desire that the reclamation be integral to the production process is that “only tank storage is involved, and the entire process through completion of reclamation is closed by being entirely connected with pipes or other comparable enclosed means of conveyance” (*261.4(a)(8)(i)). Whether or not the SAREX Process will receive listed sludges and by-products directly from the production processes generating them, in a manner consistent with this provision, is a site-specific determination. This is especially true because the SAREX Process is designed to be installed at different refineries with potentially different configurations of production and the generation of listed sludges and by-products. As you may know, the Definition of Solid Waste Task Force is presently revisiting the existing regulations governing the definition of solid waste and the recycling of hazardous secondary materials. The Task Force’s goals include exploring ways to simplify the current regulatory system, in order to better encourage safe recycling and resource recovery. I can assure you that the issues and ideas presented by SRS and Mr. Steinway during the meeting on October 23. 1992, (e.g., performance standards for 2 However, he recovered oil returned to the refining process is exempt from hazardous waste reguIat ons per 40 CFR 261.6(a)(3)(vi), as are the fuels produced from such oil (see §261.6(a)(3)(v) and (vii)). ------- recycling processes, definition of hazardous waste fuel) will be taken into consideration as the Task Force proceeds with its efforts. In addition, EPA is involved in an on-going dialogue with interested parties as part of the rulemaking process specifically related to the Hazardous Waste Identification Rule (HWIR), proposed on May 20, 1992 (57 E 21450) and subsequently withdrawn on October 30, 1992 (57 ER 1 49280). Part of the original proposed rule discussed concentration-based exemption criteria (CBEC), whereby listed wastes would no longer be subject to Subtitle C requirements if treated to below certain constituent concentration levels. We would encourage you to participate in the on-going dialogue, specifically with regard to the types of materials entering the SAREX process, and the residuals generated. If you have any questions, please contact Ross Elliott of my staff at (202) 260- 855 1. Thank you for your interest in the safe recycling of hazardous waste. Sincerely, Director of Solid Waste cc: Mr. Daniel M. Steinway ------- 9441.1993(04) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 APR 26 t993 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Ms. Kristen DuBois Goodwin Hazardous Waste Program Coordinator Alaska Department of Environmental Conservation Northern Regional Office 1001 Noble Street, Suite 350 Fairbanks, Alaska 99701—4980 Dear Ms. Goodwin: This is in response to your March 16, 1993 letter regarding the regulatory st:tus of solid waste generated from gold/mercury amalgam retocting In particular, you requested that we concur with your interpretation that the solid waste generated from the retort process, including contaminated soils containing black sands, is beneficiation and extraction waste and subject to the exclusion found in 40 CFR 261.4(b) (7). The operation that you described in your letter involves metal bearing materials that undergo retorting. Based upon EPA’S September 1, 1989 final rule (54 36618), and the information provided in your letter, EPA would interpret the retorting operation described in your letter to be mineral processing under EPA’s regulations. Specifically, • . . heating operations such as smelting (i.e., any metallurgical operation in which metal is separated by fusion from impurities) and fire-refining (e.g., retorting) are clearly and have always been considered within the real. of mineral processing. Here, the physical structure of the ore or mineral is destroyed, and neither the product stream nor the waste stream(s) arising from the operation bear any close physical/chemical resemblance to the ore or mineral entering the operation (54 36618). Mineral processing wastes do not retain the Bevill exempt ton unless they are one of the 20 permanently exempt mineral processing waste listed in 40 CFR 261.4(b)(7)(i)—(XX). (No retorting wastes are among the 20 permanently exempt mineral processing wastes.) Therefore, EPA believes that any solid wast. generated from the retorting operation is no longer covered by the Bevill exclusion in 40 CFR 261.4(b) (7). Pnnted on Recycled Paper ------- According to your letter, the site ceased operations in the 1960s and cleanup of the site will involve removal of contaminated soil and debris. The September 1., 1989, rule does not impose Subtitle C requirements on mineral processing wastes disposed of in Alaska prior to March 1, 1990, unless those wastes are actively managed. Active management includes physical disturbance of the wastes (see 54 36597). Therefore, if the retort wastes were actively managed (i.e., removed for disposal) after March 1, 1990, the wastes would be subject to Subtitle C control if they either exhibit a hazardous characteristic or are listed. If these wastes are not actively managed, Subtitle C requirements do not apply. I hope this letter clarifies the regulatory status of the retort wastes you described. If we can be of further service, or if you have any questions, please do not hesitate to call Robert Tonetti, Chief, Special Wastes Branch at (703) 308-8424. - Sincerely, owrn irector Office of Solid Waste ------- 9441.1993(05) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 OFFICE OF 1 r 1 2 9 9Q3 SOLID WASTE AND EMERGENCY RESPONSE Mr. Wm. Roger Truitt Piper and Marbury Charles Center South 36 South Charles Street Baltimore, MD 21201—3010 Dear Mr. Truitt: Thank you for your February 25, 1993, letter written on behalf of Eastman Kodak Company (Kodak) and United Parcel Service, Inc. (UPS). In your letter, you asked whether or not the scrap metal exemption found at 40 CFR 261.6(a) (3) (iv) would apply to lead foil used in dental x—ray packages once the foil was removed by dentist office personnel and accumulated under a proposed national recycling program. The lead foil you describe is likely to exhibit the Toxicity Characteristic for lead found in 40 CFR 261.24. Based on your description, the lead foil contained in the dental x-ray package meets the federal definition of scrap metal in 40 CFR 261.1(c) (6) (“...bits and pie ’ s of metal parts, (e.g. bars, turnings, rods, sheets, wire)]. Secondary materials that meet the definition of scrap metal as defined in 40 CFR 261.1(c) (6) are excluded from RCRA Subtitle c regulation if they are recycled (40 CFR 261.6 (a) (3) (iv)]. Please note 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 feder5l program. When a State is not authorized to administer its o n program, the appropriate EPA Region 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 6926) States retain authority to promulgate regulatory requirements that are more stringent than federal regulatory requirements. 1 Pnnted on Recycled P er ------- 2 If you have further questions, please contact Ross Elliott of ny staff at (202)260-8551. Thank you for your interest in the safe recycling of hazardous waste. i rector f ice of Solid Waste ------- 9441.1993(06) i10 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 ?4L PRO APR 2 9 1993 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Joseph J. Werbicki Technical Director Agmet Resource Recovery 50 Howe Avenue Millbury, MA 01527 Dear Mr. Werbicki: Thank you for your letter dated March 19, 1993, regarding a prior EPA interpretation of certain recycling regulations under the Resource Conservation and Recovery Act (RCRA). Specifically, you asked whether or not the regulatory interpretation provided in our January 6, 1987, letter to Mr. Thomas Duff icy of the National Association of Photographic Manufacturers, Inc., was still a current EPA interpretation. In that letter we stated that certain silver-containing wastewater treatment sludges are not solid wastes when reclaimed. The regulatory interpretation we provided you in our January 6, 1987 letter is still the Agency’s current interpretation with the follci !.ing clarifications. With regard to characterizing secondary materials containing silver, the regulatory level for the Toxicity Characteristic is 5.0 mg/L under the current regulations in 40 CFR 261.24. If an extract obtained using the TCLP procedure contains less than 5.0 utg/L, the material is not a characteristic hazardous waste. In addition, according to 40 CFR 261.2, Table 1, characteristic sludges that are to be reclaimed are not solid wastes, and therefore are not hazardous wastes. If your particular secondary material is a characteristic sludge or by- product, this exclusion would apply (as long as the material is not otherwise a listed hazardous waste). These regulations have not changed since we responded to Mr. Duff icy’s letter in 1987. If the secondary material j a solid and hazardous waste (e.g., a spent material or listed sludae containing silver) and is sent for silver recovery, then this material is subject to the requirements outlined in 40 CFR Part 266, Subpart F, Recyclable Materials Utilized for Precious Metal Recovery. Finally, please note 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 Pnnted on Recycled P ec ------- 2 of the federal program. When a State is not authorized to administer its own program, the appropriate EPA Region 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 6926) States retain authority to promulgate regulatory requirements that are more stringent than federal regulatory requirements. If you need additional information, please contact Ross Elliott of my staff at (202)260-8551. Thank you for your interest in the safe recycling of hazardous waste. aLowr& eCtor Office of Solid Waste ------- 9441.1993(07) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 h P 29 OFF ICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Kevin Tighe Tighe, Mc lnroy & Corbett 1750 Pennsylvania Avenue Suite 1201 Washington, D.C. 20006 Dear Mr. Tighe, Thank you for your letter dated February 10, 1993, written on behalf of the National Automotive Radiator Service Association (NARSA). In your letter you requested guicance concerning the regulatory status under the Resource Conservation and Recovery Act (RCRA) of solder drippings generated during radiator repair operations. Based on the information provided in your letter, the solder drippings you described would meet the definition of scrap metal under 40 CFR 261.1(c)(6) [ “...bits and pieces of metal parts...which when worn or superfluous can be recycled.”] Secondary materials that meet the definition of scrap metal, while remaining solid and hazardous wastes, are excluded from federal RCRA regulations if they are recycled [ 40 CFR 26 1.6(a)(3)(iv)]. We would encourage radiator repair shops to recycle their solder drippings wherever possible, and to engage in “good housekeeping practices” with respect to the collection and storage of the solder drippings prior to recycling.’ Good housekeeping would inèlude practices that prevent the release of lead into the environment, such as regular floor sweepings in areas where solder falls, adequate storage of the solder drippings destined for recycling, and the segregation of solder drippings from other wastes and debris not intended for recycling. Adherence to these practices may also provide indicia to the regulatory agency implementing the RCRA program that the solder drippings are in fact going to be recycled. 1 1f the solder drippings are not going to be recycled, the scrap metal exemption does not apply. Pnnted on Recycled Paper ------- 2 Finally, please note 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 Region 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 6926) states retain authority to promulgate regulatory requirements that are more stringent than federal regulatory requirements. Therefore, I would encourage those persons generating and recycling solder drippings to make sure they are familiar with any state requirements applicable to this type of material. If you have any additional comments or questions, please feel free to contact me directly, or call Ross Elliott of my staff at 202/260-8551. Thank you for your interest in hazardous waste recycling. Sii ctor of Solid Waste ------- 9441.1993(08) vitO I?4% - I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY j WASHINGTON. D.C. 20460 OFFICE OF MAY 6 1993 SOLiD WASTE AND EMERGENCY RESPONSE Mr. William C. Rankin Olin Chemicals P.O. Box 248 Lower River Road Charleston, TN 37310 Dear Mr. Rankin, Thank you for your letter dated January 7, 1993, concerning the recycling regulations under the Resource Conservation and Recovery Act (RCRA). Specifically, you requested that EPA headquarters clarify the term “when” as it appears in part of the regulations defining solid waste (40 CFR 261.2(c)(3))’. It is EPA Headquarters’ position that the interpretation regarding §261.2(c) presented in the EPA letter you cited from Robert DeUinger to Ronald Jones (March 27, 1989) is correct: that is, the determination of whether or not a material being reclaimed is a solid waste is made at the point of generation. The following analysis is based on federal regulations, and is provided in order to help clarify this provision. Under the existing RCRA recycling regulations, the status of a secondary material is based upon 1) the type of material, and 2) the recycling activity involved (January 4, 1985 Federal Register ; 50 .EE 619). The recycling activity is viewed prospectively; that is, the status of certain secondary materials is determined by knowing how the material is going to be recycled. The term “when” as it is used in §261.2(c) for recycling activities (e.g., “when reclaimed”, ‘when burned”, “when placed on the land”) is not meant to refer only to the moment in time when that activity occurs, in order to determine the regulatory status of a material (with the exception of speculative accumulation, explained below). As an example, a generator that intends to have his or her characteristic sludges reclaimed at some point in the future, would not be deem d to be managing a solid or hazardous waste, according to Table 1 in §261.2. Of course, when secondary materials are excluded or exempt based on a claim of recycling, the material will no longer be excluded or exempt if ft is accumulated speculatively prior to recycling; also, respondents in enforcement actions who make such a claim (e.g., generator, recycler) must be able to document a claim of legitimate recycling (see §261.2( 1)). “Materials noted with a ““ in column 3 of Table 1 are solid wastes when reclaimed. ” (emphasis added). O L&) - ------- 2 In the January 4, 1985 final rule on recycling, EPA acknowledged the £isks associated with accumulating hazardous secondary materials prior to reclamation (and chose a more stringent approach as a result; 501K 617); however, EPA also noted exceptions to this general rule 2 . In addition, when EPA promulgated the speculative accumulation provisions in the January 4, 1985 Federal Register . the purpose was to allow EPA to regulate certain secondary materials, intended for recycling, as solid wastes if the person claiming their waste was excluded did not recycle sufficient quantities of these materials within a calendar year. In the following preamble discussion, EPA explained that certain types of secondary materials, that are unregulated based on prospective recycling, can be brought back into Subtitle C regulation if these materials are overaccumulated prior to recycling: The (speculative accumulation] provision thus applies to secondary materials not otherwise considered to be wastes when recycled -- namely, to materials that are to be used as ingredients or as commercial product substitutes, to materials that are recycled in a closed-loop production process, to unlisted sludges and by-products that are to be reclaimed , and to black liquor and spent sulfuric acid being reclaimed. Thus, if one of these materials are overaccumulated, they would be consideTed to be hazardous wastes and would become subject to regulation... (emphasis added)(50 LB 635). Under the federal regulations, if characteristic sludges and by-products were regulated as solid wastes prior to reclamation (i.e., from point of generation to actual insertion into the reclamation process), then the speculative accumulation provision would be redundant and unnecessary for these specific materials. I would like to reiterate that respondents in enforcement actions who claim that a secondary material is excluded from the definition of solid waste based on recycling must be able to document a claim of legitimate recycling (see §261.2(f)). If the Agency believes that particular management practices involving excluded materials are contributing to the waste disposal problem, to the extent that the materials are clearly discarded (in other words, if the material is managed in such a way that it is essentially being disposed of), these materials would be considered to be solid waste. Finally, please note that under Section 3006 of RORA (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 2 ”Although accumulating hazardous secondary materials are ordinarily regarded as solid and hazardous wastes, this is not invariably the case...these materials would not be wastes if they can be recycled in certain designated ways, and if they are not accumulated speculatively before being recycled.” (emphasis added) 50 .E 634. ------- 3 their own program, the appropriate EPA Region 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 6926) states retain authority to promulgate regulatory requirements that are more stringent than federal regulatory requirements. If you have any additional questions or concerns, please contact me, or Ross Elliott of my staff (202/260-8551). Thank you for your interest in hazardous waste recycling. wran Office of Solid Waste cc: EPA Regional Waste Management Division Directors. Regions I-X ------- ( 9441.1993(09) FILE I I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY j WASHINGTON. D.C. 20460 4’ MAY 6 1993 o cuceoc SOUD WASTE AND EMERGENCY RESPONSE Mr. J. W. Eggenberger, Director Directorate of Disposal Management and Environmental Protection Defense Reutilization and Marketing Service Defense Logistics Agency 74 N. Washington Battle Creek, Michigan 49017-3092 Dear Mr. Eggenberger: Thank you for your letter of March 11, 1993, asking for assistance in identifying waste management options for zinc- carbon batteries that show low levels of leachable cadmIum. This letter summarizes several conversations between Mr. José E. Labiosa of my staff and Mr. Randy Smith of your staff. Current land disposal restrictions apply only to those cadmium wastes that leach cadmium above 1.0 mg/l, as measured by EP Toxicity Test. Wastes that leach cadmium above 1.0 mg/i, as measured solely by the TCLP, and that show cadmium levels below 1.0 mg/i, as measured by EP Toxicity Test, 1 are currently not covered by the land disposal restrictions. Assuming your zinc-carbon batteries are D006 wastes that are prohibited from land disposal, we must first determine which treatment requirements are applicable. In particular, should ycu meet a treatment level in 40 CFR 268.41 or must these batteries meet the cadmium-battery recycling standard in 40 CFR 268.42 (a)? (See June 1, 1990, 55 Fed. Reg . (22562-22563).) Zinc-carbon batteries are not subiect,to the cadmium-battery recycling standard. This determination is based on the informa- tion provided in the BDAT Background Document for D006 and in comments supporting the June 1, 1990 rule. EPA’s BDAT If your zinc-carbon batteries are hazardous solely because of cadmium levels above 1.0 mg/i (as measured by TCLP), EPA considers these wastes newly 3.dentified cadmiu.n wastes and therefore these wastes are not subject to the exist3ng 2 .a.nd disposal restrictions. See 40 CPR 268.1 (a) (3). EPA will, however, be proposing treatment standards for newly identified TCLP wastes later this year. ------- Background Document for D006 explicitly identifies on pages 2-6 three kinds of cadmium batteries subject to the recycling standard: cadmium-nickel, cadmium-mercury, and cadmium-silver cells. Comments from the National Electrical Manufacturers Association supported the recyclability of these types of cadmium batteries (see enclosed comment submitted on January 8, 1989, public comment number LD12-00218). Based on this information, EPA did not intend to include zinc-carbon batteries as part of the Cadmium Batteries treatability group. As a result, the treatment standard for D006 wastes based on stabilization (in 40 CFR 268.41) is applicable to your wastes. Although the recycling standard is not mandated for zinc- carbon batteries, you are not precluded from recovering zinc from these batteries. Per your request, we are enclosing a list of domestic and foreign facilities that recycle wastes containing high levels of zinc (albeit, mostly electric furnace dusts). It is our understanding that some of these recyclers can tolerate some levels of cadmium in the wastes. We certainly encourage the use of recycling technologies over stabilization technologies in order to reduce our dependency on land disposal. If you have any questions regarding this determination, please contact Mr. Richard lUnch, Chief of the Waste Treatment Branch, at (703) 308-8434 or Mr. José E. Labiosa, Staff Engineer, of the Waste Treatment Branch, at (703) 308-8464. We crust this information will be helpful in assessing your waste Inana ement options for your zinc-carbon batteries. Enclosures: (1) Comment LD12-00218 (2) List of Zinc Recovery Facilities Sincerely, rector Office of Solid Waste ------- 9441.1993(10) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 JUN 2 1993 OFFICE OF SOUD WASTE AND EMERGENCY RESPONSE John C. Chambers MCK & cuneo 1575 Eye Street NW Washington, DC 20005 Dear Mr. Chambers: - This letter responds to your January 15, 1993 request for an EPA determination regarding the regulatory status of disulfide oil produced by your client, Merichem Company, and which jg burned in a sulfuric acid furnace. Based on the information contained in your letter and information provided in the March 9, 1993 meeting between you, Mr. Kirby Boston and members of my staff, I concur with your view that the disulfide oil used in the manufacture of sulfuric acid is not a solid waste. In reaching this determination, we evaluated many aspects of both Merichem’s process that produces the disulfide oil and the use of the material in the production of sulfuric acid. There are several aspects of this situation that appear to have RCRA implications, many of which focus on the regulatory distinction between a by-product and a co-product. An analysis of these aspects will illustrate this pDint. To begin, differentiating between a by-product and a product (including a co-product) is sometimes difficult and involves consideration of many factors. The disulfide oil, and its subsequent usage, have characteristics of both a by-product and a co-product. For example, the Agency generally considers a product to be a material that is fit for end use (or which requires only minimal processing to become usable). A material that must itself be further processed would generally be considered a by-product. While Merichem has stated that the disulfide oil is a product fit for end use in the production of sulfur acid because of its sulfur content, the Agency would normally consider such “use” to be better characterized as further processing, in which case the material is more like a by-product. However, other factors must also be considered and weighed before a final determination is made because this material does not fit neatly into any single category. In evaluating the disulfide oil as a by-product material being reclaimed, the material would not represent a typical situation because it provides both material value (sulfur content) and fuel value (an average of 16,000 BTU/lb) in its use as a feedstock. nj_•__.__ ._ ------- 2 Because of this characteristic, the regulatory status (by-product V. co—product) of the material has particular importance, Under current regulations (see Table I in 40 CFR 2612), a characteristic by-product that is reclaimed (or used as an ingredient) is not a solid waste. However, a characteristic by-product that is burned for energy recovery is a solid waste and subject to regulation as a hazardous waste, subsequently requiring a RCRA permit for an industrial furnace to be able to burn the by-product. And, while you have stated that the main purpose of burning the disulfide oil is as a raw material providing sulfur value, it would seem that, because the sulfuric acid manufacturer has more to gain from its use as a fuel, the disulfide oil would more appropriately be considered a material burned for energy recovery. In evaluating the material as a product (or, more specifically, a co-product), the disulfide oil provides Merichem with revenues and is managed to prevent release (i.e., it is managed as a valuable commodity). As for its marketability, the disulfide oil is uniquely suited for its use as a feedstock in the manufacture of sulfuric acid, providing both energy and material value. As such, the disulfide oil appears to have a guaranteed market. Based on the information you provided, the only Appendix VIII constituents present in the disulfide oil are those commonly found in commercial fuels, thus raising little concern of unforeseen hazardous contaminants being burned. And, as you have indicated, the disulfide oil must meet product specifications as required by the sulfuric acid rnanufacturer. After considering all of the above factors, the Agency has determined that the disulfide oil does not meet the definition of solid waste when used in the manufacture of sulfuric acid (although its use is not necessarily limited to sulfuric acid manufacturing). Therefore, the burning of the disulfide oil would not require a RCRA permit. This determination is also based on the understanding that the material will continue to be handled to prevent releases and otherwise managed in a manner indicative of a product. I hope this letter adequately addresses your concerns. As you know, State regulatory programs may be more stringent than the Federal program. Therefore, I suggest you also get confirmation of the regulatory status of the disulfide oil from the appropriate State regulatory agencies. Thank you for y ur interest in the RCRA program. /,heput Dir ctor V Of fi a of olid Waste ------- 9441.1993(11) w UNITED STATES ENVIRONMENTAL PROTECTION AGENCY j WASHINGTON, D.C. 20460 4L,ROd JUN 30 1993 MEMORANDUM SUBJECT: Clarification of RCRA Regulatory Application to Soils Contami e Cement Kiln Dust FROM: Sylvia K. Lo nc Director Office of Soli ste (OS- Lisa K. Friedm Associate Gene Counsel Solid Waste and Emergency Response Division (LE-132S) TO: Robert L. Duprey Director Hazardous Waste Management Division Region VIII This memorandum is in response to your memorandum dated March 9, 1993, in which you seek clarification of whether soils which are contaminated by constituents from cement kiln dust (CKD), and which, as a result, fail the toxicity characteristic leaching procedure (TCLP), must be managed as RCRA hazardous waste. As you know, Section 3001(b) (3) (A) of RCEA exempts CKD from regulation under RCRA Subtitle C pending a Report to Congress and subsequent determination of whether the waste should be regulated under Subtitle C. The exemption for CKD means that CKD cannot be regulated as hazardous waste under Subtitle C prior to the Report to Congress and subsequent regulatory determination, even if it exhibits one of the characteristics of haz rdous waste identified at 40 CFR Part 261 Subpart C.’ With respect to CKD-contaminated In the 1991 Boilers and Industrial Furnaces (BIF) Final Rule 56 FR 7134 (February 21, 1991), EPA specified the extent to which CKD wastes from cement kilns that burn hazardous waste would still be subject to the Bevill exemption. See 40 CFR S 266.112. Since it is our understanding that, regardless of whether the CKD was produced by a kiln that burned hazardous waste, the CKD at issue in (continued...) Printed en RecycJed Paper ------- soils described in your letter that exhibit the•TC because of that CKD contamination, we believe that the statutory exemption must be read to exempt those soils from regulation under Subtitle C of RCRA. The rationale for this interpretation of the Bevill amendment is that the CKD exemption remains with the CKD, even when it migrates into soils, provided that the exempt CKD is the only reason that the contaminated soil would, absent the Bevill amendment, be considered a RCRA hazardous waste. As a result, the contaminated soil would, in effect, be Bevill exempt. ( Chemical Waste Management V EPA , 869 F.2d 1526, 1537—1540 (D.C. Cir. 1989) and Solite V EPA , 952 F.2d 473, 493—494 (D.C. Cir. 1991).) The Agency faced a similar issue in its regulatory determination for mining waste, and the approach taken in this memorandum is similar to the Agency’s mining waste determination. In the Mining Waste Exclusion; Final Rule (54 FR 36592, September 1, 1989), the Agency states, with respect to mixtures of Bevill wastes and non-Bevill wastes, that if “the mixture exhibits one or more hazardous characteristics exhibited by the Bevill waste, but not by the non-excluded characteristic waste, then the mixture would not be a hazardous waste.” 54 FR at 36622. Similar logic applies to the situation described in your memorandum. If the contaminated soils are exhibiting the TC because of the presence of CKD constituents, then the Bevill exemption applies to the contaminated media. However, if the soil is hazardous for reasons other than CKD contamination, then the contaminated soil is not excluded from Subtitle C requirements by the Bevill amendment. In light of the above discussion, a couple of issues concerning the contaminated soils described in your memorandum must be clarified prior to confirming their regulatory status. First, do the metals that cause the soil to exhibit the TC come from the CKD itself or was either (1) the CKD mixed with a listed or characteristic hazardous waste bearing such metals prior to being brought into contact with the soil or (2) did the soil already exhibit the TC prior to being contaminated by CKD? If the metals in the CXD are not the reason for the soil xhibiting the TC, then the contaminated soil would not enjoy the Bevill exemption from RCRA Subtitle C requirements. 1 (•• continued) your inquiry was generated and deposited on the ground before the effective date of the BIF rule, that rule, and specifically the provision at 40 CFR § 266.112, would not be applicable. Of course, for CKD generated after the effective date of the BIF rule, section 266.112 would have to be consulted to determine whether the CKD would retain the Bevill exemption. ------- A second question, which you have also raised, is whether it is possible that secondary mobilization is taking place, such that constituents in the CKD are not directly causing the contaminated soil to exhibit the TC, but rather, that the pH of the groundwater in contact with and affected by the CKD is causing otherwise non-available metals in the soil to become mobilized and thus cause the soil to fail the TCLP? We are still taking this issue under consideration, and have not conducted a complete analysis at this time. If you have any comments or further questions, please have your staff contact either Mark Badalamente (OGC, 202-260-9745) or Bill Schoenborn (WMD, 703-803-8483) of our respective staffs. ------- 9441.1993(12) ST4p I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 au CJ# JUN 30 1993 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORMIPUM SUBJECT: Regulatory Status of s e treams from Searles Lake operations 1_.. / FROM: Sylvia K. Lowra , i o Office of Solid Wa .t TO: Jeffrey Zelikson, Director Hazardous Waste Management Division, Region 9 This is to follow up on my February 14, 1992 memo to you regarding the status of certain wastes at Searles Lake brine mining operations. On May 8, 1992, the California Department of Toxic Substances Control requested a reconsideration of our interpretation regarding four waste steams, based on additional information, and a clarification regarding one additional waste stream. This memo fully addresses California’s 1992 letter. As has been agreed to with your office, please share these final conclusions with the appropriate personnel at California EPA. As you may recall, in the February 14, 1992 memorandum to Region 9, we stated that oil from: (1) the Argus plant waste oil storage tank, (2) the Trona plant oil skimmer, (3) the Trona oil skimmer waste oil storage tank, and (4) the Trona plant extractant (crud) treatment process all were wastes from solvent extraction operations, which are beneficiation operations (40 CFR 261.4(b)(7)). Therefore, the waste oil retains the Bevill exemption. However, based on further review of additional information provided by California and the facility, and also my staff’s June 1992 site visit to Sear].es Lake, we now agree with California’s conclusion that the oils from 1, 2, and 3’are clearly from machine maintenance operations, not from the solvent extraction operation. As such, these wastes are not uniquely associated with mining or mineral processing operations. (See attached February 14, 1992 memorandUm for discussion on uniquely associated wastes.) Therefore, we believe the oils from (1) the Argus plant waste oil storage tank, (2) the Trona plant oil skimmer, and (3) the Trona oil skimmer waste oil storage tank are not, nor have ever been, exempt under 40 CFR 261.4(b) (7). Printed on Recycled Paper ------- With respect to the Trona plant extractant (crud) treatment process, based upon our analysis, we believe that mineral processing begins at LLX2, at the point where boric acid is created. In particular, the basic operation at LLX2 is to selectively extract boron compounds from the brine and then react it with sulfuric acid to form boric acid. The latter part of the operation——where sulfuric acid reacts with sodium borate to produce boric acid--results in products and wastes that are physically and chemically dissimilar to the material that entered the operation——that is, the naturally occurring mineral has been destroyed and a new and relatively pure chemical compound has been created (see 54 36619, September 1, 1989). In addition, the waste from this operation is relatively small volume and highly toxic, compared to the large volumes/low hazard waste that is considered to be “special waste” (see 54 36595, September 1, 1989). The brine is discarded prior to this point and, therefore, retains the Bevill exemption as a waste from beneficiation operations. however, the waste oil from the Trona plant extractant (crud) treatment process is generated after mineral processing begins and, therefore, does not retain the Bevill exemption under 40 CFR 261.4(b) (7). The May 8, 1992 letter from the California Department of Toxic Substances Control also asks for clarification as to the exempt status of the boiler ash pile. My February 14, 1992 memorandum stated that: “waste generated from the combustion of fossil fuels are exempt from RCRA Subtitle C regulations (40 CFR 261.4(b)(4)). Therefore, the boiler ash pile qualifies for the Bevill exemption.” We agree with California that the boiler ash does not qualify under the same exemption as do beneficiation wastes under 40 CFR 261.4(b) (7); rather, the ash is a product of fossil fuel combustion that is exempt only under 40 CFR 261.4(b) (4). I hope this clarification is of help to you and to the State. I have attached a copy of the Searles Lake briefing that my staff prepared. It provides the in-depth analysis and evaluation that led to our above interpretations. Your staff, as well as California EPA’s, might find this detailed explanation useful. If your staff has any questions, please call Mr. Robert Tonetti, Chief, Special Waste Branch at 703—308—8424. Attachments ------- tO 3 ’I P UNITED STATES ENVIRONMENTAL PROTECTION AGENCY / WASHINGTON. D.C. 20460 ‘ ( a.d(t FEB I4I9 SO ’D V ST aNO EMERGEP.ICV RESPONSE ME MOR lDUM SUBJECT: RegulatOrY Status of W s Str ams from Searles Lake operations ..., .. f . FROM: Sylvia K. Lowraflc!iJP 4LtdZ1 Office of Solid Wa t .7 . I TO: Jeffrey Zelikson Director Hazardous Waste Management Division, Region 9 In reference to the July 12, 1991 letter (attached) from John 7. Kearns, California Toxic Substances Control Program, to Administrator Reilly regarding the regulatory status of waste streams from Kerr-McGee Chemical Corporation (CC) Sear les Lake operations, and subsequent discussions with Rich Vaille of your staff, I would like to provide you our analysis of the regulatory status of nine categories of wastes and/or waste management devices. (While the incoming letter from the state requests our assistance in determining whether or not the specific wastes or waste management devices in question are exempted from federal regulations because they are recycled or are recycling devices, it was decided that it would be more appropriate to address the Bevill status of these wastes--that is, to the extent these wastes or waste management devices are considered Bevill wastes or Bevill units, they are exempt from federal hazardous waste control whether or not the waste is recycled or the unit is a recycling device.) My staff has reviewed a number of documents provided by the California Department of Toxic Substances Control (DTSC), 1Q(CC, and the current operator of the Searles Lake facility North American chemical Company (NACC). These documents include 101CC’ s responses to DTSC’S and EPA’s specific q estiona about the Searles Lake operations. Each NACC plant at Searles Lake (namely, Trona, Argus, and westend) has a number of complex chemical operations. In addition to generating mineral extraction, beneficiation, and processing wastes, it appears that each plant also generates some wastes that are not “uniquely associated” with mineral extraction, beneficiation, or processing. ------- The concept of “uniquely associated” has been used cons 1 stently by the Agency as a factor in determining which wastes would remain under the Bevill Amendment. (See 45 76619, November 19, 1980 and 54 36616, September 1, 1989.) The Bevill exclusion does not apply to solid wastes such as discarded commercial chemicals; they are not uniquely associated with mineral extraction, beneficiation, or processing. Discarded commercial chemicals include finished mineral-derived products generated at these plants but found to be off-specification and, thus, are discarded. Other wastes not uniquely associated with mineral extraction, beneficiation, or processing include many cleaning wastes (such as a spent commercial solvent that was used in cleaning production vessels) and used lubricating oils. Wastes that are not uniquely associated with mineral extraction, beneficiation, or processing may be subject to RCPA Subtitle C if they are characteristically hazardous or they are listed as hazardous. The promulgated rule applicable to the mixture of a characteristic hazardous waste with a Bevill-exempt waste or other solid waste states that such a mixture may be hazardous waste (see 54 36622 September 1, 1989 40 CFR 26l.3(a)(2)(i)). From the available information, it is clear that many exempt and non-exempt waste streams are mixed at various points in the Searles Lake operations. However, in a recent court ruling, the Bevill rule applicable to mixtures was remanded to the Agency. As a result, the Agency is currently considering how to respond to the court’s decision. One option the Agency is considering is to alter the current rule to allow mixing of small volume characteristic hazardous wastes with Bevill-eXemPt wastes. If the resulting mixture were not to pose any significant increased risk to human health or the environment, then the mixture would be an exempt waste. However, any such reconsideration would have to go through Agency rulemaking. The following is our interpretation based on our current rules of the regulatory status of NACC’S nine categories of wastes and/or waste management devices: 1 — Boiler Ash Pile Waste generated from the combustiox of fossil fuels are exempt from RCRA Subtitle c regulations (40 CFR 261.4(b) (4)). Therefore, the boiler ash pile qualifies for the Bevill exemption. 2 — Lime Waste Piles From the available information, the operation that generated the waste appears to be a calcining operation. EPA has defined calcining as a beneficiation operation (40 CFR 261.4(b) (7)). 2 ------- Therefore, the lime waste pile qualifies for the Bevill. exemption, 3 — Trona/ zgus Solid Chemical Waste Pile (Scwp); and 4 — Westend Solid Chemical Waste Pile (SCWP) From review of available information, the wastes in these SCWPs appear to consist of: (1) wastes from Bevil l-exempt benefjcjatjon operations (40 CFR 261.4(b)(7)); (2) nonexempt mineral processing wastes (i.e., mineral Processing wastes not on the list of 20 exempt wastes (40 CFR 261.4 (b)(7)(i)—(xx)); (3) wastes not uniquely associated with mineral extraction, beneficiatjon, or processing (e.g., discarded commercial chemicals); and (4) other discarded materials. Mixing some of these wastes (if any are characteristic or listed hazardous wastes) with Bevill-exempt waste or other solid waste may result in the mixture being a hazardous waste (40 CFR 261.3 However, insufficient information is provided to allow the Agency to determine whether waste mixtures in the Trona/Argug and Westend SCWPs are hazardous wastes. Note that under the current rule, the act of mixing a hazardous waste with a Bevill-exempt waste or other solid waste may also require a Subtitle C permit if treatment of the hazardous waste is occurring because of the mixing (see definition of treatment at 40 CFR 260.10). (Note: See also earlier discussion of EPA’s reconsideration of the rule regarding mixtures of characteristic and Bevill exempt wastes.) 5 — Percolation Pond Wastes disposed of at the percolation pond come from three effluent sources: the Trona plant, the Argus plant, and the Westend plant. Each plant generates a number of separate waste streams that Cumulatively make up the plant’s effluent. The largest volume waste stream in each plant is spent brine while smaller-volume waste streams include floor washings, vessel cleanouts, and other sources. Some of these smaller-volume waste streams are not uniquely associated with mineral extraction, beneficiation, or processing. If these non-uniquely associated wastes are characteristically hazardous, then under the Agency’s promulgated rule applicable to mixtures, mixing them with Bevill- exempt wastes (such as brines) may result in the mixture being hazardous. Similarly, mixing a nonexempt mineral Processing waste with an exempt beneficiation waste (such as brine) may result in the mixture being hazardous, (ifote: See also earlier discussion of EPA’s reconsideration of the rule regarding mixtures of characteristic and Bevill exempt wastes.) According to recent EPA rulemakings, all wastes generated after mineral processing begins are considered either mineral processing wastes or wastes that are not covered by Bevill because they are generated the operations that process an 3 ------- ore or mineral. Mineral processing wastes do not retain the Bevill exemption unless they are one of the 20 permanently exempt mineral processing waste. (None of the wastes at Searles Lake are among the 20 permanently exempt mineral processing wastes.) In order to determine the exempt status of each of these effluents, it is necessary to determine where in each plant’s operations beneficiatiOn ends and mineral processing begins. Trona Plant Based on available information, mineral processing begins at step LLXZ where sulfuric acid is added to the NCS/sodium borate mixture to produce sodium sulfate and boric acid. The sodium borate is acid-digested by the sulfuric acid to produce two new compounds, namely sodium sulfate and boric acid. This acid digestion is the start of mineral processing operations (see 54 36618). Wastes generated before this step, including spent brine, are beneficiatior% wastes and subsequently retain the exemption. As discussed above, wastes generated during or after the LLX2 step are either mineral processing wastes or wastes that are not covered by Bevill because they are generated after the operations which process an ore or mineral. Regardless, these wastes do not retain the Bevill exemption. Araus Plant From the information provided, it appears that the operations AP1 through AP16 at the Argus plant are beneficiation operations because they are primarily washing, dissolution, crystallization, and filtration (40 CFR 261..4(b)(7)). Therefore, - the spent brine and other beneficiation wastes generated from the Argus plant are Bevill-exempt wastes. Westend Plant Mineral processing begins at step WB5 where, similar to the boric acid production at the Trona plant, sodium borate is acid- digested using sulfuric acid to produce two new compounds, namely sodium sulfate and boric acid. This acid digestion is the start of mineral processing operations (see 54 36618). Wastes generated prior to this step, including ppent brine, are beneficiation wastes and subsequently retain the exemption. Wastes generated during or after the W35 step are either mineral processing wastes or wastes that are not covered by Bevill because they are generated after the operation of processing an ore or mineral. These wastes do not retain the Bevill exemption. 4 ------- The anhydrous sodium sulfate production operation at WB7 is a beneficiation operation because it is primarily crystallization and filtration (40 CFR 26l.4(b)(7)). Therefore, the spent brine generated from WB7 is a Bevill-exempt waste. 6 — Oil Skimmer (Trona Plant); 7 — Oil Skimmer Storage Tank (Trona Plant); and 8 — Argus Plant Waste Oil Storage Tank The waste oils from these three units are wastes from solvent extraction operations, which are beneficiation operations (40 CFR 26l.4(b)(7)). Therefore, the waste oil retains the Bevill exemption. 9 — Extractant (Crud) Treatment Process The extractant (crud) treatment process treats waste oil from the solvent extraction unit at the Trona Plant. As previously stated, waste oil from the solvent extraction unit is a beneficiatiOfl waste. Residuals from the treatment of beneficiation wastes are also beneficiation wastes. Therefore, wastes from the extractant (crud) treatment process retain the exemption. (It should be noted that the State is not precluded from applying its own waste oil standards to the oily wastes generated at the Searles Lake facilities.) I hope this is useful in your efforts to determine the regulatory status of the wastes at NACC Searles Lake. If your staff needs to discuss this matter further, please contact Robert Tonetti of my staff at (703) 308—8424. 5 ------- ,tO ST4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 3 WASHINGTON. D.C. 20460 9441.1993(13) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE AUG 041993 MEMORANDUM Subject: Response to Request for Comment on Draft Region IV Guidance: Regulatory Status of Plastic Chips from Reclamation of Lead-Acid Batteries From: Michael J. Petruska, Chief Regulatory Development Branch To: G. Alan Farmer, Chief RCRA Branch Waste Management Division Region IV In response to your memorandum of July 8, 1993 requesting comment on the regulatory status of plastic chips from reclamation of spent lead-acid batteries, I have reviewed your draft guidance and believe that overall it correctly characterizes the issue regarding the regulatory status of this materials. I have several brief comments for your consideration in this matter. 1. I agree with your interpretation that plastic chips from spent lead-acid batteries are appropriately classified as spent materials. The chips meet the definition of a spent material because they are no longer fit for their original purpose to act as a casing for a battery. 2. On page two of the draft memorandum on the last paragraph it states: “The plastic and debris generated from the battery cracking operation cannot be considered a “by-product” because the cracking operation is not a production process”. I recommend deleting this language because we have included materials as by-products that are not part of a production process. Although it is true that the regulatory definition of by-product includes the phrase “is 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” (40 CFR §261.1(c)(3)), EPA has viewed the by-product category as a catch-all category that includes most materials that are not spent materials or sludges (48 FR 14476, April 4, 1983). Thus, this category may include materials that are generated from non-production processes. Printed on Recycled Paper ------- 2 I also recommend that Section I on pages of 6 and 7 be revised to remove language in paragraphs 2 and 3 of the Section discussing by-products. This language is contrary to our idea of by-products as a catch-all category and is not necessary to state that the chips are spent materials. 3. On pages 2 and 7, under the identical sentences read “Off-site recyclers or other parties storing the characteristic plastic are subject to storage requirements under 40 CFR Parts 264 and 265’, please add “Section 26 1.6(c) and” between “40 CFR” and “Parts 264 and 265”. 4. On page 4, 1 recommend that the text under lead reclamation briefly describe the regulatory status of smelting (i.e., BIF exempt under metal recovery exemption), since you have described the regulatory status of cracking. Although it is true that reclamation is a form of treatment, this fact does not change the regulatory status of these operations and thus does not seem necessary here. 5. Although experience and common sense indicate that the intermediate materials generated in battery cracking generally do exhibit characteristics, the Agency has not specifically identified these wastes as hazardous (i.e., through listing). Thus, in any individual situation technically these materials are regulated as hazardous wastes only if the specific waste in question exhibits a characteristic. I recommend that the first paragraph of Section A (text and quotation) on page 3 and the discussion of lead plates/oxide on page 4 be revised to reflect this fact. You might say that you believe these materials generally exhibit characteristics and make the caveat that the regulatory discussion assumes this. 6. On pages 6 (Section G) and 8 (Section K) the derived-from rule is used to classify residues from treatment of characteristic wastes. Although the derived-from rule may technically apply to these wastes, it is generally much cleaner just to say that solid wastes that exhibit characteristics are hazardous wastes under 40 CFR 261(3)(a)(2)(i). In other words, it doesn’t matter whether solid wastes are derived-from treatment or not, if they exhibit characteristics they are hazardous. Because of this and the recent difficulties with the derived-from rule, I would recommend revising the text accordingly. 7. On page 8, under “M. Battery Acid”, the draft guidance reads “If the battery acid ‘is both corrosive and toxic for lead, then treatment in a neutralization tank is regulated”. I recommend changing this to read “Battery acid that is both corrosive and exhibits a toxicity characteristic for lead may be neutralized in generator accumulation tanks in accordance with 40 CFR §262.34 standards”. ------- 3 8. The summary of regulatory status and the guidance as a whole should include a discussie of Part 268 Land Disposal Restriction requirements as they pertain to spent lead-acid batteries and the recently promulgated containment building standards. Given the record of mismanagement of battery breakers from improper placement of battery casings in waste piles on site, this section should be emphasized. 9. I recommend that you confer with Region II where they have also been dealing with this issue. We have referred a control to them on this issue. The contact person is Abdul Jabbar (212) 264-0683. I hope that these comments are of some assistance. If you have questions regarding any of the comments in this memorandum, please contact Paul Borst of my staff at (202) 260-6713. ------- ,ID 5T 4 i w UNITED STATES ENVIRONMENTAL PROTECTION AGENCY \ ) WASHINGTON. D.C. 20460 9441.1993(14) SEP I 1993 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Frank J. Prasil, III Recycled Printer’s Ink, Inc 1101 Jefferson Avenue Knoxville, TN 37917 Dear Mr. Prasil: Thank you for your letter dated November 12, 1992, describing your proposal to remanufacture (i.e., recycid) waste printer’s ink from sheet fed lithographic printers. We also appreciated the opportunity to meet with you on several occasions, most recently on August 10, 1993, to learn more about your proposed ink recycling operation. In your letter, you specifically asked if there were any special permits needed to remanufacture used printer’s ink. I apologize for the delay in responding to your question. The federal law that governs hazardous waste management is the Resource Conservation and Recovery Act (RCRA). The regulations which implement this law are found at Title 40 of the Code of Federal Regulations (CFR), Parts 260 through 272. Below I will outline some of the more important parts of the federal RCRA regulations that may pertain to your proposed waste ink recycling process. In order to establish whether and how the waste ink recycling process you propose is regulated under RCRA, it is important to determine 1) whether or not the waste ink meets the definition of RCRA hazardous waste as defined in 40 CFR Part 261, 2) if hazardous, how the recycling process itself is regulated, including hazardous waste storage and the management of recycling residues, and 3) how the RCRA regulations may differ for hazardous waste received exclusively from Conditionally— Exempt Small Quantity Generators (CESQGs). - Hazardous Waste Determination A solid waste is defined as a hazardous waste if it meets any of the listing descriptions in 40 CFR Part 261, Subpart D, or if it exhibits any of the characteristics in 40 CFR Part 261, Subpart C. You stated in your letter that your proposed recycling process will be accepting waste ink from sheet—fed lithographic printers. Based on the information you provided, the waste ink is defined as a spent material (40 CFR 261.1(c) (1)), which is being reclaimed. Spent materials that are to be reclaimed are defined as solid waste (40 CFR 261.2(c) (3)). You stated that in general the waste ink is currently being Pnnled on Recycled Paper ------- managed by printers as ignitible hazardous waste, and that it may also contain solvents used to clean the equipment during printing operations. Based on the information you provided, the waste ink appears to meet the definition of non—acute hazardous waste either by 1) exhibiting the characteristic of ignitability (DOOl), or 2) by meeting a spent solvent listing in Section 261.31 (FOOl — F005), depending on what types of solvents are used to clean the ink machines. If the used ink does not meet the definition of hazardous waste, the hazardous waste regulations would not be applicable. Regulation of Hazardous Waste Recycling Assuming that the waste ink is hazardous waste, the RCRA regulations pertaining to hazardous waste recycling are found in 40 CFR Sections 261.2, 261.6, and Part 266. According to 40 CFR 261.6(c), no federal RCRA permit is required to recycle hazardous waste. However, owners and operators of recycling facilities that store hazardous waste prior to recycling it must a obtain RCRA permit for the storage of that hazardous waste (40 CFR 261.6(c)). You indicated to my staff that you would not be storing the waste ink prior to recycling, but would instead be inserting it directly into the recycling process. If there is no storage prior to recycling, you would not need a RCRA storage permit, but would instead be subject to the requirements in 40 CFR 261.6(c)(2). In situations where hazardous wastes are received from of f site but are held temporarily prior to being recycled, the determination of whether or not the recycling facility requires a RCRA storage permit (i.e., is “storage” occurring) is a site-specific one; this type of determination should be made by the agency responsible for implementing the RCRA program (i.e., authorized State or EPA regional office) in the state where the proposed recycling facility will be located. Also, according to 40 CFR 261.6(c), a hazardous waste recycling facility is required to notify under RCRA Section 3010 (and obtain an EPA ID number) regardless of whether or not a RCRA permit is required for that facility. Obtaining an EPA ID number helps ensure that the waste can be transported from the generator to the recycler/storage facility in compliance with the hazardous waste manifest requirements. Management of Residues from Recycling It appears that the waste ink you will be recycling may carry a hazardous waste listing (e.g., FOOl — F005). In previous discussions with my staff, you had indicated that your proposed recycling process would not generate any residues that would be defined as wastes, and would therefore not be “derived—from” ------- 4 listed hazardous wastes. 1 The materials that you stated could possibly be produced from the ink reclamation process (besides the recovered ink itself) include reclaimed solvent, distilled water, or a water/solvent mixture, depending on the type and configuration of the recovery equipment. At our meeting on August 10, 1993, you indicated that at present you are considering recovering the water/solvent mixture, that then would undergo some minimal processing (i.e., addition of surfactants) and be sold back o the printers for use as a cleaner in the printing process. For any of these situations, the residues would need to be legitimate products in order to be excluded from the definition of solid waste (and therefore not be hazardoub waste). While the EPA is very familiar with the example of spent solvents attaining “product status” once they are reclaimed, the other examples you cited (specifically, the distilled water and the decanted water/solvent mixture) are less clear. Legitimacy determinations regarding the status of reclaimed materials as products are typically made on a case—specific basis by the agency implementing the RCRA program (e.g., authorized state or EPA region). Factors that may be considered include how similar the recovered material is to the virgin product it is replacing (in terms of both it’s value and the presence of hazardous constituents not normally found in the virgin product), and whether there are any product specifications that apply to the solvent/water mixture you are “producing” from your reclamation process. I have enclosed some information that should help explain some of the criteria EPA would use in evaluating these types of situations. Reauirements for CESOG Waste In your letter, you indicated that 80% of sheet-fed lithographic printers are conditionally-exempt small quantity generators (CESQG5). As you know, the amount of hazardous waste generated per facility per calendar month determines a generator’s category, which in turn affects the degree of regulation under RCRA of both the generator and the waste itself (40 CFR Part 262). By definition a CESQG generates less than 100 kilograms of non—acute hazardous waste per month. Alternatively, ‘In the derived—from rule it states “materials that are reclaimed from solid wastes and that are 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.” 40 CFR 261.3(c) (2) (ii) 2 You stated that the printers typically use a commercially available water/solvent mixture to clean the printing machine, and that this reclaimed material would replace that virgin product. ------- if a printer generates between 100 and 1000 kilograms of hazardous waste, they are defined as a small quantity generator (SQG); and if the printer generates more than 1000 kilograms of hazardous waste, they are defined as a large quantity generator. Small and large quantity generators are subject to more substantive requirements outlined in 40 CFR 262.34. The printer, as generator, is responsible for calculating the total amount of hazardous waste (not just hazardous waste ink) his or her business generates during each and every month. You should be aware that the amount of hazardous waste generated per month may vary, and thus the applicable regulatory requirements for the generator and the waste itself may also vary from month to month. Assuming that a printer is a CESQG, the hazardous waste ink is subject to reduced RCRA requirements, provided the printer complies with the conditions of that exemption as described in 40 CFR 261.5(g). These conditions include (but are not limited to) complying with 40 CFR 262.11 (hazardous waste determination), limitations on the storage of CESQG waste at the generating facility to less than 1000 kilograms, and ensuring delivery of the CESQG waste to one of the types of facilities listed in 40 CFR 261.5(g) (3), which includes “a facility which beneficially uses or reuses, or legitimately recycles or reclaims its waste” (40 CFR 261.5(g) (3) (v) (A)). If you anticipate operating a hazardous waste recycling facility under reduced requirements because you only receive CESQG hazardous waste, it is important that you understand that the reduced regulatory requirements for CESQG hazardous wastes are contingent upon the actions and determinations of many small generators, perhaps in several states, over which you would have limited control. For example, there may be sheet-fed lithographic printers generating waste ink in authorized States where CESQG waste is regulated more stringently than under the federal RCRA regulations; or, some printers that are not CESQG5 (either knowingly or unknowingly) might send their waste ink to your facility for recycling. If as a recycler you collect any hazardous waste ink from non—CESQG5 (e.g., one shipment from a SQG or LQG), then the hazardous waste ink (and your recycling facility) would be subject to the applicable requirements described earlier in this letter under “Regulation of Hazardous Waste Recycling”. Summary EPA supports sound and legitimate recycling of hazardous waste wherever possible, and we laud your efforts to develop an alternative to the disposal of hazardous waste ink. EPA also wants to ensure that hazardous waste recycling occurs in a safe manner in full compliance with applicable federal and State requirements. You have suggested that the operation you propose may not be commercially viable if certain RCRA regulations apply. We are certainly concerned that the RCRA regulations may be ------- discouraging environmentally sound recycling projects. As you know, a Definition of Solid Waste Task Force was formed last fall to address these kinds of issues. Your attendance at the Solid Waste Forum last April in Washington D.C., and the information you provided Nancy Bacon—Brown of the Task Force during the meeting on August 10, 1993, was very much appreciated. I have described how the federal hazardous waste recycling regulations would apply to the proposed recycling operation as described by you in your letter and in subsequent conversations with my staff. Please note 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 a State is not authorized to administer its own program, the appropriate EPA Region 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. In addition, if you still have questions concerning how the Department of Transportation (DOT) regulations apply to your situation, I would encourage you to continue dealing with DOT. DOT operates a hazardous materials helpline in Washington, D.C. at (202) 366— 4488. If you have questions about the information in this letter, please contact Ross Elliott or Ann Codrington of my office at (202) 260—8551. Thank you for your innovative ideas. Sincerel Act Di ector, Of ice of Solid Waste enclosures ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 9441.1993(15) SEP 14 1993 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Iraj Yazdanpanah Environmental Manager Price Pfister mc, 13500 Paxton Street P.O. Box 4518 Pacoixna, California 91333-4518 Dear Mr. Yazdanpanah, This letter is written in response to your August 27, 1993 letter to Mitch Kidwell requesting a regulatory determination regarding brass particles generated in the belting and buffing of brass castings. Your assessment of the Federal regulations under the Resource Conservation and Recovery Act (RCRA) is correct. A scrap metal exhibiting a characteristic of toxicity (e.g., lead) is subject to regulation as a hazardous waste. However, if the scrap metal is to be reclaimed it is a exempt from RCRA regulation. As to whether the waste stream containing the brass particles generated at your company’s Mexicali, Mexico facility meets the definition of scrap metal, EPA Headquarters is unable to make such a determination. Such determinations are case—specific and are more appropriately made by the EPA Regional office (or State regulatory agency). Therefore, I am forwarding your letter to Mr. Jeffrey Zelikson, Director of the Hazardous Waste Management Division in the EPA Region 9 office. You may write to him at US EPA Region 9, 75 Hawthorne Street, San Francisco, California 94105. Also, I encourage you to contact the appropriate State regulatory agency. Sincerely, Michael J. Petruska Chief Regulatory Development Branch ! RscycIedlR.cyclabu. r . \ PII,flid w ith 8oyi anoI. m i ------- tO Sr 41 I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 3 WASHINGTON. D.C. 20460 4 9441.1993(16) OFF,CE O SOL.IO WASTE AND EMERGENCY RESPONSE SEP 5 1993 MEMORANDUM SUBJECT: Clarification of RCRA Reg’latory Application to Soils by Cement Kiln Dust FROM: .fery D. Denit, Acting Director Office of Solid Waste TO: Terry L. Anderson, Chief Hazardous Waste Branch EPA Region VIII This memorandum responds to your memorandum of July 27, 1993, in which you request additional clarification of the regulatory status of soil contaminated by cement kiln dust (CICD). You asked if soil contaminated with CKD is removed during a corrective action, would a hazardous waste determination for the soil be made using all current applicable regulations? More specifically, you asked whether the two-part test provision of 40 CFR 266.112 applies retroactively to wastes disposed in units that ceased operations prior to the effective date of the BIT rule in a manner similar to the way hazardous waste listings apply to wastes disposed in units that ceased operations prior to the effective date of the listings? It is not necessary to make a hazardous waste determination f or CKD-contaminated soil using the two-part test provision of § 266.112. The situation you describe where CKD-contaminated soil is remediated during a corrective action is not analogous to that of applying hazardous waste listings retroactively to wastes disposed in units that ceased operations prior to the effective date of the listings. In the latter situation, we are simply determining whether the waste that was previously disposed meets the listing description. In the former situation, we are interpreting the scope of the Bevill amendment to wastes pruduced from an industrial process that co-processes RCRA hazardous wastes. Moreover, the new regulatory provisions of § 266.112 replace the Agency’s position that was described in the Federal Register notice of November 29, 1985 in footnotes 87 - 89 (which said that wastes from co-processing remain covered by the Bevill amendment), and as new regulatory provisions, they do not apply retroactively. (3 U V\ ------- If you have any comments or further questions, please have your staff cofltact either Steve Silverman of the Office of General Council on 202—260-7716 or Richard lUnch of the Waste Management Division on 703—308—8434. ------- ,iO 5i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 9441. 1993(17) SEP 20 1993 OPF ICEOF SOLID WASTE AND EMERGENCY RESPONSE Mr. Jeffrey T. Miller, Director Environmental Health and Government Affairs Lead Industries Association, Inc. 295 Madison Avenue New York, New York, 10017 Dear Mr. Miller: This letter is written as a followup to your meeting with my staff on April 6, 1993. The Agency has recently completed review of materials submitted by the Lead Industries Association Inc. (UA) on spent solder baths, also known as “pot dumps.” Based on the information provided on pot dumps by LIA, EPA has determined that these materials, in general, meet the definition of scrap metal.’ Thus, when these materials are reclaimed, they are currently not subject to regulation under 40 CFR Parts 262 through 266, or Parts 268, 270 or 124 (40 CFR §261.6(a)(3)(iv)). However, you should also note that respondents to enforcement actions who raise a claim that scrap metal is not subject regulation because it is being reclaimed must be able to demonstrate that the material is actually reclaimed: “Respondents in actions to enforce regulations implementing Subtitle C of RCRA who raise a claim that a certain material is not a solid waste, or is conditionally exempt from regulation must demonstrate that there is a known market or disposition for the material and that they meet the terms of the exclusion or exemption. In doing so, they must provide appropriate documentation ...to demonstrate that the material is not a waste, or is exempt from regulation [ emphasis added]. In addition, owners or operators of facilities claiming that they actually are recycling materials must show that they have the necessary equipment to do so.” (40 CFR §261.2(f). 1 “Scrap metal is bits and pieces of metal parts (e.g., bars, turnings, rods, sheets, wire) or metal pieces that may be combined together with bolts or soldering (e.g., radiators, scrap automobiles, railroad box cars) which when worn or superfluous can be recycled. 40 CFR §261.1(c)(6). Spent solder baths are generally solid pieces of metal that do not contain a significant liquid component when removed from the bath. They are also different in both physical form and content than process residues such as sludges, slags and drosses. If a material is a scrap metal, it does not matter whether it is a spent material or by-product. This letter clarifies the January 7, 1992 letter from Don Clay to you which indicated pot dumps were spent materials. __._l , .4 O ...,. ------- You should also note that the Agency still considers scrap metal to be a solid waste, regardless of whether the scrap metal is being disposed of or recycled (50 FR 624; January 4, 1985). In addition, when the scrap metal exemption was originally promulgated, it was stated that the EPA needed to study “...types of scrap metal and types of management practices further before deciding on an appropriate regulatory regime (if any)”. The effort currently underway by the Definition of Solid Waste Task Force may eventually lead to proposed rule changes for solder residues and other exempt or excluded secondary materials such as scrap metals, unlisted sludges and by- products being reclaimed. In the meantime, we encourage your membership to manage lead pot dumps being recycled in a manner that minimizes potential releases to the environment. We encourage your membership not to store spent pot dumps or other solder residues on the ground or uncovered such that lead constituents of the material may leach into soil or surface water or become airborne if the material is in a dispersable form. Such a release may be considered abandonment through disposal and may cause the solder residues to become subject to RCRA Subtitle C regulation. 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. If you have any additional questions regarding this matter, please contact Mike Petruska of my staff at (202) 260-8551. Sincerely, Office of Solid Waste ------- , DST4% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 9441.1993(18) SEP24 1993 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Eli Hoffman Technical Advisory Services 358 Rolling Rock Road Mountainside, New. Jersey 07092-2 120 Dear Mr. Hoffman: This letter is written in response to your letters of March 13, 1992; January 16, 1992, and October 7, 1991. EPA regrets the delay in responding to your inquiries. The Agency has recenily completed review of materials submitted by the Lead Industries Association Inc. (LIA) on spent solder baths also known as “pot dumps”. As you know, EPA has previously provided guidance on the status of skimmings, sometimes called “solder dross” and the enclosed letter provides guidance on pot dumps. Based on the information we reviewed, EPA has determined that pot dumps generally meet the definition of scrap metal (40 CFR §261.1(c)(6)) and therefore are not currently subject to regulation when reclaimed (see enclosed letter from Jeffery D. Denit to Jeffrey T. Miller, dated September 20, 1993). I hope this information is helpful. If you have any additional questions regarding this matter, please contact Paul Borst of my staff at (202) 260-8551. Sincerely, Michael J. Petruska,, Chief Regulatory Development Branch Enclo’sure ‘ RicyclsdlRecyclabl. P ,In d witti SoyIc.noS Ink on pops tMt cont ,ls 1us$: 50% r.cydsd fib ------- o e UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 9441.1993(19) SEP 21 1993 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Catherine A. Marshall Capitoline International Group, Ltd 1615 L Street, N.W. Washington, D.C. 20036 Dear Ms. Marshall: Thank you for your letter of March 22, 1993, to Sylvia K. Lowrance concerning the used oil regulations, and the management of rags and wipers under the Resource Conservation and Recovery Act (RCRA). I apologize for the delay in responding to your questions. In your letter, you requested concurrence from the Environmental Protection Agency (EPA) regarding your interpretation of the status under RCRA of disposable and launderable industrial wipers, based upon specific preamble language from the September 10, 1993, final rule on used oil management (57 LB 1 41566), and subsequent conversations with EPA staff. The specific preamble you referred to (57 ER 41585) stated: After separating used oils from other materials or solid wastes, the remaining materials or solid waste must be managed in accordance with any and all applicable RCRA requirements. The generator must determine whether or not the materials that previously contained used oil exhibit a characteristic of hazardous waste...and, if so, manage them in accordance with RCRA controls. If the material does not exhibit a hazardous characteristic (and is not mixed with a listed hazardous waste) then the material can be managed a solid waste. In your letter you stated that our interpretation of this preamble language was that “if either a wiper or a rag exhibited a hazardous characteristic after used oil (that exhibited a hazardous characteristic) was removed, the wiper or rag would have to be managed in accordance with applicable Subtitle C regulations.” (Emphasis original). (It is our understanding that you are using the term “wiper” to mean disposable items and “rag” to mean launderable items.) I would like to clarify that in this preamble language, EPA Q RecycI.dlR.cyclable -.... paper that contain, at least 60% recyatsd fiber ------- was describing the regulatory status under RCRA of . ny material or waste’ that at one point is mixed with (or otherwise contains) used oil, but which has subsequently been separated from the used oil. In this preamble language, EPA was trying to clarify that when a material is no longer regulated as used oil, the generator has a continuing responsibility to determine a material’s status under the RCRA hazardous waste regulations. In other words, just because a material was once regulated as used oil does not mean it cannot subsequently become subject to the hazardous waste regulations. On the other hand, materials do not automatically become regulated as hazardous waste simply because they once contained used oil and now exhibit a characteristic. The materials must first meet the definition of solid waste, which may not include materials, for example, that are immediately reusable after used oil has been removed from them, or certain by-products or sludges that are going to be reclaimed. With regard to the regulatory status of wipers and rags, whether or not a used wiper or rag contains listed hazardous waste, is mixed with listed hazardous waste, only exhibits a characteristic of hazardous waste, or is not a waste at all, is dependent on site- specific factors; this is not a new policy. There are currently several ongoing activities within EPA that may affect wipers or rags. In the Office of Solid Waste (OSW), the Definition of Solid Waste Task Force is examining the definition of solid waste regulations. As part of our ongoing dialogue with industry, environmental groups, State agencies, and EPA Regions, the Task Force has been evaluating the RCRA regulations affecting launderable wipers, as well as disposable wipers. In addition, OSW has been dealing with the issue of wipeys as we continue our efforts with the Hazardous Waste Identification Rule. As you may recall, EPA requested and received comment on alternative approaches .for addressing wipers contaminated with listed solvent (May 20, 1992 Federal Register ; 57 .E 21474); this proposal was later withdrawn, but OSW is continuing work on health-based criteria for “entry” and “exit” to the RCRA requirements. Finally, the Office of Water will be gathering data to support the development of effluent guidelines for industrial launderers, which handle certain types of reusable wipers. Information obtained from this effort may provide OSW with a better understanding of the laundering associated with reusable wipers. Your discussion about the domestic sewage exclusion, in the context of whether or not RCRA permits are required by industrial laundries receiving launderable wipers, was not entirely clear. You stated in your letter that the domestic sewage exclusion applies “only at the point a waste is generated.” In fact, the domestic sewage exclusion applies to domestic sewage, and to hazardous waste that mixes with domestic sewage and is conveyed by a sewer system to a Publicly-Owned Treatment Works (POTW). The domestic sewage exclusion could potentially apply to wastewater discharges from an industrial laundry (or j y facility) that are conveyed through a sewer system to a POTW. Alternatively, because industrial laundries are not defined as POTWs, hazardous waste mixed with domestic sewage conveyed by a sewer system to an industrial laundry would .n i be excluded. ‘In other words, not solely rags or wipers. ------- I hope that this information has been helpful. If you have any additional questions on the used oil regulations, please call Ross Elliott at (202) 260-3152. If you have any questions on the issue of industrial wipers/towels, please contact Charlotte Mooney at (202) 260-8551. Thank you for your interest in the safe management of hazardous waste. Sincerely, Office Waste ------- IO IT% t% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 \L ,RøI 9441. 1993(20) OCT 22 1993 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. John A. Clutter Marathon Power Technologies P.O. Box 8233 Waco, Texas 76714-8233 Dear Mr. Clutter: Thank you for your letter of May 20, 1993, concerning the regulatory status of used nickel-cadmium batteries under the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations. I understand that you also discussed your questions in comments that you submitted on the Universal Wastes proposal (58 FR 8102, February 11, 1993). As you recognize, many of the issues that you raise are integrally related to issues we are addressing in the development of the final Universal Wastes rule. I believe it is most appropriate to address these issues together in a holistic manner so that the impacts of each can be viewed relative to the whole universal wastes program. Thus, we will respond to the issues you have raised in the final universal wastes rule. Two of the questions you asked, however, can be answered generally outside of the context of the universal wastes rule. First, you presented your interpretation that under the federal RCRA regulations used, vented, nickel-cadmium batteries that are returned to the manufacturer for regeneration (or eventual recovery) are not solid wastes because, although you agree they are reclaimed, you believe they do not fit into any of the categories of recycled secondary materials discussed in 40 FR 261.2(c). The 40 CFR 261.2(c) regulatory structure that defines which recycled secondary materials are solid wastes, however, is based on the premise that.all recycled secondary materials fit into one of the five categories. Nickel-cadmium batteries that have been used and can no longer be used for the purpose for which they were produced best fit into the category of spent materials. Thus, under 40 CFR 261 .2(c)(3), used nickel-cadmium batteries are solid waste when sent for recovery or regeneration. Second, the vented nickel-cadmium battery repair process as generally described in your letter (replacing damaged separator material and electrolyte) appears to be the kind of process the Agency intended to exempt from regulation under 40 CFR 261.6(a)(3)(ü). As discussed in the preamble to the proposal for that Q Rscyclid/Rcyclabli aJ & ufth Ssyicwiols Ink on pops ’ that sontins at 1 1150% mg .J.d fibs, ------- 2 provision (48 FR 14496), the Agency intended to exempt activities that are similar to recycling commercial chemical products, and specifically mentioned replacing electrolyte and damaged cells. Based on your description, replacing damaged separator material appears to be a similar type of operation in that malfunctioning parts of the battery are being replaced. Please note, however, that beyond this general discussion of the federal RCRA regulations we are not able to address the specifics of your situation. The battery regeneration regulations are implemented by authorized state agencies (or the appropriate EPA regional offices), who are in a better position to assess the specifics of your process and to determine how the hazardous waste regulations apply. Thus, you should contact the agency that implements these regulations in the states in which your plants are located to determine how these regulations may be applicable to your specific activities. Please note also that state hazardous waste regulations may be more stringent than the federal regulations. Thank you for your efforts to inform my staff of the details of your system and for your interest in environmentally protective management of waste batteries. Please contact Charlotte Mooney, of my staff, at (202) 260-6926 if you have any additional questions. Sincerely, Acting Director, Office of Solid Waste ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 9441. 1993(21) OFFICE OF kIfl 1 I “DC’ SCUD WASTE AND EMERGENCY riuY I I. RESPONSE Mr. Ronald L Andes Marathon Oil Company 539 South Ma n Street Findlay, OH 45840-3295 Dear Mr. Andes: Thank you for your letter of August 23, 1993, in which you inquired about your plans to insert Dissolved Air Flotation (DAF) float into a petroleum coker. You asked about the regulatory status of the DAF float storage tank used to feed the material into the petroleum coker. I apologize for the delay in responding to your letter. You stated in your letter that the DAF float is not a solid waste because it is used as a raw material, and therefore is excluded from the definition of solid waste. However, based on the information you provided, the DAF float is a solid (and listed hazardous) waste. Under the current regulations in 40 CFR 261.2(e)(2)(ii), “Materials burned for energy recovery, used to produce a fuel, or contained in fuels...” are solid wastes and therefore not excluded from regulation under RCRA. You also stated that the DAF float would not be a solid waste based on the American Mining Congress decision (American Mining Congress v. EPA, 824 F. 2d 1177 DC. Cir. 1987). EPA is currently in the process of taking final action on portions of the January 8, 1988, propbsed amendments to the Definition of Solid Waste (53 f 519). The Agency expects to promulgate a final rule to amend the Definition of Solid Waste by January 1994. Until we promulgate a final rule, we cannot answer your question in the context of the AMC I decision. In addition, you asked whether the wastewater treatment unit exemption at 40 CFR 264.1 would apply to the DAF float feed tank. Tanks which meet the definition of wastewater treatment unit are exempt from RCRA permitting per 40 CFR Sections 264.1(g)(6) and 270.1(c)(2)(v)). The definition of wastewater treatment unit consists of three parts enumerated at 40 CFR Section 260.10. First, the unit must meet the definition of “tank” or “tank system” in Section 260.10. Second, the unit must be receiving and treating or storing an influent wastewater that is a hazardous waste (or otherwise meet the criteria outlined in paragraph (2) of the wastewater treatment unit definition at Section 260.10). Finally, the unit must be part of a wastewater treatment 1X j’ Recyc l.d/Recyclabls J 9 PiIn d with SoyICanola Ink on D er u at CSfltiinS It 11111 50% lIcydid tibet ------- facility that is subject to 307(b) or 402 of the Clean Water Act; this latter requirement was clarified by EPA to include wastewater treatment units at facilities that 1) discharge treated wastewater effluent into surface waters or into a POTW sewer system, or 2) produce no treated wastewater effluent as a direct result of such requirements. It may be that the unit you described is an exempt wastewater treatment unit, provided it meets the definition in § 260.10. However, whether or not a unit feeding wastewater treatment sludge to a petroleum coker meets the wastewater treatment unit definition (particularly with respect to whether or not there is a wastewater discharge subject to 307(b) or 402 of the Clean Water Act), cannot be determined from the information you provided. Therefore, a site-specific determination should be made by the authorized State agency (or, if the State is not authorized, the EPA Regional office) that implemer ts the hazardous waste program in the State in which the facility is located. Thus, if you have site-specific questions, you should contact Mr. William E. Muno, Director, Waste Management Division, U.S. EPA Region V, 77 West Jackson Boulevard, Chicago, IL 60604-3507, or call (312)886-7579. If you have further questions about this letter, you may contact Ann Codrington of my staff at (202)260-8551. Sincerely, ;; 4_ _ i t E( ____ Bruce R. Weddle Acting Director, Office of Solid Waste cc: William E. Muno ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 4Lpqøt’ - 9441.1993(22) NOV 2 ;9s3 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Mark Eisen, Manager Environmental Marketing The Home Depot Two Paces West 2727 Paces Ferry Road, N.W. Atlanta, Georgia 30339 Dear Mr. Eisen: Thank you for your letter of September 28, 1993, to Administrator Browner expressing your concerns regarding hazardous contaminants in cement produced using hazardous waste fuels. As you know, under the Resource Conservation and Recovery Act (RcRA), the Environmental Protection Agency (EPA) does not currently regulate cement produced from ingredients (“clinker”) from kilns using hazardous waste fuels. The Agency does not consider such cement to be derived from a hazardous waste bas.d on the understanding that hazardous waste fuel residues do not end up in the cement product. We are, however, currently gathering additional information regarding such contaminants in conjunction with Agency effort to develop a Report to Congress on cement kiln dust. The Report to Congress is scheduled for publication on December 31, 1993. To date, we have no data indicating that there is a significant increase in risks posed by the use of cement produc.d from “clinker” from kilns using hazardous waste fuel relativ• to cement produced from “clinker” from kilns using conventional fuels. Should we determine that there is an increase in risk to human health or the environment presented by intermediate or final products produced by facilities using hazardous waste fuels, we would then consider ways to reduce those risks, including regulation. Note that when a cement kiln burns hazardous waste as a fuel, the burning process itself is subject to hazardous waste regulations, thus ensuring that the burning is protective of human health and the environment. In addition, there are cass where the cement product itself is subject to regulation. For example, when a hazardous waste is used directly as an ingredient (i.e., mixed in) in the production of cement, the cement product ------- must meet treatment standards based on the Best Demonstrated Available Technology (BDAT). So, there are regulatory safeguards to control risks to human health and the environment if hazardous waste is used as an ingredient in the production of cement. Thank you for your interest in ensuring that products produced by facilities in the burning of hazardous wastes fuels are safe. Sincerely, Bruce R. Weddle, Acting Director Office of Solid Waste ------- # 1E 8?% i’ i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 4j 9441. 1993(23) wov o OFFICE OF SOLID WASTE AND E ER ENCv RESPONSE Mr. Christopher L. Freed Chemical Waste Management, Inc. Manager — Environmental Regulations 3001 Butterfield Road Oak Brook, Illinois 60521 Dear Mr. Freed: Thank you for your letter of April 30, 1993 summarizing your meeting of April 29, 1993 with Richard Kinch of my staff. Upon further investigation of this issue since the receipt of your letter, however, it is clear that battery carcasses do not qualify as debris. They are considered to be containers, as explained below. As discussed in detail in the preamble to the final rule establishing alternate treatment standards for hazardous debris, intact containers are not debris, and hence are not subject to the treatment standards for debris. 57 FR 37225 (August 18, 1992). In addition, in previous ruleniakjrtgs EPA has stated that battery casings designed to hold free liquids for use other than storage are containers. i refer you specifically to 40 CFR 264.314(d) (3); 265.314(c) (3); and 55 FR 22637/2 (June 1, 1990). Thus, such intact battery casings are not debris. In your letter, you state that EPA suggested, elsewhere in the preamble to the final debris rule, that batteries could be debris unless they are subject to a specific treatment standard. I believe you have based this statement on the discussion at 57 FR 37222 and footnote 10, which gives “lead acid or cadmium batteries” as an example of a debris subject to a specific treatment standard. Unfortunately, you then draw the inference that because mercury batteries are not mentioned in this footnote, they are therefore debris. This is an incorrect conclusion. First, please note that the actual regulatory language does not contain the example of the lead acid battery. 57 FR at 37270. More important, as explained above, intact containers are never classified as debris. Consequently, the example in footnote io refers only to lead acid or cadmium batteries that are not intact. Such batteries would still not be subject to the treatment standards for debris because there is a more specific treatment standard 1 RecycIsd/R.cycIabIi (L. ) P.1m4 1th$oy n h* on pap.t m i. ------- for lead acid or cadmium batteries. The footnote does not, however, in any way vitiate the general principle that intact containers are not debris and that batteries are types of containers. I hope this response, based on a through examination of the issue of concern, is helpful. If you need further information, please contact Richard Kinch, Chief of the Waste Treatment Branch in our Waste Management Division at (703) 308—8434. Sincerely, Bru e)R. Weddle Act Sg Director Office of Solid Waste —2— ------- O SP4 t% UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY I ‘ WASHINGTON, D.C. 20460 J 1)4 PROItG’ 9441. 1993(24) DEC 221933 OcFICEOF SCUD WASTE AND EMERGENCY RESPONSE Mr. Mark Gorta Manager, Hazardous Chemicals and Waste New South Wales Environment Protection Authority P.O. Box 1135 Chatswood New South Wales 2057 Dear Mr • Gorta: Thank you for your letter (reference CH24O1) asking about the United States Environmental Protection Agency’s policies concerning battery disposal. As you indicated, we have in the past made a determination that lithium/sulphur dioxide (LiSo 2 ) batteries that have been fully discharged to zero volts do not exhibit the hazardous waste characteristic of reactivity. Such batteries could be disposed of in non—hazardous waste disposal facilities as long as they were not hazardous for some other reason. I have enclosed our letter from 1987 discussing this issue. Please be aware, however, that this determination was based only on information about lithium/sulphur dioxide batteries; we did not evaluate other types of lithium batteries. With respect to other portable batteries, under our regulations batteries are not specifically listed as hazardous waste, but are hazardous if they exhibit any of four characteristics; ignitability, corrosivity, reactivity, and toxicity. Hazardous wastes may be disposed of only at regulated hazardous waste management facilities. Generally, we are aware that batteries may exhibit the characteristic of toxicity if they contain sufficiently high concentrations of certain heavy metals such as lead (e.g., lead- acid batteries), cadmium (e.g., nickel-cadmium rechargeable batteries), and mercury (e.g., mercuric—oxide and some alkaline batteries). Other battery types may also exhibit the characteristic of toxicity if they contain sufficiently high concentrations of listed toxic constituents. It is also possible that some battery types may be hazardous due to exhibiting other hazardous waste characteristics. 1 J’ R.cycI.d RecycIabI. J with SoyI nola Ink On pine, that contains at ussut 50% rucycIed fibs, ------- 2 I hope this information is useful to you. If you have any further questions you may call Charlotte Mooney, of my staff, at (202) 260—6926. Sincerely, Michael 3. Petruska, Chief Regulatory Development Branch Enclosure ------- 1p ; tE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 4L.qØ%# 9441.1994(01) JAN 21 1994 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. James 14. Wright, President Woodbury Nissan Inc. 439 South Broad Street (#45) Woodbury, New Jersey 08096 Dear Mr. Wright: Thank you for your letter of December 23, 1993, to Administrator Browner concerning management of spent antifreeze. Under the federal Resource Conservation and Recovery Act (RCRA) hazardous waste regulations, antifreeze is handled the same as any other waste material; the generator of the waste is responsible for determining whether the waste is hazardous, and if it is, managing it in compliance with the hazardous waste regulations. As you are probably aware, spent antifreeze is not specifically listed as a hazardous waste and would be hazardous only if it exhibited one of the characteristics of hazardous waste. The characteristic most likely to be of concern for antifreeze is the toxicity characteristic (40 CFR 261.24) which tests for certain hazardous constituents, including heavy metals and organic chemicals. In your letter you mention a pending ruling on the hazardous waste status of antifreeze. You may be referring to a February, 1993, proposed regulation in which the Agency did request public comments on whether antifreeze might be appropriately managed under a different set of regulations than other hazardous wastes, but did not propose to change the status of antifreeze. In other words, antifreeze would still be hazardous waste only if it fails one of the hazardous waste characteristics. I have included a copy of the Federal Register notice in which comment was requested (see page 8109). You should be aware, however, that the New Jersey Department of Environmental Protection and Energy (NJ-DEPE) implements the hazardous waste program in New Jersey and that New Jersey’s state hazardous waste regulations apply in New Jersey in lieu of the federal regulations. I suggest that you contact Ralph Davis, of NJ DEPE’s Hazardous Waste Advisement Program, at (609) 292—8341 to discuss your situation and to get assistance in determining whether you are a regulated hazardous waste generator. NJ DEPE will also be able to assist you with information about getting your spent antifreeze recycled. Pnnted on Recycled Paper ------- I hope this information is useful to YOU. Thank you for your interest in environmentally sound manageme of spent antifreeze. Sincerely yours, jA MicI ael H. Shapiro, Director TY Office of Solid Waste Enclosure ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 9441.1994(02) FEB I 4 !994 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Industrial Wipers and Shop Towels under the Hazardous Waste Regulations FROM: Michael Shapiro, Office of Solid Waste TO: Waste Management Division Directors Regions l-X We have received numerous questions about the regulatory status of used industrial wipers and shop towels (“wipers”) under the Resource Conservation and Recovery Act (RCR.A) regulations from the users and launderers of these wipers, and the regulatory agencies responsible for implementing the RCRA regulations. In addition, ni inufacturers, marketers and users of non-reusable wipers (i.e., wipers that are not laundered, such as paper or other non-textile products) have been requesting clarification on the status of these materials as well. The purpose of this memorandum is to update you on this issue, and to reaffirm our policy regarding the regulatory status of these materials. Ongoing Efforts There are currently several activities Within EPA that may affect wipers. The Definition of Solid Waste Task Force, as part of their dialogue with industry, environmental groups, State agencies, and EPA Regions, has been evaluating the RCRA regulations affecting launderable and disposable wipers. In addition, OSW has been dealing with the issue of wipers as we continue our efforts with the Hazardous Waste Identification Rule. As you may recall, EPA requested and received comment on akernative approaches for addressing wipers contaminated with listed solvent (May 20, 1992 Federal Register ; 57 ER 21474); this proposal was later withdrawn. Finally, the Office of Water will be gathering data to support the development of effluent guidelines for industrial launderers, which handle certain types of reusable wipers. ------- Status oLU ed Wipers Whether or not the used wipers are hazardous waste under the RCRA regulations has been a recurring question. Because there are many applications of wipers, we cannot at this time make any generic statements that all wipers are hazardous waste, or that all are not. A material that is a solid waste is by definition hazardous waste if it either 1) meets one of the listings in 40 CFR Part 261, Subpart D, or 2) exhibits one or more of the characteristics described in 40 CFR Part 261, Subpart C. Because there are no explicit listings for “used wipers” in Part 261, Subpart D, a wiper can only be defined as listed hazardous waste if the wiper either contains listed waste, or is otherwise mixed with hazardous waste . Whether or not a used wiper contains listed hazardous waste, is mixed with listed hazardous waste, only exhibits a characteristic of hazardous waste, or is not a waste at all, is dependent on she-specific factors; this is not a new policy. As a result, any determinations or interpretations regarding this diverse and variable wastestream should be made by the regulatory agency (i.e. EPA Region or State) implementing the RCRA program for a particular State. This has been our long- standing policy. One of EPA’s concerns in determining whether the hazardous waste regulations apply to wipers in specific cases should be to prevent situations where someone is improperly disposing of spent solvents (or other hazardous wastes) by mixing them in with wipers, and then sending the wipers to a laundering facility or non-hazardous landfill. This activity is clearly not allowed under the federal regulations. However, wipers that merely pick up incidental amounts of solvents may be handled in a number of ways. I have enclosed policy documents from several States and one EPA Region regarding the identification and/or management of wipers, that provide examples of how some implementing agencies have developed workable approaches to this issue. If you have additional information, or have questions, please contact Charlotte Mooney or Ross Elliott at (202) 260-8551. Enclosures (4) cc: RCRA Enforcement Branch Chiefs, Regions I-X Regional Counsel, Regions l-X ------- .# ‘° 8Z% UNITED STATES ENVIRONMENTAL F ROTECTION AGENCY P )1 WASHINGTON. D.C. 20460 9441.1994(03) OFFICE OF SOLID WASTE AND EMERGENCY FEB I 8 I 4 RESPONSE Mr. Brian 3. Reed, President MELLCO 906 Ball Street Perry, Georgia 31069 Dear Mr. Reed: - Thank you for your letter of January 27, 1994 regarding the status of rainwater falling onto wood preserving process areas and its impact on future reports of hazardous waste generation by your company, MELLCO. First, let me take this opportunity to thank you for your contributions towards waste minimization. Your work in achieving the reductions stated in your letter are very substantial and will contribute significantly towards hazardous waste reduction on a national level. As you are aware, the current hazardous waste regulations which govern the management of wastes generated at wood preserving facilities include, in part, aqueous wastes which contact the drip pad. By definition, when rainwater contacts a drip pad, it likewise becomes a hazardous waste. Until it is recycled, it continues to be a hazardous waste. This generation quantity should currently be included in your monthly reporting requirements. I understand your concern that despite your recycling efforts under this regulation, you still will report considerable hazardous waste generation. This situation is an example of one of the problems associated with the hazardous waste management system. We are looking into corrections for such problems through the work of the Agency’s Definition of Solid Waste Task Force. In October 1992, the Environmental Protection Agency (EPA) created this Definition of Solid Waste Task Force to simplify our hazardous waste recycling program and to eliminate disincentives for safe recycling of hazardous waste. The Task Force has two primary goals: 1) reducing the complexity of the current Q jr RecycledlRecyclable Printed with SoyICanole Ink en paper that contalna at Iaaat 50% recycled fiber ------- definition, thereby minimizing the resources needed by EPA, States, and industry to enforce and comply with the rules; and 2) reducing the disincentives for safe recycling of hazardous wastes compared to similar virgin materials. Since July 1993, the Solid Waste Task Force has conducted a series of detailed, technical meetings with representatives from various interested groups. The Task Force will use this information, in conjunction with advice from other groups, to make regulatory change recommendations this year. We plan to address those issues in our Task Force recommendations. One possible action which could result is for the Agency to provide an exemption of wastes that are recycled. We are still looking into these issues. If you have any questions regarding specific issues being discnss d by the Definition of Solid Waste.Task Force, you should contact James Berlow on 202-260-8104. Sincerely yours, Michael Shapiro, Director Office of Solid Waste ------- tD IP% Ta UNITED STATES ENVIRONMENTAL PROTECTION AGENCY J WASHINGTON. D.C. 20460 4’ 9441.1994(04) MAR 2 2 199.:i Mr. T. L. Nebrich, Jr. Souo WASTE A O EMERGENCY AESPONSE Technical Director Waste echnology Services, Inc. 640 Park Place Niagara Falls, New York 14301 Dear Mr. Nebrich: I am pleased to respond to your letter of January 10, 1994, in which you requested clarification of the Agency’s “contained- in” policy. The specific question that you raise regards soil contaminated with a listed waste that is listed only because of its ignitability. You question whether the contaminated soil is still a hazardous waste when it is not ignitable. The example that you cite involves soil contaminated with U239. You also raise the same question for soils contaminated with other listed wastes (such as P003) that are listed solely for ignitability. As you correctly state in your letter, under the “contained— in policy”, the authorized state or EPA has the discretion to determine contaminant-specific health-based levels, such that if the concentrations of the hazardous vast. constituents were below those levels, the media would no longer be considered to contain the waste. The health-based levels used in making contained-in determinations are made on a site—specific basis. EPA has codified the contained-in policy for contaminated debris (see 57 FR 37225, August 18, 1992). In cases where the waste is listed only for ignitability, and the contaminated soil is not ignitable and does not exhibit any other characteristics, the contaminated soil may contain hazardous constituents and thereby contain the listed waste. The authorized state or EPA may establish health-based levels for any hazardous constituents present in the contaminated soil below which the contaminated soil wculd no longer contain the listed waste. For example, for a soil contaminated with F003 listed waste, the authorized state or EPA might establish contained-in determination levels for individual solvents as well for any metals that might be present. This interpretation Is consistent with the delisting process for wastes that are listed solely because they exhibit a characteristic. To make a delisting determination, the Administrator may examine additional hazardous constituents other than those for which the waste was listed (260.22(c) (2)). Dnnt d o’ Recycled Paper ------- I hope that this has helped to clarify the issues that you have raised. If you have any further questions, please contact Hugh Davis at (703) 308—8633. S ncerely, Mic a 1 Shapiro Di or, Office of Solid Waste ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 9441. 1994(05) s r 7 ‘3 ;qq OFFICE OF — SOLID WASTE AND EMERCZNCY RESPONSE MEMORAHDUM -. SUBJECT: ,, 1 ag 1 p Bev em fl FROM: i e ff piro, Director Of e of Solid Waste To: Robert L. Duprey, Director Hazardous Waste Management Division Region VIII This memorandum is in response to your July 9, 1993, memorandum to Matthew Straus regarding Region Vill’s interpretation of the Bevill exempt status of wastes at the Magcorp facility. We agree with you and Terry Anderson’s August 4, 1992, letter (attached) which states that the scope of the exemption is limited to the wastewater streams only directly related to the beneficiation and processing of the ore and not a combined waste stream of all wastewaters from the facility. In particular, in addition to beneficiation waste streams, EPA intended that only two waste streams--scrubber underf low process wastewater and scrubber liquor process wastewater——from the Magcorp facility specifically qualify as exempt mineral processing wastes. These waste streams are explicitly identified in the 1990 Mineral Processing Wastes Report to Congress (RTC). (See attached Chapter 11 on Magnesium Production.) EPA relied on a number of information sources in its evaluation, including the 1989 National Survey of Solid Wastes from Mineral Processing, EPA’s 1989 Trip Report to Magcorp’s Rowley facility, and review of all docket materials including comments from Magcorp. (These are attached for your information.) BaBed upon this evaluation, EPA intended to distinguish between Magcorp’s special waste streams and other aqueous vastewaters. Additionally, this exemption applies only to these wastes streams “as generated”, which means the point at which they are produced from the processing of the ore or mineral (see 54 g 36609, September 1, 1989). As applied to Nagcorp, this means that the exempt wastewaters are generated from the scrubbers and the exemption may be jeopardized if non-exempt wastes are commingled with the wastewaters. (X R.cycl.dlR.cydabto ------- 2 Magcorp states in its April 21, 1993, letter that the aggregate wastewater stream from the facility is a Bevi]I. exempt waste. This is inconsistent with to EPA’S statement ii, the preamble to the 2.989 rule that “ . . . the Agency (must) examine individual waste streams in order to determine whether current management practices are adequately protective of human health and the environment and whether individual Bevil]. wastes are amenable to Subtitle C controls” (see 54 36609, September 1, 1989). Further, in response to industry commentors’ assertion that segregation of waste streams would be impractical, the preamble to the 1989 rule states “(the fact that wastes are currently commingled at some point in the production (is] irrelevant to this determination, as are site-specific permit requirements” (see 54 36610, September 1, 1989). I would like to address the issue of the location of the sample that EPA took in its June 20, 1989, sampling visit. Magcorp states in its April 21, 1993, letter that EPA’S sampling team collected a sample of the combined waste stream from the main wastevater ditch downstream from the point of convergence of the component waste streams. Xagcorp claims that this sample location represented a composite of all aqueous waste streams directly associated with the purification and electrolysis process at its Rowley facility. We do not dispute that EPA took the sample at that location. Prior to EPA’s visit to the site, Magcorp indicated on page 5-5 of the survey that there were 4 separate inflows into the impoundment. When EPA arrived onsite to conduct sampling, the Agency, therefore, already understood that there were multiple inflows entering the impoundment. Further, the location of sampling, an open trench, was used by the Agency since access to previously indicated individual inflows was not possible. The fact that the Agency sampled a combined flow at that location does not convey any special status to the entire flow entering the impoundment. This issue was discussed in Chapter 12. of the 1990 Report to Congress. As discussed above, not all of the aqueous wastestreams associated with the purification and electrolysis process are exempt under 40 CRF 261.4(b)(7). EPA clearly distinguished between several of the Rowley facility’s aqueous vastewaters in Chapter 11, pp. 3—4 of the 1990 RTC (e.g., the second source of special waste—-scrubber liquor—-is differentiated from non contact cooling water which is not a special waste). This is supported by the 1990 Report To Congress statement that “(t)he impoundment is also used for disposal of several other aqueous waBtewater that are not special wastes from mineral processing operations (e.g., calcium repulp liquor, calcium chloride thickener, and additional beneficiation vastewaters) . . •uS with respect to volumes, EPA relied on Magcorp’s comments addressing the October 20, 1988, Notice of Proposed Rulemaking (53 41288) that approximately 2,465,000 metric tons cf process wastewater and 1,060,000 metric tons of non-contact cooling water (not a ------- 3 special waste, see above) were generated in 1988. While we understand that the volume of process wastewater includes aqueous wastes in addition to the two specifically identified by EPA in the 1990 Mineral Processing Wastes Report to Congress, our judgement led us to the conclusion that the great majority of this process vastevater does comprise the two special wastes. If in fact the Agency had more detailed information on volumes, we may have reached a different determination regarding the Bevil]. status of the two aqueous vastestreams. Your letter also states that when hazardous wastes are introduced into a Bevill. exempt waste stream the combined stream is subject to full Subtitle C requirements. The promulgated rule applicable to the mixture of a characteristic hazardous waste with a Bevill—exempt waste or other solid waste states that such a mixture may be hazardous waste if the resulting mixture exhibits a hazardous characteristic not exhibited by the Bevill waste alone (see 54 36622 September 1, 1989; 40 CFR 261.3(a)(2)(i)). From the available information, it is clear that several exempt and non-exempt waste streams are mixed at various points in the Nagcorp operations. Under EPA’s rules, the act of mixing a hazardous waste with a Bevill-exeapt waste, listed hazardous waste, or other solid waste may also require a Subtitle C permit if treatment of the hazardous waste is occurring because of the mixing (see definition of treatment at 40 CFR 260.10). Some of these waste streams mentioned in Terry Anderson’s letter, such as wastes from lab drains and vehicle maintenance, would be considered wastes that are not uniquely associated with mineral extraction, beneficiation, or processing. These wastes may be subject to R RA Subtitle C if they are characteristically hazardous or they are listed as hazardous. The concept of “uniquely associated” has been used consistently by the Agency as a factor in determining which wastes would remain under the Devil]. Amendment. (See 45 76619, November 19, 1980, and 54 I 36616, September 1, 1989.) The Bevill exclusion does not apply to solid wastes such as discarded commercial chemicals; they are not uniquely associated with minaral extraction, beneficiation, or processing. Other’ wastes not uniquely associated with mineral extraction, beneficiation, or processing include many cleaning wastes (such as a spent commercial solvent that was used in cleaning production vessels) and used lubricating oils. To summarize, based upon the information in ‘Perry Anderson’s letter concerning wastes produced at the Magcorp facility, and upon the Agency’s interpretation of the scope of the Bevill exemption, the following wastes would not be uniquely associated with mineral extraction, beneficiation, and processing and would not be exempt from R RA Subtitle C under 40 CFR 261.4(b) (7): ------- 4 washdown water from facility cleaning operations, lab drains, vehicle maintenance floor drains, used antifreeze, demineralized water plant discharge, surface runoff, cooling tower discharge, ethylene glycol from auto shop and cast house, and lubrication oils from compressor blowdown. According to the 1990 Report to Congress, at the Magcorp facility mineral processing begins with the addition of chlorine gas to the impure anhydrous magnesium chloride powder. Based upon interpretation of EPA’S rules, wastes generated after mineral processing begins do not qualify for the Bevill exclusion unless those wastes are one of the 20 mineral processing wastes under 40 CFR 261.4(b)(7)(i-xx). As previously stated, only two waste streams, specifically scrubber underf low process wastewater and scrubber liquor process wastewater from the !4agcorp facility qualify as exempt mineral processing wastes. Beneficiation wastes generated prior to the start of mineral processing wastes also qualify for the Bevill exclusion (see 54 36619, September 1, 1989.) In the July 1990 Report to Congress on Special Wastes from Mineral Processing, page 11-2 (attached), we identified two such waste streams. Specifically, the waste stream from the desulfation process and the waste stream from the boron removal process would be exempt beneficiation wastes. - In order to determine the status of the other waste streams mentioned in Terry Anderson’s letter, it would be necessary to determine specifically whether these wastes are generated prior to or after the start of mineral processing. We believe that it would be most efficient for the Region and state inspectors to make these determinations since they are the most familiar with )lagcorp’B current operations. I hope this is useful in your efforts to determine the regulatory status of the wastes at Magcorp. If your staff needs to discuss this matter further, please contact Bob Ball or Steve Hoffman of my staff at (703) 308—8424 or (703) 308—8413, respectively. Attachments ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 9441.1994(06) MAR 24 1994 OFcICEOF SOLID WASTE AND EMEMGENCV qESPONSE MEMORANDUM SUBJECT: Regulatory Status of Mercuric Chl alyst FROM: apiro, 0 ce f Solid Waste TO: k. Allyn M. Davis, Director Hazardous Waste Management Division Region V I This responds to your memorandum of January 6, 1994, requesting clarification of the definition of “spent material” as it applies to a mercuric chloride catalyst used by Borden Chemicals. According to your memorandum, Borden uses a mercuric chloride catalyst to promote a reaction of acetylene and hydrogen chloride in the production of vinyl chloride monomer. Borden removes the catalyst when it is partially depleted in mercuric chloride content. The partially depleted catalyst is then sent to Thor Chemicals in South Africa where the mercury is recovered from the catalyst and used to produce additional mercuric chloride catalyst. Borden’s claim, which was upheld by the State of Louisiana, is that the used catalyst does not meet the regulatory definition of “spent material” because the catalyst is not contaminated. While the regulatory language is not as clear as we would like it to be, we would view this material as a spent material. Under the regulations, 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.” We have consistently interpreted this definition as meaning “materials that have been used and are no longer fit for use without being regenerated.” 50 FR at 618 (January 4, 1985); 48 FR at 14476 (i pril 4, 1983). We thus consider “contamination,” as used in the definition of spent material, to be any impurity, factor, or circumstance which causes the material to be taken out of service for reprocessing (i.e., for treatment by reclamation). (See also 50 FR at 624, indicating that the reference to “contamination” was added to clarifS’ that a material such as a solvent may continue to be used for its original, though not identical, purpose and not yet be classified as a solid waste.) Similarly, we consider the part of the definition stating that a spent material “can no longer serve the purpose for which it was produced” as being satisfied ------- when the material i! no longer serving its original purpo e and is being reprocessed instead. EPA has consistently maintained this interpretation since the definition of spent material was promulgated. This is the only interpretation that makes environmental sense, since once used materials are taken out of service and sent for reclamation they pose the same potential risks and are handled in the same manner regardless of the reason they are taken out of service. Put in terms of a specific example, lead acid batteries that are taken out of service and sent to a lead reclaimer pose the same risks and are handled the same way no matter how much or how little they are contaminated, and no matter how much or how little the contamination contributed to the decision to stop using the battery in the first place. See United States v. Ilco In . 996 F. 2d 1126 (11th Cir. 1993), where the court held that all batteries sent to a secondary lead smelter for recovery were “spent materials” without regard for the reason the batteries were taken out of service. If Borden has used the catalyst and will no longer use it without it being reclarned, it is considered spent. Therefore, if, as you indicate, the depleted catalyst is giving up chlorine to become elemental mercury and as a result can no longer promote the reaction, it is a spent material. We view this whole depletion process as a type of “contamination” under the definition. Since the spent material is being reclaimed and exhibits a characteristic, it is therefore a solid and hazardous waste under the regulations. (40 CFR §261 .2(c)(3); g., supra. ) If you have further questions on this issue, please contact Mitch Kidwell or Becky Daiss at (202) 260-8551. ------- ,ID S UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON D.C. 20460 9441.1994(07) MAR 24 OFFICE OF SCUD WASTE MID EMERGENCY RESPONSE MEMORANDUM SUBJECT: Definition of S ent Material / ,I_/if qr,ijf FROM: I j i ’IYirec(or r4 ) Qf 3 5 of Solid Waste TO: Hazardous Waste Management Division Directors Regions I-X The purpose of this memorandum is to clarify when a secondary material meets the definition of “spent material’. 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 further processing.” 40 CFR §261. 1(c)(1). A number of EPA Regions have requested assistance from EPA Headquarters on making regulatory determinations for secondary materials that may meet the regulatory definition of spent material. For many secondary materials this determination is important because spent materials being reclaimed are solid wastes. 40 CFR §261 .2(c)(3). However, sludges and byproducts that exhibit a characteristic of a hazardous waste and commercial chemical products (whether listed or characteristic) are not solid wastes when reclaimed. 40 CFR §261.2(c). In particular, EPA Headquarters has been asked whether in order to meet the definition of spent material, a material must: 1) be spent as a result of contamination, and 2) be nonfunctional in the sense that it could not continue to be used for its original purpose. We have consistently interpreted this definition as applying to “materials that have been used and are no longer fit for use without being regenerated.” 50 FR at 618 (January 4, 1985); 48 FR at 14476 (April 4, 1983). We thus consider “contamination”, as used in the definition of spent material, to be any impurity, factor or circumstance which causes the material to be taken out of service for reprocessing. (See also 50 FR at 624, indicating that the reference to contamination was added to clarify that a material such as a solvent may continue to be used for its originals though not identical, purpose and not yet be classified as a solid waste.) ------- 2 Similarly, we consider the part of the definition stating that a spent material “can no longer serve the purpose for which it was produced” as being satisfied when the material is no longer serving its origiral purpose and i being reprocessed instead. EPA has consistently maintained this interpretation since it promulgated the definition of spent materiaV This is the only interpretation that makes environmental sense, since once used materials are taken out of service and sent for reclamation they pose the same potential risks and are handled in the sante manner regardless of the reason they are taken out of service. Put in terms of a specific example, lead acid batteries that are taken out of service and sent to a lead reclaimer pose the sante risks and are handled the same way no matter how many or how few physical and chemical impurities they contain, and no matter how much or how little the presence of impurities contributed to the decision to stop using the battery in the first place. See United States v. Ilco Inc. , 996 F. 2d 1126 (11th Cir. 1993), where the court held that all batteries sent to a secondary lead smelter for recovery were “spent materials” without regard for the reason the batteries were taken out of service. As another example, when a generator removes mercury-bearing thermostats from buildings as part of an upgrade to the building’s heating system, the thermostats could continue to be used for the remaining portion of their useful lives. However, assuming the generator intends to ship these thermostats to a reclamation facility for mercury recovery, these thennostats would be considered to be spent materials irrespective of the reason for their removal and the fact that the thermostats were potentially capable of being used as thermostats in another building. Background/Analysis Under RCRA Subtitle C regulations. a spent material is “any material that has been used and as a result of cont minatiOfl can no longer serve the purpose for which it was produced without processing.” 40 CFR §261.1 (c)(1). This definition was promulgated in the 1985 final rule amending the definition of solid waste. 50 FR 614, January 4, 1985. The preamble to the final rule makes it clear that the “as a result of contamination” language was added to avoid classifying as waste a used material that was actually being put to further direct use. 50 FR at 624. The preamble gives the example of a solvent that is not clean enough to clean circuit boards but still clean enough for use as a metal degreaser. See 50 FR at 650 (January 4, 1985), mdicating that spent batteries, spent mercury, spent acids and caustics remain subject to regulation when reclaimed regardless of the reason these wastes are removed from service, November 6, 1986 letter from Mart Straus ‘o H Bzura stating that copper etchants sent for reclamation were defined as “spent materials (i.e., materials that have been used [ sic] are no longer fit for use without being regenerated. reclaimed, or otherwise reprocessed).” See also April 14, 1989 letter from Stephen Cochran to Robert Oleszko indicating that ignitron tubes containing mercury sent for reclamation were spent materials irrespective of the reason that the tube was taken out of service. ------- 3 The reason the “as a result of contamination” language was chosen is because many spent materials such as solvents and spent activated carbon typically become spent because of impurities. The Agency did not intend to restrict the definition of spent materials to only those materials which became spent as a result of this type of contamination. On the contrary, in the same rule that the Agency defined spent material, EPA promulgated regulatory requirements under Subtitle C for spent lead-acid batteries being reclaimed. The Agency explicitly classified spent lead-acid batteries as spent materials in the final rule. 50 FR at 625. These batteries become “spent” for a variety of reasons (e.g., overcharging, frozen electrolyte, leakage) all of which EPA regards as being “contamination” for purposes of the definition. Regarding whether a material must be nonfunctional to meet the definition of spent material, the fact that a material çgj continue to be used for its original purpose is not relevant to the issue of whether or not it is a spent material when it is clear from the facts that the material will not be used but instead will be treated by reclamation . The mere potential for continued original use does not preclude a material from being defined as spent. As stated above, the fact that it is actually removed from service establishes, as to this generator, that it can no longer serve its original purpose. If all that were required to avoid RCRA Subtitle C regulation would be a showing that a secondary material could continue to be used, then generators would be able to circumvent RCRA simply through chnnging their operating practices to remove secondary materials just prior to that material being unfit for its original use. Thus, spent solvents that are heavily contaminated but might still be fit for metal degreasing (even though they were being sent to be regenerated into new solvents), spent lead-acid batteries that still had a charge (or were capable of holding a charge), and mercury-bearing thermostats removed from buildings sent for reclamation would not be subject to RCRA regulation in spite of the fact that the generator was no longer using the material but instead was sending it to be treated by reclamation. Clearly, this result is not consistent with the cradle-to-grave purpose of RCRA Subtitle C regulation. Used materials taken out of service and sent for reclamation also pose the same risks and are handled in the same manner regardless of the reason they are taken out of service. For this reason, EPA has consistently interpreted spent materials as including materials which could continue to be used for their original purpose but are, in fact, being taken out of service for reclamation, showing that for this generator they can no longer serve the purpose for which they were produced. 2 2 See May 20, 1987 letter from Matthew Straus to Peter Russell indicating that spent pickle liquor becomes a spcflt material/solid waste when it is removed from pickling line baths for reclamation regardless f it can continue to be used. See also July 15, 1990 letter from Sylvia Lowrance to Ralph Eschborn indicating that photographic fixer bath sent for reclamation is a spent material even though the solution could continue to be used as a fixer. ------- 4 Conclusion Because spent materials being reclaimed (or to be reclaimed) are within the detinition of solid waste, it is important to be able to distinguish among spent materials, other categories of solid wastes such as sludges, and products which are still in use that have not been discarded. Spent materials are distinguished from products and other categories of solid wastes in that they have been used previously and have been taken out of service and are going to be treated by reclamation. Examples of spent materials include spent lead-acid batteries, used mercury switches, spent solvents, spent catalysts and spent etchants. This memorandum states the Agency’s consistent interpretation of the existing regulations. However, EPA recognizes the issues regarding the regulatory definition of spent material and we may consider revising the regulatory definition in the future. If you have further questions on this issue, please call Mike Petruska of my staff at (202) 260-8551. cc: Susan Bromzn Susan O’Keefe NEIC, Frank Covington ASTSWMO, Tom Kennedy ------- itO UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 9441. 1994(08) MAR 301994 OFFICE OF SOLIO WASTE AND EMERGENCY RESPONSE Mr. T. L. Nebrich, Jr. Technical Director Waste Technology Services, Inc. 640 Park Place Niagara Falls, New York 14301 Dear Mr. Nebrich: Thank you fcr your letter of March 3, 1994, requesting clarification of the RCRA regulations as they apply to free flowing mercury which is distilled and then sold as an ingredient in an industrial process. The determination of whether a material is regulated as a solid waste under RCRA is made at the point of generation and is based in part on the manner in which the material is generated (i.e., whether it is generated as a by-product, a spent material, etc.). Unfortunately, your letter did not provide enough information on how the free flowing mercury is generated to make a specific determination regarding its regulatory status under RCRA. As a point of clarification, however, the fact that the free flowing mercury is distilled prior to sale as an ingredient does not, in and of itself, mean that the mercury is solid waste and not a commercial chemical product under RCRA. In particular, we have stated that metals that are suitable for direct use, or that only have to be refined to be useable are products, not wastes. 50 FR at 634 (January 4, 1985). In addition, I have enclosed a letter that specifically addresses the regulatory status of mercury with a high degree of purity, but must still undergo further refinement for a particular end use. The ulingredientI l exclusion that you refer to applies to materials that are not solid wastes when recycled. Under 40 CFR 261.3 (e) (1) (i), materials are not solid wastes when they can be shown to be recycled by being used or reused as ingredients in an industrial process, provided they are not being reclaimed. You ask whether a waste, which needs to be distilled prior to use as an ingredient, is ineligible for this exclusion and therefore must be identified as a hazardous waste and manifested. In general, a waste that undergoes reclamation (including distillation) prior to being used as an ingredient would not qualify for exclusion from RCRA regulation under §261.3(e) (1) Ci). However, the reclaimed mercury that results from distillation may Panted on Recycles, Paoer ------- 2 then qualify for the exclusion, provided that it can be used without further Processing or with only refining. As Previously noted, however, we cannot give you a specific answer to this question as it applies to the free flowing mercux.y referred to in your letter without further information on how the mercury is generated. Finally, you ask how the RCRA regulatjo 5 apply to free flowing mercury which is spent. Spent materials going for reclamation are regulated as solid wastes under RCRA. It is important to 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. For the tyoe of case-specific regulatory detei-m .yiatjon you are seeking, you should contact the appropriate state agency or EPA regionai off ice. If you have further genera’ questions on this or other RCRA related issues, you may call Mitch Kidwell at (202) 260-8551 or Becky Daiss at (202) 260-8718. Sincerely, David Bussard, Director Characteristic and Assessment Division Enclosure ------- J b 0 & UNITED STATES ENVIRONMENTAL PROTECTION AGENCY \ j WASHINGTON. D.C. 20460 9441.1994(09) APR I2!99 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mark Clements, Senior Chemist Compliance Services - ZEP Manufacturing Company 1310 Seaboard Industrial Boulevard, N.W. Atlanta, Georgia 30301 Dear Mr. Clements: This letter is in response to your January 7, 1994, correspondence regarding the testing of used filters in your Dyna Clean system. You posed several questions, given a scenario of a large truck maintenance operation with approximately 50 maintenance facilities nationwide, that are addressed below: 1) Is each separate maintenance facility obligated to test a representative used filter element to determine the regulatory status of their used Dyna Clean filters? According to federal regulations the testing of your filters is not necessary. Pursuant to 40 CFR 262.11, a hazardous waste determination may be made by using either knowledge of the waste or by using analytical methods. If the solvent used is a listed hazardous waste that is found under 40 CFR 261.31, then the filters are considered hazardous waste and no testing of the filters is necessary. If a solvent not listed in §261.31 is being used and this solvent does not come in contact with listed hazardous waste, the filter itself is not a listed hazardous waste. However, if the filters exhibit a characteristic after use, then they would be considered hazardous waste. The regulations contained in 40 CFR 261 Subpart C or an equivalent method approved by the Administrator under 40 CFR 260.21 can assist in the determining whether the waste exhibits a characteristic of toxicity, ignitability , corrosivity, or reactivity. 2) Could a nationwide random sampling of filters be tested to characterize the filters on a nationwide basis? Could the results of these random tests be used by the other facilities, under the heading of generator knowledge, as an aid in determining the status of their used Dyna Clean filters? Pnnted on Recycled Paper ------- According to your letter, Zep’s Dyna Clean parts washing system contains no hazardous materials in either its solvents or filters. The problem is that we do not know what material is being cleaned by the system. The material being cleaned appears to be the only possible source of contamination in your system. It is not possible to give a blanket exemption to a process of this nature as you have no control over the type of material that might be cleaned in this operation. A nationwide random sampling of filters would only be appropriate if all of your clients were operating your cleaning system in the same way on the same type of material. This gets us back to generator knowledge. If the generator knows that no TC hazardous substances are present in the material being cleaned, then the used filters and solvents from.the process would not be a RCRA hazardous waste. If the generator iB unsure whether TC hazardous substances are present, then representative samples of the filters and solvents should be collected and analyzed to verify their status under RCPA. This information then becomes the basis for future generator knowledge about the waste. If the waste proves non-hazardous, as long as the process or typeof material being cleaned doesn’t change, further testing should be unnecessary as documented generator knowledge has proven it does not pose a hazard. 3) How many used Dyna Clean filters should be tested? Given the answers above, if the facility wants to test its filters, we recommend guidance from local ( i.e . state or EPA regional) officials. EPA Headquarters cannot advise the facility of the precise number of filters that should be tested other than to say it must be enough to satisfy § 262.11. Assuming that the filters are not regulated as hazardous wastes, 40 CFR Part 260, sea. , the available disposal options are defined by the state, if it is authorized, in which the generator of the waste is located. You or your customer should contact the particular authorized state in order to ascertain this information. If the state is not authorized, the regional EPA office administers the hazardous waste program. EPA requires only that state programs be at least as stringent as the Federal program. States always have the option of being more stringent if they choose. 2 ------- I hope this information clarifies these issues for you. If you have any further questions, please contact Anthony D. Carrell of my staff by mail or at (202) 260-6607. Sincerely, David Bussard, Director Characterization and Assessment Division cc: Ken Gigliello, OWPE Waste Management Division Directors, Regions I-X 3 ------- sr 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D C 20460 It pnoltC 9441. 1994(10) MIIV _ bOO’l OFFICE OF SOLID WASTE AND EMERGENCy RESPONSE Mr. Scott Mauro Navy Facilities Engineering Service Center Code 423 560 Center Drive Port Hueneme, CA 93043-4328 Dear Mr. Mauro: Thank you for your letter of January 18, 1994, requesting information about regulatory requirements for on-site treatment of Oxygen Breathing Apparatus (OBA) canisters. Please note that this reply only concerns the federal hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA). The state in which the unit is being operated may have additional requirements. Also, we are not providing information with respect to air or water requirements under other environmental statutes; we can only discuss hazardous waste regulations. As I understand the process you are researching, used OBA canisters are inserted into an OBA rinsing unit, where they are punctured to remove the oxygen candle and to allow wash water to enter the canister. The canisters are flooded with wash water which, when spent, is pumped into a holding tank for treatment. The canisters are then rinsed and the rinsewater is reused. The rinsed cans are to be recycled as scrap metal, and the water treated in a largç holding tank and discharged into the sewer. Both the hazardous wastes which may be contained in the used OBA canisters and the water resulting from washing and rinsing activities may be subject to RCRA regulation. I will discuss the regulatory status of the used OBA canisters and the water resulting from cleaning the canisters separately. OBA Canisters Based on the information accompanying your letter, both the spent OBA canisters and/or component parts are likely to exhibit at least one characteristic of a hazardous waste, (e.g., DOOl-ignitability) as defined in 40 CFR 261 Subpart C. Compliance with the hazardous waste generator standards found at 40 CFR Part 262 is necessary for persons, who, by site, generate more than 100 kilograms of hazardous waste per calendar month. RecycledRecycable Printed will’ Soy’Canoia Ink on paper tra contains at least 50% recycled libor ------- 2 Generators may accumulate wastes on-site without a permit for 90 days or less before shipping the waste off-site to interim status or permitted hazardous waste management or recycling facilities, as long as they comply with the applicable requirements of 40 CFR Section 262.34. These requirements stipulate that the waste must be held in containers or tanks, and that the interim status requirements for containers and tanks be met (Section 265, Subparts I and J), as well as certain other requirements as outlined in S262.34. In your case, the process of emptying the canisters could be considered part of a recycling process (i.e., scrap teeI recycling). Recycling activities are exempt from RCRA regulation under 40 CFR 261.6(c) (except as specified in 40 CFR 261.6(d)). Also, if the canisters are to be recycled, the canisters themselves would be exempt from RCRA regulation under 40 CFR 261.6(a)(3)(iv). A determination of ignitability or any other characteristic would not be relevant if you are recycling the steel canister. If all of the materials generated by this process are being discarded (including the cans), then the process is n recycling, and may require a RCRA permit. Any liquids or contained gases removed from OBA canisters (or otherwise generated during the recycling process) may be subject to regulation as hazardous wastes if they are listed in Subpart D of 40 CFR Part 261 or if they exhibit any characteristics of hazardous waste as described in Subpart C of 40 CFR Part 261. To dispose of a canister as non-hazardous waste (rather than recycle it), a generator would have to determine that the can is empty under 40 CFR 261.7 (or that the product it contained was not hazardous), and that the can itself is not hazardous. If a canister is to be disposed, and either contains hazardous waste or is a hazardous waste, it must be managed under all applicable regulations. In addition, the process of puncturing and rinsing the canisters could no longer be considered exempt recycling, and might require a RCR.A permit (as described above). Other Wastes from Processing the Canisters Any wastes generated by the recycling process (e.g., sludges, wastewater, unwanted parts/pieces) would need to be evaluated separately to determine whether they are hazardous under RCRA. If hazardous, the requirements of 40 CFR part 262 apply with respect to these new wastes (e.g., storage in tanks or containers, and 90-day accumulation limits, etc.). In the case where this newly-generated waste is a wastewater, EPA exempts tanks from permitting requirements under the wastewater treatment unit exemption in 264.1(g)(6) and 270.1(c)(2)(v). The definition of “wastewater treatment Unit” consists of three parts enumerated at 40 CFR Section 260.10. First, the unit must meet the definition of “tank” or “tank system” also found in Section 260.10. Second, the tank must be receiving, treating, or storing hazardous wastewater. Finally, the facility must be subject to Sections 307(b) or 402 of the Clean Water Act; this includes ------- 3 wastewater treatment units at facilities that 1) discharge treated wastewater effluent into surface waters or into a Publicly-owned Treatment Works (POTW) sewer system, or 2) produce no treated wastewater effluent as a direct result of such requirements. Please be aware that this letter addresses only the federal hazardous waste regulations. Authorized State agencies implement the RCB.A program in their states (although some parts of the program may be implemented by the U.S. EPA Regions), and that state regulations may be more stringent than the federal regulations. You should contact the appropriate state environmental agency or U.S. EPA Regional Office to determine how the regulations of that particular state will apply to your activities. If you have questions about this letter, please contact Ann Codrington of my office at (202)260-8551. Sincerely, David Bussard, Director Characterization and Assessment Division ------- This Page Intentionally Left Blank ------- DEPARTMENT OF THE NAVY NAVAL FAC ESEN0EE NGSERV E CENTEM( Mr. Michael Shapiro OS-300 USEPA Director of the Office of Solid Waste 401 MStreetS.W. Washington D.C. 20460 Dear Mr. Shapiro, I am writing this letter to request that the EPA evaluate and provide the Naval Facilities Engineering Service Center (NFESC) with all regulatory requirements that apply concerning the introduction of a hazardous waste treatment technology. The proposed technology will reduce the amount of hazardous waste associated with Oxygen Breathing Apparatus (OBA) canister usage. The OBA canisters is used by fire fighters and is designed to generate oxygen via a chemical reaction. NFESC is currently developing a technology for treating spent and partially spent OBA canisters at the Naval Station in Norfolk Virginia and Mayport Florida. The feasibility of implementing this technology hinges on the regulations and permitting that will be required. Enclosed is a report summanzing the proposed technology for the on-site treatment process and a copy of the OBA canister MSDS. In addition, I have enclosed a copy of the Certificate of Analysis showing the constituents present in the triple rinse of the OBA canister. Currently, there is no other technology or source reduction measures available for used OBA canisters Development and implementation of a non-hazardous breathing apparatus is over five years away As an interim measure, NFESC offers a technology for reducing the hazardous waste associated with OBA canisters. The Department of the Navy is evaluating this proposal in order to reduce our hazardous waste volume Our primaiy concerns are safety, compliance with all local, state and federal regulations, and protevtion of the environment. I would greatly appreciate your assistance to review the literature and comment on the regulatory requirements, if any, that would be required to implement this technology. If you have any additional questions or require further information, please contact Mr. Scott Mauro at (805) 982- 4889. Please address your response to: Scott Mauro NFESC Code 423 560 Center Drive Port Hueneme, CA 93043-4328 Thank you for you assistance. Sincerely, 7J12 €i4 GARY . GASPERINO Division Head, Pollution Prevention Division By direction of the Commanding Officer ------- This Page Intentionally Left Blank ------- S1 4 , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY I WASHINGTON. D.C. 20460 •T . PRO1 ’ 9441. 1994(11) MAY I I f99jj OFFICC CF SOLID WA STE AND EMERC;. . . RESPONSE Mr. Jim Sygo, Chief Waste Management Division Department of Natural Resources John Hannah Building P.O. Box 30241 Lansing, Michigan 48909 Dear Mr. Sygo: This letter is in response to your April 15, 1994 letter requesting concurrence with a determination of the Michigan Department of Natural Resources (MDNR) that lime kiln refractory bricks are not Bevill exempt wastes pursuant to 40 CFR 261.4(b) (7). The State is correct in determining that lime kiln bricks are not Bevill exempt wastes; we agree with the state that such bricks are not “uniquely associated” with mining or mineral processing and, therefore, are not contained within the Bevill exemption. The concept of “uniquely associated” has been used consistently by the Agency as a factor in determining which wastes would remain under the Bevill Amendment. The Agency stated in 45 76619, November 19, 1980 that: (T]his exclusion does not, however apply to solid wastes, such as spent solvents, pesticide wastes, and discarded commercial chemical products, that are not uniquely associated with these mining and allied processing operations, or cement kiln operations. Therefore, should either industry generate any of these non-indigenous wastes and the waste is identified or listed as hazardous under Part 261 of the regulations, the waste is hazardous and must be managed in conformance with Subtitle C regulations. The Agency then restated its position regarding “uniquely associated” wastes in 54 36616, September 1, 1989. In that rule, the Agency said that the Bevill exclusion does not apply to solid wastes such as discarded commercial chemicals, many cleaning wastes (such as spent commercial solvent) and used lubricating oils because they are not uniquely associated with mineral-extraction beneficjatjon, or processing operations. Q i Recycled/Recyclable Printed with SoylCanola Intl on paper that tJ contains at least 50% recycled fiber ------- The key consideration for establishing that a waste is uniquely associated is determining whether or not the waste originates primarily from, or, at the least, is significantly influenced by contact with ores, minerals, or beneficjated ores and minerals. Wastes that are essentially the same as analogous wastes generated by other industries or activities are not uniquely associated, and hence are not eligible for the Mining Waste Exclusion. Even wastes that may come into contact with parts of the mineral feed stream, e.g. cleaning wastes, are not uniquely associated, because their fundamental character does not arise from such contact. Refractory bricks used at lime kilns are not essentially different from refractory bricks found in industrial furnaces, since lime kiln refractory bricks are essentially the same as that found in other industrial sectors. Further, while lime kiln refractory brick does come into contact with the lime, the chemical composition of the this waste is not affected by such contact. Based on both of the factors noted above, lime kiln refractory bricks are not Bevill exempt waste. Your letter indicates that Dow Chemical claims that the refractory brick are uniquely associated with mineral processing. The only mineral processing wastes currently exempt from regulation under RCRA Subtitle C are those noted in 40 CFR 261.4. Lime kiln refractory bricks are not listed in this section. Any discussion of refractory brick in draft rules prior to the final September, 1989 rule do not have any legal status. Dow Chemical appears to be combining two separate regulatory issues. A solid waste from mining or mineral processing is first assessed to determine whether it is uniquely associated with mining. If it is not uniquely associated, it does not matter where in the mining or mineral processing cycle it is generated; such wastes are not.exempt under the Bevill exclusion. .To summarize, based on the information in your April 15, 1994 letter, and upon the Agency’s interpretation of the scope of the Bevill exemption, we agree with the state that wasted lime kiln refractory bricks are not Bevill exempt wastes. I hope this letter is useful in your efforts to determine the regulatory status of wastes at the Dow Chemical Company, Michigan Division facility. If your staff needs to discuss this matter further, please contact Steve Hoffman of my staff at (703) -308-8413. Sincerely yours, - Micha\ Shapiro, Director Off’icelof Solid Waste ------- STATE OF MiCHIGAN NATURAL RESOURCES COMMISSION j i sv C. BARThIPI JOHN ENGLER. Governor DEPARTMENT OF NATURAL RESOURCES JOCY M. SPANO Jal,, Hwwid, Bu I P. O. Bo 30241. LaimIr . M I 4 100 1 JORDAN B. TATTCR ROLAND KA dES. Oliscior April 15, 1994 Mr. Michael Shapiro, Director Office of Solid Waste, 5301 U.S. Environmental Protection Agency 401 N Street, SW Washington, DC 20460 Dear Mr. Shapiro: RE: Applicability of Mining Waste Exclusion The purpose of this letter is to request your concurrence with a determination of the Michigan Department of Natural Resources (MDNR) on the applicability of the so-called “mining waste exclusion” contained in 40 CFR 261.4(b) (7) to lime kiln refractory bricks. Administrative rules under Michigan’s Hazardous Waste Management Act, 1979 PA 64, as amended, exempts from regulation as hazardous waste “solid waste from the extraction, beneficiation, and processing of ores and minerals, including coal, phosphate rock, and overburden from the mining of uranium ore.” The exemption in Michigan’s rules is based on 40 CFR 261,4(b) (7) as promulgated in the November 19, 1980 Federal Register. The MDNR has concluded that waste refractory bricks from a lime kiln are not excluded from hazardous waste regulation under the Michigan rule. Although the MDNR believes that lime ki]ns are involved in “beneficiation” as a result of being used for calcining to remove water and/or carbon dioxide, the MDNR does not believe refractory bricks from such a kiln are also excluded. To be excluded from regulation as hazardous waste, wastes must be “uniquely associated” with mining operations. The U.S. Environmental Protection Agency (U.S. EPA) clearly established this principle in 1980, when they indicated that “this exclusion does not, however, apply to solid wastes ... that are not uniquely associated with these mining and allied processing operations...” (45 Fed. Req. 76,618, November 19, 1980). The MDNR believes waste refractorybrjck from a lime kiln are not uniquelyassociated with mining operations for the following reasons. - £ ------- Mr. Michael Shapiro Page 2 April 15, 1994 —- Waste refractory brick results from kiln maintenance. it is not a byproduct or residue from calcination. The fact that the bricks come into contact with the ores and minerals being “beneficiated” is irrelevant. -- Waste refractory brick from a lime kiln is not different in nature than refractory brick from other types of kilns not involved in mineral processing, such as a cement kiln or rotary kiln incinerator. In other words, kiln bricks are not “unique” to mineral processing. The Dow Chemical Company, Michigan Division (Dow) has claimed that lime kiln bricks are uniquely associated with mineral processing. To support this position, they reference a proposed determination by the U.S. EPA on furnace bricks from different mineral processing sectors (54 Fed. Reg. 15,343, April 17, 1989) and a determination by the U.S. EPA on spent potliners from the aluminum industry (53 Fed. Reg. 35,412, September 13, 1988) which they claim are similar to furnace brick. In both cases, the U.S. EPA indicated that these wastes were not exempt under the mining waste exclusion, but justified this Conclusion on the basis that the wastes did not meet the so—called “high volume-low hazard” criteria applicable to processing wastes. The MDNR does not believe the claims by Dow referenced above to be relevant to the regulation of lime kiln bricks, for the following reasons: -— The April 17, 1989 proposal was not a final rule, and therefore, has no legal standing. In fact, the MDNR notes that the proposed furnace brick determination referenced by Dow was not finalized on September 1, 1989, as were determinations on other process wastes. -— Both the September 13, 1988 rule and the April 17, 1989 proposal involved mineral processing, not beneficiation. The “low hazard, high volume” concept used to determine the applicability of the exclusion to processing wastes has not been identified as a criteria for beneficiation. Therefore, it is impossible to make an analogy between waste from beneficiation and waste from mineral processing operations. —— Both the September 13, 1988 rule and the April 17, 1989 proposal were silent on the issue of whether the furnace bricks and the spent potliners are uniquely associated. The Office of Solid Waste has indicated to the MDNR that the U.S. EPA has determined in other cases that furnace bricks are not uniquely associated. ------- Mr. Michael Shapiro Page 3 April 15, 1994 —- Michigan hazardous waste rules effective at this time do not reflect either the September 13, 1988 rule-making, or the September 1, 1989 rule-making. Therefore, even if U.S. EPA had made a determination in these rules regarding whether furnace bricks are uniquely associated, such a determination would not be binding in Michigan, an authorized state under Subtitle C of the Resource Conservation and Recovery Act (RCRA). Based on the rationale listed above, the MDNR has concluded that lime kiln furnace bricks are not uniquely associated to mineral processing and, therefore, are not excluded from regulation as hazardous waste under RCRA or Michigan law. The MDNR requests written concurrence by the Office of Solid Waste on our determination. If you have any questions about our conclusions regarding lime kiln furnace brick, please contact Mr. Phil Roycraft, Waste Management Division Cadillac District Supervisor, at 616-775-9727 or Mr. Jack Schinderie, Waste Management Division Hazardous Waste Program Section, at 517—373—8410. cc: Mr. Norm Niedergang, U.S. EPA Region 5 Mr. Jim McLaughlin/Mr. Phil Roycraft, MDNR-Cadil].ac Mr. Phil Schrantz, MDNR Mr. Jack Schinderle, MDNR Mr. Mark Stephens, MDNR rim Sygo, Chief !aste Management Division 517 373_9523 ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE May 17, 1994 9441. 1994 ( 12) Thomas N. Tureen, Esq. Chairman Passamaquoddy Technology, L.P. One Monument Way P.O. Box 7412 Portland, Maine 04112 Dear Mr. Tureen: This letter responds to your request for clarification of the regulatory status of two products produced in cement kilns equipped with your company’s technology, the Passamaquoddy Technology Recovery Scrubber (the “Recovery Scrubber”). More specifically, you have asked whether, under the conditions of operation you described, the clinker and various fertilizers produced in a Recovery Scrubber equipped kiln are presently subject to regulation as hazardous wastes under Subtitle C of the Resource Conservation and Recovery Act (RCRA), or if they would become subject to regulation if the Agency were to regulate cement kiln dust as a hazardous waste. Under current regulations, cement kiln dust (CKD) is not a hazardous waste. Consequently, the products partially derived from processing the CKD are not subject to regulation. The Agency is currently evaluating whether CKD should be identified or listed as a hazardous waste. Based on the information provided in your April 29, 1994 letter, however, the Agency has determined that the clinker and fertilizer products produced by a Recovery Scrubber equipped kiln could still be marketed and used without RCRA regulatory controls. The relevant factors upon which the Agency’s determination is based are discussed below. Because the Recovery Scrubber has only been demonstrated at a cement kiln that does not burn hazardous waste fuels, some of the information you provided is based on a working knowledge of the process chemistry and conditions under which the Recovery Scrubber would operate at a hazardous waste fuel burning cement kiln. I have noted where the information relied upon to make the regulatory determination has not yet been demonstrated by actual performance. As I understand the process, the Recovery Scrubber first processes CKD by using it as an air pollution scrubbing medium. The CKD is then further processed to remove alkalis (which are processed into a commercial grade fertilizer, e.g., potassium chloride or potassium sulfate) and possibly metals (which will be separately recovered). The CKD This document has been retyped from the original ------- 2 (which is now analogous to limestone) is then fed back into the cement kiln as a raw material. During this process, the CKD is not placed on the ground and is handled exclusively in tank and piping systems. The hazardous metals, if recovered from the CKD, will be sent off-site for further recovery. The processed CKD is fed back into the cement kiln as raw material and fertilizer is marketed directly to farmers or to fertilizer manufacturers/brokers. The process will be designed and operated at each facility that uses the Recovery Scrubber to ensure that the clinker and fertilizer products consistently meet the applicable land disposal restrictions treatment standards. The Agency understands that the metals recovery part of the process has not been demonstrated because the cement kiln which currently uses the Recovery Scrubber does not produce CKD with a high metals content (i.e., the relatively low level of metals are incorporated into the clinker product during production rather than being recovered); however, you have assured us that the clinker and fertilizer products will continue to achieve concentrations of hazardous metals below the applicable treatment standards when produced at a cement kiln that burns hazardous waste fuels (which, as a general rule, have the potential to generate CKD with higher concentrations of hazardous metals). As you have stated, the fertilizer is a commercial grade product fit for direct use in agricultural applications or as an ingredient in producing other fertilizer formulations. It does not contain hazardous constituents that are not found in comparable fertilizers, and does not contain hazardous constituents in concentrations in excess of those found in comparable fertilizers. The Agency understands that the fertilizer produced by the demonstration facility has not actually been sold because the facility is waiting to acquire pelletizing equipment to realize a greater market value for the fertilizer product (i.e., the pelletized fertilizer is more valuable than the current crystalline form). The Agency also understands that there is at least one buyer interested in purchasing the fertilizer at normal market values and that a market for the fertilizer is assured. Although EPA may address the regulatory status of the products produced by cement kilns in future rulemakings, the Agency has determined that, based on the operating conditions you provided, such products may be used and marketed without being subject to regulation under RCRA. As you know, this regulatory determination is not to be considered an endorsement of the Recovery Scrubber or the products produced by a cement kiln that uses the Recovery Scrubber. You should also note that this determination is based on the Federal RCRA program. State regulatory agencies may have hazardous waste programs that differ from the Federal program and may be more stringent than the Federal program. Therefore, I encourage you to seek a regulatory determination in each State in which the Recovery Scrubber is to be used. I hope this letter answers your questions about the regulatory status of the clinker and fertilizer products produced by a cement kiln using the Recovery Scrubber. If you have any This document has been reayped from the original ------- 3 further questions regarding the applicability of RCRA hazardous waste regulations to products produced by the recycling hazardous wastes, you may call Mitch Kidwell, of my staff, at (202) 260-8771. Sincerely, Michael Shapiro, Director Office of Solid Waste This document has been retyped from the original ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE May 19, 1994 9441.1994(13) Mr. Charles P. Lettow Cleary, Gottlieb, Steen & Hamilton 1752 N Street, N.W. Washington, D.C. 20036-2806 Dear Mr. Lettow: Thank you for your letter of December 10, 1993, requesting clarification of the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations as they apply to certain secondary materials. Specifically, you asked whether hydrochloric acid (HC1) generated by your client in the production of a primary product would be regulated as a RCRA hazardous waste if sold for use as a pickling liquor in the steel industry and/or as a fracturing agent in oil and gas wells. In response to your question, the following provides general guidance regarding which federal regulations may apply in the situation you describe, clarifies the intent and meaning of various terms used in the regulations, and provides some of the pertinent factors to consider in determining the regulatory status of the HC 1. However, regulatory determinations such as the one you seek (i.e., specific to your client’s process or products) must be made on a case-by-case basis by the appropriate state regulatory agency or EPA regional office. According to your letter, the HC1 that your client wishes to sell is produced by an air pollution control device which treats gases generated during the manufacturing process. Significantly, you also note that, at present, most commercially available HC1 is produced as a secondary material during the manufacture of another chemical product. In your letter, you repeatedly refer to hydrochloric acid generated in this manner as a “by-product” of the production process. However, based on the information you have provided, the HC1 produced by your client may be considered a co-product rather than a by-product of the production process for purposes of regulation under RCRA. This distinction between by-product and co-product is important for regulatory purposes in some cases and may be applicable to your situation. If the HC1 is determined to be a co-product, it is not considered to be a secondary material and thus not subject to regulation as a RCR.A solid (or hazardous) waste. By-products, on the other hand, are secondary materials subject to RCRA regulation as solid wastes unless, as you note, they are recycled by being “(1) used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed; (ii) used or reused as effective chemical substitutes for commercial products; or (iii) returned to the original process from This document has been retyped from the original ------- -2- which they are generated without first being reclaimed” 40 CFR Section 261 .2(e)(1). Also, by-products that are hazardous only because they exhibit a hazardous characteristic are not solid wastes when reclaimed (40 CFR Section 261 .2(c)(3)). In your case, as previously noted, it is not obvious that the HC1 produced by your client is a by-product and not a co- product of the production process. A by-product is defined in RCRA 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” (40 CFR Section 261. 1(c)(3)). The preamble to the 1985 Definition of Solid Waste final rule provides clarification of the Environmental Protection Agency’s (EPA’s) intent regarding what constitutes a by-product. It explains that EPA means to include as by- products, “materials, generally of a residual character, that are not produced intentionally or separately, and that are unfit for end use without substantial processing” (50 FR 625, January 4, 1985). While there is not an explicit regulatory definition of the term “co-product,” the preamble to the 1985 rule also provides some clarification as to what would be considered a co-product, as distinct from a by-product, under RCRA. The preamble describes co-products as, “materials produced intentionally, and which in their existing state are ordinarily used as commodities in trade by the general public” (50 FR 625, January 4, 1985). Based on these definitions, several factors must be considered in deciding whether a material is a legitimate product (i.e., co-product) or a by-product under RCRA. They include, for example, whether the material constitutes a separate production stream, whether it is fit for end use essentially as is or must undergo substantial additional processing prior to use, whether intentionally produced for sale to the public, whether a legitimate market exists for the material, etc. Again, given the information provided in your letter, the HC1 manufactured by your client may meet the definition of a co-product under these criteria, and as such, would be excluded from RCRA jurisdiction. It is important to reiterate, however, that a specific determination regarding the regulatory status of the material in question must be made the regulating agency. If the application of the criteria should lead to a by-product determination, however, the aforementioned recycling exclusions (40 CFR Section 261. 2(e)(i) and (ii) becomes relevant as explained below. As previously noted, specific determinations such as whether a particular by-product is excluded from regulation as a RCRA solid waste because it is recycled as either a product ingredient or an effective substitute for a commercial product must be made on a case-specific basis by the regulating agency. Use of HC1 By-Product as Pickling Liquor As you note, secondary materials that are directly used (i.e., without prior reclamation) as substitutes for commercial products are excluded from regulation under This document has been retyped from the original ------- -3- RCRA (40 CFR Section 261.2(e)(1)(ii). Insofar as the HC1 by-product produced by your client would be used directly as a legitimate substitute for commercially produced HC1 product, it would be excluded from regulation as a solid waste under RCRA. Based on the information you have provided, use of the HC1 by-product as a pickling liquor may meet this exclusion. To obtain a definitive determination, however, you should submit your request to the appropriate State or Regional authority. Use of HC1 By-Product as a Fracturing Agent Assuming that the HC1 produced by your client would be a by-product under RCRA, you raised the question of whether use of HC1 by-product as a fracturing agent in oil and gas well would be regulated as use constituting disposal or land application under Section 261.2(c)(1). As described in your letter, HC1 is injected through a well bore pipe into the earth’s stratum where it reacts with limestone formations. This activity, which is essentially the same as deep-well injection, is clearly a form of land disposal and as such would be subject to RCRA regulation. (You should also note that the exclusion for an effective substitute for a commercial product found at Section 261 .2(e)(1)(ii) is not available for materials that are used in a manner constituting disposal. (40 CFR Section 261 .2(e)(2)(i).) Therefore, if the HC1 produced by your client is determined to be a by-product, it would be subject to RCRA regulation when used as a fracturing agent I hope that this addresses your concerns. If you have other general questions regarding the regulation of secondary materials under RCRA, please contact Mitch Kidwell at (202) 260-8551 or Becky Daiss at (202) 260-8718. For questions regarding the application of RCRA to a specific product or process, you should contact the appropriate State regulatory agency or EPA Regional office. Sincerely yours, Michael Shapiro, Director Office of Solid Waste This document has been retyped from the original ------- This Page Intentionally Left Blank ------- S r 4 , . 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. DC. 20460 4 pq P- 9441. 1994( 14) JUN 9 1994 OFFICE CF SOLID WASTE AND EMERGENCY RESPONSE Thcmas N. Tureen, Esq. Chairman Passamaquoddy Technology, L.P. One Monument Way P.O. Box 7412 Portland, Maine 04112 Dear Mr. Tureen: This letter follows up on a response I sent to you dated May 17, 1994. That response discussed the applicability of the Resource Conservation and Recovery Act (RCRA) regulations of various products (including clinker and fertilizer) that would be produced by a cement kiln equipped with your company’s technology (the “Recovery Scrubber 11 ). The respcnse presented not only the status of the products under the current regulatory program, but also the status of the products if the Agency was to make a determination that cement kiln dust (CKD) is a hazardous waste. However, the response was not meant to indicate that the Agency has made a determination regarding the future regulatory status of cement kiln dust waste. In responding to questions you had regarding the applicability of RCRA regulations to products produced in a cement kiln that uses the Recovery Scrubber, I failed to address the possible scenario of a Recovery Scrubber-equipped cement kiln processing previously landfilled cement kiln dust. Tinder the current regulatory framework, the regulatory status of the products (e.g., clinker and fertilizer) produced using previously landfilled cement kiln dust would be the same as for products produced by the processing of newly generated cement kiln dust. In other words, assuming a cement kiln using the Recovery Scrubber operates under the conditions you provided (e.g., achieving hazardous metals concentrations below the applicable treatment standards) and continues to produce and market commercial grade products that do not contain hazardous constituents In concentrations in excess of those found in comparable products, the products may be marketed and used without being subject to regulation under RCRA. This would be true even where the cement kiln burns listed hazardous waste fuels or if the Agency decides to list cement kiln dust as a hazardous waste in the future. I should also take this opportunity to clarify that this response is not meant to limit the uses of the Recovery Scrubber to Q ’Y RecycledlRøcydabte <9 Pdr ted Wilt, SQyIGSf 0l$ 11* Oil p$ f lilBt COgtlSlrS at tassi 30% rSCyCIed ,Ib.r ------- 2 cement kilns (as I understand, the Recoiery Scrubber can be used with a variety of processes) or to imply that the products produced by processes other than cement kilns that use the Recovery Scrubber are subject to RCRA regulation. As you know, this response reflects only the Federal RCR), program. State regulatory agencies may have hazardous waste programs that differ from the Federal program and may be more stringent than the Federal program. Therefore, I encourage you to consult with each State in which the Recovery Scrubber is to be used. I hope this letter answers your questions regarding the applicability of RCRA regulations to the products produced by a Recovery Scrubber-equipped cement kiln. If you have any further questions regarding the applicability of RCRA hazardous waste regulations to products produced by the Recovery Scrubber, you may call Mitch Kidwell, of my staff, at (202) 260-8771. Sincerely, ,.L4 Mic$ l Shapiro, t irector Off± é of Solid Waste ------- ,E. S ., — UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 ‘ L P o iP 9441.1994(15) JUN 101994 OFF,CE OF SOt.IO WASTE AND EMERGENCy RESPONSE Ms. Mary Ann Habeeb Aibright & Habeeb Attorneys At Law 1915 Broad Ripple Avenue Indianapolis, Indiana 46220 Dear Ms. Habeeb: Thank you for your letter dated May 18, 1994, requesting clarification of the Resource Conservation and Recovery Act (RCRA) regulations as they apply to the use of perchloroethylerie in your client’s dry cleaning process. In response to your request, the following provides general guidance regarding Federal regulations that may apply in the situation you describe and discusses the relevant factors to consider in determining the regulatory status of the perchioroethylene. However, regulatory determinations such as the one you seek (i.e., specific to your client’s process or products) must be made on a case-by-case basis by the appropriate State regulatory agency or EPA regional office. According to your letter, the perchioroethylene is contained in tanks that are connected to dry cleaning machines and/or distillation units in a closed loop system. After use in the dry cleaning machines, the perc is either returned directly to a tank for reuse in the drycleaner, or piped to the distillation unit where impurities are removed. Periodically, during repair or maintenance, the perc is drained from the system and stored temporarily (for periods that may exceed 90 days) in barrels prior to reintroduction into the system. You ask whether the perchioroethylene that is removed from the system and stored in barrels pending its reinsertion into the process is a solid waste subject to RCRA. The regulatory status of the perc in this case depends on whether the perc is a spent material that is to be reclaimed prior to reuse or perc that is either unused or already reclaimed and therefore not spent (i.e., fit for direct use without prior rec•lamation). These issues are addressed by 40 CFR §S261.1 and 261.2(e). Spent materials being reclaimed are regulated as solid waste under RCRA regulations. “speric material” is “any marerjal that has been used and as a result of contamination can Pnnted on Recycea P3ce’ ------- rio longer serve the purpose for which it was produced without processing.” Among the factors to be considered in determining whether the perc is a spent material in this case is the level of contamination of the perc that is removed from the system (i.e., whether the perc is spent and must be reclaimed, or is clean enough to be directly reused), and where it is being reintroduced into the process. For example, the fact that perc is being reintroduced directly into the distillation unit or at a point in the line where it will undergo distillation (a form of reclamation) prior to use in the drycleaning machine would indicate that the perc is spent. Reinsertion directly into the drycleaning unit, on the other hand, would indicate that the perc is not spent because it need not, and in fact is not being reclaimed prior to reuse. (The fact that the perc can be reinserted anywhere within the system, as indicated in your letter, lends credence to the point of reinsertion as an indicator of whether the perc is a spent material.) I trust that the above has helped you understand in general how the RCRA regulations work. As previously noted, EPA Regionar and States authorized to implement the hazardous waste program make determinations regarding the requirements that apply to specific materials and facilities. Also, some States have programs more stringent than the Federal hazardous waste program. To obtain a definitive determination regarding a specific site, you should submit your request to the appropriate State or Regional authority. I hope this adequately addresses your concerns. If you have any further questions, please contact Becky Daiss at (202) 260- 8718 or Mitch Kidwell at (202) 260-8551. Sincerely, Michael J. Petruska Chief Regulatory Development Branch ------- Aibright & Habeeb D “rah E Aib h, Altorneys At Law Telephone 317-251-’308 1915 Broad Ripple Avenue Mary Ann naoeco Facsunii 317 2 1 Assoczatcs floe In Parwc ip Indianapolis. Indiana 46220 C - 1-1941 May 18, 1994 USEPA Office of Solid Waste 401 M. St., SW Washington, DC 20460 ATTN: Michael Shapiro RE: Regulatory Status of Perchioroethylne used in Drycleaning Dear Mr. Shapiro: My office is currently working with a drycleaning business which utilizes the solvent perchloroethylene. Perchioroethylene (“perc”) is commonly used by the drycleaning industry to remove dirt, grease and other undesirables from fabric. Our client’s drycleaning process involves one or more tanks containing perc, one or more drycleaning machines, and one or more distillation units, all connected by a closed—loop pipe system supported by a pump. Several drycleaning machines may be connected to and use the same still. The perc in the system is placed directly into the drycleaner, into the process line, or into one of the tanks. After use in the drycleaner it is then either returned to a tank for reuse, or piped to the still where the impurities are removed. The perc can be used and reused any number of times before it is sent to the still, depending on the fabric being cleaned and the nature and amàunt of impurities in the fabric. After distillation, the “clean” perc is returned to the tank for further use in the drycleaner. This process is closed—loop and repeated as needed. When necessary due to evaporation and normal product loss, additional perc may, as stated above, be added to a tank, the line or directly into the drycleaner. During any particular drycleaning process the tanks may contain perc with varying degrees of impurities which are used and continuously reused in the drycleaning process, depending on the condition of the item to be drycleaned. Stilibottoms from the still are manifested under RCRA and shipped off site for proper disposal, as is the fuzz and lint collected in the drycleaning machine filters. The perc in the system is circulated and reused indefinitely, and only supplemented with additional perc as needed. Periodically, due to equipment breakdown or regular machine ------- maintenance, the tanks and lines are drained and the perc placed temporarily in specially—designed barrels. The barrels are labelled as perc in order to meet OSHA and IOSHA requirements. As needed, the perc is returned to the drycleaning system directly from these barrels. it can be placed anywhere in the “loop”, that is, in the line, tank, still, or directly into the drycleaning machine without reclamation. A question has arisen as to whether perc which has been used in the drycleaning process but which has been removed on a temporary basis from the line or tank, and which is being stored in barrels pending its reintroduction into the system, is subject to RCRA. Occasionally the perc may remain in the barrels for more than 90 days as it may not be immediately needed to replenish perc already in a system which is in use. It is the company’s Position that the perc does not meet the definition of solid waste in 40 CFR 261.2 and that it falls under the exclusion of 261.2(e). This interpretation was also confirmed by a telephone Conversation with one of the information specialists at the RCRA—Superfund hotline (800—424—9346). We would like for you to confirm the interpretation given to us by your hotline. We appreciate your prompt response to this inquiry and look forward to hearing from you. If you have further questions or clarification, please let me know. Thank you for your assistance. Sincerely, .‘ \, Mary Ann Habeeb 2 ------- j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 9441.1994(16) JUN I 0 ;9g OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Robert S. McLaughlin Bond, Schoeneck & King One Lincoln Center Syracuse, New York 13202-1355 Dear Mr. McLaughlin: This is in response to your letters of April 26 and October 13, 1993, in which you ask for an interpretation of the mixture rule exemption (40 CFR 261.3(a) (2) (iv) (B)) as it relates to scrubber water from the incineration of certain solvents. Specifically, you wanted to know if such scrubber water could be discharged to the headworks of a facility’s wastewater treatment system under the provisions of this mixture rule exemption. As you correctly point out, the mixture rule exemption was p. Dm Lgated on November 17, 1981 to provide regulatory relief from some of the broader effects of the mixture rule regulation. The spent solvents exempted in §261.3(a) (2) (iv) (A) and (B) are small amounts discharged to wastewaters, not “principal wastestreams” (46 FR 56584, November 17, 1981) . The types of spent solvents discharged to wastewater are typically from maintenance or manufacturing operations, in which small amounts of spent solvents are not easily separable from a wastewater stream or are washed down a surnp or drain. Because of dilution (by other plant streams) and treatment of total plant wastewaters, the likelihood is that very little of the solvents will exist in a wastewater treatment sludge and threaten human health or the environment. Thus the Agency decided to deal with the situations mentioned above by promulgating the exemption for these wastes when they reach the headworks of the plant wastewater treatment system. In the situation you present, spent solvents have already been separated from other plant process streams and are sent to an incinerator (or other thermal treatment unit) . The scrubber water from the unit is flushed to the wastewater treatment system. In this case, the wastewater is not of the type described above (or in the rule) . The rule itself specifically covers solvent usage and does not list FOOl - F005 still bottoms or their treatment residuals. The Agency stands by the interpretation provided by Matthew Straus in a letter of December 17, 1985. No inconsistency exists between what Mr. Straus stated and Agency policy as expressed in the wastewacer treatment exemption of §261.3(a) (2) (iv) (A) - CE). ------- other EPA regulatory interpretation letters which you provided are primarily concerned with wastes listed solely because they exhibit a characteristic. Those situations are different from the December 17, 1985 interpretatiOn by Matt Straus at issue here. You state in your letter your desire for “derived from” wastes (such as the scrubber water mentioned above) to have a similar mixture rule type of exemption. The Agency is in the process of examining the applicability of waste listings to a variety of wastes and the scope of the mixture and derived from rules. The Agency is currently examining this issue and is exploring alternative regulatory schemes that may be of interest to you and your clients. We will welcome comments from you at that time. Please be aware that the enviror menta1 regulatory agency for the State in which your client’s facility is located may have other more stringent regulations. You should consult with them to find out if such regulations exist and if they apply to the- situation(s) you confront. Thank you for your inquiry. If you have any other questions on this subject, please call Ron Josephson or Anthony Carrell of my staff at (202)260-4770. Sincerely, 7) ‘ —.- , f.— d—O Mich . H. Shapiro, Director — Ofifice .’ of Solid Waste I I cc: Larry Starfield, OGC (2366) Gary Jonesi, OECA (2246) John Gorman, EPA Region II (2AWM-HWCB) 2 ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY JUiv 101994 9441.1994(17) Mr. John Maguire President Maguire and Strickland Refining, Inc. 1290-81st Avenue, N.E. Minneapolis, Minnesot3 55432 Dear Mr. Maguire: Thank you for your letter of April, 19, 1994 regarding the regulatory status of non- listed sludge that is being recycled. You cite a January 6, 1987 letter from EPA to Mr. Thomas Dufficy that addresses this issue and ask if the information provided in the letter reflects current EPA policy. The information provided in the letter to Mr. Dufficy is correct. As stated in that letter, residues contained in recovery units used to treat waste water would be considered a sludge. And, if the sludge is sent for reclamation, it would not be considered a solid waste. 40 CFR §261 .2(c)(3). Regarding the regulatory status of the recovery units, the Dufficy letter correctly states that, “to the extent that the recovery units would be defined as a sludge (i.e., a pollution control residual), they would not be subject to the federal hazardous rules when they were sent for reclamation, since they would not be considered a solid waste.” It is important to note, however, that a specific determination regarding the regulatory status of the recovery units and/or the residuals they contain would have to be made on a site-specific basis by the appropriate State or Regional authority. The type of unit specifically discussed in the Dufficy is a steel wool cartridge. You ask whether EPA differentiates between steel wool and copper coated steel mesh type canisters. EPA does not differentiate between these units as a matter of general policy. As previously noted, however, specific determinations must by made on a case-by-case basis by the appropriate State or Region. I hope this letter has addressed your concerns. If you have additional questions, please call Becky Daiss of my staff at (202) 260-8718. Sincerely, truglia Chief, Reg4tLury DLvek n11eL1L Bratll4 ------- This Page Intentionally Left Blank ------- Precious . letal Refiiu,ic’ and 4ssa zng i ’LAGUIRE & STRICKLAND REFINING, INC. Gold Platinum Palladium • Silver April 190, 1994 U. S. EPA OffL e jf Solid WdSEC Washington, DC 20460 To whom it may concern, Please find an enclosed letter by Matthew Straus to Thomas Dufficy of Harrison NY. Is the information as stated to Dufficy by Straus still the norm? Also, in regards to ion- exchange steel canisters, does the EPA have different thoughts about steel wool vs. copper coated steel mesh types? Thank you, Yours truly, C _ John Maguire President (612) 786-2858 1290-81ST AVE NE (800)486-2858 MINNEAPOLIS. MN 55432 FAX (612) 786-7793 Pnnu’J ,,,r ‘c i! Pcq ’cr ------- This Page Intentionally Left Blank ------- GENERAL ENVIRONMENTAL INFORMATiON PART II UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Thomas Dufficy Executive Vice President National Association of Photographic Manufacturers, Inc 600 Mamaroneck Avenue Harrison, NY 10528 Dear Mr. Dufficy: This is in response to your letter of September 15, October 24, and November 4, 1986, regarding the regulatory status of properly washed chemical recovery cartridges (also referred to in your letters as steel wool cartridges), flake silver from electrolytic recovery cells, and silver-containing ion-exchange resins, under the federal hazardous waste rules. These units (i.e_, chemical recovery cartridges, electrolytic recovery cells, and ion-exchange resins) are used to recover silver in a number of operations in the photographic industry. Based on the data and information provided in your letters (i. , analytical test data and discussions regarding the representativeness of the data), it appears that when these units are properly washed (in accordance with the instructions provided in your letters), they do not exhibit the characteristic of EP toxicity for silver. You also state that these recovery units do not exhibit the characteristics of ignitability, corrosivity, and reactivity, and I presume that these recovery units are not EP toxic for any of the other toxic contaminants. Thus, those recovery units that are properly washed appear not to be hazardous wastes and, therefore, are not subject to the federal hazardous waste regulations. However, each generator is still responsible for determining whether or not the wastes contained in the recovery units are hazardous. See 40 FR §262.11. In addition, as we’ve discussed previously, to the extent that these recovery units would be defined as a sludge (Le.,, a pollution control residual), they would not be subject to the federal hazardous waste rules when they were sent for reclamation, since they would not be considered a solid waste. Thus, if any of these devices was used to treat wastewater (for example, to comply with the new BAT/PSES rules), the residues contained in the units would be considered a sludge; if the sludge is sent for reclamation, it would not be considered a solid waste. See 40 CFR §261.2(c)(3). 3 This document has been retyped from the onginal ------- Finally, as you are aware, States may choose to regulate these recovery units under their State hazardous waste program differently than under the federal program. Therefore, representatives in the various States will need to be contacted to determine the regulatory status of these recovery units under the State hazardous waste rules. Please feel free to give me a call at (202) 475-8551 if I can be of any further assistance. Sincerely, Matthew A. Scraus Chief Waste Characterization Branch 4 This document has been retyped front the original ------- O Sr ,,. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D C. 20460 t Jul. 1 199k 9441.1994(18) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Dale L Gable Environmental Inspector Office of Waste Management Department of Commerce, Labor & Environmental Resources Division of Environment Protection 1356 Hanford Street Charleston, West Virginia 25301-1401 Dear Mr. Gable: Thank you for your letter of April 20, 1994, requesting clarification of how the Resource Conservation and Recovery Act (RCRA) regulations apply to off-specification fuels that are being burned for energy recovery. Your letter cites a July 31, 1989 letter from EPA which states that the exclusion from RCRA for commercial chemical products that are used for their originally intended purpose (40 CFR 261.2(c) (2) (ii)), applies not only to commercial chemical products that are specifically listed in §261.33 but also to commercial chemical products that exhibit a hazardous characteristic. You ask whether this document reflects current EPA policy. The answer is yes. The interpretation of the §261.2(c) (2) (ii) exclusion prov .ded in the letter you cite is merely a reiteration of the Agency’s position as initially ciari .ei in the preamble to the April 11, 1986 technical c: :reCt.’) . nct.ice to the January 4, 1985 Definition of Solid W .ste fi:ial rule. In the prea ’c.e to the technical correction nctice, EPP clarified that “A1 ho gh we do not directly address non-listed commercial chemical roduccs in the rules, their status would be the same as those chat are listed in §261.33 -- That is, they are not considered o1id wastes when recycled except when they are recycled i:i ways that differ from their normal manner of use.” (50 FR at 14219) You also ask whether, under this interpretation of the §261.2(c) (2) (ii) exclusion, off-specification fuels, including gasoline, jet fuel, kerosene. diesel, etc. that exhibit a hazardous characteristic and are burned for energy recovery would excL .. .’ d as commercial chemical products. Again, the answer i yes. ‘ir. t, as discussed above, these materials would be Q j7 Recycled/Recyclable ( <9 Punted with Sayicanola Ink On paoer trial contains at least 50% recycled fiber. ------- considered non-listed commercial chemical products. Second, commercial chemical products are not solid wastes when used as fuels (i.e., burned for energy recovery) if that is their intended purpose. Thus, for example, off-specification jet fuel is not a solid waste if used as a fuel. Finally, you express concern about the effect that this policy may have on the clean-up of spills of gasoline and other fuels. According to your letter, under West Virginia State requirements, clean-up standards for commercial chemical product spills are more stringent than those for characteristic hazardous wastes. EPA does not make a similar distinction in its approach to spill remediation. EPA’s overall approach to the clean-up of environmental contamination is set forth in the July 27, 1990 Proposed Rule on Corrective Action for Solid Waste Management Units at Hazardous Waste Management Facilities. In essence, EPA believes that different clean-up levels will be appropriate in different situations and are best established on a site-specific basis. In response to your concern, then, spills of commercial chemical product fuels may have to be cleaned-up to lower levels than do spills of characteristic hazardous waste as a result of State requirements, but not as a matter of Federal policy. I hope this letter addresses your concerns. If you have additional questions pertaining to the definition of solid waste, please call Becky Daiss at (202) 260-8718 or Mitch Kidwell at (202) 260-8551. Questions regarding EPA’s approach to corrective action under RCRA should be directed to Dave Fagan at (703) 308- 8620. / David BUSS Director Characterization and Assessment Division ------- DEPARTMENT OF COMMERCE. LABOR & ENVIRONMENTAL RESOURCES DIVISION OF ENVIRONMENTAL PROTECTION 1356 Hansford Street Gaston Caperton Charleston, WV 25301-1401 David C Callaghan Governor Director John M Ranson ,, Cabinet Secretary P Deputy Director Sylvia K. Lowrance, Director Office of Solid Waste 05300 U.S. Environmental Protection Agency Waterside Mall 401 M Street, S.W. Washington, D.C. 20460 Dear Ms. Lowrance: This letter is to request a clarification of an earlier United States Environmental Protection Agency (EPA) policy document from Mr. Devereaux Barnes, Director of the U.S. EPA Characterization and Assessment Division in Washington, D.C. concerning off-specification jet fuel. See the document as an attachment to this letter. For the sake of discussion, I am assuming that Mr. Barnes intended his decision to include any off-specification fuels including gasoline, jet fuel, kerosene, diesel, etc. that may exhibit a characteristic of hazardous waste and are destined to be burned for energy recovery. The principle argument that Mr. Barnes uses as a basis for his decision is that fuels are commercial chemical products and are, therefore, not solid wastes when burned for energy recovery, as excluded under 40 CFR 261.2(c)(2) (ii), which states specifically: “commercial chemical products listed in 40 CFR 261.33 are not solid wastes if they are themselves fuels”. Mr. Barnes states that “Although the regulatory language found at 261.2(c)(2)(ii), which states that in such cases a commercial chemical product is not a solid waste if it itself is a fuel, only addresses commercial chemical products listed in Section 261.33, it is implicit in the rules that the same reasoning applies to commercial chemical products that are not listed”. He goes on to cite an April 11, 1986 Federal Register notice (50 FR at 14219) as a clarifying discussion of this matter. It would appear, as set forth in 40 CFR, Part 261, that in order to meet the exclusion of 261.2(c)(2)(ii), the materials must first be listed in 261.33. The phrase “commercial chemical product or manufacturing chemical intermediate having the generic name listed in . . .“ refers to a chemical substance which is manufactured or formulated for commercial or manufacturing use which consists of the commercially pure grade of the chemical, any QSw- v ________ ------- Sylvia K. Lowrance April 20, 1994 Page 2 technical grades of the chemical that are produced or marketed, and all formulations in which the chemical is the sole active ingredient. The coercial chemical products, manufacturing chemical intermediates and off—specification commercial chemical referred to in 261.33 are listed specifically as U or P wastes under that Part. Let us use gasoline or off-specification gasoline as the example for this discussion, since the State of West Virginia has been experiencing significant difficulties in regulating the proper use and management of gasoline wastes. Gasoline is a mixture of volatile hydrocarbons suitable for use in a spark ignited internal combustion engine and having an octane rating of at least 60. The major components of gasoline are branched-chain paraff ins, cycloparaff ins and aromatics. Since gasoline is not listed specifically as a commercial chemical product or a manufacturing chemical intermediate under 261.33, it dães not appear to be subject to the regulatory exclusion of 261.2(c)(2)(ii). Gasoline does contain various concentrations of chemicals which are listed in 261.33, specifically benzene, toluene and xylene. However, these chemicals are not in conmtercially pure grades or technical grades and none of these chemicals are the sole active ingredients of gasoline. Of f specification gasoline, contaminated gasoline and gasoline contaminated water destined to be burned for energy recovery are all currently being handled as exempted materials by industry in West Virginia, due to the existence of the aforementioned EPA guidance document. Mishandling of these materials is an ever increasing problem due to the lack of regulatory authority under the exclusion. The storage, transportation, record keeping and other requirements of RCRA normally prevent such problems from occurring. Would not the exclusion for commercial chemical products listed in 261.33 apply only to the. actual listed materials that are used as fuels? Chemicals such as methanol, toluene, xylene, hydrazine, methyl hydrazine and 1,1 dimethylhydrazine are specific examples of chemical substances which are frequently used as fuels. These commercially pure or technical grade chemicals would appear to meet the exclusion if they are to be burned for energy recovery and have not been “used or spent”. Is there any case law which- would support the Devereaux Barnes document? Does this document reflect current U.S. EPA policy? Since cleanup standards for commercial chemical products are generally more stringent than the cleanup standards for characteristic hazardous wastes, would spills of gasoline or other fuels which meet the Barnes document definition of a commercial chemical product have to be cleaned up to those more stringent background conditions? The designation of any compounds which are fuels as commercial chemical products presents the State with many problems for the current and the future use and disposal of those materials. ------- Sylvia K. Lowrance April 20, 1994 Page 3 Please feel free to contact at the West Virginia Division of Environmental Protection field office in Parkersburg, West Virginia at (304) 420-4635 if you require any further information. Sincerely, Dale L. Gable Environmental Inspector Compliance Monitoring and Enforcement Office of Waste Management DLG/kw ------- This Page Intentionally Left Blank ------- s 4 . UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D C 20460 JUt 111994 9441.1994(19) OFFICE OF SOLiD WASTE AND EMERGENC.? RESPONSE William E. Amour President Amour Hydro Press, Inc. 1120 E. Stevens P.O. Box 42 Sultan, West Virginia 98294 Dear Mr. Amour: Thank you for your letter of June 20, 1994, requesting clarification of the how the “waste resins” that your company plans to reuse as feed stock to manufacture new products are regulated under Resource Conservation and Recovery Act (RCRA) regulations. First, I would like to commend your efforts to find beneficial uses for materials that would otherwise be disposed. EPA strongly encourages efforts, such as those being undertaken by your company, to develop environmentally sound recycling technologies. As to your question of whether the resins you plan to use in your process would be considered a hazardous waste under RCRA, unfortunately, your letter did not provide enough information on how these materials are generated or how they are to be used to allow for a specific regulatory determination. I can, however, provide general guidance on how the RCRA regulations may apply based on the limited information provided. In your letter, you describe the feedstock in question as “outdated resins.” Based on this description, the feed resins may qualify as off-specification commercial chemical products. The RCRA hazardous waste regulations provide an exclusion for off-specification commercial chemical products that are recycled in a manner other than use constituting disposal or burning for energy recovery, unless that is their originally intended purpose (40 CFR 261.2(c) (1) (ii), 261.2(c) (2) (ii) and 2 6l.2(e) (2)). Therefore, if the outdated resins are determined to be of f- specification commercial chemical products and it is further determined that they are being recycled , the aforementioned exclusion would be applicable. Also, the regulations provide an exclusion for other types of secondary materials (e.g., spent materials) when they are recycled as ingredients in an industrial Q j ’ RecycIed/Recy IabIe /\ PIlnwd with Soy’Can2Ia liii , On p. pe that contain, at least 50% recycled libe, ------- process to make a product or as effectives substitutes for commercial products. (40 CFR 261.2(e) (1) (i)-(ii)). It is important to note, however, that determinations regarding the regulatory status of specific products and/or processes must be made on case-by-case basis by the appropriate State or Regional authority. Therefore, in order to receive a definitive determination regarding the regulatory status of the resins you plan to use in your production process, you should contact the appropriate State agency or Regional office. You should also note that some authorized States have adopted programs that are more stringent than the Federal hazardous waste program. I hope this letter has addressed your concerns. If you have additional questions, please call Mitch Kiawell at (202) 260-8551 or Becky Daiss at (202) 260-8718. Sincerely, Michael J. Petruska Chief, Regulatory Development Branch ------- AMOUR HYDRO Quality Products From Waste Fiberglass Piu ss, i c. 1120 E. Stevens • P 0. Box 42 • Sultan, WV 98294 • (206) 793-0146/FAX 793-7955 June 20, 1994 Michael Shapiro, Director Office of Solid Waste United States Environmental Protection Agency Washington, D.C. 20460 Re: Using outdated resins Dear Mr. Shapiro, Thank you for your reply on our letter regarding tax credits and exemptions. We are researching some of these options. Another question has developed. In conjunction with recycling cured waste fiberglass, our process has grown to utilize various types of outdated resins, as long as these resins are still in their liquid form. In the State of Washington, material is classified as a waste when it has no viable use. This type of resin waste material has been traditionally been classified as a hazardous waste. Disposal costs for this type of waste material average around $315 per 55 gallon drum. We propose to use this material as a viable commodity in our end product. One concern that some of our suppliers have is the issue of waste material classification. Suppliers would like some support information from regulatory agencies that would classify this material as a recyclable commodity, not hazardous waste. This will not only save suppliers the expenditure of hazardous waste transport and disposal, but would ultimately keep this material from being burned out at a hazardous waste disposal site. I have enclosed some additional literature about our company and pictures of our finished product. Any assistance or direction that you can give would be greatly appreciated. Look forward to your reply. Sincerely, Wm. E. Amour President This document has been retyped from the original ------- This Page Intentionally Left Blank ------- h%1 O 9 74p UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON, D.C. 20460 4 ( p Ø t ’ 9441. 1994(20) - 2 ig9 OFFICE OF SOLID WASTE AND EMERGENCY Ms. Michelle T. Fisher RESPONSE Attorney General Motors Corporation New Center One Building 3031 West Grand Boulevard P.O. Box 33122 Detroit, Michigan 48232 Reference: Classification of Wastewater Treatment Sludge from the Revised “Zinc- Cobalt Alloy Plating on Carbon Steel” Process Dear Ms. Fisher: This letter is in response to your April 12, 1994, letter requesting a regulatory interpretation as to whether or not the F006 hazardous waste listing exemption for “zinc plating on carbon steel” includes the zinc-cobalt alloy plating used in one of your plants. Since this request is site-specific, the Hazardous Waste Management Division of EPA Region V has been provided with a copy of your letter and has deferred the interpretation to our office. Your request is based on a proposed change in the electroless plating process at your Inland Fisher Guide plant in Columbus, OH, from the current zinc-based operation to one using a zinc-cobalt alloy process. According to your letter, this zinc alloy process will combine a very small amount of cobalt (60 ppm) with the conventional zinc in the plating bath. Hence, the rinse water from the rinse water tanks which follow the plating bath will contain a small amount of cobalt, which will eventually precipitate out into the wastewater treatment sludge. Based on a previous regulatory interpretation request, the Agency concurred, in a letter dated June 30, 1987, that the sludge from the current zinc plating operation is not a listed hazardous waste. The interpretation was based on the Interpretative Rule on F006 which was published in the Federal Register on December 2, 1986 (51 FR 43350). Your current request for interpretation pertains to whether or not the exemption for “zinc plating on carbon steel on a segregated basis” would apply to zinc alloy plating, which would result in the new sludge being considered nonhazardous. You recommend that the sludge resulting from your proposed zinc alloy process should be included within the exemption for zinc plating for the following reasons: Q J, Recycled/Recyclable (:9 p,Int.d with Soy/Canola istit on paper that costtaln$ at least 50% recycled fiber ------- 1. The process remains basically “zinc plating.” Cobalt is added at 60 ppm to the bath to enhance the performance characteristics of the plated product. 2. There are currently no land disposal regulations regarding cobalt. Cobalt is not listed under toxicity characteristic parameters per 40 CFR 261.24. 3. Given that cobalt is not subject to land disposal regulations or currently listed in TCLP standards, the addition of cobalt to an already nonhazardous sludge should not cause that sludge to become hazardous.” Our interpretation based on current RCRA regulations is that wastes from your proposed zinc-cobalt alloy plating process would not be included in the F006 hazardous waste listing The basis for our interpretation is as follows: o The revised plating process is still considered to be “zinc plating on carbon steel.” The small amount of cobalt (60 ppm) used in the process does not alter this interpretation. o Cobalt is not included in the list of toxic metals in the original F006 listing (chromium, cadmium, and nickel). See the November 14. 1980 RCRA Background Document, Subtitle C - Identification and Listing of Hazardous Waste, Sections 261.31 and 261.32 - Listing of Hazardous Wastes (Finalization of May 19, 1980 Hazardous Waste List), page 106. o Cobalt is not included in the list of contaminants for the toxicity characteristic (40 CFR 261.24) and is not included in the list of hazardous constituents of Appendix VIII, 40 CFR 261. Hence, the resulting wastewater treatment sludges would not be hazardous provided they do not exhibit any of the characteristics for a hazardous waste as specified at 40 CFR Part 261 Subpart C. Please note that the above is an Interpretation of the current F006 hazardous waste code. This interpretation in no way limits the Agency’s authority to take regulatory action to list alloy-metal plating in the future. 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. I hope that this letter sufficiently responds to your questions and concerns. If you have any further questions or comments, please contact Max Diaz of my staff at (202) 260- 4786. cc: Waste Management Division Directors, Regions I - X /or Office of Solid Waste ------- This Page Intentionally Left Blank ------- liii General Motors Corporation Legal Staff Facsimile Telephone 313-974-7770 313-974-1552 April 12, 1994 Ms. Sylvia Lowrance Office of Solid Waste and Emergency Response U.S. EPA Headquarters 401 M Street, S.W. Washington, D.C. 20460 Dear Ms. Lourance: The Inland Fisher Guide plant in Columbus, Ohio currently produces a nonhazardous wastewater treatment sludge. This classification is based on the exemptions from the original F006 listing in 1981 and a December 2, 1986 clarification of this listing. The 1986 clarification specifically exempted electroless zinc plating and phosphating on steel. U.S. EPA concurred that the Columbus sludge is nonhazardous in a June 30, 1987 letter (attached). Furthermore, continued testing has shown that the waste is not a characteristic waste. A change is being considered in the “zinc plating on carbon steel” process. This plater will be revised to a zinc alloy process which combines a very small amount of an alloy metal with zinc in the plating bath. In this case, the alloy metal would be cobalt , present in the plating bath at 60 ppm. The rinse water from the tanks which follow the plating bath would contain very small amounts of cobalt. This small amount of cobalt would eventually precipitate into the sludge during the wastewater treatment process. It is not clear that the exemptions for “zinc plating on carbon steel on a segregated basis” would apply to zinc alloy plating. We believe that the sludge resulting from zinc cobalt plating should be included within the exemption for zinc plating for the following reasons: 1. The process remains basically “zinc plating.” Cobalt is added at 60 ppm to the bath to enhance the performance characteristics of the plated product. 2. There are currently no land disposal regulations regarding cobalt. Cobalt is not listed under toxicity characteristic parameters per 40 CFR 261.24. 3. Given that cobalt is not subject to land disposal regulations or currently listed in TCLP standards, the addition of cobalt to an already nonhazardous sludge should not cause chat sludge to become hazardous. New Center One BuddIng 3031 West Grand Boulevard p 0. Box 33122 Detroit. Michigan 48232 ------- Ms. Sylvia Lowrance April 12, 1994 Page 2 Based on the above information, it is our conclusion that the sludge generated by the proposed zinc cobalt process should remain nonhazardous. We request a clarification that the “zinc plating on carbon steel” exemption includes zinc cobalt alloy plating. Very truly yours, J Michelle T. Fisher Attorney MTF:kt Attachment c: William Collinson Carl Messenheimer David Tackman ------- UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY _____ WASHINGTON, D.C. 20460 ‘ L pqOtt 9441. 1994( 21) AUG - 5 1994 OFF ICE0c SOLID WASTE AND EMERGENCY RESpO? E Mr. Brian J. Donovan The Law Offices of Jones & Donovan 19782 MacArthur Boulevard Irvine, CA 92715 Dear Mr. Donovan: Thank your for your letter of November 8. 1993, to Ann Hardison. Ms. Hardison referred the letter to my office for response. Your letter posed several questions regarding the Department of Transportation’s Maritime Administration’s sale of obsolete vessels from the National Defense Reserve Fleet, the scrapping of these vesseEs, and the applicability of Resource Conservation and Recovery Act (RCRA) regulations to these vessels. Specifically, you called into question the Maritime Administration’s interpretation that at the time of sale, neither the vessels nor the on-board operating materials would be considered wastes. You also inquired about the Maritime Administration’s position that although the sale is conditioned upon scrapping of the vessel, RCRA hazardous waste export regulations would not apply to the Maritime Administration if the vessels were to leave the country. Although we believe it is more appropriate to determine the applicability of RCRA regulations to the National Defense Reserve Fleet vessels and the operating supplies on board the vessels on a case-by-case basis in the context of specific facts, as opposed to as a class, there are some general statements that can be made about these situations. First, we will address your question concerning the Maritime Administration’s interpretation that at the time of sale, neither the vessels themselves nor the on-board operating materials would be considered wastes. In most cases, the vessel itself, the materials which are necessary for the operation of the vessel, and the materials which are part of the vessel’s structure, continue to serve a useful purpose while the vessel remains intact (i.e., they allow the vessel to continue to function as a ship). Therefore, these materials are not “discarded” at the time of sale, and are not solid wastes. It is also our understanding (see enclosed letter from Linda C. Somerville of the Maritime Administration to Daniel P. Cotter of Southwest Recycling, Inc.) that: MARAD regularly conducts environmental audits of its reserve fleets to ensure that the sites, and the vessels moored at those sites, are in full compliance with environmental Q RcycIIdI ecycIabIi Q PPIII wIn, Soyi t oIi Ink on caper u ,.t ccm n. v Ieut O% recycled fiber ------- law. As a result of these audits, over the last several years MARAD has spent considerable amounts of time and money to clear the vessels of any hazardous wastes and excess materials from the vessels, leaving on board only those items which are necessary for the operation of the vessel or which are Dart of the vessel’s structure (emphasis added). (In fact, pursuant to section 106(a) of the Federal Facilities Compliance Act, hazardous waste generated on a public vessel may not be stored on the vessel for longer than 90 days ai er the vessel is placed in reserve or is otherwise- no longer in service, without a RCRA stoiage perniit. No materials considered solid wastes and hazardous wastes under RCRA should be on board the vessel at the time of sale. After the sale, because it is possible for additional solid and hazardous wastes to be generated aboard the ship (e.g., wastes from degreasing, paint stripping, disassembly or dismantling, etc.), the purchaser would be responsible for determining the applicability of RCRA regulations to these materials, including waste identification. Second, we address your question about the applicability of RCRA hazardous waste export regulations to the vessels. The export occurs after the Maritime Administration has sold the vessel to the purchaser. Therefore, prior to or at the time of sale, it would be premature for the Maritime Administration to classify all the vessels as wastes and to comply with RCRA export regulations. We understand that under the rules of the ship sales program, these vessels can be scrapped either domestically or in approved foreign countries. It is our understanding that individual purchasers make the arrangements for transportation and scrapping of individual vessels, and the Maritime Administration is involved in the selection of a foreign scrapyard only to ensure that the scrapyard is in an approved foreign country. Again, purchasers will need to determine on an individual basis if, and at which point, RCRA regulations, including hazardous waste export regulations, as well as other environmental regulations, are applicable. Third, your letter described a possible scenario in which SRI purchases a vessel and “reduces the vessel to scrap,” and subsequently exports “h 7 rdous or regulated substances.” Although the circumstances in which the dismantling of any particular vessel will be situation- specific, in general, the removal of materials intended for discard from, for example, the vessel’s structure would be the point at which the material is “generated” as a waste. Therefore, the removal and subsequent management of these materials would be subject to RCRA, including export requirements, if these materials “as generated” meet the defmition of hazardous waste. Much of the material removed from the ship is likely to be scrap metal. As you are probably aware, scrap metal being recycled is exempt from RCR.A regulations (40 CFR 261.6(a)(3)(iii)). Scrap metal, as defined at 261 .l(c)(6), “is bits and pieces of metal parts (e.g., bars, turnings, rods, sheets, wire) or metal pieces that may be combined together with bolts or soldering (e.g., radiators, scrap automobiles, railroad box cars), which when worn or superfluous can be recycled.” As stated in preambular language to this regulation: “Materials not covered by this term include residues generated from smelting and refining operations (i.e., drosses, slags, and sludges), liquid wastes containing metals (i.e., spent acids, spent ------- 3 caustics, or other liquid wastes with metal in solution), liquid metal wastes (i.e., liquid mercury), or metal-containing wastes with a significant liquid component, such as spent batteries (50 FR 624, January 4, 1985).” Although your letter did not ask specifically about regulations concerning PCBs, I have enclosed for your information previous correspondence from EPA regarding the applicability of Toxic Substances Control Act PCB regulations to Maritime Administration ships. As stated in the April 2, 1993, letter, the export for disposal of PCBs at 50 ppm or greater is prohibited under TSCA. Please note that under section 3006 of RCRA, individual states can be authorized to administer and enforce their own hazardous waste programs in lieu of the federal program. In addition, section 3009 of RCRA allows states to promulgate regulatory requirements that are more stringent than the federal program. Therefore, you should contact the appropriate state environmental agency for applicable laws and regulations that may exist. In addition, foreign countries receiving the vessels or materials from on board the vessels may have in place laws or regulations which may ban or otherwise restrict the import into their country of the ‘ essels or materials from on board the vessels, in order to implement the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. \Ve understand that at least one country holds the view that vessels imported into their country for scrapping are hazardous wastes subject to the Basel Convention. If you have any further questions, please call me or Angela Cracchiolo of my staff at (202)260-4779. Thank you for your interest in the safe management of hazardous waste. Sincerely, Michael Shapiro, Office of Solid Waste Enclosures ------- This Page Intentionally Left Blank ------- b0 Sr 4 , , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON, D.C. 20460 $ q pfo t 9441. 1994(22) AU6 11 1994 OFFICE OF SOLID WASTE AND EMERGENCY Ms. Susan L. Prior RESPONSE Regional Environmental Manager Laidlaw Environmental Services (North East), Inc. 221 Sutton Street North Andover, Massachusetts 01845 Dear Ms. Prior: Thank you for your letter of July 5, 1994, in which you requested clarification regarding the hazardous waste sample exclusion found in 40 CFR 261.4 (d). Your letter describes a situation in which a waste management company receives a shipment of hazardous waste, samples the shipment, analyzes the sample, and retains the sample for thirty to sixty days as specified in the company’s RCRA permit. The samples, your letter states, are retained in the event that there is a problem with the material at the off-site facility, or analysis has to be re-run for any reason. At the end of the designated time period, the samples are segregated and lab-packed for ultimate - disposal. You ask if storage of the samples for thirty to sixty days after analysis has been completed qualifies for the exemption under § 261.4(d) (1) (vi). 40 CFR 261.4(d) (1) (vi) states that: N Except as provided in paragraph (d) (2) of this section, a sample of solid waste or a sample of water, soil, or air, which is collected for the sole purpose of testing to determine its characteristics or composition, is not subject to any requirements of this part of parts 262 through 268 or part 270 or part 124 of this chapter or to the notification requirements of section 3010 of RCRA, when ... the sample is being stored temporarily in the laboratory after testing for a specific purpose (for example, until conclusion of a court case or enforcement action where further testing of the sample may be necessary). EPA promulgated the conditional exclusion for such samples because the Agency believed that the risk posed to human health and the environment from the management of these samples is not substantial, that sufficient incentives exist to manage the samples properly, and that the full set of hazardous waste regulations is inappropriate for these samples. The Agency also envisioned samples being stored at the laboratory for significant periods of 1 Ij Recycled/Recyclable ( J < ? P,tn d with ScylCanola tnt a. , .t ccfltitI’S it bait 50% V ecy Sd nb ------- 2 time. As stated in the September 25, 1981, preamble: “...samples are sometimes saved for several years for additional and future analyses. Such analyses may be necessary to confirm original analytical results or to test for additional constituents or properties. Samples may also be stored by the laboratory for a specific purpose, such as when waiting until conclusion of a court case or enforcement action (46 FR 47427) .“ We believe that retaining the samples at the laboratory for thirty to sixty days as specified in the company’s permit could fit the description presented in § 261.4(d) (1) (vi) (i.e., the sample is being stored temporarily in the laboratory after testing for a specific purpose). However, since your letter states that retention of the samples is a requirement of the company’s RCRA permit, we suggest that you contact the State agency which granted’ your company’s permit for applicable laws, regulations, and procedures that may exist. As you are probably aware, under section 3006 of RCRA, individual States can be authorized to administer and enforce their own hazardous waste programs in lieu of the federal program. In addition, section 3009 of RCRA allows States to promulgate regulatory requirements that are more stringent than the federal program. If you have further questions, please feel free to contact me or Angela Cracchiolo of my staff at (202)260-4779. Thank you for your interest in the safe and effective management of hazardous waste. id Bussard, Dir tor Characterization afia Assessment Division Office of Solid Waste ------- usan L. Prior ,vvLqoNMEM74L EnvironmerjM SERVICES anager July 5, 1994 U.S. EPA Office of Solid Waste 401 M St. SW Washington, DC 20460 Attn: Michael Shapiro, Director Dear Mr. Shapiro, Laidlaw Environmental Services (North East), Inc., requests clarification on the hazardous waste issue discussed below: Samnie Exclusion A waste management company takes samples of all incoming waste containers, analyzes the samples, and retains the analyzed samples for a period of time (30 - 60 days) as specified in the company’s RCRA Part B Permit. The original containers are sent for off-site disposal based on the generators profile and analysis of the material. At the end of the designated time period. the samples are segregated and labpacked for ultimate disposal. The samples are retained in the event that there is a problem with the material at the off-site facility, or analysis has to be re-mn for any reason. In several previous civil and criminal cases, the use of retains has either protected the generator or established cradle to grave liability if the waste causes a problem either before or during disposal. - Would the samples qualify for the after analysis exemption listed in 40 CFR §261. 4(d)(1)(vi)? Although the samples are not being held for a court case as listed in the example, the samples are being held for a specific purpose and a specific time period as required in the facilities Part B permit. Thank you for your consideration and I look forward to your reply. Very truly yours, Q. ? — Susan L. Prior Regional Environmental Manager Laidlaw Environmental Services (North East). Inc 221 Sutton Street North Andover, Massachusetts 01845 Phone 508 683 1002 Fax 508 794 9665 ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 9441.1994(23) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Paul R. DiBella AUG 19 199’. Metals Recycling Technologies Corp 3350 Cumberland Circle Suite 970 Atlanta, Georgia 30339 Dear Mr. DiBella: This letter is written in response to your July 26, 1994 letter to Michael Shapiro. In your letter you requested a regulatory determination on the status of a lead/copper metal produced by Metals Recycling Technologies (MRT) at r4ucor Corporation’s electric arc steel furnace in Darlington, South Carolina. The lead/copper metal is derived from MRT’s recovery process of K06 1/emission control dust from electric arc furnaces, a listed hazardous waste. Please understand that EPA Headquarters cannot comment on the regulatory status of the specific lead/copper metal produced at Darlington. The regulatory status of this material is properly determined by the State of South Carolina through its Department of Health and Environmental Control. The State of South Carolina is authorized to administer and enforce its own RCRA program. This letter will answer in general terms how federal RCRA regulations apply to the metal-bearing secondary materials when thermal recovery is involved. The main regulatory issue is how to determine whether a metal-bearing secondary material that has been reclaimed more clearly meets the definition of a partially reclaimed material or a fully reclaimed material. Under EPA regulations, secondary materials being reclaimed that are also hazardous wastes remain hazardous wastes until the reclamation process is complete (or untila variance from the definition of solid waste is granted pursuant to 40 CFR Section 260.30). Whereas, secondary materials that have been completely reclaimed that had been hazardous wastes are no longer considered to be wastes. Reclamation is usually incomplete until the end-product of the process is fully recovered. 50 FR 614, 633, 634, 655 (January 4, 1985); 56 FR 41164, 41173 (August 19, 1991). When thermal metal recovery is involved, EPA has stated that secondary materials destined for smelters remain hazardous wastes. After smelting, recovered metals that only need to be refined are products, not wastes. 56 FR at 41173. In addition, there are other indicators of when a metal-bearing secondary material more closely meets the definition of a partially reclaimed material or a fully reclaimed material. When a metal-bearing secondary material has a very high metallic content of the recovered metal, e.g., over 90 percent, and the material also meets a product specification for a particular metal (e.g., prime western grade zinc is at least 98 percent zinc), this may indicate that the material is fully reclaimed. Conversely, a lower metallic content of the recovered metal in metal-bearing secondary materials indicates that the material is only partially reclaimed and must be reclaimed further in order to be applied for a particular end use. Pnnted on Recycled Paper ------- In summary, a metal-bearing secondary material such as a lead/copper metal that is between 92 percent and 99 percent lead and also only needs to be refined prior to use would generally meet the definition of fully reclaimed material. Of course, the material actually must be sent on to refining, and not discarded or further reclaimed (e.g. placed into a smelter). Please note that under 40 CFR Section 261.2(f ), respondents to enforcement actions must document claims that their secondary materials are exempt from the definition of solid waste. Further, good managemeni practices of a metal-bearing secondary material is another indicator of whether a material is being managed more like a product than like a waste. For example, land storage of a metal-bearing secondary material in waste piles, surface impoundments or other land disposal units prior to refining or other management which results in release to the environment could lead to the conclusion that the metal-bearing secondary material was being managed as a waste rather than a product. 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. I hope that this letter sufficiently responds to your questions and concerns. If you have any further questions or comments, please contact Paul Borst of my staff at (202) 260-6713. Sincerely, David Bussard, Director Characterization and Assessment Division ------- frleLaLs Qecychn Techno1o&e Corp. 3350 CUMBERLAND CIRCLE SUITE 970 ATLANTA, GEORGIA 30339 TELEPHONE (404) 951-1542 FACSIMILE (404) 955-7610 July 26, 1994 VIA OVERNIGHT DELIVERY Mr. Michael Shapiro Director, Office of Solid Waste United States Environmental Protection Agency Regulatory Development Branch (OS-332) 401 M Street, S.W. Washington, DC 20460 Dear Mr. Shapiro: Metals Recycling Technologies Corp. (“MRT’) is writing to request a regulatory determination as to the status of a certain lead/copper metal (the “Lead/Copper Metal”) produced with the MItT Process (defined below). MItT plans to sell its Lead/Copper Metal to U.S. lead producers who will (i) further refine this material to produce an even purer lead, and/or (ii) use it with other metal alloys to make specific lead-based alloys. The status of the Lead/Copper Metal produced during the MItT Process has not previously been considered by any state or federal environmental agency. EPA has appropriately and repeatedly recognized that its regulatory jurisdiction under the Resource Conservation and Recovery Act (RCRA) over “wastes” and “partially reclaimed” materials does not extend to “fully reclaimed” products that have been recovered but may require further “refining”. Specifically, EPA has stated that: (i) “reclaimed metals that are suitable for direct use, or that only have to be refined to be usable are products, not wastes” (See Fed. Reg. 614, 634 (Jan.4, 1985)); and, (ii) recovered metals only needing to be refined (the processing step following smelting) are products, not wastes” (See 56 Fed. Reg. 41164, 41173 (Aug. 19, 1991)). Background - MItT owns and operates a patented, hydrometallurgical process (the “MRT Process”) that recycles electric-arc furnace dust (“EAF Dust”) generated during the steelmaking process. The first commercial scale MItT Process facility is operating adjacent to Nucor Corporation’s Darlington, South Carolina (‘Nucor-Darlington”) steelmaking plant. This facility recycles the EAF Dust generated at Nucor. Darlington. ------- Mr. Michael Shapiro July 26, 1994 Page -2- Overview of the MRTProcess The following is a general overview of the MRT Process. See Appendix “A” for a detailed flow chart of the MRT Process. The MItT Process uses a heated, aqueous ammomum chloride solution to leach solubles in the EA.F Dust into solution. The solubles in the EAF Dust include, among others, zinc oxide, lead oxide, cadmium oxide and copper oxide. The insoluables, which comprise approximately 70% of the original EA.F Dust, contain primarily iron oxide. After the EAF Dust is d.igested in the heated solution, the insolubles are filtered from the solution using a high-pressure membrane press. This “iron cake” (the “Iron Cake”) is used on-site m the steelmaking process as an ingredient to make steel. Following filtration, the rempining heated solution contains primarily zinc oxide, lead oxide, copper oxide and cadmium oxide. This solution is pumped to a tank, where the cementation step takes place. In this step, zinc metal particles are added to the solution. This induces an electrochemical reaction. The zinc particles partially dissolve and the copper, lead and cadmium oxides exchange ions with the partially dissolved zinc metal particles. The dissolved portion of the zinc particles gains the oxygens from each of the lead, cadmium and copper, and goes into solution as zinc oxide along with the zinc oxide contained in the solution from the original EAF Dust. The lead, copper and cadmium plate out as metals around the undissolved portions of the zinc metal particles. The solution, then loaded with zinc oxide, is sent to a crystallizer, where zinc oxide is crystallized and harvested. The zinc oxide crystallized from the MRT Process is of 99.8% plus purity and sold as a commercial product. The Cementation Material and the Lead/CoDver Metal Prior to the operation of the first commercial scale recycling facility at Nucor- Darlington, MItT operated the MRT Process on pilot scale and bench scale. On these scales, the material resulting from the cementation stage of the process was comprised primarily of zinc metal, with smaller amounts of lead, cadmium and copper metals present. The zinc metal levels of this material ranged from 50% to over 70%. At the Nucor-Darlington recycling facility, MItT has made enhancements to the cementation stage of the MRT Process. The result is a cementation material much lower in zinc content than the cementation material produced during pilot and bench scale operations. - The new cementation material, on a metals basis, has approximately the following composition: lead-87%, copper-5%, zinc-4% and cadmium 4%. Using hydrometallurgical technology recently developed by MRT and being implemented at the Nucor-Darlington recycling facility, the new cementation material is processed further. Through this process, MItT recovers the Lead/Copper Metal, cadmium metal and a zinc salt. The Lead/Copper Metal is sold to a lead refiner. The cadmium ------- Mr. Michael Shapiro July 26, 1994 Page -3- metal is sold as a product. The zinc salt is placed into the digestion step of the MRT Process where the zinc is recovered as zinc oxide and the salt precipitates calcium from solution in the form of a calcium salt. The calcium salt is returned to the steel mill in the Iron Cake to be used as a replacement raw material in the steelmaking process. Based on MitT’s experience at Mucor-Darlington, the Lead/Copper Metal has a metallic lead content of anywhere from 92% to over 99%. The remainder is comprised of primarily of copper metal, with smaller amounts of zinc metal present. MRT expects this Lead/Copper Metal to be dry, with a moisture content of .1% or less. With regard to purity, when the Lead/Copper Metal leaves the MRT Process facility, it is comprised of well over 90% metallic lead. At these high levels of metallic lead concentration, the material can be (i) used alone or with other alloys in a number of nonland-use applications, and/or (ii) refined into an even purer lead. Attached hereto as Appendix “B” are pages from a publication of the Lead Industries Association, Inc.’ Information on these pages shows that there are a number of direct uses for lead materials with metallic lead concentrations above 90%. This information also shows many uses for lead-based alloys with lead concentrations well below 90%. (See Appendix “B”, page 9, L55140 tin-lead solder, for which the Lead/Copper Metal would provide an excellent use when combined with other alloys). Further, a number of U.S. lead producers have indicated an interest in purchasing the Lead/Copper Metal. These producers intend to place the Lead/Copper Metal directly into the refining process, which is the final process in the m iking of pure lead. These lead producers will either further refine the Lead/Copper Metal into an even purer lead or combine it with other alloys to make specific composition lead-based alloys. Attached hereto as Appendix “C” is a letter from The Doe Run Company indicating that it would place the Lead/Copper Metal directly into the refining process. Based on the foregoing, MRT respectfully requests a status determination on the Lead/Copper Metal. MET RECYCLING TECHNOLOGIES CORP. cc: Paul A. Borst, U.S. EPA John E. Johnston, U.S. EPA Region IV 1 LEAD INDUSTRIES ASSOCIMloN, INc., PROPEIaIES op L D Ls Au.oys. ------- Digester Tank heated ammonlum chloride solution ba c s Carbon ammonium chloride solution recycled mn e I (JIIilIII!IIIM t1tIuIliIiilIlllID -—-J Press. $øj te IIqqk1 4, 1 Carbon-enriched Iron Cakes 65%-70% of original EAF dust 1 hmc s Returned to steel mill for use as raw material replacement I Zinc solution to digester tank< Lead /Copper metal • Cementation Tank Precipitation of Zinc Concentrate ..... Lead Concentrate 3%-5% of original EAF dust Separat Process j I I L 4- 0000 99.9% Pure Zin- Oxide 20%-30% of orlgin dust ------- APPENDIX “C ” THE DOE RUN COMPANY SUITE 300 1801 PARK 270 DRIVE ST. LOUIS, MO 63146 TELEX 98-8554 MICHAEL L. DEELO FAX 314-453-7180 SALES MANAGER 314-463-7112 via mail / telefax (404-955-7610) July 20, 1994 Mr. Paul R. DiBella Metals Recycling Technologies Corp. 3350 Cumberland Circle Suite 970 Atlanta, GA 30339 Dear Mr. DiBella: As I mentioned to you in our several conversations, The Doe Run Company is committed to doing its part to help manage the life cycle of lead, one of the oldest and most useful metals known to man. We believe prudent management of the lead life cycle is an environmentally sound policy. The Doe Run Company is interested in pursuing a commercial relationship with Metals Recycling Technologies Corp. (MRT) for the purchase of the lead-rich material produced by the MRT Process. Based on our understanding of the composition of the lead- rich material, The Doe Run Company would use the material at our Herculaneum, Missouri plant, placing it directly into the dross kettle, which is part of the lead refining process. We expect there will be no need to smelt the material. We are in the process of drafting a proposed agreement for your review. Our agreement to purchase the lead-rich material produced by the MRT Process will be conditioned on MRT providing us with satisfactory assurances that MRT has received the appropriate regulatory determination that the lead-rich material is product, not a waste derived from electric-arc furnace dust. This means that MRT must be able to send the material to the Herculaneum plant without a hazardous waste manifest. While we believe your lead-rich material is a very attractive product for lead refining, the Herculaneum plant is not a RCRA permitted facility. Consequently, this facility cannot receive materials shipped under a hazardous waste manifest. This document has been retyped from the original ------- Metals Recycling Technologies Corp. (7/20/94) Page 2 The Doe Run Company looks forward to a mutually rewarding relationship with MRT. It appears as though MRT has one of the same primary objectives as The Doe Run Company -- prudently managing the life cycle of lead. Sincerely, Michael L. Deelo This document has been retyped from the onginal ------- Q ST 4 , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D C. 20460 4( 0 itC. 9441. 1994(24) AU630 1994 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Ms. Kristina M. Woods Environmental Counsel Law Department Ashland Chemical Company P.O. Box 2219 Columbus, Ohio 43216 Dear Ms. Woods: Thank you for your letter dated August 3, 1994 requesting verification of Ashland Chemical’s position regarding the regulatory status of high purity chemicals that are initially used by Ashland’s high purity chemical customers and are then sold to other businesses for further use. Ashland’s position is that reuse of the chemicals constitutes continued use of a product and that therefore, these materials are not subject to regulation as spent materials under the Resource Conservation and Recovery Act (RCRA) regulations. Under the existing RCRA regulations, 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.” As you correctly note, the RCRA definition of spent material does not include materials that are reused for their original purpose, provided that the materials do not undergo reclamation or reprocessing prior to their reuse. For example, as you note, the reuse of a solvent (first used to clean circuit boards) as a metal degreaser constitutes a legitimate use of a product for its original purpose. In this example, the fact that the solvent is “spent” in terms of its use as a circuit board cleaner does not make it a spent material as defined by RCRA. Rather, as long as the solvent does not undergo reclamation prior to its reuse as a metal degreaser, it would be considered a product excluded from jurisdiction under RCPA. It is important to point out here that the determining factor is not whether a used chemical is marketable, but rather whether it is reused in a manner consistent with its original use without prior reclamation. Additionally, you should note that the Office of Solid Waste (OSW) recently established a Definition of Solid Waste Task Force to review the current system by which hazardous waste recycling is regulated. Over the past year, the Task Force has developed XY R.cycIedlR.cyclable Prlntsd with SoyICanOL Ink on panet ma, cwit nS IeS 50% I CydId Ilbe, ------- 2 recommendations on how to improve the RCRA regulations to encourage the safe recycling of hazardous waste. The Task Force proposes a tiered regulatory system for hazardous waste recyclers based on the source of the recyclable materials and the recycling location. The Agency is currently, considering revising its RCRA regulations based on these recommendations. Under the Task Force proposal, Ashland’s customers would be subject to regulation under RCRA as “Category A” recyclers. Category A includes spent materials directly reused off-site. (Under the Task Force’ revised definition, the used chemicals that Ashland sells for reuse off-site would be considered spent materials.) As Category A recyclers, Ashland’s customers would be subject to the minimum requirements for a RCRA recycler. These include notifying the Agency of recycling activities, use of a “recyclable materials” manifest for materials transport, and filing a biennial report on the volume and type of waste generated, how it was managed, and whether it was managed on- or off-site. The Agency will be making a decision on whether and to what extent to proceed with the Task Force recommendations over the next several months. Finally, you should also note that EPA Regions 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. I hope this addresses your concerns. Please call Mitch Kidwell at (202) 260- 8551 or Becky Daiss at (202) 260-8718 if you have any further questions. Sincerely, David Bussard, Director Characterization and Assessment Division ------- Ashland Chemical Law Depanment Asnlana Chemicai Company \ddress Reoly Krishna M Woods Division or P0 Box 2219 Environmental Counsel Asntand Oil Inc Colur’ious Ohio 43216 (614)889-3678 F x (614)389-4258 August 3, 1994 VIA CERTiFIED MAIL Michael Shapiro Director, Office of Solid Waste U.S. Environmental Protection Agency 401 M. Street S.W. Washington, D.C. 20460 Subject: Resale of High Purity Chemical Products Dear Mr. Shapiro: Ashland Chemical Company’s Electronic Chemical Division (ECD) in support of our waste minimization efforts, requests that the U.S. EPA Office of Solid Waste review the enclosed position paper regarding the resale of high purity chemical products. The position paper provides the rationale for Ashland’s position that this activity will not involve solid waste based on Federal regulations. Ashland is also basing this position on language from the Federal Register in which the United States EPA describes essentially the same activity we are proposing and exempts it from solid waste regulation. More specifically, Ashland relies on 50 Federal Register 614 Part 1 1(1) (A) (1): Spent Materials, in which the Agency describes exemptions from the category of spent materials. “An example of this is where solvents used to clean circuit boards are no longer pure enough for that continued use, but are still pure enough for use as metal degreasers. These solvents are not spent materials when used for metal degreasing. The practice is simply continued use of a solvent. (This is analogous to using/reusing a secondary material as an effective substitute for commercial products.)” Following your review, please provide written verification that Ashland’s position is consistent with the US. EPA’s solid and hazardous waste regulations. Ashland has been in contact with the appropriate agency in Texas, the location of the proposed activity, to determine the appropriate state regulations that might affect transporting, Headquarters. e - -ccress Arooiaz Oh-h I . IUALITY 5200 Blazer Part wav ei 245385 — Dublin Ohio 43017 - -e’cack . SHCi—EM Ashlana Chemicals (614)8893333 :, i814) 3894119 Commitment to Quality aria Poauctivity i. ------- Michael Shapiro August 4, 1994 Page 2 manifesting and management of this process. The Texas Water Commission (now Texas Natural Resources Conservation Commission) agreed with our position. (See attached letter.) Thank you for your assistance with this matter. If you have any questions or comments, please feel free to contact me at the above number or Herb Richardson in our Electronic Chemicals Division at (614) 889-4551. Very truly yours, , ,i Kris ina M. Woods Enclosures cc: Herb Richardson ------- John Hall, Chairman Pam Reed, Commissioner Peggy Garner, Commissioner TEXAS WATER COMMISSION PROTECTING TEXANS HEALTH AND SAFETY BY PREVEj Tf1NG AND REDUCING POLLUTION March 23, 1993 Mr. Don E. Gebhardt Environmental Engineer Ashland Chemical, Inc. P 0. Box 2219 Columbus, Ohio 43216 Re: Review of Position Paper on the Resale of Spent High Purity Chemical Products Dear Mr. Gebhardt: We have reviewed the position paper for the resale of spent high purity chemical products at your Electronic Chemical Division, submitted to the Texas Water Commission (TWC) on March 17, 1993. From the information submitted to TWC, it appears that your proposed activity is not subject to permitting requirements. If you have any questions regarding this matter, please contact Mr. Srinath Venkataramiah, at (512) 908-6382. Sincerely, Chris Peckham, Supervisor Facility Team I Industrial and Hazardous Waste Permits Section This document has been retyped from the original. ------- This Page Intentionally Left Blank ------- ASHLAND CHEMICAL COMPANY ELECTRONIC CHEMICALS DIVISION Regulatory Position Regarding “Spent” High Purity Chemical Product Sales The Electronic Chemicals Division of Ashland Chemical Company (“Ashland”) is proposing to develop a clearing house to collect and distribute “spent” High Purity chemicals from our high purity chemical customers. (We are using the term “spent” in the sense that these chemicals are no longer suitable for use in the production of semiconductors; but they are suitable for use in other applications. Thus, they are not spent by RCRA definition.) The intent of this service is to help our customers minimize their waste disposal through the reuse of the spent chemicals by other industries. We also believe that without this clearing house many of these products would be neutralized and discharged to sanitary sewers or disposed of as hazardous waste. Ashland, as the clearing house, will utilize its existing technical grade customer base and high purity chemical customer base to conserve resources and minimize the waste generated by our customers. To further explain our position it is important that you understand that our current business is very unique. Ashland’s primary customers are semiconductor manufacturing plants. These are extremely clean operations which require that Ashland supply products mixed in a clean room environment, filtered and particle counted, and packed in specifically designed containers which preserve chemical integrity. Most product specifications require that even the lowest grade clean room chemicals contain no more than 300 parts per million of metallic impurities. Higher quality products are sold with a guarantee that they contain less than one part per billion per element of metallic contaminant. In contrast, the standard chemical blending, packaging, and distribution business does not depend on extremely low particle counts, and metal contaminants are usually not even measured. The proposed clearing house(s), at an as yet undetermined site(s), would essentially consist of collecting, and in some cases consolidating, these streams and redistributing them to other markets with no further processing. The materials that would initially be collected and redistributed would include sulfuric acid, isopropyl alcohol, hydrochloric acid, hydrofluoric acid, and phosphoric acid. ------- Ashland will establish an extensive paper trail and quality control program to assure that all materials collected are marketable. All materials prior to receipt will be extensively characterized. Due to the nature of the generator operations it is expected that product variability will essentially be non-existent. Records of all product pick ups, on-site storage, and shipments will be well documented, readily available for review, and retained for a period of five years. Documentation of the purchaser’s use will also be maintained to demonstrate that product use can not be construed to be “use constituting disposal”. Regulatory Requirements: It is Ashland’s position that under Title 40 of the Code of Federal Regulations, specifically 261.2(e) (1), the materials would not be classified as a solid waste and, therefore, the materials would not be a hazardous waste. This section states: Materials are not solid wastes when they can be shown to be recycled by being: (i) Used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed; or (ii) Used or reused as effective substitutes for commercial products; or (iii) Returned to the original process from which they were generated, without first being reclaimed The material must be returned as a substitute for raw material feedsiock, and the process must use raw materials as principal feedstocks. Based on this citation, it is our position that we are not required to file permit applications or notices of activity since this operation will not involve any hazardous or residual waste. If necessary, Ashland will file for local building, operating and air permits should new facilities or tankage be required. ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE September 28, 1994 9441. 1994(25) Ms. Deborah S. Green, CIH Sr. Industrial Hygienist Applied Environmental Sciences, Inc. 5111 ith Avenue South Mail Slot 220 Minneapolis, Minnesota 55415 Dear Ms. Green: In your letter to Mike Petruska of August 30, 1994 you ask when do used mercury relays/switches become spent. In particular, you want to know whether or not mercury relays/switches need to be determined to be hazardous waste in the field location or whether they can be determined to be a hazardous waste after being transported to a central warehouse for removal from equipment and evaluation for potential reuse. Under the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations, it is the responsibility of the generator to make the determination of whether or not a secondary material is a hazardous waste. 40 CFR §262.11. In order to determine whether or not a secondary material is a solid and hazardous waste, it is necessary to determine both what type of material the secondary material is and how it is managed. See 40 CFR §261.2. If a mercury switch is sent for further use as a relay or switch, it never becomes a solid waste. Rather, it continues to be used for its original purpose. If the switch is taken out of service and shipped for reclamation, it is considered to be a spent material. 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 further processing.” 40 CFR §261. 1(c)(1). It is therefore a hazardous waste since spent materials being reclauned are solid and also hazardous wastes. 40 CFR §261.2(c)(3). In your letter, you mention that there could be similarities between mercury switches/relays and out-of-date drugs which are returned to pharmaceutical manufacturers for reclamation, the latter being allowed by EPA based on the presumption that out-of-date drugs are not solid wastes until they are discarded. Although there are similarities between this situation and out-of-date drugs returned to pharmaceutical manufacturers, spent mercury switches/relays and out-of-date drugs are different in that the switches are spent materials whereas out-of-date drugs would be considered to be commercial chemical products. Commercial chemical products that are reclaimed are not solid wastes, unless discarded. 40 CFR § 2 61.2(c)(3). This document has been retyped from the or iginal ------- Mercury switches, conversely, have been used. In this case, presumption shifts so that once the mercury relay/switch has been used, we would consider it spent as soon as it is taken out of service. The fact that it is undetermined whether or not the switch is usable does not affect this defrnition or relieve the generator of the obligation to make this determination. If the generator has a realistic expectation that the switch is destined for further use as a switch, such as arrangements have been made for further use, then the materials are not spent. It is important to note that it is the actual management of the material rather than the potential of the material for a particular end use that determines whether or not it is a waste. See enclosed March 24, 1994 memo from Michael Shapiro to Regional Division Director on the Definition of Spent Material. Those switches that are in fact reused as switches are not solid waste. However, persons claiming to be managing materials excluded or exempted from the definition of solid waste must be able to document these claims. 40 CFR §261.2(t). In summary, the determination of whether or not mercury switches are spent applies when they are taken out of service as switches and cannot be deferred until they are shipped to a central location. This means that if the switches are determined to be spent, i.e., no longer to be used as switch, they would be subject to the applicable RCR.A Subtitle C regulatory requirements from the point at which they are no longer used as switches or relays. Prospectively, you may with to consider petitioning the Agency to include these switches/relays as part of the proposed Part 273 Special Collection System regulations (enclosed) when these regulations become final. If included in the Part 273 regulations, these switches/relays could be shipped under reduced Subtitle C regulatory requirements (e.g., a manifest would not be required). EPA requested comment on the potential usefulness of Part 273 regulations to mercury-containing thermostats in the proposed rule. 58 FR 8102, 8110 (February 11, 1993). 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. If you have any further questions, please contact Paul Borst of my staff at (202) 260-6713. Sincerely, David Bussard, Director Characterization and Assessment Division Enclosure(s) This document has been relyped from the original ------- ST 4 , TI UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY _____ WASHINGTON. D.C. 20460 47 4( 01 tG ” 9441. 1994(26) SEP 28 1994 OFFICE OF Ms. Susan L. Prior SOLID WASTEANDEMERCENCY Regional Environmental Manager RESPONSE Laidlaw Environmental Services (North East), Inc. 221 Sutton Street North Andover, Massachusetts 01845 Dear Ms. Prior: Thank you for your letter of May 31, 1994, in which you requested clarification on four hazardous waste issues. Your questions and our responses follow. Manifest Document Number Your first question pertained to use of the manifest document number in situations in which the hazardous waste manifest consists of several pages. The manifest document number is the unique five digit number assigned to the manifest by the’ generator. Under the Federal program, if continuation sheets are necessary, the number entered in the manifest document number block of the continuation sheets should be the same as- the number entered in the manifest document number block on the first page of the manifest. However, in states such as Louisiana which have discontinued use of continuation sheets, you should contact the, state environmental agency to determine the. appropriate’procedures. - P003, P005. DOOl- In the sëcøn& scenario,- a solvent. mixture consisting of P003 and F005 exhibits the.’cha acterjgtjc of ignitability.. You asked if, for purposes ‘of Land Disposal Restriction compliance, the treatment standard fo D00l (ignitability) should be included. Your letter-etateo .that although the characteristic constituents or propertiee ar¬ specifically addressed in the treatment standard f or the l- pted’wastea, the characteristic of ignitability is effective r ii âved during treatment for P003 and. P005. : .:- Yes, P003-and FOGS wastes that are also ignitable should also be identified as DOOl. This will assure that the applicable treatment standards for the spent solvent wastes will be met, as well as the treatment standards for DOOl that were established in the Third Thjid rule in 1990 (for high TOC DOOl wastes) and in the Interim Final Rule promulgated on May 24, 1993 WOOl wastes managed in non-Clean Water Act (CWA) wastewater treatment systems, non-CWA- equivalent wastewater treatment systems, and non-Class I nonhazardous underground injection wells). RscycI .d b cer nu M PillS 50% ISCYdId flb ------- 2 Waste Destined for Recycling In your third question, you describe a situation in which a manufacturer generates a characteristic by-product that is excluded from the definition of solid waste if reclaimed (40 c § 261.2(c) (3)]. The generator wants to recycle the material but cannot afford the transportation costs to send the material to the reclaimer. Instead, he sends the material to a TSDF storage- facility who in turn ships it to the reclaimer. You, asked if the material was subject to RCR.A while in storage’It the TSDF, or if the solid waste exemption extended to this situation if the TSDF ships the waste to be reclaimed. You also asked if scrap metal that exhibited a characteristic but was destined for recycling would need to be managed as a hazardous waste if stored at a TSDF prior to being recycled. In addition, you asked if the TSDF could receive material, meeting the definition of-recyclab].e material under § 261.6(a) (3), on a hazardous waste manifest and send it out. on a bill of lading. I will answer the three sections to this question separatelT, beginning ,with the reclaimed, characteristic by-product. Under th”e existing RCRA recycling regulations, - the status of secondary materials is based upon. 1 the type of materials and 2) the recycling activity involved- (January 4, 1 85 Federal Register ; 50 619). The recycling activity is viewed prospectively; that is, the status of certain secondary materials is determined by knowing how the material is going to-be recycled. The term “when” as it is used in 40 CF 261 .2 (c) for recycling activities (e.g., when reclaimed) is not meant to refer only to- the moment in time when that activity occurs, in order to. determine the regulatory status of a materials (with the- exception of speculative accumulation, explained below . Ii your illustration, if the generator intends to have his/her characteristic by-product reclaimed: at some point in the future, he/she would not be deemed. to be managing- a solid or hazardous waster according-to Table 1 in 2 1.2.- Of coi.irse, when. secondary materials are excluded or exempt based on a claim of recycling, the material, will no longer be- excluded or exempt if it is accumulated speculatively-prior to recycling. Also, respondents in enforcement actions who make such a claim (e.g-;, generator, recycler, owner/operator of the TSDF conducting storage) must be able to document a claim of legitimate recycling. (see-S 261.2(f)). If the Agency- believeà that particular management practices involving -excluded materials are contributing to the waste disposal problem, to the extent that the materials are clearly- discarded (in other words, if the- material, is managed in such a way that it is essentially being disposed of), these materials would be considered to be solid waste. - Regarding speculative accumulation, in the January 4, 1985, final rule, EPA acknowledged the risks associated with accumulating hazardous secondary materials prior to reclamation and chose a more stringent approach as a result (50 617). The purpose of ------- 3 promulating the speculative accumulation provisions wag to allow EPA to regulate certain materials, intended for recycling, as solid waste if the person claiming that his/her waste wag excluded did not recycle sufficient quantities of these materials within the calendar year. The (speculative accumulation] provision thus applies to secondary materials not otherwise considered to be wastes when recycled - - namely, to materials that are to be used as ingredients or as commercial product substitutes, to materials that are recycled in a closed-loop production process, to unlisted sludges and by-Droducts that are to be reclaimed , and to black liquor and spent sulfuric acid being reclaimed. Thus, if one of these materials are overaccumulated, they would be considered to be hazardous wastes and would become subject to regulation... (50 635, emphasis added). To respond to the second part of this question, scrap metal is both a solid waste and a hazardous waste but is exempt from the hazardous waste regulations found in 40 CFR 262 through 266 and parts 268, 270, and 124, if it is recycled (S 261.6(a) (3) (iii). Again, the recycling activity is viewed prospectively; provided that the generator intends to recycle his/her scrap metal at some point in the future, the scrap metal is exempt from the hazardous waste regulations. As in the illustration above, respondents in enforcement actions who make such a claim (e.g., generator, recycler, owner/operator of the TSDF conducting storage) must be able to document a claim of legitimate recycling (see § 261.2(f)). Regarding bhe third part of this question, recyclable materials that are listed in § 261.6(a) (3) are exempt from the hazardous waste regulations found in parts 262 through 266 and parts 268, 270, and 124, including the hazardous waste manifest, if they are recycled. There would be no reason, under the Federal program, for these recyclable materials to be accompanied by a hazardous waste manifest during transportation. Treatment Standards for Chlorinated Fluorocarbons Finally, your letter states that the waste code FOOl contains a constituent listed as “chlorinated fluorocarbons” in 40 CFR Part 261 Subpart- D,.- and that the treatment standards for the F waste found in 268.43 contains only two chlorinated fluorocarbon constituents. Your letter asks which treatment standard should be used for spent chlorinated fluorocarbons which are different from the two constituents listed under FOOl - F005 in § 268.43. Only thé treatment standards for the spent chlorinated fluorocarbons identified as constituents of concern in FOOl - F005 wastes must be. met for purposes of satisfying the treatment standards for FOOl - F005 wastes. You should be aware, however, that there is one fluorocarbon waste included in Appendix III to ------- 4 268, in the list of halogenated organic compounds regulated under § 268.32: dichlorodifluoromethane. If this constituent is present in total concentration greater than or equal to 1,000 mg/kg, it would be subject to the LDR treatment standard found at §268.42 (a) (2). Please note that under section 3006 of RCRA, individual states can be authorized to administer and enforce their own hazardous waste programs in lieu of the federal program. In addition, section 3009 of RCRA allows states to promulgate regulatory requirements that are more stringent than the federal program. Therefore, you should contact the appropriate state environmental agency for applicable laws and regulations that. may exist. For questions pertaining to use of the manifest, please call Angela Cracchiolo at (202)26G-4779. For questions pertaining to the Land Disposal Restrictions program, please call Rhonda Craig at (703)308-8771. Thank you for your interest in the safe and effective management of hazardous - waste. - S 4 ncere1yr - Mic fa L Shapiro, Director Of f e of Solid Waste ------- Susan L. Prior Northeaet Regional £NWRCWMTAL Environmental Manager May 31, 1994 U.S. EPA Office of Solid Waste 401 M St. SW Washington, DC 20460 Attn: Michael Shapiro, Director Dear Mr. Shapiro, Laidlaw Environmental Services (North East), Inc., requests clarification on the four h i, rdous waste issues discussed below: I. Man ifést Document Number According to the manifest requirements found in the Appendix to 40 CFR Part 262, the manifest document number required in item #1 must be a unique five digit number assigned to the manifest by the generator. Since many of the state agencies no longer allow the use of continuation pages, several manifests may be required for one shipment of hazardous waste. The state of Louisiana says that additional first page manifests may be used “as continuation pages”. Should the manifest document number be different for each page of the manifest even thought they represent one shipment, or can one document number be used on all manifest for the same shipment? 2. F003. FOOL DOOl An F003 and F005 solvent mixture carries a DOOl because it exhibits the characteristic of ignitability. For purposes of Land Disposal Restriction compliance, do treatment standards for D001 have to be included? Although the characteristic constituents or properties are not specifically addressed in the treatment standard for the listed wastes, meeting the listed treatment standards for the F0031F005 solvents would effectively remove the characteristic. 3. Waste Destined for Recvclini A manufacturer generates a by-product waste which exhibits the RCRA lead characteristic, but is exempt as a solid waste if it is reclaimed [ 40 CFR § 261 .2(cX3)]. The generator wants the material to be recycled but cannot afford the transportation costs to send the material to the reclaimer, so the generator sends the waste to a TSDF storage facility who in turn ships to the reclaimer. Does the waste have to be managed as a halMdous waste while in storage at the TSDF, or does the solid waste exemption Laidlaw Environmental Services (North East). Inc. 221 Sutton Street North Andover, MassachusettS 01845 Phone 5O&68 1002 Fax 508.794 9865 ------- still hold if the TSDF ships the waste to be reclaimed? If the TSDF were storing scrap metal destined for recycling [ 40 CFR § 261.6(a)(3)(iii)], would it have to be managed as a hazardous waste during storage if it exhibited a characteristic? Could the TSDF receive material on a hazardous waste manifest and send kt out on a bill of lading if it met the definition of a recyclable material under 261 .6(a)(3)? 4. Treatment Standards for Chlorinated Fluorocarbons The waste code FOOl contains a constituent listed as “chlorinated fluorocarbons” in 40 CFR Part 261 Subpart D. The treatment standards for the F waste found in 268.43 contains only two chlorinated fluorocarbon constituents. What treatment standard should be used for spent chlorinated fluorocarbons which are different from the two constituents listed under FOOl - F005 in 268.43? Thank you for your consideration and I look forward to hearing from you at your convenience. Very truly yours, \ Q RL Susan L. Prior Regional Environmental Manager ------- Sr 41 UNITED STATES ENViRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 1 4 D Ø 9441. 1994(27) OCT 4 99i OcF ICEOF SOLID WASTE AND EMERGENCY RESPONSE Mr. T. L. NebriCh, Jr., CHMM Technical Director Waste Technology Services, Inc. 640 Park Place Niagara Falls, NY 14301 Dear Mr. Nebrich: I am pleased to respond to your letter, dated September 8, 1994, in which you requested clarification of the regulatory requirements applicable to two wastes. At issue are two wastestreafliS identified as DOOl high TOC subcategOrY, and DOOl high TOC subcategOry/DOO 2 , that would be bilayered through phase separation at a licensed TSDF. You asked whether the two phases can be treated as different EPA hazardous wastes. In particular, you asked whether the DOOl high TOC portion could be treated to meet its treatment standard requiring combustiOn or organicS recovery, and the remaining aqueous or acid portion sent to wastewater treatment? Yes, these wastes can be treated as different hazardous wastes. The phase separation is considered an appropriate pretreatment step for these wastes. Therefore, the D002. high TOC portion can be treated to meet its LDR treatment standards, and the other phase can be sent to wastewater treatment, provided it is not an ignitable waste containing greater than 10% TOC. I you need further assistance on this matter, please contact Richard KinCh, Chief of the Waste Treatment Branch, on 703—308—8434. Sincerely, l Shapiro Office of Solid Waste cc: Richard Kinch Q c(edifiecycIabIO pftM. Hh Soy iO 4 Cfl p.P P aI lieu 50% ,eCVCOd flb ------- This Page Intentionally Left Blank ------- WT WASTE TECHNOLOGY SERVICES INC. September 8, 1994 Mr. Michael Shipiro Director — OSW Environmental Protection Agency 40]. Street, 3. W. Washington, DC 20460 Dear Mr. Shipiro: We have a client who has two (2) wastestreams identified as DOOl (>10% TOC) and DOOl (>10% TOC) and D002 respectively. Each wastestream is bilayered. However, when you take a representative sample for identification purposes, you have DOOl (>10% TOC) common to both wastes. My question has to do with treating the two (2) phases under LDR requirements. Since both wastestreams are bilayered, can each phase be treated differently? That is, can the D00]. (>10% TOC) phase be treated via INCIN, RORGS, FSUBS and the remaining aqueous or acid portion be sent for wastewater treatment? The assumption here is that this phase separation would be performed at a licensed TSDF which is permitted to handle both EPA hazard codes. However, is the DOOl (>10% TOC) designation attached to the total wastestream (both phases) or can the LDR requirements be attached to each phase ir 1 di ’iduolly after saparaticn? If you should have any questions, please do not hesitate to call. Very truly yours, WASTE TECHNOLOGY SERVICES, INC. ) I’ I’ I, T. L. Nebrich, Jr., CHMM Technical Director TLN/kjl 640 Park Place. Niagara Falls. New York. 14301 Telephone 716-282-4100 ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 9441.1994(28) OCT 5 OFFICE OF SOLID WASTE AND EMERGENCY - RESPONSE Mr. Thomas Duff icy The Silver Coalition do National Association of Photographic , Inc. 550 Mamaroneck Avenue Harrison, New York 10528 Dear Mr. Duff icy: This responds to a letter dated September 2, 1994,- from Mr. Kenneth Kastner on your behalf requesting an interpretation regarding the. regulatory status of silver recovery units (SRUs) under the Resource Conservation and Recovery Act (RCRA) regulations. The purpose of Mr. Kagtner’s letter is to follow-up on a July 13, 1994, meeting with Environmental Protection Agency (EPA) staff on this issue and to obtain written verification of the regulatory interpretations provided at that meeting. Mr. Kastner first references past EPA correspondence which correctly states that, to the extent that recovery units used to treat wastewater would be defined as a characteristic sludge, they would not be subject to R RA regulations when seiit for reclamation, since:theywoüld tot be- considere& a golid waste. 40 CFR. §261.2(c) (3) . .- He then-asks for confirmation that the exclusion provided, at. §261.2 Cd (3) would apply -to characteristic sludges being reclaimèd-regardlèsaof whether the sludges are produced as a result- of required waste-water treatment i . whether the treatment is necessary to achieve compliance with a specific discharge limitation or pretreatment requirement. As w iTndicated in our recent meeting with Mr. Kastner, the definitigz of sludge is not limited to materials generated from wastewatér treatment undertaken specifically to meet Federal, state or local discharge or pretreatment requirements. Instead, the term applies to materials generated from wast water treatment regardless of whether such treatment is required by law or regulation. - Mr. Kastner also requests confirmation from EPA that 98% pure silver flake material that is recovered from photoprocessirig operations and further refined to produce 99.99% pure silver product is not considered to be a RCRA regulated waste. According to Mr. Kastner’s letter, the silver flake is Recycl.d(RecycIabIe & soylCanala on con n. Ii. 50% , cydsd IIbsv ------- 2 essentially “commodity—like” at the point of recovery, i.e., prior to further refining. EPA has stated that metals that are suitable for direct use, or that only have to be refined to be useable, are products, not wastes. 50 FR at 634 (January 4, 1985). Therefore, ba sed on the information provided, the high purity silver flake would be considered a product at the point at which it is recovered from the photoprocessing operation and as such would not be subject to regulation under RCPA. It is important to note that EPA Regional offices and States authorized to implement the RCRA program make determinations regarding the requirements that apply in specific situations. Also, some States have programs that are more stringent than the Federal hazardous waste program. If you have any further questions on this issue please contact Mitch Kidwell at (202) 260-8551 or Becky Daiss at (202) 260-8718. Sincerely, Mike Peiruska Chief Regulatory Development Branch cc: Kenneth M. Kastner ------- BRYAN CAVE ST LOUIS. MISSOURI 700 THIRTEENTh STREET. N W IRVINE. CALIFORNIA LOS ANGELES. CALIFORNIA WASHINGTON. D C 20005-3960 SANTA MONICA. CALIFORNIA NEW YORK. NEW YORK (202) 808-6000 OVERLAND PARK. KANSAS PHOENIX. ARIZONA FACSIMILE (202) 808-6200 LONDON. ENGLAND KANSAS CITY. MISSOURI RIYADH. SAUD! ARABIA FRANKFURT AM MAIN, GERMANY KENNETH M KASTNER DIRECT DIAL NUMBER (202) 808-6000 September 2, 1994 VIA FAX AND REGULAR MAIL Mr. David Bussard U.S. Environmental Protection Agency Office of Solid Waste (5304) (SE240) 401 M Street, S.W. Washington, DC 20460 Re: Regulatory Status of Silver Recovery Units in the Photoprocessing Industry Dear Mr. Bussard: On July 13, 1994 we met with Mike Petruska, Mitch Kidwell, Marilyn Goode and Tim O’Leary to discuss the RCRA regulatory status of residues in units used to recover silver from aqueous streams produced in photoprocessing operations. As a follow-up to that meeting, we would appreciate EPA providing us with an interpretation regarding the regulatory status of silver recovery units (“SRUs”). Silver recovery has long been a common practice in the photoprocessing industry, both for economic purposes and to achieve compliance with applicable wastewater discharge limitations. The use of SRUs is extremely widespread, involving many thousands of individual photoprocessing facilities. SRUs at photoprocessing facilities may include one or more of the following: chemical recovery cartridges (“CRCs”), chemical precipitation units, ion exchange units and electrolytic recovery units. With regard to CRCs, many photoprocessors will direct (via hard-pipe or otherwise) one or more aqueous streams that contain silver through on-site CRCs. The CRCs are generally piped together in an in-line series of two or more units. The CRCs, which are essentially enclosed containers packed with iron wool, recover the silver by metallic replacement, typically at recovery efficiencies substantially in excess of 99 percent. The effluent from the CRCs is discharged to a POTW via a sewer connection. When a CRC is periodically replaced, it is disconnected, sealed, and sent off-site as an intact, enclosed container for silver reclamation and refining. Chemical precipitation and ion exchange SRUs are similarly used to remove and recover silver from aqueous streams prior This document has been retyped from the onginal. ------- Mr. David Bussard September 2, 1994 Page 2 to POTW discharge. These SRUs are also shipped off-site for further silver reclamation and refining in intact, enclosed containers. Unless SRUs are essentially free of the photoprocessing solutions from which they recover silver, they would be expected to contain material that exhibits the toxicity characteristic for silver. This fact has raised questions as to the RCRA regulatory status of SRUs that are shipped off-site for silver reclamation. We would like EPA to confirm our understanding that, under the federal RCRA program, whether or not SRUs exhibit the toxicity characteristics for silver, they are not solid or hazardous wastes if they (1) contain silver that has been removed and recovered from aqueous streams prior to POTW discharge, and (2) are shipped off-site for further silver reclamation and refining. We would also like EPA to confirm that, because such SRUs are not subject to regulation as solid or hazardous waste, photoprocessors are not required to conduct a waste analysis, to manifest the materials when sending them off-site, or to meet the special requirements applicable to precious metals reclamation. EPA has already stated that CRCs sent off-site for silver reclamation are not solid wastes if they are “used to treat wastewater.” The rationale for this result is that CRCs used to treat wastewater include material defined as “sludges,” and sludges, unless they are listed wastes, are not regulated as solid wastes if they are reclaimed. 2 During our meeting, you indicated, and we would also like you to confirm in writing, that this exclusion from the solid waste definition would apply whether or not such treatment is necessary to achieve compliance with a specific discharge limitation or pretreatment requirement. 3 Based on these views, it is our understanding that SRUs that contain silver that has been removed and recovered from aqueous streams prior to discharge of the wastewater to a POTW are not solid wastes if they are shipped off-site for further silver reclamation and refining, and accordingly, they are not subject to any hazardous waste requirements including waste analysis, manifesting, or the requirements applicable to precious metals reclamation. We would appreciate your written confirmation of this understanding. 1 attached letter from Matthew Straus, Chief, EPA Waste Characterization Branch to Thomas Dufficy (January 6, 1987). 2 40 C.F.R. § 40 C.F.R. § 261.1(c)(2), 260.10, and 261.2 Table 1. generally , 50 Fed. Reg. 614 at 618 col. 3 (January 4, 1985), see attached letter from Matthew Straus, Chief EPA Characterization Branch to Shirlee Schiffman (July 28, 1987) (ion exchange canister used to recover metals from wastewater contains “sludge”). attached letter from E. Abrams to W. Duncan (May 5, 1987) (ion exchange resins containing metals recovered from electroplating rinse water meets RCRA definition of sludge even if rinse water is recycled rather than discharged). This document has been retyped from the original ------- Mr. David Bussard September 2, 1994 Page 3 In addition, we would appreciate your confirmation of our understanding that silver flake from electrolytic silver recovery units is not considered to be solid or hazardous waste under the federal RCRA program. This silver flake material consists of essentially pure (over 98%) silver that is recovered from aqueous photoprocessing streams by plating on a negatively-charged electrode. Although this material is directed to silver refiners where it is further refined to produce 99.99 pure silver, silver reclamation is substantially complete when the flake material is produced, with the material being essentially commodity-like from that point. EPA has repeatedly stated that such substantially-reclaimed materials are not solid wastes. 4 Accordingly, it is our understanding that, under the federal RCRA program, silver flake material is not subject to any waste analysis or manifesting requirements, including the requirements applicable to precious metals reclamation. We would appreciate your written confirmation of this understanding, as well. Thank you for your assistance in this matter, and please call me if you have any questions or desire additional information. Sincerely, Kenneth M. Kastner cc: Mitch Kidwell Orlean Thompson Guidance Manual on the RCRA Regulation of Recycled Hazardous Wastes (March 1986) at 2-223 (attached); attached letter from Matthew Straus, Chief, EPA Waste Identification Branch to D. F. Goldsmith (January 21, 1986), and attached letter from Matthew Straus to Carlene Bassell (October 23, 1985). This document has been retyped from the onginal. ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENtAL PROTECTION AGENCY WASHINGTON, D.C. 20460 9441.1994(29) NOV g 1994 OcFICE OF SOLID WASTE AND EMERGENCY RESPONSE Prabhakar Kulkarni. Quantum Tech, L.L.C. 8660 Scranton, #B Houston, Texas 77075 Dear Mr. Ku].karni, This letter responds to your request for a determination regarding the regulatory status of your waste reclamation system. The determination you are seeking is a site—specific determination that must be made by the EPA Region VI office in Dallas, Texas, or the Texas Natural Resource Conservation Commission. However, I can provide some clarification on the hazardous waste program as it relates to the recycling of hazardous wastes. The generator of a hazardous secondary material is responsible for determining whether the material is a solid waste. This determination is dependent on the type of material (e.g., spent material, listed waste or characteristic by- product/sludge) and how it is to be managed (e.g., treatment, or recycling through producing a product used in a manner constituting disposal). If the hazardous secondary material is used as an ingredient to produce a product other than a product that is burned for energy recovery or used in a manner constituting disposal (and provided the secondary material is not speculatively accumulated), the secondary material would be excluded from the definition of solid waste (40 CFR 261.2(e) (1)) at the point of generation, and thus, the management of the secondary material (including the transportation, storage and processing) would not be subject to RCRA regulations. If, however, the hazardous secondary material is used to produce a product burned for energy recovery or used in a manner constituting disposal (or is accumulated speculatively), then the secondary material meets the definition, of solid/hazardous waste and is subject to regulation under RCRA (as are the products produced from the waste, assuming they meet the definition of a hazardous waste) (see 40 CFR 261.2(e) (2) and 261.3(c) (2) (i)). While the hazardous wastes are subject to regulation from the point of generation through recycling, there are special requirements for the products derived from (or produced) using the hazardous wastes as ingredients. When such products are used in a manner constituting disposal, the waste-derived products are Q J’ Recycled/Recyclable ] (9 Punted with SoylCsnola Ink on paper that Contain. St lesai 50% i.Cydsd fiber ------- 2 subject to 40 CFR Part 266 Subpart C. When such products are burned for energy recovery, the burning of the waste—derived products (i.e., hazardous waste fuel) are subject to 40 CFR Part 266 Subpart H. The language you mentioned in your phone conversation with Mr. Mike Petruska, of my staff, pertaining to a material being “inseparable by physical means” relates only to those waste—derived products used in a manner constituting disposal (40 CFR 266.20), rather than to hazardous waste fuels. If the hazardous secondary materials are listed hazardous wastes, and the recycling process is determined to be reclamation, then the secondary materials meet the definition of solid/hazardous waste and are subject to RCRA regulation. Likewise, if the secondary materials are spent materials being reclaimed, the secondary materials are subject to RCRA regulation (see Table I at 40 CFR 261.2). The determination of whether the hazardous secondary materials processed in your recycling process are more appropriately defined as “reclaimed” or “used as an ingredient” is a case—specific determination, more appropriately made by the State regulatory agency or the EPA Regional office. Also, the State regulatory program may have regulations that differ from the Federal program, so you should contact them for a more definitive determination. Thank you for your interest in the regulations applicable to the recycling of hazardous wastes. If you should have specific questions regarding the regulatory status of the secondary materials you wish to process, or the recycling process itself, you should contact the appropriate State regulatory agency, or the EPA Regional office. If you have general questions regarding the hazardous waste recycling regulations, you may contact Mitch Kidwell, of my staff, at (202) 260—8551. ncerely, &* sa Th & Director Characterization and Assessment Division ------- • IO UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 , , 0 itc. 9441.1994(30) NOV 23 1994 OFFIcE0F SOLID WASTE AND EMERGENCY RESPONSE Mr. John G. Staudt, Jr., P.E. Chief, Environmental Engineering Division (138C4) Department of Veterans Affairs 1810 Vermont Avenue, N.W. Washington, D.C. 20420 Dear Mr. Staudt, This letter is in response to your letter dated October 26, 1994 rega.rding the Veterans Affairs Medical Center (VAMC) located in White River Junction, Vermont. The State of Vermont has received authorization for the Base RCRA program as well as numerous other, more recent regulations as published in the Federal Register dated June 6, 1993, 50 FR 31911. This means that the State of Vermont is authorized to administer and enforce the hazardous waste provisions approved under the Federal RCRA program. EPA’s definition of “hazardous waste” at 40 CFR 2613 does not include medical wastes. Accordingly, EPA would not consider VAMC subject to the regulatory requirements for a large quantity generator under the Federal RCRA program. However, Vermont since 1988 has included “known” infectious waste as well as other State regulated wastes in its definition of hazardous waste. Vermont’s inclusion of known infectious waste is considered a “broader in scope provision” of the State hazardous waste regulations. Vermont may administer and enforce as a matter of State law hazardous waste requirements_using a broader in scope definition of hazardous waste. EPA’s regulations at 40 CFR 271.1(i)(1) allow States to adopt and enforce requirements which are more stringent or broader in scope than those required by the Federal program. Provisions which are broader in scope are not part of the Federally approved or authorized program (see 27 .1(i)(2)) and are, therefore, unenforceable by EPA. However, broader in scope provisions are permissible as part of the State’s program, and facilities are required to comply with applicable State law requirements. You specifically ask how Vermont’s definition would affect VAMC’s status as a conditionally-exempt small quantity generator, if the hazardous medical waste it produces increases the combined total hazardous c iemical waste and hazardous medical waste to more than 1000 kilograms per month. As stated above, there is nothing in Federal law that would compel treatment of VAMC as a large-quantity generator. Instead, the issue is one of State law. Therefore, I recommend that you contact Peter Marshall or Steven Simoes of the Hazardous Materials Division of the Vermont Department of Pnnted on Recycled Paper ------- Environmental Conservation at (802) 241-3868 With questions regarding VAMC and compliance with Vermont’s hazardous waste. generator requirements. I hope you have found this information useful. Please do not hesitate to contact me or Angelia Blackwell, Acting Chief of the State and Regional Programs Branch at (703) 308-8760 if you have further questions. Sincerely, ? W & Shapiro, Director of Solid Waste ------- DEPARTMENT OF VETERANS AFFAIRS Washington DC 20420 October 26, 1994 Mr. Michael Shapiro Director, Office of Solid Waste U.S. Environmental Protection Agency 401 M Street S.W. Washington, D.C. 20460 Dear Mr. Shapiro: Our medical center in White River Junction, Vermont is currently a conditionally exempt small-quantity generator of hazardous waste. As a result of the state’s ecenr inclusion of medical waste in their definition of hazardous waste, the VA Medical enter (VAMC) is faced with a problem for which we need regulatory clarification. The question that we need answered is whether, all things being equal, the VAMC would be required to adhere to EPA regulatory requirements for a large-quantity g j tor if the hazardous me i I ste they produce increases the combined total hazardous chemical waste an hazardous medical waste to more that 1000 kilograms per month. A related question is whether state can administer or enforce EPA’s hazardous waste requirements using a definition of hazardous waste that includes medical waste. We contacted EPA Region I in Boston and the state and were unable to get an answer to the foregoing. The RCRA Hotline, however, on two separate occasions confirmed my understanding that for the purpose of determining RCRA compliance medical waste should not be included with waste defined as hazardous by 40 CFR Part 261. If Vermont administers EPA’s solid waste program using definition of hazardous waste that includes medical, the implications for VAMC White River Junction will be severe: • To meet the RCRA permitting and other regulatory requirements of a large quantity versus a small-quantity exempt generator, the VAMC would have to meet burdensome regulatory requirements that they currently are not required to meet and otherwise would not have to meet if located in other states. • The public might perceive the VAMC to have a greater potential to pollute the environment than it actually has. Without a distinction between hazardous medical waste and hazardous chemical waste, it is conceivable that a medical center producing primarily medical waste would be viewed as having the same capability to pollute as the industrial operation producing only chemical hazardous waste. ------- o It will be difficult, if not impossible, for the VAMC to reduce the amount of hazardous medical waste it produces to meet the pollution prevention I waste minimization goal of reducing hazardous waste. A document provided by the state indicates that the state is using the same generator class terminology as contained in federal regulations (i.e., conditionally exempt small-quantity generator, etc.). It is unclear from this document both whether generators will be required to report hazardous chemical waste and hazardous medical waste separately and whether the state will similarly separately report these wastes to EPA. Thank you for your cooperation. If you or your staff have any questions, please contact me at (202) 233-7197. Sincerely, John G. Staudt, Jr., P.E. Chief, Environmental Engineering Division (1 38C4) ------- VERMONT AGENCY OF NATURAL RESOURCES FACTSHEET INFECTIOUS WASTE WHAT IS INFECTIOUS WASTE AND HOW IS IT REGULATED7 Infectious waste is defined in the Vermont Hazardous Waste Management Regulations (VHWMR) Section 7-103 as ‘a waste capable of producing an infectious disease. For a waste to be infectious, it must contain pathogens with sufficient virulence and quantity so that exposure to the waste by a susceptible host could result in an infectious disease. The following types of waste shall be managed as infectious wastes when the presence of an infectious disease is known or when exposure to or contamination by pathogens is known to have occurred: isolation wastes, cultures and stocks of etiologic agents, blood and blood products, pathological wastes, contaminated laboratory wastes, sharps, dialysis unit wastes, experimental animal carcasses and body parts, experimental animal bedding and other animal room wastes, contaminated food and other products, and contaminated equipment.” Infectious waste is regulated as a hazardous waste in Vermont. It is listed in Section 7-210 of the VHWMR and is identified by the code VTO7. This hazardous waste listing includes ‘infectious waste from hospitals, clinics, mortuaries, laboratories, patient care facilities and the offices of medical, dental or veterinary practices This means that in Vermont, any generator of infectious waste is subject to the applicable provisions of the Hazardous Waste Management Regulations. Please note that although most infectious waste is also regulated by the Department of Health as “medical waste,” not all medical waste meets the VHWMR definition of infectious (and therefore hazardous) waste WHEN IS INFECTIOUS WASTE NOT A HAZARDOUS WASTE ? VHWMR Section 7-203(13) provides an exemption for infectious waste if “the waste is disinfected, sterilized or incinerated at the site of its generation” and the waste does not exhibit a hazardous waste “characteristic.” Waste that meets the conditions of this exemption would no longer be regulated as a hazardous waste (although it still may be regulated as a medical waste). [ NOTE: There are four hazardous waste characteristics: ignitability, corrosivity, reactivity, and toxicity. These are filly described in VHMWR Sections 7- 204 through 7-207.] For more information regarding Vermont’s Hazardous Waste Management Program, please contact the Management & Prevention Section of the Hazardous Materials Management Division (HMMD) at (802) 241-3888. The HMMD can also provide a list of companies who are certified to transport infectious hazardous waste. For information regarding the regulation of “medical waste,” please contact the Vermont Department of Health at (802) 863-7231. 12/93 This document has been retyped from the onginal ------- This Page Intentionally Left Blank ------- lI ST 4 , UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY _____ WASHINGTON. D.C. 20460 J 4 t 9441.1994(31) OFFICE OF DEC 20 1994 SOLID WASTEAND EMERGENCY RESPONSE Mr. David J. Monz Updike, Kelly & Spel].acy, P.C. Counselors at Law One State Street P.O. Box 231227 Hartford, Connecticut 06123-1277 Dear Mr. Monz: Thank you for your letter dated November 9, 1994, requesting an interpretation from EPA regarding the regulatory status of an air pollution control dust (i.e., baghouse dust) that is fed to an electrolytic metals recovery process to recover zinc metal. You state that you consider the material to be excluded from RCBA regulation under §261.2(e) as a secondary material that is being 1) used as an ingredient in an industrial process to make a product, and/or 21 used or reused as an effective substitute for a commercial product. You are correct in your interpretation that the baghouse dust would not be subject to regulation under RCRA when used in this manner, but you are incorrect in.your assessment as to why RCRA would not apply in this case. The- exclusions provided under §261.2(e) for materials that- are recycled as ingredients or effective substitutes are applicable only if the materials are not being reclaimed. - The process you describe clearly involves reclamation of zinc and other metals from a secondary material and would therefore not qualify for exclusion from RCRA regulation under §261.2(e). Instead, based on the information provided in your letter, the baghouse dust would be excluded from RCRA regulation under §261.2(c) (3) as a characteristic sludge being reclaimed. A sludge, as defined under §260.10 of RCRA, is “any solid, semi-solid, or liquid- waste generated from a municipal wastewater treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant.” It is important to note, however, that EPA Regions and States authorized to implement the hazardous waste program make determinations regarding the requirements that apply to specific materials and facilities. Also, some States have programs more stringent than the Federal hazardous waste program. To obtain a definitive determination regarding a specific site, you should Q Recycled/Recyclable (\Pvtlflsd with SoylCsnola hik on paper that ‘cJc7 at heat 50% recychd Ski, ------- submit your request to the appropriate State or Regional authority. If you have additional questions regarding application of the RCRA regulations as they pertain to this case or in general, please contact Becky Daiss at (202) 260-8718. S re1 Michael J. Petruska, Chief Regulatory Development Branch ------- Updike, Kelly & Spellacy. P.C. Counselors at Law David J MonZ One State Street. P 0 Box 231277 Hartford (203) 548-2627 Hartford. Connecticut 06123-1277 Telephone (203) 548•2600 Facsimile (203) 548-2680 One Century Tower. 265 Church St New Haven. Connecticut 06510-7002 Telephone (203) 787.9007 Facsimile (203) 772-2037 November 14, 1994 VIA FIRST-CLASS MAIL Attn: Michael Shapiro, Director Office of Solid Waste United States Environmental Protection Agency 401 M Street, S.W. Washington, D.C. 20406 Re: Request for Regulatory Opinion Recycling of Baghouse Dust Under the Resource Conservation and Recovery Act Dear Mr. Shapiro: On November 9, 199j , we transmitted to you a request for a reguT Eory opinion regarding the recycling of baghouse dust under the Resource Conservation and Recovery Act. In the interim, it has come to our attention that the request incorporated a bulk analysis of zinc concentrates that, although similar to the feedstock materials, did not derive directly therefrom. Accordingly, lease regard the request dated November 9, 1994 as withdrawn and substitute theref or the instant request. We apologize for any inconvenience that this may have caused. We hereby request an opinion as to whether a certain air pollution control dust (j. ., baghouse dust) that is venerated by the operation of a brass furnace is excluded from the definition of solid waste pursuant to 40 C.F.R. S 261.2(e) when it is directly used in a primary electrolytic refining process to produce special high grade zinc ingot and a variety of zinc alloys. It is our interpretation that, when used in the manner described below, the baghouse dust is recycled by being (1) used as an ingredient in an industrial process to make a product, and/or (2) used or reused as an effective substitute for a commercial product. It is our understanding that the baghouse dust in question is generated by the operation of a brass furnace and is recovered via a dust collector. The unprocessed dust, along with other select secondary materials, is blended with primary feedstock materials by the refinery in a “roasting process,” which is a preliminary step in ------- Updike. Kelly & Sp icy. P.C. Michael Shapiro, Director Page 2 November 14, 1994 an electrolytic refining process where preleached zinc sulf ides are converted into calcine, a material that contains impure zinc oxide. The secondary materials, including the baghouse dust, are typically used as a 1—3 percent composite of the raw materials. We understand that the use of the secondary materials enhances the efficiency of the roasting process by maximizing the through—put that can be achieved at the appropriate operating temperature. High purity cadmium oxide and marketable residues containing silver and lead are recovered at a later stage in the refining process. The primary feedstock materials are zinc concentrates from domestic mines and from mines in Mexico and Peru, which contain approximately 60% zinc, 30% sulfur, 1.5% lead and 0.5% cadmium by weight. A representative bulk analysis for the baghouse dust, which is derived from a Material Safety Data Sheet, is provided in full below: Materials %Wt . Zinc, Total 72.5 Lead,Total 6.577 Cadmium, Total 0.058 Aluminum, Total 0.02 Antimony, Total <0.004 Copper, Total 0.358 Iron, Total 0.027 Nickel,Total 0.002 Phosphorus, Total 0.001 Silicon, Total 0.005 Sulfur, Total 0.097 Sulfate, Total - 0.152 Tin, Total 0.052 In addition, TCLP metals analysis for the baghouse dust revealed the following: Arsenic = <0.001 mg/L; Barium = <0.20 mg/L; Cadmium = 24.3 mg/L; Chromium = <0.01 m /L; Lead = 378 mg/L; Mercury = 0.002 mg/L; Selenium = 0.023 mg/L; Silver = <0.01 mg/L. It bears emphasis that the baghouse dust is not processed in any way prior to being blended with the zinc concentrates in the roasting process. In addition, the baghouse dust is consumed entirely by the refining process itself. Moreover, the subsequent recovery of high purity cadmium oxide and marketable metal residues containing silver and lead derives from the processing of both the zinc concentrates and the secondary materials. In other words, cadmium and lead are not recovered simply from the secondary materials. ------- Updike. Kelly & Sp acy P.C. Michael Shapiro, Director Page 3 November 14, 1994 Based on the language of 40 C.F.R. § 261.2(e), it is our interpretation that, when used in the electrolytic refining process as described above, the baghouse dust is recycled by being (1) used as an ingredient in an industrial process to make a product, and/or (2) used or reused as an effective substitute for a commercial product. This position is, in our opinion, buttressed by preamble language contained in the proposed hazardous waste management system rule, under which the followin process, among others, is excluded from the definition of “reclamation”: (U]sing the materials as substitutes for raw materials in processes that normally use raw materials as principal feedstocks; this exception does include those situations where material values are recovered from these substitute materials. Examples are sludges or spent materials used as substitutes for ore concentrate in primary smelting. The Agency does not believe these processes constitute reclamation, in spite of the recovery or regeneration step, because the materials literally are being used as alternative feedstocks. - 48 Fed. Reg. 14472, 14488 (April 4, 1983) (footnote omitted). We further believe that the use of the baghouse dust in the electrolytic refining process as described above constitutes boria fide recycling under the Criteria for Evaluating Whether a Waste is Being Recycled. Should you have any questions or require additional information, please do not hesitate to contact me. Sincerely, David J. Monz ’ DJM/ kmg ------- This Page Intentionally Left Blank ------- , tQ S74 . - UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 8 _____ WASHINGTON, D C. 20460 I 4( IRO1t 23 ; i 9441.1994(32) OFFICE OF SOLID WASTE AND EMERGENCY Mr. Michael 1.. Deelo RESPONSE Sales Manager The Doe Run Company Suite 300 1801 Park 270 Drive St. Louis, MO 63146 Dear Mr. Deelo: This letter is in response to a request by your predecessor, Larry Stoehr, for EPA to contact the Chinese government to determine whether or not China consi.ders the “nickel matte” generated by your company to be a hazardous waste covered under the Basel Convention, to which China is Party. Mr. Stoehr stated in his letter that the material is a characteristic by-product which, under 40 CFR 261.2(c) (3), would not be regulated as a hazardous waste when reclaimed. This is correct, if the material is reclaimed. Whether Doe Run’s nickel matte is actually reclaimed at the smelter in China was not clear from Mr. Stoehr’s letter, in which he said Doe Run understands the smelter recovers nickel, copper and arsenic into products. Doe Run would need more documentation per 40 CFR 261.2(f) for the nickel matte to not be classified as a solid or hazardous waste (see attachment). If in fact Doe Run’s nickel matte is reclaimed in China, it is also important to determine whether or not the resulting slag is to be used in a manner constituting disposal, as defined in 40 CFR 261.2(c) (1). If it is, the nickel matte would be considered a characteristic by-product used in a manner constituting disposal and therefore a hazardous waste. As a hazardous waste, the material would be subject to the export requirements of 40 CF’R 262. ?urtbermore, china (as a Basel Party) would be in violation of the term.s of the Basel Convention if it were to import a Basel-covered waste from the U.S., a non-Party, absent a bilateral or multilateral agreement as specified -in Article 11 of the Convention. China and the U.S. have no such agreement. China is, however, allowed to accept wastes that it does not consider subject to the Basel Convention from Parties and non-Parties alike. If you have any additional questions regarding this matter, please contact Denise Wright of my staff at (202) 260-3519. ncerely, avid Bussard, D ect Characterization and Assessment Division Q ’ RecycI.d.lRecyclable & Pnnted wIUI SoyiCanola in on ,a e . contain. it issat 50% rSCyc!eO e ’ ------- This Page Intentionally Left Blank ------- THE DOE RUN COMPANY SUItE 3G0 801 PK 20 ORI’/E ST LOUI .IO 63 -6 LARRY J STOEHR TELEX 93 3554 - F. X3 -5373O May 11, 1994 Mr. Michael Shapiro Director for Office of Solid Waste U.S. E.P.A. 401 M Street Washington, D.C. Re: Shipment of Smelter By-Product to China Dear Mr. Shapiro: The Doe Run Company generates a by—product from one of its furnaces at Herculaneum, Missouri, commonly known to us as “nickel matte” (see enclosed analysis). It is 60%—70% metal and is generated on an intermittent basis from the dross reverberatory furnace when the furnace heats up sufficiently to release the nickel material that has become insoluble at the bottom of the furnace. The material is treatable to recover the metal in furnaces at other smelters. We are paid for the material as the net value will exceed the treatment and shipping charges. By U.S. E.P.A. defirritions, this material is a by-product exhibiting a characteristic of hazardous waste. However, it is not a solid waste when reclaimed. See Table 1 of 40 CFR 261.2(c) (3) which delineates the determination. We have sold this material in the past to China to a smelter which we understand recovers the nickel, copper and arsenic into products. The lead is recovered to a residue and sold to another smelter for recovery. The slag generated in the process is landfilled. We would like to develop this market further for future sales. We understand that China has enacted legislation implementing the Basel Convention Concerning Transboundary Movement of Materials. Although we have determined that this material is not a U.S. hazardous waste, we will only be allowed to sell the material to a Chinese smelter if the Chinese government does not consider the material a Basel waste. ------- U.S. E.P.A. (5/11/94) .Page 2 We are requesting that your office make the official inquiries with the Chinese to determine the status of the material. If you need further information, please contact me and I will provide it. Very truly y ur 7Lay //J. Stoehr US/i kc enc: Nickel Matte Analysis ------- DOE RUN SUITE 400 • 11885 LACKL.AND ROAC COMPANY -ST. LOUIS. MO 63146-4236 May 1991 NICKEL MATTE ANALYSIS TYPICAL ASSAY RANGE Cu (%): 23 16.6 — 23.0 Ni (%): 17.5 16.4 — 24.0 Ag (G/MT): 300 100 — 400 Co (%): 1.7 1.0 — 2.0 Pb (%): 24 20 — 29 FeO (%): 4.7 2 — 6 S (%): 6.3 4 — 10 Zn (%): 1.0 0.2 — 1.5 Na (%): 0.9 0.3 —1.5 As (%): 6.4 4 — 8 Sb (%): 1.0 0.6 — 1.5 Bi (%): Nil Nil Cd (%): 0.02 0.01 — 0.04 ------- This Page Intentionally Left Blank ------- t1 UNITED STATES ENVIRONMENTAL PROTEC11ON AGENCY WASHINGTON, D.c. 20460 J4 ‘2 9441.1995(01) CFFICE OF SOIC WASTE AND EMERGENCY RESPONSE Chris Bryant The Technical Group, Inc. 1300 I Street, N.W. Suite 1000 West Washington, D.C. 20005 Dear Mr. Bryant: Thank you for your letter of August 2, 1994, raising a number of questions about the Resource Conservation and Recovery Act hazardous waste regulations. I apologize for the delay in our response. Your questions concern 40 CFR 261.6(a) (3) (iii), a provision exempting “used batteries (or used battery cells) returned to a manufacturer for regenerati9n” from the hazardous waste regulations, and its applicability to lead—icid batteries. When the regeneration provision was initially proposed on April 4, 1983, the Agency explained that the basis for the exemption was that regeneration presents minimal risk to the. environment and thus full regulation is not necessary (48 FR 14496). Since the reasoning behind the exemption was based on the activity (regeneration) rather than the type of facility at which the activity is conducted, the Agency has historically interpreted the exemption to apply broadly to batteries that are regenerated at. any type of facility. See Enclosure 1: question 6 from the September, 1985, RCRA\Superfund Hotline Monthly Suirmary. Note that the term regeneration means activities such’ as recharging, replacing electrolyte, and/or rewiring, in which the battery casing is not cracked to recover metal values. You request clarification of whether the regeneration exemption would apply to various types of locations at which lead—acid batteries are regenerated. In short, based on the reasoning discussed above, the regeneration exemption would apply to batteries regenerated at any location, including all of those you describe in your letter. You also ask if the applicability of the exemption would change if some handlers of the batteries assume they will b’e smelted to recover metal values rather than regenerated. Again, the exemption applies to any used batteries that are regenerated.. Thus, once it is determined that a battery is to be regenerated, it is appropriate to manage it in accordance with the 7) s PuIMsd w i$syI IoIs m a - II ------- 2 regeneration provision. I caution, however, that batteries that are not regenerated (e.g., if it is determined that regeneration is not possible) are subject, throughout their wate iiag.meat cycle, to the usual hazardous waste provisions that would otherwise apply. For lead-acid batteries, this would be Subpart G of 40 CFR Part 266. For other hazardous waste batteries, ‘his would be the full hazardous waste regulations. Thus, if it is not known vhether batteries are to be regenerated, until such a determination is made it would be prudent to manage them under the hazardous waste regulations that would be applicable if the batteries are not regenerated. I believe this discussion answers all of your queètions. Although you did not specifically ask about the interaction of the regeneration provision and 40 CFR Subpart G for lead-acid batteries, I have enclosed question one from the November 1994 Monthly Hotline Report which addresses this issue and may be of interest. See Enclosure 2. Please also note that in the Universal Waste proposal (58 FR 8102; February 11, 1993) the Agency requested comment on possible changes to both the regeneration provision and 40 CFR Subpart G for lead—acid batteries. Thus the final Universal Waste rule, which the Agency expects to promulgate this spring, could include some changes to these provisions. Thank you for your interest in the hazardous waste regulations. Sincerely, Michael J. Petruska, Chief Regulatory Development Branch Enclosures (2) ------- HE TECHNICALGROUP. INC. August 2, 1994 Michael H. Shapiro, Director Office of Solid Waste U.S. Environmental Protection Agency 401 M Street, S.W. Mail Stop 5301, Room 1201 - Washington, D.C. 20460 Re: Request for Regulatory Clarification Dear Mr. Shapiro: I write to request clarification of the scope of the regulatory exclusion codified at 40 C.F.R. Section 261.6(a)(3)(iii). This exclusion exempts from regulation under Subtitle C of the Resource Conservation and Recovery Act (RCRA) lead-acid batteries returned to a battery manufacturer for regeneration. Factual Background For purposes of responding to this request for clarification, some background on the secondary lead industry may be helpful. In general, there are two types of secondary lead smelters: integrated smelters and independent smelters. Integrated lead smelters generally are owned or operated by lead-acid battery manufacturing companies. More often than not, the smelter operations are not located at the battery manufacturing facility. Independent smelters generally are neither owned nor operated by lead-acid battery manufacturers. Lead smelters receive batteries and other lead—bearing materials from, among others, two key sources: scrap dealers or lead-acid battery manufacturers. A portion of the lead-acid batteries received at a lead smelter generally are routinely inspected upon receipt. On occasion, lead-acid batteries that appear to be usable are tested to determine whether they are spent, or whether they merely require new electrolyte or recharging. Recharging or. the addition of new electrolyte may occur at the smelter, or may be shipped off-site at another facility for regeneration or recharging. Ent iron mcntol Cunsultrng 1K ’) I STREET \ V SLITE 1000 V E5T • %%ASHINGTO DC 20005 ------- THE : HNIcALcRour. U Michael H. Shapiro August 2, 1994 Page 2 Given this background, I request clarification on the scope of Section 261.6(a) (3) (iii) as it may apply in the following circumstances: 1. Would the exclusion be applicable to an integrated lead smelter which regenerates or recharges batteries on-site, assuming the lead smelter is located at or adjacent to a lead battery manufacturer. 2. Would the answer to the above question change if the integrated lead smelter were not located at or adjacent to a battery manufacturer? 3. Would the responses to these questions change if the lead smelter ships the batteries off-site for regeneration? 4. Would the responses to these questions change if the batteries were delivered to the lead smelter by a scrap dealer who assumes that the batteries will be smelted? - 5. Does the Section 261.6(a)(3)(iii) exclusion apply to independent lead smelters who recharge batteries or who replace battery electrolyte on— site in batteries shipped to them for smelting? 6. Would the response to the above question change if the independent smelter ships the batteries off-site for regeneration? I look forward to your response to this request. If you or your staff have any questions, please call me at (202) 962—8534. Sinc 9 ely, ‘I C Bry ------- 01/31/95 12:47 e2o2 260 0637 EPA CAD RDB/I0 _v UNITED STATES ENVIRONMENTAL PROTEC1 0N AGENCY L WASHINGTON, D.C. 20460 9441.1995(02) JAM 3 I I9 ___ OFRECF L WA51EANDEI1 PCEP1CY SP0NSE Mr. Bruce S. Gelber Acting chief Environmental Enforcement $ectiofl US. Department of usti ?.Q 1425 New-York Av. ue, N.W. Washington D.C. 20005 Dear M . Gelber This letter responds to your request for a written determination regarding the regulatory status of a distillate material known as “LX-830” that is derived from petroleum and coal tar napbtha feedetoCics by the Neville Chemical Company. SpecificallY, you ask ,hether LX-830 would be considered a cc- product fuel or a by-prodUct hazardous waste fuel under EPA’S regulations implementing Subtitle C of the Resource Conservation and Recovery Act (RCRA) . - - Based on Neville’S written information eubmitted to Region iii subsequent to May 1994, it would appear that LX—830 better meets the efzkitiOfl of a co-product and hence is not a solid or hazardous waste unless otherwise discarded. while the distinction between a co-product and a by-product is not always plainly evident and often requires an evaluation of several factors, the manner in which this material is produced and its subsequent management is consistent with other materials for which OSW has made a regulatory determination of “co-product.” See 40 CFR 261.l(C).(3) (defiflitiOflB of by—product and co- product). LX-830 results from a reaction of petroleum and/or coal tar naphtha feedetooks used in a resin production process, although it is not the principal product of the process. (EnclosUre 1 provides a more detailed description of the resin production process.) LX-830 has market value as a fuel product or fuel additive (comparable to conventional petroleum”based fuels), a conclusion based on its BTU value, product specifications and market history. While post of the LX—830 is burned o -sit as a substitute for conventional fuels, Neville has recently represented that there is a history of marketing this material as a fuel or fuel additive for o!f- its use, and there is no a evidence that the material was burned, either on-site or off- site, with the intent to discard it (e.g., burning amounts in excess of what was needed as a fuel source). ------- 01/31/95 12:47 2O2 260 0637 EPA CAD RDB/I0 - 2’ Another factor supporting a determination that LX - 830 is better ciaseified as a co-product is that the LX -830 conta fls no hazardous constituents that are not otherwise typically found in conventional fuels.. Thus, the burning of LX—830 doe. not constitUte the discard of hasardous constitUents and does not raise any greater environmental concerns than those raised by the burning of co wiercially available conventional fuels., Therefore, since Neville has represented that the chemical makeup and cubsequent handling. aT% 1 u :’ of LX-830 is essentiallY similar to that of a coimusrcially available fuel product,. the &gency believes LX -830 should be considered a co-product. If, however, the LX’530 is mixed with any other non-fuel materials and then burned, the Agency would be concerned not only about the other materials being burned, but would also be obliged to. recozibider whether L -830 is truly a co.’product rather than a by- product. Such miring would be an indication that LX-830 is not truly managed as a product. In other words, to the extent that LX-830 is produced to product spscificatiOflB and handled in a manner consistent with a valuable product, the Agency considers LX—830 to be a co-product; however, to the extant that the LX -830 appears to be simply, the end residual, of a production proces5 that happens to have high DTU value and ii. handled as a wastestream vith little concern for product integrity, the Agency would consider it to be a by-product. . This determination is consistent with similar determinations made by Headquarters and the EPA Regions regarding the distinction between a co-product fuel and a by-product being burned for energy recovery. This interpx etatiOfl reflects only the Federal regulations. States with authorized RCRA programs have e authority to make regulatory determinations about the materials which constitute iolid and hazardous wastes under their programs, and they may impose more stringent requirements. I hope this reBponse has clarified the regulatorY status of Nevil]e Chemical’s LX830. If you have further questiáfls, you should contact Mitch idvall, of my staff, at (202) 260—4805. Mi h el 11. Shapiro, Director Office of Solid Waite Enclosures cc: Thomas C. Volteggic Hazardous Waste )lanagement’ DjViSiOfl Director, EPA Region III ------- 01/31/95 12:48 202 260 0637 EPA CAD RDB/IO j003 EncloSure 1 It is EPA’S understanding that LX-830 results from tisvil les resin manufacturing process. LX-830 is solely comprised of unreacted material that results from this resin manufacturing proce.SS. Neville manufactures various types of .rssin by feed ing raw materials into a polymerization reactiaflr These raw materials are a blend of petroleum hydrocarbon féedstocks and coal tar naphtha I eedstOcks (“feedstock blend9. The temperature and length of time of any polymerization reaction is completely controlled by Neville’ s intent to produce a BpscifiC type of resin. Any polymerization reaction results in reacted material, or resin, and unreacted material • The reacted material/resin must be separated from the unreacted material. Neville uses two processes to separate the reacted material/resin from the unreacted materials 1) venting and.2) steam stripping. Neville • vents a certain amount of unreacted material from the vessel in which the polymerization reaction took place (!‘polyaerizatiofl vessel”). A portion of this vented unreacted material may be tecyclèd back into the feedstock blend. The unreacted material tb at cannot be vented from the polymerization vessel is separated from, the reacted material by steam stripping. y introducing steam into the reaction vessel, Neville strips the unreacted material from the reacted ‘ aterial. This stripping process results in a mixture of steam and unreacted material;• this mixture is cooled, allowing the steam to condense intä water; the water is then decanted from the unreacted material. A portion of the remaining unreacted material may be recycled back into the taedstock blend. Any. remaintng ijnreacted material ‘which is not recycled is mixed with the vented unreacted material... This mixture of unreacted material is “LX”830.” ------- 3: US. Department of Justice 90—7—1—689 Mb *ö ,. C — : January 27, 1995 VIA TELECOPY AND INTER-OFFICE MAIL Michael H. Shapiro (Mail Code 5301) Director, Office of Solid Waste U.S. Environmental. Protection Agency 402. M Street, S.W. Washington, D.C. 20460 Re: Classification of Neville Chemical Company’s LX—830 Distillate Under EPA’s RCRA Rea ulpt1ons Dear Mr. Shapiro: I am writing to request that the Office of Solid Waste provide us with a written determination as to the appropriate regulatory classification of Neville Chemical Company’s petroleum—based distillate, which Neville calls “LX—830.” Neville has previously requested such a determination from EPA Re)ion III, and the classification of LX—830 is one of the principal issues in United States v. Neville Chemical ComDany , Civ. No. 94—0288 (W.D. Pa.), a pending civil action which the Department of Justice filed on behalf of and at the request of EPA on February 23, 1994, alleging various violations of the Resource Conservation and Recovery Act, of regulations promulgated by EPA thereunder, and of the authorized state hazardous waste regulations. Attached are materials that Nevilj.e provided to EPA Region III concerning LX-830. Very truly yours, Assistant Attorney General Environment and Natural Resources Division 42 By: Bruce S. Gelber Acting Chief Environmental Enforcement Section Attachments ------- NEVILLt Neville Chemical Company March 6, 1992 CERTTIrW.D MAIL - RETURN RECEIPT REQUESTED Mr. Robert E. O ves, Ch f RCPA Enforcement/UST Branch U. S. Environmental Protection Agency Region lU 841 Ches ut Building Phil2delphia, PA 19107 RE: RCRA Se on 3007 Information Request Neville D erui 1 Company Product Cl ssifi tion of LX’-830 - Dear Mr. Grcaves As you may r! ill , during our meeting with you and your staff in Phila4elphia on November 27, 1991, you invited Neville Chemical Company (NeviIle’) to submit additional information for your consideration in determining whether our LX’430, also refwed to as ‘fuel oil’ or ‘fuel oil dis1ill2t , ’ is a product or a waste. ACaBCdiflgIy, this letter staves to provide you with all of the specific information requested by your staff. Such information includes a de lled proc s deicription, the quantification of chloride compounds in feedstoe purchased by Neville and in our L.X’-830 fuel oil, and a comparison of the purchase price of d feedatocks and the sales price of our L.X’-830 fuel oil. This l t r also serves to memorialize the basis for Nevile’s classification of ita LX’430 as a product. As a practical mat’er, because the U.S. Environmental Pro(e cn Agency (EPA or ‘the Agency) authorized the Commonwealth of Pennsylvania to implement the base Resource Conservation and R.ecoveiy Act (RCRA) hazardous waste program, a detcimination of whether LX-830 should beclas’ifiedas aproductora waste isbased soleLy on an application ofthe25 Pa. Code Part 261 regulations of the Pennsylvania Depatixncnt of Environment Resources (PaDEV or the Department). These regulations have been in place since the early 1980s and have not yet been revised to be consistent with the pre-Harardous and Solid Waste Amendment (pre-}LSWA) definiüon of solid waste regulations promulgated by EPA on Ianuaiy 4, 1985. 50 Fed. Keg. 614. Although Pa DER’s regulations do not contain the co- ArTACEMENT 1 — ------- — 7— ! : .2 ? ! ; C. Z25 6523;; Mr. Robert E. Greaves, Chief U. S. Environmental Protection Agency March 6, 1992 Philadelphia, PA 19107 Page 2 producr versus ‘by-producr distinction as found in EPA’s current definition of solid waste regulatio&, PaDER does provide a mechanism whereby materials that would otherwise fail a characteristic hazardous waste test can be deemed exempt from the hazardous waste management standards, provided such materials have commercial value and a history of routine commercial trade. 25 Pa. Code § 261.6 (formerly 25 Pa. Code § 75.261(e)(1)). By letter dated October 19, 1983, the Department granted Nevilie the 25 Pa. Code § 261.6 exemption for LX’-830. Although a PaDER foUow .up letter dat 1 August 15, 1991 called the exempt s t”s of L.X’-830 into qwition based on allegations that various waste streams were added to the fuel oil distillate, these accusations were categorically not true. Neville has never added waste streams to its LX’-830 and still continues to rely on the October 19, 1983 exemption. Further, in an attempt to promulgate new definition of solid waste regulations, PaDER proposed PK-4 hazardous waste regulations in January 1990, revised the regulations based on comments received on the proposal, and on March 17, 1992 is scheduled to present these revised PK-4 regulations to the Pennsylvania Environmental Quality Board for approval. The De rtment’s pending regulations would replace the existing beneficial reuse exemption at 25 Pa. Code § 261.6 with product, co-product’ and by•product d ign tions at 25 Pa. Code 1260.2. These imminent Pennsylvania regulations, which clarify the issue of which materials are products and which are wastes, go beyond the existing federal distinctions amoo,g tI’ e terms. Specifically, a ‘product is defined as a comrnodity that is the sole or primary Intended result of a manufacturing or production procrw A co-product’ is defined as: Any material generated by a manufacturing or production process or an expended material, of a physical character and chemical composition that is contistendy equivalent to, or exceeds, the physical character and chemical composition of an intentionally manufactured product or pmduc ed raw material, provided that the use of the material presents no greater threat of harm to human health or the environment than the us c of the product. The term only applies to such material: (1) if the material isto be transferred in good faith uacommodityin trade, for use in lieu of an intentionally manufactured product or p odur d raw material, without pro ’sng, and the material is actually used on a regular basis; or (ii) if the material is to be used by the manufacturer or producer of the material in lieu of an intentionally manufactured product or produ d raw material, without processing, and the material is actually used on a routine basis. 1. Even under the Agency’s definition of solid waste, LXS43O Is a coproduer beonise ft Is one of two primary producis that is hiteiwionafly and separately produced by Neville, and LX430 %S suitable for end use Is (I.e., as a fuel oil) without any additional blending. 48 Fed. Keg. 14472 at 14476 (April 4, 19*3) and 50 Fed Reg. 614 at 625 and 630 (January 4, 1985). ------- Z .5: e 3;: .: Mr. Robert F.. Graves, Chief U. S. Environmental Protection Agency Match 6, 1992 Philadelphia, PA 19107 Page 3 A by•product is simply defined as any material that does not qualify as a product or a co- product regardless of its value. In ntt1st, the federal definition sets forth a different standard. As documented extensively in this letter and in our prior letters to the Agency d2ted June 17, 1991, August 8, 1991, September 4, 1991, October 11, 1991 and October 24, 1991, b use Nevilie’s L.X-830: (1) is of the enposidon and quality as other raw materials that would be used by our customers in their production processes if the LX’430 were no longer available (and our customers will support this ass on); and (2) is actually used as a commodity trade on a regular’ and routine’ basis in lien of a more expensive raw material, our LXS.830 is correctly classified by the PaD as e e ur’der the authorized Pennsylvania ha rdous waste program, would be c’ ’iflcd as a co-pxoduct under EPA’s hawdous waste program and would be cta ’ fied as a ‘co-ptvduct under PaDER’s revised definition of solid waste. Det2il d Pmc De!ciipfior At Attachment A, we have provided you with a resin production diagram that also depicts the production of disdulates, which ma up the LX’830 product line. As ifiustrated by the diagram, the process feed streams mu include sufficient amounts of generically compatible non- reactables in order to manage the polyn ized portioti of the feed subsequent to polymerization. After separation, two streams (products) are produi ’ed: (1) Hydrocarbon resu” ; and (2) Distillate. Part of the distillate Is recycled hack to the feed dream in order to maintain the proper concenttation of polymedables. The unrecycled portion is used to produce LX’-830. When Neville designed and developed its resin manufacturing process in the 1930’s, we intended (and needed) to produce two separate products (i.e., resin and fuel oil diPil1 t ) . Without the production of the fuel oil distillate , resin could not be produced at a cost capable of meeting competitive market pricing. Fuel Oil Blending Diagram There have been no changes in our fuel oil blending and distribution diagram as set forth in Attachment B. We do not have the draft drawings from which the draftsman prepared either the original drawing dated December 22, 1988 which incorrectly suggested the inclusion of miscellaneous sources with LX-830 or the revised drawing dated December 15, 1989. Quantification of Chloride Compounds in Feedstocks Versus the LX-830 Fuel Oil In Attachment C, we have provided you with the results of the analyses of the raw material feedstocks received from our suppliers which contained unidentified chloride compounds at levels in excess of 400 parts per million . During processing, these feedatock chloride compounds carry through to, and a uinulat in, the distillates Nevillc does not add any chloride-containing materials to its LX$30. Analyses provided at Attachment I) illustrate ------- 2:2: P4 ;0J Mr. Robert E. Grea fes, Chief U. S. EnvironmelUal Protection Agency March 6, 19fl Philadelphia, PA 19107 Page 4 the chloride content similarities b wem raw material feedstxk bl s and the resultant distillate streams. Attachment D also illustrates the organic chemical similarities between the feedszock blends and the distillate streams. Comparison of Feedstock Purchase Price and LX&R30 Fuel Oil Sales Price The cost of raw materials range from approximately S.80/gallon to approximately $1.20/gallon. The value of the LX’-830 fuel oil is appro,rin ate1y $40/gallon, but depends upon the market. Sales at lower values have oczurred, due to Itigh inventory levels or depr. d market conditions. Customers Use of LX4IO LX’-830 customers’ use include viscosity modification within their fuel blending operations. Enjet, Inc. specifically advised EPA that they blend LX-830 with other cuttcr stoc -fucl oil to produce a blended product suitable for use In marine fuels and/or fuel oil. Enjet customers include BP North Amenca, Hill Petrulewn and Chemoll Gulf Coast. S Eajet I tiit of September 10, 1991 submitted in response to EPA’s RCRA * 3007(a) Information Request. We appreciate your cooperation with regard to the fi ticn of our LX-830 fuel oil and request that you reconsider your earlier tegoi 4 ’ tion of this product as a hazardous waste in light of all availaMe information. If you have my additional questions or ecn ns, please bring them to my tion at your eszli ooav oe. Your prompt review of this information and re vnsideralion of the Agency’s past position with regard to LX’-830 is requested in light of the economic and business hardships currently experienced at Neville due to EPA’s initial Sincerely, Thomas F. McKnight Vice President & General Counsel TFM:jhb Attachments cc: Wilhiini D. Roper Lawrence FaIkinIEPA P ‘t 3 5 I t 5’ GaleCampbell/PaDER P ‘j s- , 124 ------- STdp j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 ‘ L pQØ tG 9441.1995 (03) oc ICE O SOLID WASTE AND EMERGENCY RESPONSE MOR.ANDUM SUBJECT: Letter to CLIC on Regulatory Status of Acrylic Plastic FROM: Michael Shapiro, Off ice of Solid Waste TO: Joseph R. FranzmatheS, Director Waste Management Division Region IV Allyn M. Davis, Di ector Hazardous Waste Management Division Region VI Robert L. Duprey, Director Hazardous Waste Management .Division Region VIII Attached, for your information, is Headquarter’s response to a request from Composite Leasing Corporation for a determination on the regulatory status of acrylic plastic dust that is sent to Indi for use in the manufacture of acrylic plastic sheets. The dust is generated by blasting paint and coatings off of aircraft. CLC requested and received interpretations on this issue from each of your Regions. As explained in the attached letter, HQ’s position is that the material clearly fits within the category of a spent material being reclaimed. Attachment Pnnted on Recycled Paper ------- FILE COP /g I , j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 OFCICE OF SOLID WAStE AND EMERGENCY RESPON :EB 6igg Mr. Alan Perkins Williams & Anderson Twenty-Second Floor 111 Center Street Little Rock, Arkansas 72201 Dear Mr. Perkins: Thank you for your letter dated December 8, 1994, on behalf of Composite Leasing Corporation requesting clarification regarding the regulatory status of recycled acrylic plastic dust under the Resources Conservation and Recovery Act (RCRA). Specifically, you request written confirmation from the Environmental Protection Agency (EVA) of your interpretation of how RCRA applies to acrylic plastic dust that is generated from Plastic Media Blasting (P! ) and sent to India for use in the manufacture of acrylic plastic sheets. You state that you consider the acrylic plastic dust to be excluded from RCRA regulation under §261.2(e) (i) as a secondary material that is being used as an ingredient in an industrial process to make a product. As you correctly note in your letter, the exclusion provided under §261.2(e) Ci) for materials that are recycled as ingredients is applicable only if the materials are not being reclaimed prior to use or reuse. According to your letter, the acrylic plastic dust must undergo several refinement steps to produce the specification grade methyitnethacrylate monomer (tt2.IA monomer) that is used to. produce acrylic plastic sheets. The first step involves heating the P!’ffi dust in the presence of a molton lead bath. In this process, the acrylic polymer is depolymerized to produce !.24A monomer and cadmium and chromium present in the PMB dust are partitioned off to the molton lead bath. The !‘24A monomer is then further purified through distillation in order to meet product specifications. The specification grade monomer is then used as an ingredient in the production of acrylic sheets. Under §261.1(c) (4), a.material is reclainiedif it is processed to recover a usable product, or if it is regenerated. In the process you describe, the P?. dust clearly undergoes reclamation prior to its use as an ingredient to produce acrylic ------- 2 plastic sheets (i.e., recovery of the monomer in the first step and regeneration or removal of impurities from the monomer in the second step). The PMB dust would therefore not qualify for exclusion from RCRA regulation under §261.2(e). Your letter also raises the question of whether the PMB dust would be considered a “sludge’ t or a “spent material” under RCRA. This distinction is important, as you indicate, because RCRA provides an exclusion for characteristic sludges that are being reclaimed, while spent materials being reclaimed are subject to regulation under RCRA (see §261.2(c) (3)). A sludge, as defined under 40 CFR §260.10, is “any solid, semi-solid, or liquid waste generated from a municipal wastewater treatment plant, or air pollution control facility exclusive of the treated effluent from- a wastewater treatment plant.” According to your letter, an air filtration system is used as a means to collect the acrylic plastic dust. Since the primary purpose of the filtration system is not air pollution control per se but rather collection of PMB dust for further processing, the filtration system would not be considered an air pollution control device and the P?.S dust would therefore not be considered a sludge as defined by the regulations. A “spent material” is defined under RCRA as “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.” As clarified in the March 24, 1994, Memorandum from Michael Shapiro to the Regions, which you cite, EPA has consistently interpreted this definition to include “materials that have been used and are no longer fit for use without being regenerated.” 50 FR at 618 (January 4, 1985); 48 FR at 14476 (April 4, 1983). The PMB dust clearly fits within the meaning of “spent-material” as defined by RCRA and would therefore be regulated as such in accordance with §261.2(c) (3). In summary, for reasons stated above, the PMB dust that is collected by Composite Leaching Corporation and sent to India for use in the-manufacture of acrylic plastic sheets would be considered a spent material being reclaimed.• Because the material is being reclaimed prior to use, it would not be eligible for exclusion from RCRA under §261.2(e). Rather, as a spent material being reclaimed it would be subject to regulation as a RCRA waste in accordance with §261.2(c) (3). Finally, I apologize for any confusion caused by conflicting interpretations you may have received regarding the regulatory status of this material. Generally, EPARegional offices and States authorized to implement the RCRA program make determinations regarding the requirements that apply in specific situations. However, in situations such as yours where a number of different interpretations have been received, a final determination from EPA headquarters may be required. ------- 3 You should also note that an effort is underway within the Office of Solid Waste to develop a simpler, more streamlined approach to regulating recycling under RCRA. A copy of Michael Shapiro’s Memorandum to the Regions outlining this effort is enclosed for your information. Questions about future regulatory efforts should be directed to Mike Petruska at (202) 260-8551. If you have further questions regarding the issues addressed in this letter please contact Becky Daiss at (202) 260-8718 or Mitch Kidwell at (202) 260-8551. incere y 1 Michael Shapiro, ’Director Office of Solid Waste Enclosure ------- REQUEST FOR CLARIFICATION OF THE REGULATORY STATUS OP RECYCLED ACRYLIC PLASTIC DUST UNDER THE RESOURCE CONSERVATION AND RECOVERY ACT Submitted To : Michael H. Shapiro, Office of Solid United States Environmental 401 Z’1 Street, S.W. Washington, D.C. Director Waste Protection Agency (M2 101) 20460 Submitted By : G. Alan Perkins Williams & Anderson Twenty-Second Floor lii Center Street Little Rock, AR 72201 (501) 372—0800 Date Submitted : Nancy D. Tainmi Beveridge. & Diamond, P.c. 1350 I Street, N.W. Suite 7OO Washington, D.C. 20005 (202) 789—6059 I, __ ‘- I c c ’ December 8, 1994 ‘I ------- December 8, 1994 VIA HAND DELIVERY Michael H. Shapiro, Director Office of Solid Waste United States Environmental Protection Agency (M2101) 401 H Street, S.W. Washington, D.C. 20460 Re: Request for Clarification of the Regulatory Status of Recycled Acrylic Plastic Dust Under the Resource Conservation and Recovery Act Dear Mr. Shapiro: On behalf of Composite Leasing Corporatiofl (“Composite”), we write to request confirmation from the Unitec States Environmental Protection Agency (“EPA” or “the Agency”) that acrylic plastic dust resulting from the Plastic Media Blasting ( “PMB”) of paints and coating from aircraft and aircraft compo ñe t. Jhereinafter “PMB dust”) i s not a ‘ so1id wast& ’ within f äiiIng of the Resource Conservation and RGcovery Act (“RCRA”) when used as an ingredient in the !nanufa ture of acrylic p astic sHeets . This issue warrants the attention of EPA Headquarters in light of q 1icting determinations issued by EPA Regions IV, VI . and VIII ggrlcerning the regulatory status of recycled PMB dust bich sntn tim s ‘ ibits the R RA Tedeity Ch 1 axacteristic (“TC”). As discussed in detail below, the recycling of PMB dust involves “use or reuse” of that material as an ingredient within the meaning of 40 C.F.R. § 261.2(e) (1) (i) , and thus the PMB dust is not a solid waste fro its point o generation. Accordingly, PMB dust is not subject to regulation as a hazardous waste, even if the material exhibits a characteristic of hazardous waste. See 40 C.F.R. 5 261.1(a). I. Background A. Desâription of PMB Technology PMB is a process that is used widely by the U.S. military and the airline industry for the safe and efficient removal of paints and coatings from aircraft and aircraft components, and other machinery and equipment. It is a pneuinatic process similar to sandblastjng, but uses engin red plastic abrasive inst ad of sand. The plastic abrasive is harder than the coating to be removed, yet softer than the underlying surface, thereby allowing ------- Michael H. Shapiro December 8, 1994 Page 2 coatings to be stripped repeatedly without damaging the surface. This is particularly important in the case of non—steel surfaces (such as aluminum and fiberglass), which cannot tolerate the more aggressive abrasion of sandblasting.. The PMB process is an envirolmentally sound and effective substitute for wet chemical strippers . Depainting of airframes and components traditionally has been achieved by using mh e chloride-based chemicals . EPA recently has proposed phasing out the use of methylene chloride—based strippers due to the adverse environmental impacts of this practice. See 59 Fed. Reg. 29,216 (June 6, 1994) (propos NESHAP for Aerospace Manufacturing and Rework). PMB is recognized by EPA as one of the preferred substitutes. See id . at 29,243. Among the users of PMB technology is Hill Air Force Base, Utah (“Hill MB”). At Hill AFB, PMB occurs within the confines of three enclosed ‘blast booths.” Plastic abrasive is applied under air pressure through a blast nozzle to the surface being stripped. The plastic abrasive then falls, along with paint particles and other material from the surface being prepared, to the mesh interior floor of the blast booth. Material that is smaller than one—half the size of a dime slips through the mesh, and is air-washed and classified to recover for reuse those plastic abrasive particles that are of sufficient size to remove coatings effectively.U The air washing process also removes most of the paint chips and other foreign matter from the plastic abrasive stream. The undersized plastic abrasive particles and other materials air—washed and classified from the reusable plastic abrasive stream are collectively referred to as “PMB dust.” PMB dust, which consists of 94 to 96 percent acrylic plastic, sometimes exhibits the TC for chromium and/or cadmium due to the inclusion of minute paint chips. B. The PMB Dust Recyclina Proaram In 1989, Composite began working with Hill MB to identify potential alternatives to the disposal of PMB dust as a hazardous waste. The result of that effort was a program whereby Composite leased Solidstrip® Plastic Abrasive to Hill AFB, collected in containers the PMB dust produced on-site, and shipped that material to G Iobe Plastics, Indi for use as an ingredient in ,/ The plastic abrasive media may be used 40 - 80 times prior to being removed from service. - ------- Michael H. Shapiro December 8, 1994 Page 3 the manufacture r f acrylic plastic thets.V - - Globe Plastics purc ii es PMB dust from Composite for $0.02/lb and pays for shipping pursuant to a long—term output contract.. PMB dust is placed in large flexible fabric bags (about 1,100 pounds each) and labelled vjth a unique, identifying code in preparation for shipment to the recycler. Random samples of the dust are analyzed to ensure that it meets specifications for use in acyc].ic sheet manufacture. The containerized dust - material is then transported to India. Upon arrival in Bombay, PZ4B dust passes through customs, where it is sampled by the Indian Customs Chemical Examiner. The government of India, and the State of Maharashtra in which Globe Plastics is located, are aware of the content of the PMB dust and have consented to its importation for use in the manufacture of acrylic plastic sheets. The first step of the acrylic sheet manufacturing process at Globe Plastics involves the conversion of the ac lic las c PMB d tist to roduce meth imethac ate monomer (“NNA monomer”). Up to 3,000 pounds of PMB dust is fed into one of three furnaces, where it is heated to approximately 600°C in thé resence of a molten lead bath. Sustained heating at this temperature in an oxygen-starved environment for approximately 18 to 20 hours causes the acrylic polymer to depolvmerize. or “crack, ” resulting in the production of MMA monomer in the form of a gas. The )NA monomer q is collected and liquified in a water—c o1e conden r. ad nium and chromium in the PMB dust partitions to the lead bath, which is never discarded. 11 The liquid ?*!A monomer is approximately 95 to 98 percent pure. The remaining two to five percent of the liquid product 2J The facility in India was selected because ji° recycling facilities for acrylic plastic were found to exist in the United States. In contrast, plastics have been recycled in India siii about 1955 because that country lacks primary industrial producers of plastics. Globe Plastics has itself been recycling acrylic plastic since under the current ownership since 1978, much of which is obtained from sources within the United States. J A process flow diagram is provided as Attachment 1. jf A small amount of “char residue” is generated in the depolymerization step through the charring or decomposition of acrylic plastic and paint residues. Approximately one to two pounds of char residue is generated per 5,000 pounds of P dust processed in the furnaces. The char residue, which contains recoverable quantities of lead, is sold to a lead smelter for metal recovery in accordance with Indian law. ------- Michael H. Shapiro December 8, 1994 Page 4 consists of organic chemical impurities resulting from incomplete conversion of the PMB material. These impurities impart a blackish color to the MMA monomer stream, which is undesirable because the MM monomer is used by Globe Plastics to produce - transparent acrylic plastic sheets. Further refinement ott. ie liquid MMA monomer roduct therefore is necessary in order to meet product specifications for the acrylic plastic sheets . The liquid ) (A monomer is ptirifi 1 4hrfMlgh disti11atiofl fld recondensed to liquid fqr . The organic chemical still bottoms resulting from the purification of ) U’(A monomer are routed to the oil—fired furnace used to heat the molten lead bath, where they are burned as a supplemental fuel.ãI - In the final step of the production process, NM monomer is combined with catalysts and coloring agents. The resulting mixture is poured into dies and cured in water baths. The typical cure time is three hours, but varies depending on the thickness of the acrylic sheets being produced; After curing, the acrylic sheets are covered with paper in preparation for shipment to customers. C. Previous EPA and State Regulatory Determinations Concerning Recycled PMB Dust Prior to awarding a contract to Composite for the above— described PMB recycling program, Hill AFB sought a regulatory determination from the Utah Department of Environmental Quality (“Utah DEQ”) that the recycled PMB dust would not be subject to regulation as a solid and hazardous waste. ’ After an extensive review of the process by which PMB dust is produced and handled, beginning at Hill AFB and ending at Globe Plastics, Utah DEQ concluded that the proposed recycling program constituted “use or reuse” of PMB dust as an ingredient in an industrial process. See Letter dated February 3, 1992 from Dennis R. Downs, Director, Division of Solid and Hazardous Waste, Utah DEQ, to Col. William H. Henabray, Office of the Staff Judge Advocate, / The volume of still bottoms, consisting of various esters, is about one percent of the volume of !‘2’IA produced, and comprises only a small fraction of one percent of the fuel f or •the furnace. / Hill AFB also requested that a pre-award environmental survey of Globe Plastics be performed by the Defense Logistics Agency (“DLA”). DLA visited Globe Plastics in September, 1991, and concluded that “the Firm is environmentally responsible to recycle methacrylate plastic dust contaminated with chromium and cadmium.” DLA, Environmental Survey of Globe Plastic, Bombay, India (Oct. 3, 1991) (Attachment 2). ------- Michael H. Shapiro December 8, 1994 Page5 - Hill Air Force Base (“1992 Utah DEQ Letter”) (Attachment 3).2/ Based on Utah DEQ’S regulatory determination, a copy of which was furnished by that agency to EPA Region VIII, Hill AFB awarded a contract to Composite to begin recycling PMB dust. Fourteen months later, in April 1994, EPA Region VIII sent a letter to Utah DEQ stating that the PMB dust i oduced at Hill AFB was 2’ pent mat ria .!t hat va b jfl’g S Y* frn “rec!llThatiOfl ” in India and therefore was subject to regulation as a solid and hazardous waste. Letter dated April 11, .1994 from Robert L. Duprey, Director, Hazardous Waste Management Division, EPA Region VIII, to Dennis Downs, Director, Division of Solid and Hazardous - Waste, Utah DEQ (“Region viii Letter”) (Attachment 5). The purported basis for Region Viii’s position was a j rth 4, 14Q4 Memorandum from Michael Shapiro , Director, Office of Solid Waste, EPA, to HazardOu WaSte Management Division Directors, Regions I— X, entitled D inition of SDent Material ” (“March 24, 1994 MeinorafldU1fl’Y (Attachment 6). That memorandum, however, does not in any way speak to the question of what constitutes “reclamation” of a spent material (or any other secondary material), see id , and EPA Region viii provided no other support for its conclusion that “Hill AFB is currently exporting the beadblaSt material to India for reclamation.” Region VIII Letter at j See als Letter dated June 24, 1992 from Dennis R. Downs, Director, Division of Solid and Hazardous Waste, Utah DEQ, to Col. William 14. Henabray, Office of the Staff Judge Advocate, Hill Air Force Base (Attachment 4). / Composite notes that it disagrees with the conclusion of EPA Region VIII that PI4B dust is properly characterized as a “spent material.” PMB dust is removed from the blasting process not because it is “contaminated,” but rather because it is physically too small to abrade coatings. Although EPA has asserted in guidance that “contamination” for purposes of the definition of spent material includes physical degradation of materials, see March 24, 1994 MemorandUm, Composite believes that this position is contrary to the plain meaning of the term “contaminated” and also without support in EPA’s regulations. See 40 C.F.R. § 261.l(c)(1) (definition of spent material limited to “contaminated” materials). PMB dust instead is properly classified as a “sludge” because it arises from the captureof acrylic plastic dust particles in the air filtration system of the blast booth. See 40 C.F.R. if 260.10, 261. 1(c) (2). Nevertheless, the status of recycled PMB dust as a “sludge” or “spent material” is irrelevant because, as discussed below, that material is not a solid waste from its point of generation per 40 C.F.R. S 261.2(e) (1) (i). ------- Michael H. Shapiro December 8, 1994 Page 6 In response to Region Viii’s April 11, 1994 Letter, Utah DEQ informed Hill AFB that it had “reevaluated” the PMB dust recycling process: - (t]he spent beadblast material generated by (Hill APB] must be processed to recover a usable product, methylmethacrylate monomer. This is achieved using a distillation process in India. This is clearly a form of reclamation. Letter dated April 27, 1994 from Dennis R. Downs, Executive Secretary, Utah Solid and Hazardous Waste Control Board, to James R. Van Orman, Director, Environmental Management Directorate, Hill Air Force Base (“1994 Utah DEQ Letter”) (Attachment 7). Based on this letter, and Region Viii’s April 11, 1994 Letter, Hill AFB terminated its contract with Composite, and began handling all PMB dust that exhibits the TC in accordance with applicable Subtitle C requirements. In separate determinations, EPA Regions IV and VI also have determin that the recycling of PMB dust involves “re 1a on.” i egion IV concluded that “the cracking operation will regene è the blasting media,” and thus “meets the definition of reclamation in 40 C.F.R. 261.l(c)(4).” Letter dated August 11, 1993 from John E. Dickinson, P.E., Chief, RCRA Compliance Section, EPA Region IV, to Jerome H. Rhodes, at 3 (“Region IV Letter”) (Attachment 8). Region Vi determined that the depolymerization of PMB dust to produce A monomer is a “heat reactor distillation process,” and thus “(t]he. facility is clearly ‘processing’ the plastic dust to recover a usable product.” Letter dated September 16, 1993 from George R. Alexander, Jr., Regional Counsel, EPA Region VI, to G. Alan Perkins, at 2 (“Region VI Letter”) (Attachment 9). R I also determined. hnw v r, that the PI dust was a chd tertstjc “s j e” because it is “retrieved through air filtration.” Id . Accordingly, Region VI concluded that the dust is not subject to regulation when “reclaimed.” Id . II. Discussion A. PMB Dust is Used as an Ingredient in the Manufacture of Acrylic Plastic Sheets Without Being Reclaimed Under EPA’s regulations, materials are not solid wastes when they are recycled by being “used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed.” 40 C.F.RS § 261.2(e)(1)(i). For example, “the use of chemical industry still bottoms as feedstock” to make new products is a form of recycling that does not involve solid wastes. 50 Fed. Reg. 614, 637 (Jan. 4, 1985). See also Letter dated March 22, 1988 from Sylvia K. Lowrance, Director, Office of ------- Michael H. Shapiro December 8, 1994 Page 7 Solid Waste, EPA to Hyman Bzura (copper chloride and copper ammonium chloride by—products used to produce copper sulfate and copper hydroxide are not so .id wastes). In such cases, - components of the secondary materials, which “function as raw materials,” 50 Fed. Reg. at 637, become incorporated into a new product. In contrast, if “distinct components of the (secondary] material are recovered as separate end products,” 40 C.F.R. § 261.1(c) (5) Ci), the material is being “reclaimed,” rather than used as a ingredient. 50 Fed. Reg. at 637. For example, the recovery of lead from a spent lead—acid battery is a form of reclamation ( i.e. , recovery of a usable product). 40 C.F.R. § 261.1(c) (4). Secondary materials that are “processed to remove contaminants in a way that restores them to their original usable condition,” such as spent solvents that are regenerated, also are said to be “reclaimed.” 50 Fed. Reg. at 633. See also 40 C.F.R. ,-S 261.1(c) (4). In light of the foregoing, it is evident that the recycling of PMB dust to produce acrylic plastic sheets is properly characterized as “use or reuse” of the dust as an ingredient, —rather than “reclamation” of that material. “Distinct components” of PMB dust -- which is comprised primarily of acrylic plastic particles —— are not recovered as separate end products. Instead, PMB dust, an acrylic polymer, is “cracked” or depolymerized into its constituent elements, molecules of ) A monomer, and those constituents .are then catalytically recombined along with coloring agents to produce a new product —— acrylic plastic sheets. • The recycling of P dust is analogous to the recycling of spent sulfuric acid to produce virgin sulfuric acid —— a process that “the Agency . . . does not think . . . involves reclamation.” 50 Fed. Reg. at 634. Spent sulfuric acid is burned to derive sulfur as sulfur dioxide gas. This gas is purified, catalytically converted 1 and absorbed into existing sulfuric acid as part of the same industrial process. 48 Fed. Reg. 14,472, 14,487 n.30 (April 4, 1983). After a review of the sulfuric acid recycling process, EPA determined that: This process does not constitute reclamation because the spent sulfuric acid is neither regenerated (impurities are not removed from the spent sulfuric acid to make it reusable) nor recovered (acid values are not recovered from the spent acid). It is used as an ingredient. Id . ------- Michael H. Shapiro December 8, 1994 Page 8 Just as spent sulfuric acid is converted into sulfur dioxide in the course of producing virgin sulfuric acid, acrylic plastic PMB dust is converted into MMA monomer for use in the production of acrylic plastic. The MMA monomer produced by the cracking of PMB dust is “purified,” and then “catalytically converted” to create acrylic plastic sheets. See 48 Fed. Reg. at 14,487 n.30. MMA monomer is as much an “ingredient” in the production of - acrylic plastic sheets as sulfur dioxide gas is an “ingredient” in the production.of sulfuric acid. PMB dust is neither regenerated (impurities are not removed from the acrylic plastic to make it reuseable) nor recovered (acrylic plastic is not recovered from the PMB dust). The recycling of PMB dust to produce acrylic plastic sheets does not constitute “reclamation.” PMB dust is not “processed to recover a usable product.” 40 C.F.R. S 261.2(c)(4). That concept is applicable to recycling situations where a “distinct component” of the recycled material is retrieved (recovered) as an “end product,” such as “when metals are recovered from metal— containing secondary materials.” 40 C.F.R. § 261.2(c) (5) (i). Such is not the case with the recycling of PMB dust. monomer is not a “distinct component” of the PMB dust, the latter of which is comprised of particles of acrylic plastic polymer, paint chips, and other materials blasted from the aircraft surface. Instead, MMA monomer is a new chemical substance. Thus, the assertions of Region VI and Utah DEQ that Globe Plastics processes PMB dust to “recover” a usable product are wrong. See Region VI Letter at 2; 1994 Utah DEQ Letter at 1.2/ PMB dust is instead used to produce a usable product. Finally, PMB dust is not “regenerated” by Globe Plastics. See 40 C.F.R. § 261.2(c)(4). PMB dust is not “restore [ d] to [ its] original usable condition” when it is used to manufacture acrylic plastic sheets. Unlike a spent solvent, which is “regenerated” through the removal of impurities, PMB dust is chemically transformed to produce a new material. Indeed, the / Moreover, contrary to the assertions of EPA Region VI and the Utah DEQ, the cracking of PMB dust to yield ‘IA monomer is not a form of “distillation.” See Region VI Letter at 2; 1994 Utah DEQ Letter at 1. cracking; or “depolymerization,” involves the “decomposition of macromolecular compounds into relatively simple compounds.” McGraw-Hill, Dictionary of Scientific and Technical Terms (4th ed. 1989) at 513. In contrast, “distillation” is defined as “(t3he process of producing a gas or vapor from a liquid by heating the liquid in a vessel and collecting and condensing the vapors into liquids.” Id . at 561. As these definitions illustrate, depolymerization and distillation are distinct processes. - ------- Michael H. Shapiro December 8, 1994 Page 9 mere removal of the paint chips and other matter “contaminating” the PMB dust would not restore the dust to its “original usable condition” because the PMB dust particles would remain too small for use as blasting media. Accordingly, the conclusion of EPA Region IV that “the cracking operation will regenerate the blasting media” is.plainly incorrect. Region IV Letter at 3. In summary, Utah DEQ’s original determination that the recycling of PMB dust to produce acrylic plastic sheets constitutes “use or reuse” of the dust as an ingredient was correct. The recycling of PZIB dust is analogous to the recycling of spent sulfuric acid, a process that EPA has concluded does not involve “reclamation.” P) dust is not processed to recover a usable product, nor is it regenerated. It is instead used to produce a usable product through use as an ingredient. - B. PMB Dust Used as an Ingredient Satisfies the Criteria for Exclusion from the Definition of Solid Waste As previously demonstrated, PMB dust falls within the scope of 40 C.F.R. § 261.2(e) (1) (i) as a material used as an ingredient in an industrial process to make a product without reclamation. However, EPA’S regulations provide further that materials “used as ingredients” may nevertheless be deemed solid wastes if they are: (1) “used in a manner constituting disposal”; (2) “burned for energy recovery, used to produc e a fuel, or contained in fuels”; (3) “accumulated speculatively”; or (4) identified at 40 C.F.R. § 261.2(d)(1)—(2) as “inherently waste like materials.” 40 C.F.R. § 26l.2(e)(2). As demonstrated below, P! dust does not fall within any of those categories, and thus satisfies the criteria for exclusion from the definition of solid waste. First, PMB dust is not “used in a manner constituting disposal.” 40 C.F.R. § 26l.2(e)(2)(i). PMB dust itself is not “applied to or-placed on the land,” see 40 C.F.R. § 266.20, nor is PMB dust used to produce a product for land application ( e. . , fertilizer, asphalt, cement). Instead, PMB dust is used to produce A monomer, which then is reacted to produce acrylic plastic sheets. Neither IQIA monomer nor acrylic plastic sheets are “applied to the land.” Second, PMB dust is not “burned for energy recovery, used to produce a fuel, or contained in fuels.” 40 C.F.R. § 261.2(e)(2)(ii). PMB dust is depólymerized —— not “burned” —— to produce A monomer in the presence of a molten lead bath, which serves as a heat transfer agent. This is a non—combustion process, and energy is not recovered. Moreover, PMB dust is not “used to produce a fuel” or “contained in fuels.” P) dust is used only to produce )ThIA monomer, all of which is used to manufacture acrylic plastic sheets. Although the organic ------- Michael H. Shapiro December 8, 1994 Page 10 chemical still bottoms from the purification of MMA monomer are burned as a supplemental fuel in the oil-fired furnace used to heat the molten lead bath, those still bottoms result from the distillation of a new chemical (MMA monomer), not PMB dust. 2 ’ 9 - 1 Third, PMB dust is not “accumulated speculatively.” 40 C.F.R. S 261.2(e)(2)(iii). P dust is stored at Hill AFB for only a short period of time (no more than 3 months), until enough material is available to fill a shipping container. When the dust reaches Globe Plastics, it is used immediately. Any storage of PMB dust that occurs is attributable solely to the capacity limitations of the three furnaces, each of which can hold up to 3000 pounds of dust-at any given time. 2’1 ’ Finally, PMB dust is not “inherently waste—like” within the meaning of 40 C.F.R. § 261.2(d). PMB dust is not subject to the F020, F021, F022, F023, F026, or F028 listings, nor is PMB dust fed to a halogen acid furnace.- In conclusion, PMB dust used as an ingredient in the manufacture of acrylic plastic sheets satisfies the criteria for exclusion from the definition of solid waste. 40 C.F.R. § 26l.2(e)(2). Therefore, PMB dust is not subject to regulation as a hazardous waste. - For the reasons set forth above, the recycling of PMB dust involves “use or reuse” of that material as an ingredient within the meaning of 40C.F.R. § 261.2(e)(l)(i), and thus the PMB dust 9-/ Indeed, it makes little sense to characterize PMB dust as a solid waste by reason of the burning of A monomer still bottoms for energy recovery. If the still bottoms instead were disposed of (such as by means of incineration), there would be nà question whether the P1 dust is subject to regulation as a solid waste by virtue of 40 C.F.R. § 261.2(e)(2)(ii). Facilities such as Globe Plastics should not be penalized for engaging in the beneficial use, rather than disposal, of secondary materials resulting from production processes that use other secondary materials as ingredients. If, however, EPA determines that the burning of A still bottoms causes the PMB dust to be considered a solid waste, Globe Products is prepared to cease burning the still bottoms, and to instead dispose of that material off—site in accordance with applicable Indian law. The use of PMB dust to manufacture acrylic plastic sheets is easily accomplished within the “75 percent” turnover requirement of 40 C.F.R. 5 261.1(c) (8). ------- Michael 11. Shapiro December 8, 1994 Page 11 is not subject to regulation as a solid (or hazardous) waste from its point of generation. - Composite would appreciate receiving written confirmation that its understanding of the regulatorY status of PMB dust recycled in the manner described herein is correct. In addition, Composite would be pleased to meet with representatives of EPA to discuss in further detail the PMB reàycliflg process. If you have any questions about the contents of this letter, or would like to arrange a meeting to discuss the Composite PMB dust recycling program, -please contact either of the undersigned at the numbers listed below. Thank OU for your consideration of this matter. Sincerely, J 1. aP I A k!i,ii G’. Alan Perkins I Williams & Anderson Twenty-Second Floor iii Center Street Little Rock, R 72201 (501) 372—0800 L e14WP Nancy . Tammi Beveridge & Diamond, P.C. 1350 I Street, N.W. Suite 700 Washington, D.C. 20005 (202) 789—6059 enclosures ------- FILE COPY • IV SPd, . j UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 4 ( FEB—C t 9441.1995(04) OFFICE OF SOLIO WASTE ANQ EMERGENCY RESPONSE Mr. John W. Osborne Manager of Safety and Environmental Quality United Beechcraft, In.. P.O. Box 2966 Wichita, Kansas 67201-2966 Dear Mr. Osborne: Thank you for your letter dated October 18, 1994, requesting an interpretation regarding the regulatory status of residual aviation- fuels that are burned for energy recovery. As you correctly note in your letter, off-specification fuels, including gasoline, jet fuel,. kerosene, diesel, etc. that exhibit a hazardous characteristic and are burned for energy recovery are excluded from regulation under RCRA as commercial chemicalproduCtS. The RCRA regulations provide that commercial chemical products are not solid wastes when used as fuels (i.e., burned for energy recovery) if that is their intended purpose (40 CFR 261.2 (c) (2) (ii)) . - According to your letter, there are a nurrther of different ways in which the residual aviation fuels are generated by your company (e.g., during maintenance of the aircraft, as a result of spills, etc.). You ask whether the manner in which the residual fuels are generated is a factor in determining whether they meet the definition of off-specification commercial chemical products under RCRA . The answer, in most cases, is no. The manner in which the fuels become off-specification is not generally a factor in determining how they are regulated. One exception is when the fuels have been mixed with or contaminated by non-fuel listed or characteristic hazardous wastes. In that case, the off-specification fuel would -be regulated as a hazardous waste under RCRA even when burned for energy recovery. There are also a number of potential uses for the of f- specification aviation fuels that you generate, all of which involve burning for energy recovery, according to your letter. The residual aviation fuel may be upgraded to specification by blending it with other types of fuel (e.g., gasoline, diesel, ------- 2 etc.) and then used to fuel aircraft or it may be used to power boilers and industrial furnaces. Your question is whether these uses would be considered “use within the intended purpose” as defined by RCRA. The answer is yes. As long as the residual fuels are being legitimately burned for energy recovery, they would be considered as being used for their intended purpose. EPA does not distinguish between different types of burning for energy recovery .f or purposes of determining the regulatory status of residual fuels under §261.2(c) (2) (ii). It is important to note that EPA Regions 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. I hope this letter addresses your concerns. If you have additional questions, please call Becky Daiss of my staff at (202) 260-8718. Sincerely, Michael J. Petruska, Chief Regulatory Development Branch ------- ‘Jruted Beechcratt. Inc. :‘ 76 5201 “0 Box 2966 Wucn ta KS 67201 •2966 United t?eechcrnft A BEECH AIRCRAFT COMPANY October 18, 1994 Mr. David Bussard, Director Characterization and Assessment Division EPA 401 M St. S.W. Washington, D.C. 20406 Dear Mr. Bussard: We would like to obtain an interpretation of the status of our residual/waste stream of aviation gasoline and jet fuel. In a letter (copy attached) from Mr. Devereaux Barnes to Mr. Joe Haak a imi1 r situation is discussed and interpreted. We want to be sure of any extension of the interpretation to our particular situation so that we rempin in compliance with the regulations. To put the interpretation request n context, our company is comprised of 17 on-airport facilities that provide a variety of services to the aviation community. As a result of the services and due to the stringent fuel quality specifications that must be adhered to in order to ensure safety of ifight, a residual fuel is generated. There are generally four situations that may generate this residual fuel as the following describes. 1. In the process of quality control of the fuel, we sump m l1 quantities of fuel at various points in the storage-to-aircraft fueling system. The result is a residual fuel that has some water from condensation, rust particles and so on. 2. At times in the maintenance of the airplanes, fuel lines or tanks are required to be emptied in order to accomplish the needed repair task. If the fuel can not be returned to the aircraft it came from, it is collected as a residual fuel. 3. In the process of receiving, storing and transferring of fuels or in the n intenance of the fuel system or aircraft refuelers sm2 ll drippages result in the generation of residual fuel. •1. “h i-aft ------- Mr. David Bussard Page -2- October 18, 1994 4. And the last case would be where we have had a leak or spifiage and have used clean-up material to absorb the fuel. We make note of two statements in the letter previously referenced. The first “a commercial chemical product is not a solid waste if it itself is a fuel” ... ‘it is implicit in the rules that the same reasoning applies to commercial chemical products that are not listed”. Secondly, in the following paragraph “AlthoUgh the reclaimed commercial chemical product is burned for energy recovery it is not a solid waste because this was its intended purpose”. While the McDonnel Douglas off-spec fuel would be used to produce apparently more aviation fuel our residual fuel would not be used for that specific purpose. However, it would be used for fuel, i.e. energy recovery. How broadly defined is “fuel” within the context of “intended purpose”? Aviation fuel only for aviation related purposes? We have found our residual fuel could be used in three different ways as a fuel. 1. Our residual fuel is not up to aviation fuel specifications, but it is acceptable when blended with other types of fuel, e.g. automotive, diesel, etc., and it is used within the context of that fuel’s intended purpose. 2. It could be used in kilns, boilers, generators as a fuel to power this equipment’s use in a production process of some ldnd. 3. The fuel soaked clean-up material has enough Btu value to be used as a fuel to run kilns, boilers, etc. Does how the residual fuel end up being used as a fuel make a difference in the interpretation of “intended purpose”? It would be a fair statement to make that if 100 percent pure aviation fuel were delivered instead of the residual fuel, the pure product would not be handled substantially different by the fuel user - it is just fuel to them. We would make a follow-on assumption the receiving process or facility would not need to have a Part B RCRA permit, provided the Agency saw our residual fuel as being used for its intended purpose. It may be helpful to summarize our questions after having interwoven our specific situation with questions and issues. ------- Mr. David Bussard Page -3- October 18, 1994 1. How does your Agency’s interpretation of “fuel” and “intended purpose” view our residual fuel? 2. Does the interpretation change based on how the residual fuel was derived based on the four general situations? 3. Does the interpretation change depending on how the residual fuel is used as a fuel in the end process? 4. Assnming your interpretation is that our residual fuel is a “fuel” and not a hazardous waste, then it would not be necessary for it to be handled and accumulated at our sites as a hazardous waste or dispose at a RCRA permitted site. Is that assumption correct? Hopefully, this has given you all the pertinent information to the issues. If something has been overlooked please feel free to write or call me at (316) 676-7657. We do appreciate your attention as we are concerned about conducting our business in the proper manner. John W. Osborne M n ger of Safety and Environmental Quality United Beechcraft, Inc. JWOv lb Attachment ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY \ ,, / WASHINGTON, D.C. 20460 9441.1995 (05) - OFFIcECF OD RAL COUNSEL FEB 171995 of Solid Waste (5301) Lisa K. Fried k1t ?’7 Associate Gene i1’ Counsel Solid Waste and Emergency Response Division (2366) TO: Waste Management Division Directors, Regions IX This memorandum is to clarify that the Resource Conservation and Recovery Act (RCRA) requirements apply to discharges of leachate into groundwater from leaking waste manag aent units, even when the groundwater provides a direct hydrologic connection to a nearby surface water of the United States. The definition of solid waste in RCRA section 1004(27) excludes certain industrial discharges which are point sources subject to. permits under the Clean Water Act (CWA); and EPA has said that CWA jurisdiction (under section 402) extends to point source discharges to groundwater where there is a direct hydrologic cpnnection between the point source and nearby surface waterB of the United States. However, discharges of leachate from waste management units to groundwater are not excluded from the definition of solid waste in R A section 1004(27), bec,ause’the exclusion extends only to “traditional,” pipe outfalltype point so irce discharges, and not to discharges upstream of that point. (This memorandum interprets the meaning of “point source discharge” solely for the purposes of RCRA section 1004(27), and not for CWA purposes.) Discussion - R RA section 1004(27) excludes from the definition of solid waste “solid or dissolved materials in . . . industrial SUBJECT $ PROM: Interpretation of Industrial. Wastevater Discharge inition of Solid Waste ------- 2- (section 40’ of the Clean Water Act].” For the purposes of the RCRA program, EPA has cons istently interpreted the language “point sources i kj permits under (section 402 of th. Clean Water Act]” to mean point sources that have a NPDES permit in place, whether in fact they do c’r not. Under EPA’S interpretation of the “subject to” language, a facility that should, but does not, hay, the proper NPDES permit is in violation of the CWA, not RCRA. In. interpreting and implementing this exclusion, the Agency promulgated a rule at 40 C.F.R. S 261.a(a)(2) that states: Th. following materials are not solid wastes for the purpose of this part: • . . Industrial wastevater discharges that are point source discharges subject to regulation under section 402 of the Clean Water Act, as amended. EPA’s interpretation of the rule’s narrow scope is set out in an explanatory “Comment” that also appears in the Code of Federal Regulations following the final rule language: Thi. exclusion applies only to the actual point source discharge. It does not exclude industrial vastewaters while they are beina collected. stored or treated before gi gb g , nor doss it exclude sludges that ar. generated by industrial vastewater treatment. 40 C.P.R. S 261.4(a)(2) (comment) (emphasi. added). This explanatory comment to the rule emphasizes that the exclusion is a modest and narrow one • Moreover, the comment reflects EPA’s intent, at the time it promulgated the rule, that the exclusion apply solely to the traditional pipe outfall-typ, situation (i.e., ultimate r.l.ase to waters of the United States). As EPA explained in the preamble: The obvious purpose of the industrial point source diaóharge exclusion in section 1004(27) was to avoid duplicative regulation of point source discharges under, RCRA aM the Clean Water Act. Without a provision, the discharae of vastewater into naviaable waters would be “disposal”. of solid waste, and potentially subject to regulation under. both the Clean Water Act and RCRA Subtitle C. g- considerations do not apnlv to industrial vastevaters prior. - to discharae since most of the environmental hazards nosed by vastewaters in trea nt and ho1din facilitiel Drimarilv oroundwat.r coht 1nation —— cannot controlled under the Clean Water Act 45 g 3Qg. 33098 (May 19, 1980) (emphasis added). ------- 3 Thus, EPA based this exclusion on the need to avoid duplicative regulation under two statutes for discharges that occur at the end—of-the-pipe (i.e., discharges directly to surface water). EPA did not intentj that the exclusion cover groundwater discharges from tr.atm,nt processes that occur prior to the end of .the_pipeR discharge. ‘us, this exclusion only covers a subset of point sources regulated under the CWA. Therefore, vastewater raleasec to groundwater from treatment and holding facilities do not come within the meaning of the RCRA exclusion in 40 C.F.R. S 26 1.4(a)(2),but rather remain within the jurisdiction of RCRA. In addition, such groundwater discharges are subject to CW& jurisdiction, based on EPA’s interpretation that discharges from point sources through groundwater where there is a direct hydrologic connection to nearby surface waters of the United States are sub ject to the prohibition against unpermitted discharges, and thus are subject to the NPDES permitting requirements. fi 55 Fed. Reg. 47990, 47997 (Nov. 16, 1990) (storm water permit application regulations); 56 Fed. Rag. 64876, 64892 (Dec. 12, 1991) (Indian water quality standards regulations); 58 Fed. Rag. 7610, 7631 (Feb. 8, 1993) (Region 6 general permit for feedlots). If you have any questions on this memorandum, please call atny 11am of OGC at (202) 260-2737 or Mitch Ridwell of 08W at (202) 260—4805. - ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTEC11ON MENCY WASHINGTON, D.C. 20460. .E?. 2 I 1995 9441.1995(06) 2T UM OFFCE C ____________ SO1 WASTEANDEMERGENCY RESPONSE SUBJECT: .ly. Engineered Waste FROM: fic 1 bf Solid Waste .IJ.... TO: Robert L. Duprey, Director - Hazardous Waste Management Division Thank you for your memorandum in which you raised issues concerning RCRA and TSCA jurisdiction over infectious and/or genetically engineered waste. You have asked us to clarify EPA’S authority to require submittal of information under RCRA section .3007 and to require corrective action for wastes which may. have been disposed at the Dugway Proving Ground . (DPG), a Department of ‘the Army facility in Utah. .We understand that the Region does not know the full extent and type of wastes producedat the facility, but that some possibilities are biological agents, genetically engineered organisms, -and infectious wastes. If biological, genetically engineered, or infectious wastes either are listed as hazardous wastes under 40 C.F.R. Part 261 or exhibit a characteristic of hazardous waste, they are subject to hazardous waste management standards and interim status and permitting. requirements in the same way as any other hazardous wastes listed or identified under Part 261; Initially, the Region may gain access tó the facility under section 3007 because it is a hazardous waste storage facility. Additionally, if materials do not meet the definition of hazardous waste under Part 261, they still would be subject to RCRA sections 3007 and 3013 if they meet the statutory definition .of hazardous waste. This is broader than the regulators’ definition in Part 261. 40 C.F.R. § 261.1(b) (2) provides that, even if a material .s not a hazardous waste under Part 261, it may still be a solid and hazardous waste for purposes of RCRA sections 3007 and 3013 if EPA has reason to believe that the material may be a solid waste within the meaning of RCBA section 1004 (27), and a hazardous waste within the meaning of RcRA section 1004 (5). The materials may also be addressed under R.CyCII4IRICYdIbIS c \ P t lfl d WI $SYi t IS Mk olt pspsr u ------- section 7003 if the statutory elements are established. Regions have’the authority to make case-by-case decisions on 4ihether. .áuch material meets the statutory definition of hazardous waste. 1 Your letter alsoquestioned whether section 3004(u):applies in this case. Section 3004(u) reqj.Lires corrective .áction for releases of hazardous -waste, or constituents from any solid waste. management unit at the facility.. Since biological, genetically engineered or infectious wastes are solid wastes, Us ’,’ .’ containing these wastes ‘would be subject tosection 3004(u). ‘In the proposed Subpart S rule, EPA interpreted “hazardous waste” for purposes of” section 3004(u) to encompass the statutory definltion.of hazardous waste. Based ontilis interpretation, the Region”cou] .d use section 3004(u) authority to require - • investigation of any SWMUS to detér nine’ whether there are - releases of hazardous waste (as defined under section 1004 (5)) ‘or constituents. Because this interpretation of section 3004(u) is contained in a proposed rule that has not been tinalized, the Region should be prepared to explain the interpretation”as well as providing site-specific reasons why it is appropriate,to require an investigation of this issue at the facility. Note that section 3008(h) enforcement authority may be used in the same .manner, since EPA’s position is that the scope of that authority is no less broad than §3004 Cu). See memorandum from J. Winston Porter, “Interpretation, of Section 3008(h) of the Solid Waste Disposal Act” (Dec. 16, 1985). If any aspect of the facility is classified, that is no t a bar to EPA ‘act’ioi unless the facility has a presidential exemption under section 6001, although inspectors may be required to obtain appropriate security clearances. Your memorandum also raised questions regarding EPA’s authorities to address this facility under the Toxic Substances Control Act (TSC )’. Although TSCA may have mechanisms to address this type of material in a remedial context, we believe the RCRA authorities outlined above would be more appropriate to address the facility in question in light of the fact that this is a RCRA facility. ‘Finally, you asked whether EPA’s authority to address these wastes under R RA is tied to any particular date. We do not believe that dates are relevant to the applicability of RCRA corrective action au thorities, since sections 3004(u) and’3007 clearly have no such’ limitations. - 1 In addition, CERCLA section 104 Ce), which covers “hazardous substances”, also could be used here. ------- We hope that you find thisinforn ation helpful. Please contac t David Fagan at (703) 308-8620 if you have any questions. cc: M. Hale D. Barnes •B. Pace ------- .UNIT D STATES ENVIRONMENTAL.PROTECTION AGENCY. • REGION vw: 999 18th STREET• SUITE 500 DENVER. COLORADO p0202-2466 -. OCT Ref: 8HWM-HW ) 1OR 1ThtJM SUBJEC’r: Infectious and/dr Genetically Engineered Waste FROM: Robert L. Duprey,, Director Hazardous Waste Management TO: Michael H. Shapiro, Di:rector Office of Solid Waste - - We are requesting clarification of the extent of EPA’è. authorities pertaining to the Dugway Proving Ground (DPG) , Department of Army facility, in Toóele Co1 .nty, Utah.. DPG is.a Resource Conservation and Recovery Act (RCRA) treatment, storage. and disposal facility going through closure and perhaps will receive a post closure pez it. DPG has a ECRA storage permit and is subject to corrective action. • DEG had a mission to develop biological and chemical agents for use by. the DOD. Waste material was produced by DPG in •. accomplishing this mission. because of the classified nature of the work At DPG, we do not know the full extent and types of • wastes it produced over the years. ( bout’3O years ago, DPG had several sheep kills from some type -of experimentation it’was - onducting.) Chemical agentshave been tested at DPG in experimental animals. •We and the State of Utah have authority to address solid and hazardous wastes issues and releases from solid • waste ma? gement units at the facility,- and we are doing so.. Pathogens, non-pathogens, and other biolog±cal agents were probably experimented with at DPG. Waste fr9m these experiments were ‘disposed on-site and perhaps off-post. Und r R RA §1004 (5) the Agency has statutory authority ,to -address infectious charateristics -waste, but-no regulati ns have been developed by EPA. Infectious waste is considered by Region 8 .to be a solid waste. The Medical Waste Tracking Act, Subtitle J of RCRA, expired, and so it is no. longer ger re to our concerns. •,, Pap., ------- .2 . We are requesting clarificitiofl as to w t er thè Region- has the author ty to require... the .submi t .tal ;of :i fo tiOn fröth . DPG under §3007 of RCRA, xega ding biological/infectious waste. material, ha DPG. We also need confirmation that’ we do ,ba e § 3004 .(u)”and’(V) and environmental concerns of , these types of infectiou waste aterials. - • _ , , — . ,L ’.r I. • Further, the To*iàs Substances . Control Ac t (TSCA) has given to EPA the authority to regt late geneticailY engineered • organisme, even though our applicatioi ‘oX this - authority h s been xninii l. DPG may have experimented. wjthgeuetically, ,engineered biological materials. • Does TSCA , provide .!P&. with -autháritv to pursue investigation of-tb - ‘ -- - . wastes? “ Can t.hese ’materia inZ ct1ous wástè?’ If;yes, passage äf RcRA in ‘1976 or, •“ .. ‘prO 0. ‘ - we recognize ,that we i bui óur concern is -real. -- Even t iàugh “DPG • a ea in- ‘Utah, we still want :to ave:the, -f . ‘standard that.’ is proteôtive à , iii n n;heal1 -. • chemical wasteS can .be- addressed ‘ : ; leaving potenti4 hü an :healt h a ‘ unaddressed from’ biolbgical : - We don’t know i DPG has ‘any problem’:frOm.. these types of waste materials, but ‘.w&need cle authority to be able to ask the question and”effe - tion as uecessaxyo • -- ‘.‘-. - • . . .‘ - . Your assistance in clarifying the extent of these” statutory authorities willlbe appreciated, :: .PleaSe:’Ca1l (303) 293-150,9 if you have an ’queSti nS’ , p cc: D. Downs. . t3DEQ M. Grey’ - •UDEQ 14.’ Strauss. EPA,HQS L. GoldnL 1 EPA HQs S. Hern T ’ EPA EQs ‘OECk; S. Wuerthele.. . EPA P. Hull . EPA S. zawistowaki PA : ------- This Page Intentionally Left Blank ------- FILE COPY .:(c o S?4P4 UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY WASHINGTON. D.C. 20460 FEB28 1395 9441.1995(07) OFFICE OF SOLO WASTE AND EMERGENCY RESPONSE Mr. John McNally Coil, Davidson, Carter, Smith, Salter and Barkett 3200 Miami Center 201 South Biscayne Boulevard Miami, FL 33131-2312 Dear Mr. McNally: Thank you for your letter of February 13, 1995 requesting a determination of whether RCRA hazardous waste regulatory requirements apply to the handling, shipment and disposal of household appliance components removed from residences during routine maintenance and repair services. Under Federal law, wastes from households are exempt from regulation (40 CFR 261.4(b) (1)). Household waste, to be excluded pursuant to 40 CFR Section 261.4(b) (1) must fulfill two criteria: first, household waste has to be generated by individuals on the premises of a household and, second, “the waste stream must be composed primarily of materials found in the waste generated by consumers in their homes.” EPA does not distinguish between waste generated at a household by a homeowner and waste generated at a household by a person other than the homeowner (e.g., contractor) provided that the waste is generated as part of daily living (e.g., routine residential maintenance). Under EPA’s current reading, solid waste generated by a homeowner, resident, or a contractor at a home as part of routine residential maintenance (as opposed to building construction, renovation, and demolition) would be part of the household waste stream, and thus would be exempt under the RCRA household waste exemption. From the description provided in your letter, it appears that the thermostat components of residential ovens being handled under your program meet the requirements for exemption as a household waste. Individual states, however, may choo e to have their own laws and policies on “household waste”. Section 3009 of RCRA allows states to impose standards more stringent than, or in addition to, those in the Federal program. Therefore, you should contact the states in which the program will be operating for further assistance in determining the appropriate waste management and disposal requirements in each of these states. ‘ Ricycl.d R.cyc abIs ------- You may also be interested to know that EPA has developed a new.strearnhined regulatory system for used batteries and other waste streams generated by non-households, which we cal]. “universal wastes.” One of the goals of this rule is to separate these universal wastes from the municipal waste stream. I have enclosed a copy of the proposal. The Agency expects the final rule to be promulgated later this spring. Thank you for your interest in proper waste management practices. Sincerely, Michael Petruska, Chief Regulatory Development Branch ------- COLL DAVIDSON CARTER SMITH SALTER & BARKETT PROFESSIONAL ASSOCIATION ATTORNEYS AT i .AW JANIC I. ANDERSON 3200 MIAMI CENTER IOHN M. BARICErY FRANCIS L CARTER 201 SOUTH SISCAYNE BOULEVARD NORMAN A MIAMI. FLoRlo 33131-2312 MICHAEL J. COMPAGNO (305) 373-8200 TED C. CRAIG BARRY R DAVIDSON TELECOPIER (305) 374-7298 YALE .J FISHMAN MICHAEL .3. NIGER JOHN .1. MCNALLY JIMMY L. MORALES . HY GARY M. MURPNREE I. SMAMPANIER DARRELL W. PAYNE OF COuN5CL VANCE E SALTER HARRIS C. SISKIND RICHARD C SMITH SHERRY A STANLEY 9 URTY8vu 1L 50N . February 13, 1995 VIA FACSIMILE (2O2-26O-O225 Michael Petruska Branch Chief Regulatory Development Branch Characterization and Assessment Division U.S. Environmental Protection Agency 401 M Street, N.W. Washington, D.C. 20460 Re: Regulatory Evaluation Dear Mr. Petruska: The following information is provided to you for purposes of obtaining an interpretation from EPA to determine if the Resource Conservation & Recovery Act (RCRA) h rdous waste regulatory requirements apply to the handling, shipment and disposal of household appliance components removed from residences during routine n1 intenance and repair services. I have been in contact with representatives of several EPA region offices to address this subject a. the activity involves removal of appliance components from households in numerous slates throughout the country. This request is submitted to you for purposes of confirming my telephone conversations with Marilyn Goode in your office to achieve uniformity and consistency in the application of the EPA regulatory requirements and to ensure compliance in the handling of these items. The activities involve removal of a thermostat component from ovens located in residences throughout the country. The thermostat component consists of a copper tubing and contains approximately one ounce of sodium potassium alloy liquid sealed within the tubing. The thermostat is removed by the manufacturer’s service representatives and placed in a package in a container in the service vehicle. The component is picked up with other appliance parts by a transportation company and taken to a warehouse facility for further shipping and ultimate disposal. A third company picks up the components and transports ------- Michael Petruska Branch Chief February 13, 1995 Page 2 them to a facility where the component is opened and the liquid is removed from the thermostat. Based on the nature of the sodium potassium alloy liquid, the material exhibits a reactive characteristic upon removal from the component. Following this reaction, the liquid is disposed of at the facility into a Publicly-Owned Treatment Works (POTW). During removal of the thermostat and during the entire course of handling and shipping. the component remains intact and is handled in accordance with applicable Department of Transportation (DOT) transportation and labeling requirements similar to the shipment of new thermostat components. Based on the number of states involved and to ensure compliance with applicable regulatory requirements, the entities involved are - interested in clarifying and confirming the regulatory requirements related to the handling of this component (and in particular determining if the component is subject to regulation under RCRA Subtitle C). Based on my telephone conversations with Ms. Goode and her discussions with other EPA representatives, I have been informed that t! Is component would be considered within the RCRA household waste exemption and not subject to the RCRA. hal2rdous waste regulations. As I am sure you can appreciate, clarification and confirmation of the applicable regulatory requirements concerning this component is of concern to the companies to ensure the proper and responsible handling of these components in a manner consistent with EPA regulations. Considering the scope of this activity, the companies are interested in obtaining a response from EPA at the earliest date possible. Your cooperation and attention in this matter is very much appreciated. Please contact me following your review of this information so we can discuss these activities and the evaluation of the regulatory requirements. JJM:mag ------- tO UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY 3 WASHINGTON, D.C. 20460 9441.1995(08) ccF t4PR 1 t9 GEP RAL OIRISEL SUBJECT: - Applicability of the Household Waste Exclusion to Lead-Contaminated Soil PROM: Lisa K. Fried Associate General Counsel Solid Waste and Emergency Response Division (2366) TO: Pamela A. Hill Deputy Regional Counsel Region I Backaround Your staff has asked us whether the household waste exclusion in 40 CFR S 261.4(b) (1) applies to lead—contaminated soil in residential yards that exhibits the hazardous characteristicS of toxicity. ( Margery Adams, Senior Assistant Regional Counsel, Memorandum to Larry Starfield, Assistant General Counsel for R RA (April 7, 1993)). In the Region’s memorandum, your staff indicated that lead-contaminated soils in residential yards in New England are a significant exposure pathway for children. Id . at 2. ORC also suggests that efforts to clean—up such lead-contaminated soils may not be occurring because of uncertainties relating to the applicability of RCRA Subtitle c hazardous waste regulations to the soils. ., During a telephone conference call, we agreed to provide you with some guidance as to whether the residential lead—contaminated soils that exhibit the toxicity characteristic fall within the household waste exclusion. Do lead-Contaminated soils in residential yards that exhibit the toxicity characteristic fall within the household waste exclusion in 40 CFR 261.4(b) (1) such that the sojl would not be subject to RCRA Subtitle C regulatory requirements? ------- 2 Conclusion If th source of the lead contamination• was a result of either routine residential maintenance or the weathering or chalking of lead-based paint from the residence, then the lead- contaminated soil in residential yards would be part of the household waste stream as defined in the household waste exclusion of 40 CFR S 261.4(b) (1), even if the soil exhibits the characteristic of toxicity under 40 CFR 5 261.24. Under these circumstances, the soil would not be subject to the hazardous waste regulations under RCRA Subtitle C and’ may be managed on- site’ or disposed of off—site in accordance with applicable R RA Subtitle D regulations and/or state law. If the site—specific facts indicate, however, that lead contamination in the residential soil was also due to significant lead sources other than the household, the exclusion for household waste may not be available, and the homeowner should consult with the appropriate state or federal authorities to determine how to manage the soil under RCRA and state law. Discussion EPA promulgated the household waste exclusion as part of the Agency’s initial phase of implementing RCRA section 3001, which required the Agency to establish criteria for identifying hazardous, waste characteristics and listing specific hazardous wastes. 42 U.S.C. S 6921; 45 Fed. Reg. 33084, 33098—99, 33120 (May 19, 1980). In that 1980 regulation, EPA excluded .“household waste” from being identified as hazardous waste to implement Congressional intent as expressed in the legislative history of RCRA as enacted in 1976. g S. Rep. No. 94—988, 94th Cong., 2d Sess., at 16 (“hazardous waste program not be used either to control the disposal of substances used in households or to extend control over general municipal wastes based on the presence of such substances •“). ‘ - In promulgating the exclusion in 1980, EPA defined “household waste” to include “any waste material (including garbage, trash, and sanitary wastes ‘in septic tanks) derived from households (including single family residences, hotels and motels). 45 Fed. Reg . 33084, 33120 (May 19, 1980). In 1984 the Agency expanded the scope of the household waste definition to include wastes from bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds, and day-use recreation areas. 49 Fed. Reg. ‘44978 (Nov. 13, 1984); 40 CFR S 261.4(b)(1). Although the definition of household waste does not indicate whether a waste is household waste as a result ‘of the place of generation, a residence, or as a result of who generated it, e.g. , a resident of a household, EPA limited the exclusion’s a lication to those wistes which meet two erlteria: 1 the ------- 3 waste must be generated by individuals on the premises of a household and (2) the waste must be composed primarily of materials found in the wastes generated by consumers in their homes. 49 Fed. Reg. 44978 (Nov. 13, 1984).’ If a waste satisfies both criteria, then it would fall within the household waste exclusion and not be subject to RCRA Subtitle C regulation. Id If a household waste is mixed with a regulated hazardous waste, however, then the household waste exclus ion no longer applies. 45 Fed. Reg. 33084, 33099 (May 19, 1980). In applying these criteria to circumstances analogous to those discussed in your April 7, 1993 memorandum, this off ice has previously taken the position that lead-contaminated paint chips resulting from stripping and re-painting of residential walls by a homeowner or a contractor 2 (as pa t of routine household maintenance) would be part of the household waste stream and not subject to RCRA Subtitle C regulation. 3 Moreover, once it is determined that waste, such as the lead—contaminated paint chips, is a household waste under 40 CFR S 261.4(b) (1), the exclusion from RCRA Subtitle C coverage would continue to apply indefinitelY (as long as the household waste was not subsequently mixed with regulated hazardous waste). See 54 Fed. Reg. 12326, 12339 (March 24, 1989) (waste generated by health care providers in private homes not subject to medical waste tracking or management standards even when waste is removed from the home and transported to the physician’ s place of business). EPA has taken the position that the household waste exclusion should not be extended to debris resulting from building construction, renovations, or demolition in houses, or other residences, because EPA did not consider the debris from such operations to be of a type similar to that generated by a consumer in a home. 49 Fed. Reg. 44978 (Nov. 13, 1984). • 2 In the final rule establishing standards for the tracking and management of medical waste, EPA concluded that waste generated by health care providers, i • e •, contractors, in • private homes where they provide medical services to individuals would be covered by the household waste exclusion. 54 Fed. .Reg. 12326, 12339 (March 24, 1989). Although the rationale for this position was not fully discussed, it is clear that such waste met the two criteria .outlined above, i.e., the waste is generated by individuals in households and it is similar to the materials found in wastes generated by consumers in their homes. • This office’s ôrál advice pertaining to the applicability of the household waste exclusion to paint chips resulting from the stripping and painting of residential walls is correctly reflected in an EPA Hotline Report. EPA, Monthly Motline Report - March 1990, R RA Question 6. (Attached.) ------- 4 This position is• consistent with .a determInation EPA reached in a proposed rule that would exempt from certain hazardous waste regulations media and debris contaminated with petroleum from home heating oil tanks. 58 Fed. Reg. 8504 (Feb. 12, 1993). In the preamble to the proposed rule, EPA stated that: contaminited media and debris generated from residential heating oil tanks are “household wastes” under 40 CFR 261.4(b)(1). Under EPA’S subtitle C regulations, household wastes are solid waste but are excluded from consideration as hazardous wastes. Thus, contaminated media and debris from residential heatina oil tanks are not hazardous wastes under subtitle C of RcRA. Id . at 8505 (emphasis added). Given these existing EPA positions on the reachof the household waste exclusion, we believe that if the lead contamination in residential soil is the result of routine stripping and painting project(s) or the natural weathering of lead-contaminated paint, then the household waste exclusion would apply, and the soil (or other env3.ronmental media which has become contaminated) would not be subject to RCRA Subtitle C regulation, even if it exhibits a hazardous waste characteristic. Such soils may be stabilized with lime, rototilled, or otherwise managed on-site or disposed of off—site without the need for a RCRA Subtitle C permit. Of course, RCRA Subtitle D regulations, may apply if, for example, the soil is moved off—site.’ State and local standards may a] so be applicable to the management of the soil. If, however, lead contamination in the residential soils is also due to significant lead sources other than the household, e.g. , a lead smelter or mining waste, then further analysis would be needed to determine if the household waste exclusion from RCR.A Subtitle C regulation would still be available. In such cases, it would be advisable for the homeowner to contact the appropriate state or federal authorities regarding proper management of the lead—contaminated soil under RCRA and state law. See 49 Fed. Reg. 44978 (Nov. 13, 1984) (to be covered by the household exclusion, the waste stream “must be composed primarily of wastes generated by cons imers in their homes”). RCRA Subtitle D regulations, however, may not be applicable if the soil is managed or disposed of at the residence. The revised criteria in 40 CFR Part 258 apply to disposal of household waste, includinq hazardous household waste, at municipal solid waste landfills. ‘1 ’he original “open dumping” criteria (40 CFR Part 257) promulgatid under RCRA sections 1008(a) (3) and 4004(a) are not a licable to “backyard” disposal. ------- 5 If the residential soils are found not to be exempt from the definition of hazardous waste pursuant to the household waste exclusion, and they exhibit the toxicity characteristic, then RCRA Subtitle c regulations would apply to the generation, transportation, treatment, storage, or disposal of a hazardous waste (absent another exemption). However, there are options for reducing risks from non-exempt soil which would not trigger RCRA regulatory. obligations. For example, covering soils with sod, mulch, or gravel would not constitute the gçneration, transportation, treatment, storage, or disposal of a hazardous waste, and thus such limited onsite—risk reduction measures would not trigger RCRA Subtitle c obligations. If you have any additional questions concerning the household waste exclusion, pleast contact Andy Gordon at (202) 260—3596. Attachment cc: Mike Shapiro, 05W David Bussard, 05W Regional Counsel RCRA Branch Chiefs, Regions I - X RCRA Branch Chiefs, Regions I — X David Nielsen, OECA Joe Carra, OPPT ------- This Page Intentionally Left Blank ------- FILE COPY 10 UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY WASHINGTON, D.C. 20460 4L a 1 1 oIt’ MAR -8 1995 9441.1995(09) OFFICE Cf Mr. Jack H. Goldman SOLID WASTEANDEMERGENCY Morgan, Lewis, and Bockius RESPONSE 1800 M Street, N.W. Washington, D.C. 20036-5869 Dear Mr. Goldman: Thank you for your letter of December 6, 1994, concerning the applicability of Resource Conservation and Recovery Act (RCRA) regulations to hazardous wastes generated in product storage tanks and manufacturing process units. As you mentioned in your letter, 40 CFR 261.4(c) indicates that hazardous waste generated in these units is not subject to RCRA regulation until it exits the unit, or unless the waste remains in the unit more than 90 days after the unit ceases to be operated for manufacturing or product storage. As is explained in the discussion you cited in an August, 1987, RCRA/Superfund Hotline Monthly Report, this provision means that the applicable 90/180/270-day generator accumulation period prescribed by 40 CFR 262.34 does not begin until 90 days after a product storage tank or manufacturing process unit ceases to be operated for manufacturing or product storage. This letter addresses only the federal hazardous waste regulations. Most state agencies are authorized to implement the base RCRA program, which includes the generator regulations and the 40 CFR 261.4(c) exemption. State regulations, which are in effect in authorized states in lieu of the federal program, may be different (although no less stringent) than the federal regulations. Thus, you should contact the appropriate state environmental agency to determine how the regulations of that particular state apply to your client’s activities. I hope this information is useful to you. Sincerely, Michael J. Petruska, Chief Regulatory Development Branch Q R.cycl.dFR.CYcIabIe pitmid wot Soy A0J Ink on paper mit CO tiIi it Is t 50% vscydd fib.? ------- :r :s & 3oC ) ;2. CT 94 - “ST. 17:’J ,N . 35 2 ? 2. - MORGAN. LEWIS & Bocicius PMII.ADCLPMI* CeuNsC eas a? L* WaSN ,WC Ntw Ye* I 50 3?mUt. NW. L05 MiaMi D.C. 2003 5 RISSI.iP P ir .CC?ON ?hLsoiuC i*O1I . tto(i J*Cii H. GOLDMAN o.. .u*u, aol’ 4S1- ?06 1 December 6, 1994 Mr. Michael 7. Petrueka Ch, Regu3.atozy Development Branch Office of Solid Waste LT.S. Environmental Protection Agency Mail Code 5304 401 M Street, S.W. Washington, D.C. 20460 Dear Mr. Petruska: Pursuant to our telephone conversation of November 17, 1994, the purpose of thin letter ii to confirm that the Agency’s policy with regard to 40 C.P.RI 5 2 61.4(c), as stated in a November 4, 1987 memo from ‘Thea McManus (copy attached), ” is still in effect. I represent a company that ban a facility with several product storage and manufacturing process tanks that contain both product and accreted hazardous waste. The company has begun to terminate its operations at this facility. My client is trythg to ascertain the applicable deadlines for removing the hazardous waste from the tanks and shipping the Waite off-site for treatment or disposal. Hazardous waste in product or raw material storage tanks, in “manufacturing process unite, and in unon waste_ treatment-manufacturing unitsm (collectively MPtJa ”) is currently exempt from applicable hazardous waste regulations at 40 C.F.R. Parts 262-265, 268, 270, 271, and 124 until the waste ii removed froi t the MPU or remains in the unit for more than ninety days after the cessation of operations. 1 ’ In the case of a facility ceasing the operations of an MPU, Agency policy, as stated in the November 1907 memorandum, ii that after the passage of ninety day., the waste is subject to the hazardous waste management / 7.S. Environmental Protection Agency, memorandum front Thea McManus, Final Monthly Report -- RCRA/Superfuxtd Industry Assistance Report for August 1987,” at 6-8 LNovember 4, 1987) (hereinafter NKotline Memorandum’). 2/ 40 C.P.R. § 261.4(c) (1993). ------- 7tOY. ) OE A1 . LEES & BOCKIUS (WED) 12. 07.9417: :7:08/NO. 3560556265 P 3i’14 Mo eM4, LzwtS Bocioue Mr. Michael J. Petruska December 6, 1994 Page 2 regulations and may then be stored on-site without a permit or interim status for an additional ninety days pursuant to the accumulation rule at 40 C.P.R. 5 263.34(a). 1 1 In other words, two consecutive ninety-day periods potentially apply to management of the waste: ninety days (or until removal of the waste or the date of extinttion, whichever comes earliest) until the waste is subject to regulation, and ninety days for the waste to be stored on-site without obtaining a storage permit or interim status. • - As a followup to the above interpretation, it is my understanding that hazardous waste that is stored in an MPU for ninety days pursuant to 40 C.F.ft. S 261.4(0) can continue to remain in that unit for up to an additional ninety days under the ninety-day accumulation rule at 40 C.Y.R. S 262.34(a), provided that the MPU meets the definition of tank at 40 C.F.R. 5 260.10, and all applicable provisions of 40 C.F.R. 5 262.34(e) are met, including that the tank complies with all applicable requirements for tanks at 40 C.F.RU Part 265 Subpart J. I would greatly appreciate it if you would confirm that these interpretations regarding the MPU rule of 40 C.F.R. 5 261.4(c) remain the Agency policy. Because my client has initiated procedures to shut down its facility, I would appreciate an answer as soon as possible. Thank you very much for your assistance. Please call me if you have any questions. Sincerely yours, H. Goldman Enclosure 1/ Motline Memorandum, su ra note 1; personal cornrntinicatiofl, Michael Petrueka, Office of Solid Waste (November 1994) (enclosed). ------- This Page Intentionally Left Blank ------- t% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 MAR 8 1995 9441.1995(10) OFFCE CF SOLE WASTE At EMERGENCY PESPONSE Mr. Christian M. Richter Washington Representative American Foundrynien’s Society 900 2nd St. N.E. Suite 109 Washington D.C. 20002 Dear Mr. Richter: I am writing in response to your letter to me of October 31, 1994, and as a follow-up to the November 1994 and February 28, 1995 meetingc between representatives for the American Foundryrnen’s Society (AFS) and the U.S. Enviroental Protection Agency (EPA) on the regulatory status of spent foundry sand under the Resource Conservation and Recovery Act (RCRA). Think you for reviewing with us the use and role of sands in the foundry process and reiterating the industry’s concerns. The two RCRA regulatory concerns at issue which you have raised are: 1) whether spent foundry sands are solid and h iardous wastes within the sand loop and at what point do they become wastes, and 2) what is the regulatory status wi 4 er RCRA of the type of thermal reclam2tion units discussed at our meeting, which are used to remove clay and resin binders from spent sands prior to reuse in mold ni Hng . The opinions expressed below are based on your general factual descriptiân and thus nec csarily represent our initial conclusions, not final agency action. In addition, nothing in this letter should be considered to compromise, or to address the merits of any enforcement actions. ‘With regard to the first issue, for reasons stated below, EPA believes that spent foundry sands are solid wastes at the point ax which the mold is broken and the sand is separated from the casting at the shakeout table. These solid wastes are also ha,irdous wastes if they exhibit the characteristic of toxicity for lead or other h2’2rdous constitunt specified at 40 CFR 261.24. Moreover, the process of separating bits and pieces of metal, f5n , core sand butts and other clumps of mold sand at the shakeout table and saeeu to create return sand (for raise in the molhn2fring process) is a recl2Tn2tion process. As we stressed at our last meeting, beciuse the recyeling process is generally ex t ftöw RCRA regulation, the Agency bclicvcs that there is little or no regulatory impact under RCRA from this view for those foundry sands within the sand loop which are reclaimed through non-thermal processes. In particular, the Agency believes that the use of non-thermal recl2m2tion processes for foundry sands will not subject foundries to any substantive requirements. Regarding the regulatory status of the type of thermal recl2nlation unit- ’ discussed at our November meeting , EPA believes that these units are incinerators, which are subject to RCRA Subpart 0 standards under 40 CFR Parts 264 and 265. x, Rsflscycdsbls Pilu 1 uIth Ssy *en sv t com u io ------- 2 The balance of this letter: 1) describes the foundry process and foundry said management, 2) presents the basis for our regulatory analysis, 3) states EPA’s belief with regard to foundry sand waste managemant , and 4) describes the next steps to be taken to assure proper compliance in the foundry industry with RCRA regulations and to reach a common uTvierstanding between EPA and AFS members. 1. Descrrntion of Foundry Procc ses/ Overview o( cpent Foundry Sands Management A. Descnption of Foundry Processes Based on prior correspondence from representatives of AFS ber companies and materials subi Iued to EPA by AES during our November 16th meeting , our undersr a’vling of the typical foundry process is as follows. Foundries are facilities where ferrous and non-f uo is metal castings are produced. The metal castings are produced from sand molds and cores which have been formed in a separate moldinafring process. The sand molds and cores arc formed by molding sand together with clay or resin binders. Organic solvents may be added to the resins to reduce their viscosity. After the metal castings are poured into the molds and cooled, the molds are broken to remove the casnr ga at a table referred to as a hak t table. In the process of breaking the molds, several thinga occur sinmltan usly. First, the casting fr separated from the broken mold and core aid sent off for ckanii g. Second, sand fines become airborne aid are typically collected under negative pressure in a vacuum aspiration tube located pro;imately to the ahakaout table. These fines may be wetted aid deposited into a tank where iron is added in an a1t mpt to fix lead in the fines prior to disposing of tl n in innnicipal laMfilk or on-site industrial landfills. Third, the brokel molds are placed into a reclamation process consisting of a vibratory drum with perforations aid a series of convcyors aid screens . Sand (hereafter referred to as return said) which passes through the drum aid screens is returned to the moldmaking process to be used to mafra new molds. The entire process of making said molds aid rechimii g return sand for producing new molds is referred to as the sand loop. Some ehunka of sand from the broken molds and corcseannt* be broken down and are too large to fit through the drum/screening process. This sand together with bits and ehunks of metal (referred to as tramp metal), is removed from the screening process and sent to a ball mill where the mixture is milled aid r nining metal is removed for reinsertion into the casting process or sold for recycling. Iron may be 4ded to the clumps of sand prior to or during the milling process in an ____ to fix lead in the said. The milled said is then sent to a nnmicipal or on-site industrial n dfil1 . B. - On rwof3pent Fowuby Swzd Management As you nwition in your incoming letter to EPA, APS eum2t c that 100 milhio tons of said used to niaka molds in the ferrous aid non-ferrous foundry iwhIvtT , and that approx inately 94 percent of these sands are reused within the industry . In an April 26, 1993 article of American AFS is quoted as eslimatifig that only about 4 percent , or 240,000 tons of the estiniated 6 million tons of discarded foundry sand are hazardous waste. The article indicates that this is particularly a problem with manithiiurers of le ’ 1 ed brass. However, Dan Twarog, AFS Director of Research, indicated in this article that contamination of foundry sands is not a huge problems. ------- 3 Based on data submitted to EPA by brass foundries, most spent foundry sands which are ha iardous wastes are classified as such because they exhibit the characteristic of toxicity for lead, D008. In addition, one brass foundry exporting its sands for use in Csn Ia reported that the sand exhibited the characteristic of toxicity for cadmium, D006. 2. J CJ4 S de C R atoryStaru f S n PoimdrySasa l ermal Recjamation unit âs stated above, AFS has raised two particular issues for EPA ’s qnsideration: 1) is spent foundry sand a solid waste and when is it generated, and 2) what is the regulatory status of thermal reclamation units for spent foundry sand. a h of these issues is discussed in turn. A. Regulatory Stazur Under RCR4 of Spent Foundry Sands and the Sand Reclamation Loop Regarding the first issue, based on prior regulatory determinations, as well as the information you presented about typical foundry practices, it appears that spent foundry sands are spent materials being “rech mad, and are therefore solid wastes. This determination is made based on the properties of the sand and the nature of typical foundry sand reclamation activities. Used foundry sands are generated as solid wastes after being separated from the castings at the shakeout table. At this point, the used sand containa COfltAmiflSntI , such as ehimkc of brass, fin c , and hard lumps of sand, that must be rernoved.from the sand prior to its reuse in the making of molds. Thus, the used sand is a uspent material because it is no longer fit for its original use without further processing. 40 CFR § 261.1(cXl). The subsequent process of separating and screening return sand (sand which is fit to be reused in mold making) , core butts (clumps of sand from the core molds which are bonded with resin binders and are unfit for mold making without further processing), lumps of thy-coated mold sand, fines, and metal pieces appears to be a reclamadon process . 40 CFR § 261.l(cX4). When the spent sands “er the shakeout process, they are rec’a m d through regeneration, which involves the removal of Conlalninantt , ine1mi ng core sand b nts, fines, ki.w metal and other clumps of sand too large to fir through the sucens . As a spent material being reclaimad, the spent foundry sand constitutes a solid waste. Indeed , the Agency has so held on very similar facts. lathe Matter of Lee Brass Company , RCRA Appeal No. 87-12 (August 1, 1989). EPA also determined on January 6, 1986 that spent foundry sands being recla”nad are solid and hazardous wastes, in correspondence to Mr. Johe Robbins, a project chemist for Kohier Co., about one year after the final rule ain i ig the definition of solid waste was pronmigalad (see enclosure). Once d return sands are completely recIain 4 . removed from the reclamation process, and are being returi d to the molsitnabing process, they cease to be wastes and are no longer m ler RCRA jurisdiction. 40 CFR *261 .3(c)(2Xi). The portion of spent and which is not returned to the mold making process rernaina a solid and (if hazardous) haiardous waste. Because this med anical process of screening and separating hazardous spent foundry sand is a reclamation process, it is generally CX ii I from regulation ur&r RCRA. 40 CFR § 261.6(c)(1) (exempting actual recycling processes from regulation unless otherwise specified). ------- 4 However, with respect to the portion of foundry s d t removedftmn process and is not beneficially reused, foundries rein2in subject to all applicable RCRA standards for man2gig these materials under 40 CFR Part 262. These standards include manifesting and standards for storage in t2nk , cont2iners, drip pads and containment buildings, as set out in Section 262.34. In addition transporters of these hawdous wastes are subject to 40 CFR Part 263. Furthermore, foundries that treat these h rdous wastes in conform2nee with these less-than-90-day storage provisions would not be subject to RCRA permitting requirements. Our expectation is that oper2ting permits pursuant to the Federal regulations. EPA’s views about the point of generation for jurisdiction pwposes do imply that wç, believe tP’n thc non-thermal recl2ma?ion process of screening and separ tii g sand folluwwg the separation of the casting requires a RCRA Subtitle C permit. When this scre ning and separation of sand is part of a reclamation process, it is exempt ( row RCRA Subtitle C regulation. 40 CFR 261 .6(cXl). Nor does this opinion imply any belief on the t of the Agency that state regulation- under Subtitle D of RCRA is warranted for nonhazardous fowidiy sands undergoing recI2n fion. The scope of our regulatory concern is limited to foundry sands which are considered characteristically h rdous under Subtitle C of RCRA. Notwithstanding these points, EPA ‘ aimot agree that the point of generation oc irs after the sand old is separated ( ruin the casting. The AFS interpretation, that foundry sands are generated after processing at the ch k out table, would have two adverse effects that are potentially d ni ging to hum2n health and the enviromn in. First, some foundries would be able to add iron to spent foundry sands which are destined for land disposal (including both clumps of sand molds and s cores as well as sand fines that are collected from emissions from the shakeout table) and argue that the spent sands were solid wastes, but never h vdous waste. This argument would be t i 1 on the assumption that they were generated’ after the addition of iron, possibly macking the to jthy characteristic for lead. It would follow that these foundries would not be subject to standards required for hazardous waste generators treating characteristic wastes in tankc , notwithstanding that they are engaged in a classic treatment activity. Moreover, these iron-treated sands would not be subject tO1 Disposal Restriction treatment standards, thus possibly avoiding effective inunobili” -ation of the hazardous constituents in the sand fines. As we noted in our February meeting , for more discuccion of the relationship between land disposal restriction standards and the process of adding iron fihin t to spent foundry sands, please see 60 FR 11702, 11731 (March 2, 1995). The second effect of arguing that foundry sands e geneisled as wastes after their processing at the shakeout table would be to allow some foundries to h . irk hazardous sands prioru to the generation of hazardous waste so that they may claim that the hazardous waste treatmant activity is not regul ted. Regardless of any Ift uVt to conduct unregulated treatTn tt , however, the fact re n2in that foundry sends are spent materials being reclaimed fr u the rnO U that they are separated ( ruin the castings. ------- 5. AFS has argued that EPA is without jurisdiction to regulate spent foundry sands being reclaimed because the sand is “pan of the industrial mantif turing process.” However, courts have held that secondary materials which either: 1) are not returned to an ongoing production process or 2) have become part of the waste disposal problem are discarded and therefore can be solid wastes under RCRA. Also, the courts have consistently held that whenever a material stream is characterized by an element of discard, as when a brass foundry removes and disposes of spent sands from the sand loop, the material is part of the waste disposal problem and is subject to EPA’s jurisdiction. neriCan Petroleum Institute v. EPA , 906 F.2d 729 (DC. Cir. 1990); American in Conaress v. EPA, 907 F.2d 1179 (D.C. Cfr 199OXAMC II). B. Reguiaory Sta”- Under RCL4 of Thermal Sand Reclamaflon Units For the reasons discussed below, the type of thermal sand reclam2tion unit discussed during - our November meeting and presented in correspondence from AFS member companies appears to meet the Agency’s definition of an incinerator and so is subject to regulation under 40 CFR Paits 264 and 265. Subpart 0. We understand that this type of thermal tre 11n fl tmit consists of a combustion chamber that holds the spent sand and a firebox chamber imm.diatcly below, in which hot gases are generated by the combustion of natural gas. The two chambers are separated by a refractory tn nbrane through which hollow ceramic tubes and T” nozzles allow t) hot combustion gases to move from the firebox to the combustion eh2nthers. The flow of hot gases through.the spent sand causes the combustion chamber to operate as a fluidiz bed. Controlled combustion of the organic resins occurs in the fluidi7ed bed. As a result, the organic resins, binders and solvents are destroyed. Under the Agency’s regulatory regime, therma’ trea1m It devices are classified as either boilers, industrial furnaces, incinerators, other interim stat” thermal ue 1n1 t unils, or miscellaneous permitted tre. tmcm units. Definitions of a boiler, industrial furnace, and incinerator are provided in 40 CFR § 260.10. If a thermal tr lm device does not meet the definition of boiler or industrial furnace, it is classified as an incinerator if it uses controlled fi combustion; if it does not, it is either an interim status thermal ft tm t unit (Part 265 Subpart P) or a miscellaneous permitted tre unit (Part 264 Subpart X). The thermal sand reconditioning device you pres d to us is not a boiler because it does not recover and export energy . It does not meet the definition of an industrial furnace because it is not one of the enumerated devices listed as an industrial furnace in Section 260.10. Thus, our analysis focuses on w r the device s ild be regarded as either an incinerator or a miscellaneous/other — uniL Given that the device uses coutrolled flame combustion to burn natural gas and that combustion gases are exhausted into the combustion chamber cont m11g the spent sand, the device should be c1assifled as an incinerator. Among o r considerations, although not dispositive in themselves, are: (1) the temperature in the combustion chamber would be carefully controlled to what is claimed to be the optimum combustion temperature of the resin co ’ ” ” ’ ; and (2) the temperature would be controlled by modtil mg the natural gas burner in the firebox, or, in some designs, burners in the combustion chamber itself. ------- 6 AFS has maint2ivled that because, in its opinion, sand which is pan. of ñ w4 loop is not. discarded and therefore not a solid waste, that spent foundry zand which is destined for a thermal reconditioning unit is also not a solid waste. For this reason, AFS maintains that thermal recondition units of the type described in our November 16 meeting are not incinerators, but rather pair of a manufacturing process used to recondition sand for reuse within the mold making process. For the reasons stated above, the AFS argument that spent foundry sand is not a solid waste does not appear to be sound. To reiterate, the sand from the broken mold .is lit for its original use as a mold without substantial reprocessing. If the sand is reprocessed through thermal reconditioning rather than or in addition to the physical screening and separation process, it is all the more part of the waste management problem because of the fact that incinerators are a type of treatment techiology which clearly engages in waste management . In this regard, the pIai ..ent of hawdous foundry sand into a thermal combustion unit is analogous to the pla ernent of secondary materials into surface impoimdnaems. Both activities may result in the lelease of hazardous waste to the environment if improperly managed. APS’ argument that this type of th. al reconditioning imit is simply reconditioning sand for reuse in the moidmaking process ignores the fact that the organic resins, binders and solvents used to construct the molds are destroyed in the incineration process. The potential release of products of incomplete combustion, such as dioxias and furans, as well as volatile metals such as lead and cadmium, makes clear that . ,genient activities using these Imit% can be viewed as part of the waste disposal problem. In ‘1dition, the build up of metallic lead in the resulting send in a more leaehahle form likewise supports this conclusion. Thermal waste treatment units such as incinerators, like surface impoundments, are a Cv tal focus of the RCRA program. RCRA Section 3004(oX2). As such, these units are clearly within RCRA jurisdiction and materials placed into then can be viewed as discarded and therefore solid wastes. AMC 11,907 F.2d at 1186. C. Other RCRA Regulatorj Issues Regarding Speit Fowdry Sand, The Agency notes that there is one c u Iance w Ipwt foundry sands are not solid wastes. Spent foundry sand is not a solid waste under RCRA when le uirniately used or reused without reclamation as an effective substitute for a com...ercial product. 40 CFR § 261.2(eXlXü). It is our understaiviing that some foundry sands are currently being used as a substitute for virgin silica sand as a fluxing agent in primary copper smelting operations in North America. Please be aware, however, that under Section 3006 of RCRA individual States can be authorized to administer and enforce their own hazardous waste prograu$ in lieu of the Federal program . When States are not authorized to adniiniaf r their own program, the appropriate EPA Regional office Idministers the program and is the appropriate contact for any case-specific Please note as well that under Section 3009 of RCRA, States retain authnrity to prnnnilg ite regulatory requirements that are more stringent than Federal regulatory requirenieula . 3. EPA Concerns About Enviro . ental Effects of Foundry Sand Manaaenient Please understand that the potential enviro ntal concern is not with sand per se. Rather, EPA is concerned that in some foundries, the used sand mixtures contain sufficient ha,avdous constituents lead, cadmium, toxic organic compounds) to pose a threat to htmian health and the environment if managed improperly. EPA has three major environmental coi rns regarding management of spent foundry sand: 1) landfill disposal of spent foundry sand, including treatment with iron prior to land disposal, 2) thermal processing of spent foundry sand, and 3) the storage.and actual management practices for spent foundry sands prior to disposal. ------- 7 A. Landfill Disposal of Spent Foundry Sands; Treatment of LenA-Co,uaminated Sand Wth Iron Filings As discussed in our meeting and indicated in prior correspondence on behalf of AFS member companies, some portion of spent sand is continuously removed from the sand lot., in some foundries and disposed of in landfills. For those fciundries whose sand coTtt2rn h mdous constituents, such as lead, cadmium and organics, the Agency has a st rg interest in seeuig that these sands are properly managed. Left untreated, lead cont2TniT1 ted san m y result in releases to groundwater, possibly threatening nearby drinking water wells. Improper ‘,osa1 of untreated hazardous waste has historically led to many landfills becominf Superfund sites. Thus, when foundry sands exhibiting the haiardous characteristic for lead are land disposed, these materials must be properly treated and disposed of in appropriate facilities in order to prevent the creation of future hawdous waste remediation sites. Effective tre’” enI for ha7ardous waste being land disposed must assure the long-term immobilization of hazardous constituents to minimiae potential short and long term threats to human health and the environment. RCRA Section 3004(m). We nMefstand that some foundries anPlnpc to treat their hazardous waste foundry sand with iron filings prior to land disposal, in an effort to reduce the learhahiity of the ha, rdous constitueTIt (typically lead) so that the waste can be land disposed. EPA is concerned, however, that the addition of iron filings to lead contan in2ted foundry sands is ineffective as a long-term treatuient method and that it could constitute unpermissible dilution under 40 CFR §268.3. In developing the LaM Disposal Restriction pro iam in the Hazardous and Solid Waste Amendments of 1984 (HSWA), Congress stated that only dilution that occurs during the normal manufacturing process may be taken into account in seting section 3004(m) treatment standards. Senate Report No.284.98th Cong. 1st Sess. at 17. Since the addition of ron occurs only to stabilize lead in the spent sand prior to disposal, it does not appear to be part of a normal production process. B. Thermal Reclamation of . en Foundry Sands Second, we understand that there is an increasing trend in the industry towards using a type of thermal reclamation unit that involves combustion of the organic constitueiits in the foundry sand mixture. Combustion of hazardous waste is, of course, a significant Agency concern. See U.S. EnVirOTm 2I Protection Agency SUate2v For Hazardous Waste Mimmi,ation and Combustion , EPA/530-R-9404, November 1994. The Agency is concerned about the potential for lead and other n als to be . minad fivw the unit’ . Toxic organics, including products of incomplete combustion •such as dioxias, also may be ‘ nift d . In addition, we understand that the thermal treat n t of sands may result in increased leaehahility of lead in sand due to the build up of metallic lead in the sand. C. &orage Prior to Disposal and Other Management of Spent Foundry Sands Third, we did not discuss in the meeting in any depth what are the material management practices within the industry. An EPA representative did, however, note that storage of used sands that exhibit a hazardous characteristic because of lead from the metal castings could pose classic waste management types of risks, depending on bow the material is stored and handled. ------- 8 We believe that these three types of environmental co rns addre yuuquestiann! we could consider the sand being reclaimed for further on-site use to be part of-the wd te mn t problem. These concerns underlie the existing regulatory structure which we believe classifiesihe sands after their “se in the casting process as a ‘spent material,’ which is being ‘rec1 im d ’ prior to reuse. 4. Comoliance Assurance and Industry Outreach We understood you to say to us that some inethbers of the iivlustiy do not think of the foundry sands being reconditioned and recI2ivnpd for reuse on-site as a ‘ ‘ being m2n ged at the foundzy. If that is the case, there may be a need to work with you to eh ge practices within the industry. We hope hat the American Foundryrnen’s Society and other groups would be wilhing:to.. help us with £hat task and that we can organize the resources within EPA to work with you on bringing about that th ge. Conclusion If you have any questions regarding the status of foundty sands as solid and ha rdous wastes nnder RCRA, please call Michael Petruska of my staff at (202) 260-8551. If you have any questions about the status of thermal recl vn fion units under RCRA as incinerators, please contact Robert Holloway of my staff at (703) 308-8461. Again, we appreciate your patience in arranging for the meeting and your comiv g to Washington to dis she ue”r with us. Sh . ly, Director Waste Enclosure ------- AMERICAN FOUNDRYMEN’S SOCIEfI INC pi Ishers of modem cas ig 900 2nd St., N.E.. - S,jte 109 V WMh ØDn. D.C. 200024557 V 2021842.4864 V FAX 202f8i2.4849 V1SSfLJ — tw s — ____ £ October 31, 1994 L V S A IWA ME A..... , ,y,’ —. RE PA C ____ a F.M w SW ‘ D I G. Pw . _t , AL TM &S U I DR - A 1 1 __ .d Fw*p SW - c ‘ M i. Michael Shapiro, Director Office of Solid Waste, M2101 USEPA Waterside Mall 401 M Street S.W. Washington, D.C. 20460 Dear Mr. Shapiro: riFr ’ -;wJ?’J Representatives of the American Foundryinen’s Society (AFS) would like to meet with you and David Bussard to discuss several critical policy issues raised by recent Region 6 enforcement actions against foundrieL We axe concerned that Region 6 has seriously misapplied current USEPA regulatory policy regarding solid waste and recycling under the Resource Conservation and Recoveiy Act (RCRA). I. BACKGROUND EPA Region 6 officials have targeted two brass and bronze foundries for enforcement action under RCRA. Region 6 contends that one of the industry’s prmiaiy raw materials sand .. when reused in an ongoing production process onsite, is a solid waste. It is our understanding that the set of facts in each of these cases is unique: However, the two cases raise Important questions re rd1ng the agency’s application of RCRA solid waste and recycling policy to metalcasthig production, and potentially other manufacturing processes as well. A vast majority of the nearly 3200 U.S. foundries cast metals — such as iron, steel, and various nonferrous allays - in sand molds. The industry as a whole reuses in production nearly 94 percent of the 100 million tons of total sand throughput annually, which translates into an impressive recovery rate of 94 percent. The ability to repeatedly reuse sand to make world-class castings saves virgin materials reduces industry costs and preserves the nation’s diminishing landfill capacity. o..i a. AL SW SW SW ’ cc. ------- 2 IL POLiCY RAMIFICATIONS Sand reuse by foundries - a conventional industaypractice is an integral part of the production process. Not only is regulatory control of this extremely low•risk component of production vnnecessary,but from a practical standpoint, ç btmg or regulating sand reuse under RCRA only encourages disposal .- not recoveiy-. of high vnh’mes of raw material. The Region 6 approach to sand reuse under the RCRA regulatory f ework is a wholly novel interpretation of the law. If allowed to stand, It càuld have dramatic cnnsequew for foundries nationwide, particularly small facilithi (80 pereent of the nalions foundr employ fewer than 100 employees). - - m. ACTION NEEDED. We do recognize the agency’s interest in constraining certain recycling practices and ini nivi gement of materials. Accordingly, we would like to. discuss with you the regulatory status of foundry sand at various points in the metalcasting process. The industry has never before encountered Region 6’s peculiar Interpretation of RCRA during the history of its involvement with the agency’s solid and hazardous waste pro am. In fact, it baa g occurred to us nor EPA staff with whom we have interacted, that sand is a solid waste when reused in ongoing. onsiteproduction of molds to make castings. The potential consequences for the foundry industry, as well as for the agency’s waste program, warrant a thorough airing of this Issue at agency headquarters. Ours is truly a perfect Illustration of the ambiguity and confusion inherent in current solid waste and recycling policy under RCRA. Your consideration of these issues is greatly a uatad. We have sent 8 iwi1 r letter to Mr. Bussard, and will be contacting your f&# arrange a con*nient date and lime tomeet. Smcer akzc Christian M. Richter APS Washington Representative cc David Bussard, EPA Characterization and-Ass_‘ ‘ncnt Division Elliott Lews, Asst. Mministrator for Solid Waste and Emergency Response Leon Hampton, EPA Othee of Small and Disadvantaged Business Utilization Karen Brown, EPA Small Busine&c ------- UN 1TED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 lIAR 2 2 1535 9441.1995(11) ! MOR.ANDUM STJB ECT: FROM: TO: Revised Imp1eme itation Strategy for City of Chi aao v. Efl Municipal Wa te Combustion (MWC) Ash Supreme Court Decision - Elliott P. Assistant Ac5m4’ istra.tpr for Solid Waste and Emerge;c ’ Response (OSWER) • t .j’ Steven Al e â ’t Assistan6’ Ath( Lri/Lstrator for forcement and Cofnp iance Assurance (QECA) Regional A m4 strators (Regions I-X) Eackqround Supreme Court Decision On May 2, 1994, the U. S. Supz euLe- Court issued the op .nion in City of hicacro v.. EDT , ___ U.S. ___, 114 S.Ct. 1588 (1994). The Court, interpreting Section 3001(i) of the Resource Conservation and Recovery Act (RCRA), held that ash generated at resou ce recovery facilities (,i.e., waste-to-energy facilities burning household wastes and noy h zardous commercial wastes) that exhibits a hazardous waste characteristic is not exempt f om the hazardous waste requirements of R RA Subtitle C. The Court’s decision took effect as a matter of federal law on une l 1994. It makes eligible for regulation a waste that, under EPA’ prior interpretation of RCPA, was exempt froin Subtitle C. Recent EPA Actions 1. Implementation Stratea ’ . On May 27; 1994, the Assistant Mm istrators for OE A and OSWER issued an implementation strategy for the City of Chicago v. EDE decision to the Regions. This initial strategy intended to bring waste-to-energy (WrE) faáilities affected by the decision into co p1iance with RCR Subtitle C as quickly as possible. In addition, the strategy stated that EPA wou1 revisit it within 6 month.s of its issuance. The purpose of this ecyd.dlcyd8b s P frus Scy.Can a W p sr IS O% mc) ------- 2 memorandum is to revise the initial implementation strategy. These revisions, define the Agency’s approach towards management of hazardous ash generated by WTE facilities. 2. Determination of Point _ of RCRA Subtitle C ris&tctian for XWCASh ‘ In the City of _ Chicago v EDP case, the supreme Court, issued a narrowly focused opinion holding that § 300lCi) does not exempt ash. generated by WTE facilities. • The Court, however, failed ‘to reach the ‘issue of the precise point at .irhich regulation of ash must begin, and 5 3001(i) does not e ssly address the issue. In an effort to address the issue, EPA recently published, 1 a Notice of Statutory Interpretation entitled “Determination of Point at Which Subtitle C’ 3urisdiction Begins for !fim4cipai Waste Combustion Ash at Waste—to—Energy Facilities” (60 6666, February 3, 1995). As discussed in the Notice of Statutory. Interpretation’, EPA believes it is reasonable to interpret S 3001(i) of RCPA to first impose hazardous waste regulation at the point that the ash leaves the “resource recovery facility,” defined as the combustion building (including connected air pollution control equipment). Consequently, the point at which an- ash hazardous waste determination should be made (and, in the future, at which the Land Disposal Restrictions vii]. begin to apply) is the point at which ash exits the combustion building following the combustion and air pollution control processes.. We empbas1 ze that EPA’s decision on the appropriate location to make the hazardous waste determination for WTE ash is uniquely based on the Agency’s interpretation of RCRA 5 3001(i). EPA’s analysis and conclusions are not relevant to fac4 1 ‘ ties that do not ‘ fall vif ’-h4? the scope of RCRA S 3001(i). Nearly every resource recovery facility is configured differently. In several instances, these fa 4 ’ ities are n 9 t confined within a single structure enclosed by four walls. , A few facilities, in fact, exist where the combustion device is not, enclosed at all Vjt! h a building str ucture. Eo ‘V r, in rE facilities where the ash always moves between’ structures in enclosed conveyors, such configurations would fall, within the common sense meaning of the “resource recovery facility” that Congress exempted in S 3001(i). These configurations are illustrated in examples one through ‘three, below. In contrast, in the fourth example, ash is exposed to the environment ra 7 ther than in an enclosed system. The definition of “resource recovery facility” does not include ash handling operations allowing exposure to the environmi nt. ------- 3 Example 1. Many resource recovery facilities automatica1l convey, via enclosed conveyor, the fly ash collected at various locations (including any air pollution control equipment s ich as the acid gas scrubbers, baghouse filters, and electrostatic precipitators that may exist outside the building where theL combustion device is located but are connected to the building via enclosed conveyers) to a quench tank witkin the combust ion • device build4 rig where it is combined with the bottom ash. The combined ash is then loaded into .truc3cs for direct transpozjt to. an off-site disposal facility. In this example, the “resource • recovery facility” is composed of the combustion device bui lding, • the air pollution control equipment, and the enclosed conveyers. The point at which RCRA hazardous waste jurisdiction would begin for these facilities would be the point where the ash exit the - builM ng housing the combustion device. Exa npLe 2. Several resource recovery facilities collectS t e bottom ash and the fly ash separately and convey these two types separately via enclosed conveyers to an ash building t here • the two ash types are then mixed and loaded into a transpoz t vehicle for off-site disposal. The ash building ay abut t ’ne combustion device building, or it may be separate from the; combustion device builr 4v g but connected by .enclosed conve ors. In this example, the “resource recovery facility” i compo ed of the interconnected combustion device bui1r i ig, the air pollution control equipment, the ash building, and the enclosed conveyers. The point at which RCP.A hazardous waste jurisdiction would egin. for these facilities would be the point where the ash exits the ash building. E a.mple 3. A few resource recovery facilities exist where the combustion device is. not housed withi a building. In these instances, the combustion device, the ir pollution control equipment, the proximate enclosed ash handling areas, and the interconnecting enclosed conveyers constructively constitut the “resource recovery facility.” Thus, if fly ash and bottom ash were handled in an enclosed- system that operates in the sa e manner as if a buil&irig existed and the fly ash and bottom sh were mixed in an enclosed unit proximate to the combustion device, that management activity would be considered to take place within a “resource recovery facility.” In this example, the point at which R A hazardous waste jurisdiction would begin would be the point where the combined ash exits the last en closed ash m n gement unit that is located proximate to the combustion device. • ------- 4 ample 4 • Some resource recovery facilities may collect bc ttom ash within the building housing the àombustjon device and collect the fly ash outside the combustion device building in a manner that exposes that ash to the environment; -for example, in i o11u. off contai rs, In these instances, the “resource recover facility” is composed of the building housing the combustion device as veil as the air pollution control equipment. In this example, RCRA hazardous waste jurisdiction begius at the two exit points from the “resource recovery facility,’ specifically, at: (1) the point Where the bottom ash ultimately leaves the combustion device building and (2) the point where the fly ash becomes exposed to the environment as it is discharged from the. air pøllution control equipment into open roll—off containers. The - TE facility operator would thus make a hazardous waste determination at each location. Should the operator determine that either the bottom ash or fly ash is hazardous, aanagement of that ash would have to be conducted pursuant to R A Subtitle C. If you have any questions about EPA’s S 3001(i). - interpretation, please contact Andrew Teplitzky (703—308-7275) or Alien Gesvein (703—308—7261) of Obw a, or Kate Anderson (202—564— 4016) or Andrew Cherry (202—564—501].) of OEC&. - Revised ImDlementatjen Strateay 1. Overview In the May 27, 1994 implementation strategy, EPA - acknowledged that, for economic and technical reasons, it ould be difficult for affected facilities to immediately comply With the City of Chica o v. EDF decision and all applicable RCRA Subtitle C requireme . In recognition of t hi difficulty , EPA adjusted its enforcement priorities for three months for facilities to imp lement an ash testing program, and for 6 months during which all WTE ash could be disposed of in solid waste management units in compliance with 40 CFR Part 258. Throu h these actions, -EPA has demonstra a c 1 tment to Working with states and the regu].ate universe to phase affected facili ies - into compliance with Subtitle C with. iriii al disruption of waste handling practices at WTE facilities. - EPA now believes that all affected, facilities should be on notice of the duties imposed by the Supreme Court-in the City of Ch icacTo v. EDT decision and its - ramifications for the management of hazardous ash. Since all WT facilities should now have. programs in place to make hazardous waste det rm5 ations of 1 their ash, the Agency expects these facilities to manage ash- that is determined to be a hazardous waste in full compliance with RCRA SUbtitle C. ------- 5 2. Situations PresentinqPoteiitial ealth and nviroTunenta] Threats and Releases of Hazardous Constituents In all circumstances, when considering appropriate enforcement responses for potential violations of SuJ,tjtle Agency personnel should consider whether a facility may be managing its WTE ash in an environmentally irresponsible manner, posing a potential threat to human health a the environment. Regions should, of course, bring actions, pursuant to RCRA IS 7003, upon information that improper handling of any ash (whether • it is hazardous or not) may present an. 4 ” ”ent and substaiitia]. endangerment. In addition, Regions should evaltzate whethe formal enforcement actions pursuant to RCRA 5 3008 (h) are appropriate in the event the Agency has information that there is or has been a release of a hazardous waste or hazardous constituents from a facility subject to interim status for management of hazardous ash. 3. Enforcement Actions Under RCRA Section 3008(aI As discussed above, EPA now, expects all generators to have in place an effective hazardous w te determination program, including sampling and analysis where appropriate. 1 Facilities which have failed to set up and implement a method to determine whether their ash exhibits a hazardous waste characteristjc are appropriate targets for enforcement response. EPA is aware, however, that because of configurations unique to individual facilities, some facilities may not combine fly ash and bottom ash before it exits the “resource recovery facilIty.” Such facilities may now have to make separate hazardous waste determinations at separate locations for both bottom ash and fly ash. While the previous implementatibn strategy allowed any E facility to sample and test combined bottom ash and fly ash, the Agency’ a recent 5 3001(i) interpretation of “resource recovery facility” may now require some 1ITE facilities to make separate ‘. On May 24, 1994, 0 5W issued draft “Sampling and. Analysis of Municipal Refuse Incineration Ash Guidance” which assists generators that do not have guidance in place to make a hazardous waste determination in accordance with 40 CFR S 262.4. This manual was intended to provide guidance to waste-to-energy facilities on how to sample and analyze ash to determine whether it is a hazardous waste. Since the release of the initial implementation strategy, OSW published a Federal Reciister Notice of Availability requesting comment on the draft (59 32427; une 23, 1994). The public comment period closed on September 21, 1994, and OSW is currently evaluating the comments. The final manual, is projected to be released in the Spring of l 95. EPA continues to encourage the use of the draft (and when finalized, the final) “sampling and Analysis of Municipal Refuse Incineration Ash Guidance” or similar guidance issued by the states. ------- .6 determinations on the fly ash and bottom ash. EPA will very likely rega.rd as an indicator of environme.ntall.y irresponsible management of hazardous ash (which may arrarzt an enforcement action under RCRA § 300E (a)) any failure to implement, within 75 days of the date of the Februaxy 3, 1995, interpretive notice (60 6666), all modifications to existing hazardous waste determination programs necessary to allow. separate 1 ’ rdoi s waste determinations for fly ash and bottom ash.. During tl e first 75 days, however, env .ronin ’ r’tally sound management of ash in accorda.nce with the results of combined testing is unlikely to merit an enforcement response. If you have specific ‘questiens as to the appropriate enforcement response for a particular situation, please contact Mark Pollins (202-564-4001) or Kate Anderson (202-5G4-.401G) of OECA .-R A Enforcement Division. Thank you . .f or your continued support in ensuring the proper- management of hazardous TE ash. it you have any-questions regarding this revised implementation strategy, please have your staff contact Mark Pollins (202-564-4001) or Kate Anderson (202- 564-4016) of OECP 1 -Off ice of Rega LIatory Enforcement., Andrew iCherr (202-564-5011) of OECA-Office of Compliance, or Ai drew Tep] itzky (703-308-7275) of OSWER-Office . f Solid Waste. CC: Scott C. Fulton, OECA. Tim Fields, OSWER Robert Van Heuvelen, OEC /oRE Elaine G. Stanley, OECA/OC Ear]. Devaney, OECA./OCE Michael Shapiro, 0SWER/OSW Regional Counsel (r-X) Regional Waste Management Division Directors (I-X) Regional Counsel Branch Chiefs (I-X) Regional Waste Branch Chiefs (I-K) Susan Bz-omm, OECA/OC Susan O’Keefe, OECVORE Bn ce Weddle, OSWE f 0 5W Dev Barnes, OSW Q/OSW Lisa Friedman, OGC David Nielsen. OECA/ORE- Mark Pollins, OECA/ ORE Gary Jonesi, OECAI ORE Mimi Guernica, OECAJOC Terrance Grogan, OSWER/OSW Jon Silberman, OECA/ORE Andrew Cherry, OECA/OC Kate Anderson, OEC ./ ORE Andrew Teplitzky, OSWER/OSW Allen Geswein, OSWERIOSW. Tina Kane en, OGC ------- March 1995 RCRA 4. DefinItion of Formerly Bevill Exempt Wastes According :o40 CFR §268.1(e)(3), wastes identified or listed as hazardous waste after November 8, 1984, are no: subject to land disposal restrictions (LDR) until EPA promulgates prohibitions or treatment standards. For purposes of LDR, certain mineral processing wastes which were formerly exempt under the Bevill Amendment, but lost tha exemption are considered to be newly identified and therefore not subject to L.DR until EPA promulgates standards spec4fic to this category of wastes. What wastes are included within this category of formerly exempt Bevill wastes? On November 19, 1980, EPA promulgated an exclusion from regulation under RCRA Subtitle C for, “solid waste from the extraction, beneflciation, and processing of ores and minerals (including coal), including phosphate rock, and overburden for the mining of uranium ore” (45 EB 76618,76620). This is one of the exclusions commonly referred to as a Bevill exclusion. In this Federal Register , EPA clarified that the exclusion covered “...solid waste from the exploration, mining, milling, smelting and refining of ores and minerals” (45 EB. 76619). On September 1, 1989, EPA published a final rule that narrowed the scope of the exclusion as it applies to mineral processing (54 ER 36592). Specifically, EPA finalized the exclusion for five mineral processing wastes and conditionally excluded twenty wastes pending additional studies. After completing a study of the twenty wastes, EPA removed five of the wastes that had been subject to the September 1, 1989, conditional exclusion, bringing the total number of excluded mineral processing wastes to twenty (55 ER 2322; January 23, 1990). On June 13, 1991, EPA finalized this list of twenty exempt mineral. processing wastes in §261.4(b)(7) (56 ER 27300). All other mineral processing wastes are subject to RCRA Subtitle C. Wastes horn the extracuon/beneficiation of ores and minerals remain covered by the exclusion generally, and are not subject to Subtitle C. EPA considers fl mineral processing wastes which axe not currently listed in §261.4(b)(7), to be newly identified wastes and therefore not subject to LDR requizements until ueatmei t Standards are promulgated. Tream ent standards for these wastes are currently being developed as part of the court-ordered LDR Phase IV Proposed Rule. HOTLINE QUESTIONS AND ANSWERS 9441.1995(12) ------- This Page Intentionally Left Blank ------- HOTLINE QUESTIONS AND ANSWERS March 1995 RCRA 3. Hotel Dry Cleaning Waste and the Household Waste Exclusion A hotel generates spent solvents from its on-site dry cleaning facility. For purposes of the 40 CFR §261.4(b)(l) household waste exclusion, EPA defines households to include hotels and motels. Will hozel dry cleaning wastes be excluded from RCRA Subtitle C regulation as household waite? Wastes produced by a hotel dry cleaning - facility are not household wastes and therefore will not be excluded from RCRA hazardous waste regulation. A waste has to meet two conditions to be excluded as household waste. Household waste must be generated on the premises of a temporary or permanent residence and be comprised primarily of materials generated by consumers in their homes. In general, wastes from hotels and motels will be excluded as household waste as long as the waste is similar to the type of waste that consumers generate in their home. Even though generated on premises of a temporary residence (i.e. hotel), dry cleaning waste is not household waste because the spent solvents from the dry cleaning operations are not similar to wastes typically produced by a consumer in the home. The dry cleaning wastes produced by the hotel do not meet both criteria for household waste and will not qualify for the household waste exclusion per §261.4(b)(l) (49 E 44978; November 13, 1984). 9441.1995(13) ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 9441.1995(14) APR 12 1995 OFFICE CF SOLO WASTE AND EMERGENCY RESPONSE Mr. John N. Adams, Jr. Senior Attorney American Electric Power Service Corporation i Riverside Plaza CO1UI!IbUS, OH 43215 Dear Mr. Adams: This letter follows up our March 10, 1995, meeting. At that meeting, the American Electric Power Service Corporation (AEP) asked for EPA’S interpretation of whether scrubber waste leaving the bottom of a scrubber in a closed-loop flue gas desulfurization system owned and operated by AEP would be considered a “solid waste” as the term is defined in the Solid Waste Disposal Act of 1965. AEP has also asked whether EPA would consider the system processing the waste, as described in the enclosed materials provided by AEP, as having a solid waste disposal function. We understand that as part of its compliance with the Clean Air Act Amendments of 1990, AEP chose to install scrubbers at its Gavin 2600-MW generating station. According to the materials provided by AEP, the facilities collect and separate calcium sulfite solids which come from the SO 2 lime scrubber (identified as the absorber vessel in the diagram) by separating the solids from the scrubber liquid. The scrubber liquid from the top of the thickeners is returned to the scrubber via a closed—loop system (i.e., no liquid discharge from the system). The thickened solids are removed and further processed prior to disposal in a landfill. Using EPA’s current solid waste regulations codified at 40 CFR Parts 260 & 261 and the materials provided by AEP, it is our interpretation that the scrubber waste would be considered a sludge which, if discarded (i.e., disposed of), would be considered a. solid waste (40 CFR 261.2). The term “sludge” is defined at 40. CFR 260.10 as “any solid, semi—solid, or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control facility exclusive of the treated effluent from a wastewater treatment plant.” The scrubber waste, which is generated at your air pollution control facility, clearly falls within this definition of sludge. Rsc CVdlb ------- We also believe the scrubber waste would be considered a solid waste under the definition of solid waste found in the Solid Waste Disposal Act of 1965: “The term solid waste means qarbage, refuse, or other discarded materials, including s1.id—vaste materials resulting from industrial, commercial, and a icultural operations, and from -community activities, but do a not include solids or dissolved material in domestic sewage or other significant pollutants in water resources, such as silt, dissolved or suspended solids in industrial waste water effluents., dissolved materials in irrigation return flows or other co n water pollutants.” As noted on page 2 of the enclosed “First Report to Congreast Resource Recovery and Source Reduction,” delivered to Congress an February 22, 1973, even though our understanding of solid waste was not as sophisticated as it iS today, EPA did consider the term municipal waste to “... include residential, commercial, demolition, street and alley sweeping., and miscellaneous (e.g., sludge disposal) (emphasis added) .“ Based on this information, we would consider the scrubber waste leaving the absorber vessel to be a sludge and a soXid waste, according to both the definition of solid waste included in the Solid Waste Disoosa]. Act of 1965-and EPA’S current regulation5. If you have any questions or would like to discuss this matter further, please contact me or Angela Cracchio ].o of my staff at (202)260—0163. Thank you for your interest in the safe and effective management of solid waste. Sincerely, )Iichael Sha iro, Director Office of Solid Waste Enclosures ------- Al qesko pip ji BRAGAW STRErT *IOCRAGL MAMA mi s ItLEPHONE O1) 2*1611. FAX 26$46 11. December 23, 1994 APSC Letter #94-2663 G ?v ichael Shapiro Director Office of Solid Waste US Environmental Protection Agency 401M Street Washington, D. C. 20460 SUBJEC7 INTERPRETATION OF TIME OF GENEA4 TION OF HE4 T EXCHANGER-BUNDLE CLEANING SLUDGE Dear Mr. Schapiro: Alyeska Pipeline Service Company (Alyeska) is the operator of the Trans-Alaska Pipeline System (TAPS). TAPS transports crude oil from North Slope oil fields to a Valdez, Alaska marine (erminal where the crude oil is loaded on tankers for transportation to lower 48 stat s’ refineries. As a part of TAPS, A1y ska operates three crude oil topping units (COTU) at pump statip is.6, 8, and 10.. .Thi COTU distill fuel to operate pump station machinery from the crude oil transported by TAPS. The COW are complying with 40 CFR § 261.32, designating heat exchanger bundle cleaning sludge from the petroleum refining industry as a listed hazardous waste (K050). However, because of the unique title of tMs.waste type “heat exchanger bundle njng sludge from the petroleum refining industry” (emphasis added) AIye ska wishes to cl rify when K050, hat exchanger bundle cleaning sludge, is generated as hazardous waste. Alyeska has examined known EPA documents, discussing K050 waste. That examination yielded the following information: First, OSWER Memorandum 9441.1985 (29) discusses the five waste steams generated by petroleum refineries, including KOSO. Unfortunately, of these five waste streams the memorandum does not discuss when K050 is “generated.” Second, the “Listing Background Document, Petroleum Refining,” November 14, .1980, for K048-K052, pages 689-690, provided the following statement about the generation of K050: Heat exchanger bundles are cleaned during plant shutdown to remove deposits of scale and sludge. Depending upon the characteristic of the deposits, the outside of the two bundles may be washed, brushed, or sandblasted, while the tubes inside can be wiped, brushed, or rodded out. __c•J - ------- IV3I4P4 FILE COPy UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 •‘41 PR2O 95 9441.1995 (15) OFFICE OF 5 t W&STE AND EMERGENCY RESPONSE Mr. W. J. Sweeney Manager, Environment Department Alyeska Pipeline 1835 South Bragaw Street Anchorage, Alaska 99512 Dear Mr. Sweeney: I am writing in response to your letter of December 23, 1994 and the earlier May 9, 1994 letter from Jordan E. Johnson which, on behalf of Alyeska Pipeline, request an interpretation of a regulatory exemption pro vided at 40 CFR 261.4(c) for tanks, vehicles, vessels, process or manufacturing units, or pipelines if these units have been shut down for ninetydays. The letters also request definition of when a material comes within the listing description for K050 listed hazardous waste. Regulations at 40 CFR 263..4(c) state: “A hazardous waste which is generated in a raw material storage tank, a product or raw material transport vehicle or vessel, a product or raw material pipeline, or in a manufacturing process unit or an associated non- waste treatment-manufactUriflg unit, is not subject to regulatipn under parts 262 through 265, 268, 270, 271, and 124 of this chapter or to the notification requirements of section 3010 of RCPA until it exits the unit in which it was generated, unless the unit is a surface impoundment, or unless the hazardous waste remains in the unit more than 90 days after the unit ceases to be operated for manufacturing, or for storage or tr -nsportat.iOfl of product or raw materials.” . - EPA provided further clarification on this provision in the October 30, 1980 preamble to this rulemaking: “The 90-day accumulation period ( 262.34) starts when the hazardous waste is removed from the tank, vessel, or unit, xce t when in the case where a tank, vessel, or unit ceases to be operated for its primary purPose. in which case the Deriod starts when o eration ceases. ” 45 FR 72024 (Emphasis added.) Thus, the preamble implies that for the owner/operator the accumulation period begins the day the manufacturing process unit is shut down. It was not-the- Agency ’s.:. intent to regulate wastes in these’ E Zj RecyeIetRecyCIabIe Pitmed with $oyCasio a In on a sv t• C OAIaIAS St lUst SO . ItcycisO fibs, ------- F :) Changing to another matter, I ask you to respond to a fetter, Alyeska Letter No. 94-2183• G, that Jordan Jacobsen, an Alyeska attorney, sent you with respect to interpreting 40 CFR § 261.4 (c). Mr. Jacobsen sent you that letter on May 9, 1994 and has not yet received an answer. I understand that a Ms. Anne Cad ington (sp?), of your staff was working on that request. Alyeskawould appreciate a response to that request with and at the same time you answer this letter. We would appreciate a response to the information and interpretations provided in this letter no later than February 15, 1995. If no response is received, Alyeska will proceed with the assumption that EPA does not disagree. Please contact Carol Garrison of my staff, (907) 265-8634, if you have any questions on this matter. Sincerely, W. 1. Sweeney Manager, Environment WIW:csp 4 w jrjI2 .23 ------- This Page Intentioñaliy Left Blank ------- I- HOTL1NE QUESTIONS AND ANSWFRS 9441.1995 (16) April1995 RCRA 1. Status of Fossil Fuel Combustion Waste Exclusion In 1980, EPA temporarily exempted. among other things, large vohcmefossilfuel combustion wastes from RCRA Subtitle C regulation, pending further study and issuance of a final regulatory determination regarding these wastes. What is the current regulatory status offossilfuel combustion wastes? The regulatory status of fossil fuel combustion wastes is dependent upon the type of waste generated. Fossil fuel combustion wastes have been divided into two categories. independently managed large volume coal- fixed utility wastes and remaining wastes, each having different schedules for regulatory determination. On August 9, 1993, EPA made the final regulatory determination on the first category, retaining the exclusion of independently managed large volume coal- fired utility wastes from RCRA Subtitle C regulation (58 EB, 42466). This category includes fly ash, bottom ash, boiler slag, and flue gas emission control waste. EPA has deferred the final regulatory determination on remaining wastes; they continue to be excluded from Subtitle C until that determination is made in 1998. The remaining waste category includes wastes from utilities burning other non-coal fossil fuels, wastes from non-utility boilers burning any type of fossil fuel, large volume coal-fired utility wastes that are co-managed with low volume wastes that are produced in conjunction with the combustion of coal, and wastes generated by fluidized bed combustion operations. Low volume coal combustion wastes that axe not co-managed with the large volume waste enumerated in RCRA do not benefit from the exclusion. Examples of low volume wastes that are not excluded if they are not co-managed include: boiler blowdown, coal pile runoff, cooling sower blowdown, demineralizer regenerate and rinses, metal and boiler cleaning wastes, pyrites, and sump effluents. Based on the original scope of the exclusion, these wastes have always been subject to Subtitle C regulation when managed independently. F i ------- This Page Intentionally Left Blank ------- ,IO S r 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 3 WASHINGTON, D.C. 20460 LF.lO 9441.1995(17) OFcICE O — SOLID WASTE AND EMERGENCY RESPONSE Ralph J. Colleli, Jr., Esq. Ameiican Petroleum Institute 1220 L Street, Northwe t WashJ .r jton , D.C. 20C05 Dear Mr. Colleli: This responds to the American Petroleum Institute’s (API) request for clarification and/or reconsideration of certain provisions contained in the Environmental Protection Agency’s (EP ) final rule on recovered oil. (59 FR 38536, July 28, 1994). Specifically, API requested clarification on: 1) the regulatory status of recovered oil from petroleum refineries with petrochemical processing units located at the facility; and 2) the regulatory status of recovered oil from petroleum refineries that share their wastewater treatment systems with co-located petrochemical facilities. In addition, API requested that the Agency reconsider portions of the rule pertaining to: 1) the requirement that recovered oil be inserted into the refining process “prior to distillation or catalytic cracking”; 2) the regulatory status of primary oil/water separators; and 3) the regulatory status of petroleum cokers. A. Request for Clarification of Recovered Oil Provisions 1) Status of Recovered Oil from Refineries with Synthetic Oraanic Chemical Manufacturifla Industry (SOCMI) Units The recovered oil rule provides an exclusion from RCRA regulation for oil that is recovered from “normal” petroleum refinery operations and inserted into the petroleum refining process prior to distillation or catalytic cracking 261.4(a)(12)). Under this provision, oil recovered from a petroleum refinery’s wastewater treatment system is excluded from RCRA regulation if it is inserted into designated refinery process points. Since promulgation of the recovered oil rule, API has pointed out that a number of petroleum refineries also - operate petrochemical processing units on-site and that - ‘.4 nn F fed Pace: ------- 2 wastewater from these units is discharged into the refinery’s- wastewater treatment system. According to API, the wastewater from these u.nits represents 2%-12% of the total refinery wastewater volumes and rarely contains recoverable oil. The question posed by API is whether the recovered oil exclusion applies to oil recovered from petroleum. refineries with SO MI units on-site. While EPA did not-specifically address this question in the recovered oil rule, the Agency intended that the exclusion appLy to refineries with on-site petrochemical processing units. EPA. views these sOcMi units as part of the normal petroleum refining operation. Therefore, the presence of these units at a petroleum ref ining facility does not preclude the refinery’s eligibility. for the recovered oil exclusion. 2) Status of Recovered Oil from Co-Located Petroleum Refineries and Petrochemical Facilities API also brought to EPA’s attention the fact that petroleum ref ineries and petrochemical facilities that are proximally located often share the same wastewater treatment system. The co-located facilities are generally owned and operated by the same parent company. However, the facilities may be separately owned and operated in some instances. The question raised by API regarding co-located facilities is essentially the same as that posed by the previous situation involving on-site SOcMI units, namely, whether the recovered oil exclusion applies to oil recovered from wastewater treatment systems that service both petrochemical and petroleum ref ining operations. The difference in this case is that the petrochemical processes are located of f- site of the petroleum refining facility. The Agency’s intent in crafting the recovered oil exclusion was to limit its applicability to oil recovered from petroleum industry sources. Accordingly, the exclusion specifically does not apply to oil generated from non-petroleum industries. However, the exclusion does apply broadly to. oil generated from both on- and off-site sources within the petroleum industry (e.g., the exclusion applies to. oil generated.from exploration and production activities). As previously noted, the relationship between petroleum refineries and petrochemical processing operations was not specifically addressed in the recovered oil rule. However, based on information provided by API and the Chemical Manufacturers Association, EPA believes that, in cases where petrochemical and petroleum refining operations are co-located and share a common wastewater treatment system, the integration between the two facilities is such that. the petrochemical facility falls within scope of the exclusion. ------- 3 In these situations, given the common wastewater treatment system and the predominance of petroleum refining wastewater, the petrochemical operation would be considered part of normal petroleum refining. The exclusion would therefore apply to oil recovered from a wastewater treatment system that a refinery shares with a co-located petrochemical facility. The exclusion would not, however, apply to recovered oil from a petrochemical facility that is sent to a petroleum ref i ery for recycling via any route other than a shared wastewater treatment system (e.g., via truck, rail, etc). B. Request for ReconsideX tiOfl of ecovered Oil Provisions 1) Point of Insertion The recovered oil exclusion is limited to recovered oil that is inserted into the refining process “prior to distillation or catalytic cracking.” This restriction is based on statutory language restricting insertion of recycled materials to points in the petroleum process where “separation of contaminants” occurs. API claims that, by specifying allowable insertion points (i.e., prior to distillation or catalytic cracking), EPA has too nar.zowly defined those pe .roleum refining processes in which contaminant removal occurs. API cites previous Federal Register notices as well as legislative history that support a broader interpretation of the types of refinery processes that perform separation of contaminants. In addition, API has provided examples of other petroleum refining process units in which contaminant removal occurs (e.g., fractionation units located downstream of the catalytic cracker). The Agency finds API’S arguments to be compelling in this case and agrees that EPA erred by equating “separation of contaminants” with “distillation or catalytic cracking” in the recovered oil rule. The’ Agency plans to issue a technical correction to address thiç5 error as soon as possible given resource constraints. 2) Status of Primary gil/Water SeDaratOxS as Waste Management Units API has requested that the Agency reconsider its position regarding the regulatory status of refinery wastewaters and wastewater treatment systems. EPA considers refinery wastewaters to be discarded materials and therefore solid wastes potentially subject to regulation under RCRA. Likewise, primary wastewater treatment systems are potentially subject to regulation as hazardous waste management units under RCRA. For reasons clearly stated in the preamble to the recovered oil rule, the Agency does not believe that this determination warrants reconsideration. ------- 4 3) Status of Petroleum Refinery Coker API has also asked that EPA review its position on how petroleum cokers that receive hazardous wastes are regulated under RCRA. API believes that cokers are part of the refining process and so should be designated as petroleum refining process units. It is important to note here that the regulatory status of petroleum cokers was in no way changed as a result of the recovered oil rule. The reference in the preamble to cokers as “exempt recycling units” was mearly meant to clarify that these units are not regulated under RCRA. EPA is currently reviewing the issue of how cokers that receive hazardous wastes should be regulated inc P This review was prompted in part by conce rIc . raised by API in xespon e to the recovered oil rule. Additionally, however, EPA is reviewing the regulatory status of coker.s in the context of the Agency’s upcoming proposal on petroleum refining residuals of concern. As you know, EPA is required under a consent agreement with the Environmental Defense Fund to make listing determiDations on 14 specifically identified petroleum refinery residue.. .s. Since a number of these residuals are routinely fed to the coker, the question of whether this practice is part of the petroleum refining process or a form of waste management will have to be addressed within the listing proposal. EPA therefore hopes to use the listing proposal as a forum to address the general issue of how petroleum cokers should be regulated under RCRA. The listing proposal is scheduled to be published in August of 1995. - - I hope this letter has addressed your concerns. Please feel free to call Mike Petruska of my staff at (202) 260-8551 with any additional questions or concerns you may have. Sincerely, LU GZI A€ Mic1 a 1 Shapiro, Director Of Ø of Solid Waste ------- rILE COPY UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 9441.1995(18) MAY 25 1995 OFFICEOF SOLID WASTE AND EMERGENCY RESPONSE Mr. William A. Spratlin, Director Air, RCR.A, and ToxiCs Division EPA Region VII 726 MinnesOta Avenue Kansas it , KS 66101 Dear M j lin: This is in response to your April 6, 1995 letter regarding the regulatory status of a gasification unit that Texaco proposes to build at its El Dorado, Kansas petroleum refining facility. We have decided to support your decision to concur with the Kansas Department of Health and Environment’s proposed approval of a permit exemption for the facility. Our decision is related to the facts specific to this particular situation and should not be viewed as a determination that all gasification units are exempt from RCRA permitting requirements. The remainder of this letter is devoted to a discussion of the rationale for our position regarding the El Dorado facility. Based upofl our consultations with your office and with the state of Kansas and upon our April 12th meeting with representatives from Texaco (several of whom caine in to meet with us the day after your letter arrived), osw identified a need to clarify the regulatory status of the gasification unit that Texaco proposes to bring on—line at its El Dorado, Kansas petroleum refining facility. These clarifications focus on the three principal components of the gasification process, as proposed for this facility: (1) the regulatory status of the “syngas” created by the gasifier, (2) the status of the unit itself and (3) the use of RCRA-listed hazardous wastes as feedstocks for the gasifier. The “SvTiaaa ” The syngas produced by the gasifier in El Dorado would be exempt from RCP. regulation according to the provisions of 40 CFR §261.6(a) (3) (iv), which exempts “fuels produced from the refining of oil-bearing hazardous wastes along with normal process streams at a petroleum refining facility if such wastes result from normal petroleum refining, production 1 and transportation practices.” Of course any residuals from the gasification process would need to be evaluated under 40 CFR §261 in order to determine whether or not they are subject to regulation as hazardous waste under RCRA. Pnnted on Recycled Paper ------- The Gasificat2on V it The unit that Texaco proposes to construct in El Dorado would also be exempt from regulation. In our judgement the gasifier would be an exempt recycling unit as provided f urxder-4O CFR S 2 Gl;6(c).(1). Based on our analysis, the gasifier proposed for use at the El Dorado facility does not meet the definition of an incinerator, a boiler-or industrial furnace, as defined in 40 CFR 260.10. Therefore, this unit would not be subject to the incinerator- standards set forth in 40 CFR 264, Subpart 0 or the ElF standards set forth in 40 CFR 266, Subpart H. The Feeds tock - - Based on your presentation, the feedstock to be used in the un±t would include petroleum coke, other hydrocarbon streams and a n .miber of RCRA-ljsted hazardous wastes, including: API separator sludge (K05].), acid soluble oils (DOOl an D018), primary sludges (F037) and ” phenolic residue (K022). Should the El Dorado store these materials on site for a period of greater than 90 days, the facility would be required to obtain a RCRA storage permit. If the materials are not: -. stored at the facility for longer than 90 days, a storage permit wou.]4 not be required, as provided for under 40 CFR §262.34. If you have any further questions or require additional information, please contact Stephen Bergman of my staff at (202) 260— 5944. Sincerely, - Mi ‘ae Shapiro, Director Of ice f Solid Waste ------- HOTLINE QUESTIONS AND ANSWERS 2. Restaurant Waste and the Household Waste Exduslon ( 261.4(bX1)) May 1995 Are restaurant wastes excluded from RCRA Subule C regula ’n as household wastes per4O CFR 5261 .4(bXl)? Wastes produced by restauranu arc not household wastes and therefore will not be excluded f w RCRA ha dous waste regulation. The applicability of the household. waste exclusion is based on two ndi fl 5 the place of generation and the type of waste generated. Househnld waste must be generated on the n jni es of a ttn p asy or permanent resideticc and be comprised primarily of materials generated by ConSun S in their homas. Restaurant do not serve as tcmp iazy or permanent residences for thdividt l( and thcrcfc*e do not mact both of the criteria for househoLd waste and will a qualify for the household waste exclusion (49 44978; November 13, 1984). If however, the restaurant is part of ttmpora&y or permanent Teskknce , the waste generated would qu2lify for the household waste exclusion as it would be generated on the premises of a temp caiy or permanent residence and be comprised primarily of materials generated by consumers in their RCRA 9441.1995(19) ------- This Page Intentionally Left Blank ------- May 1995 HCRA 1. SolId Waste Determination for Spilled Commercial Chemical Products Accordktgto4O FR 52612, Tablel, M qrdous coir nercial chanicolpro 4 t’ t , when recycled are exempt from RCRA because they are no: solid wastes. If a mani(acsurer spills a commercial chemical product into the soil and intends to reclaim the spill res 1 due , u the spill residue exempt from RCRA ssendar Lc? may also show that recycling has already begun, the material Is valuable, the material can feasibly be recycled and/cr the company has recycled such material in the past (55 22671; Junel, 1990).. In the absence of ong, objective indicators of recycling cr intent to recycle a spill r sidue . “the materials ate solid wastes iz..me(Ii2tPIy upon being spilled because they have been abandoned” (54 48494; November 22, 1989), and must be vn nnged in accordance with all applicable RCRA ndatdL The intent to recycle a cttnmettial chemical product spill residue does not exempt the mataiti ft w RCRA jurisdiction. In fact, EPA has stated that coat2min ed soils and ocher cleanup residues generally are solid wastes because of the difficulty associated with recycling wastes contained within envuvnn,ental media (54 48494; November 22, 1989). Sometimes, however, a spill residue can be renrned to a process or otherwise put to use, and thus ren ir% exethpt from RCRA ads In - - — d trate that a spill residue is nota solid ,ibe gcaerazorhas the burden cipruviag that lcgithn te recycling will take p1 . 11 Agency has adopted objective considerations to evaluate a generator’s 0 12im a spilled product jfl be leginfn2rely mcycled The length of time the spill ie iii ie has eidc ed is one such consideration. In order to prove that Icgitivn te recycling will occur, a generator HOTLINE QUESTIONS AND ANSWERS 9441.1995(20) ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON, D.C. 20460 4’ “U — iU ’ 5 9441.1995(21) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Steven 0. JenkinS, Chief RCRA Compliance Branch, Land Division Alabama Department of Environmental Management P.O. Box 301463 Montgomery, AL 36130-1463 Dear Mr. Jenkins: Thank you for your letter dated March 30, 1995 requeSting guidance from the u.s. Environmental Protection Agency on the crushing of ercury COfltaining lamps. In your letter, you reference two documents from our Agency that appear to provide conflicting guidance on the status of lamp crushthg under RCRA regulations. The first document referenced is a letter dated July 28, 1993 from Jeffery Denit, Acting Director, Office of Solid Waste. This letter clarifies that the crushing of fluorescent lamps, as a necessary step of a legitimate recycling process, is exempt under 40 CFR 261 .6 (c), and therefore would not be subject to RCRA Subtitle C regulatory requirements except as specified in 40 CFR 261.6(d). The letter further clarifies that the crushing activities may occur at the generator’s facility, or at the recycler’s facility and remain exempt undar 40 CFR 261.6(C). The Agency had considered an interpretation of 261.6(C) where the recycling would have to take place at the same site as the crushing, but determined that as long as recycling will occur, it does not have to be at the same site. Under this interpretatiOfli the person claiming the exemption (the generator) is responsible for ensuring that the crushed bulbs do end up being recycled, not just disposed of. This remains the current regulatory status of lamp crushing activities that are a part of a legitimate recycling process. The second document referenced is the preamble to the July 27, 1994 proposed rule regarding management standards for ercury COfltaining lamps. In this proposal, EPA requested comment on whether generators or consolidation points should be allowed to intentionally crush lamps to minimize volume for storage or shipment and what, if any, standards should be imposed to protect against mercury releases during crushing or the subsequent management of crushed lamps. This section of the Printed on Recycled Paper ------- preamble is requesting comment on appropriate management standards for mercury-containing lamps under the proposed Universal Waste option. Management of lamps under-the Univers .j Waste rule would provide streamlined req t e-for generating, transporting or collecting hazardous waste 1ai ips. - such, many of the controls that are in place under the current regulations for hazardous waste lamp management (e.g., tank and container requirements under 40 CFR part 264 or notification requirements under 40 CFR part 264.11) may not be applicable under the Universal Waste rule. Therefore the request for comment on whether lamp crushing should be allowed and what standards should be imposed to protect against mercury releases during crushing refers to such management under the proposed Universal Waste scenario only. At present, the Agency is still Considering the. tw options- presented in the proposed rule for spent fluorescent 1amps and has received over 300 comments on the proposed rule. Many of the. comments received, however, addressed technical concerns related . to the risks involved in the handling and disposing of these lamps (e.g., air emissions, leachability). Because of these concerns, the Agency will need to devote the proper resources to analyze and resolve these technicaljssues. The Agency notes that in light of the resources needed to finalize a rulemaking for fluorescent lamps a!ld the President’s in-itiative for regulatory reform, the Agency is evaluating this rulemaking along with a range of other projects in setting priorities for the Office. On May 11, 1995, the Agency promulgated the universal waste rule (60 FR 25492). This final rule str amlines requirements for generators, transporters, and interim storage facilities who manage one or more of 1) hazardous waste batteries 2) certain hazardous waste pesticides and 3) mercury containing thermostats (as discussed above, fluorescent lamps are being considered separately under the July 27, 1994 proposal). The universal waste rule also provides additional flexibility in that States can add additional wastes or waste categories to their own State universal waste rules if they so choose. Therefore, a State may choose to add fluorescent lamps to their State list of universal wastes. In so doing, a State must decide what waste management requirements are appropriate to be added to the universal. waste regulations that would protect human health and the environment from risks posed by the waste during accumulation and transport. Such waste management requirements may include volume reduction incident to collection activities and should be designed to ensure that these management practices do not dilute the hazardous constituents or release them to the. nvironment. After researching and considering the issue, a State may decide that crushing be allowed as appropriate management if the crushing process was performed in a controlled unit which did not allow any releases of mercury or other hazardous constituents to the environment. ------- _ADEM___________ _ ALABAMA DEPARTMENT OF ENVIRONMENTAL MANAGEMENT iW znitb Dfrector 4S at. Governor January31, 1995 Fob James, Jr dailingaddreu ‘0 BOX 301463 Mr. Michael Shapiro, Director dONYGOMERY j. Office of Solid Waste United States Environmental Protection Agency Ws hington, D.C. 20460 751 Cong. W.L. lid son O ve - lontgom.ry. Al. Bioe-uoa Dear Mr. Shapiro: 20532710 The Alabama Department of Environmental Management (ADEM) has recently received correspondence from the Monsanto Company, Aliniston Plant, requesting guidance on the regulatory status of crushing fluorescent lamps • ___ (copy enclosed). Also, attached to this request was guidance dated July 28, 1993, from then Acting Director, Jeffery D. Denit, of your Office. 10 Vukan Road iriningliam.Ai. The July 28, 1993 guidance states, in part, “ .Jf crushing fluorescent lamps that 52O 4702 fail the toxicity characteristic is a necessaiy part of a legitimate recycling process, it would not be subject to RCRA Subtitle C reguiatoiy requirements except as specified in 40 CFR 261.6(d). The errzohing o eth,ities may occur at the enerator’s facil y r .Ist,,.t. at the recycler’s facility and remain mpt under 40 CFR 261.6 ( c)”. The letter goes .0. Box 953 i address applicable storage requirements and OSMA stanaaids , and the Authorized states ability to regulate this acth,i under a more sthngent t05 ) 353.1713 interpretation. - AX 3404359 As you know, the July 27, 1994, Federal Register Proposed Rule(59 FR 38288), 204 Penmeter Road outlines management standards that may be adopted for mercuxy-conthimng mps. The first option would be to exclude mercuiy lamps from regulation as 105450.3400 a hazardous Waste and the second option would be to add them to the AX470-2513 U lversa1 waste Proposal ( February 11, 1993, 58 FR 8102) . Contained within the July 27th Federal Register at Section IV (0) (2), next to the last para aph states in part, “..The Agency also requests comment on whether - generators or consolidation voi,tLe ehnuld be allowed to intEhgionally crush LamjiTô miiiimize volume for storage or shipment and what, i( any, standards should be igtp sed to protect against mercus r ie e during cn&zing r ili ubs qzz ii management of crushed lamps. The proposed universafwaste management i üëuIt inc luaes a prahibizion on treatment (crushing is co.jasidered treatment) of lamps at the generator, transporter and consolidation points. (The ADEM has also interpreted that crushing of lamps is conildered eatmeutt unless the crushing device is capable of completing the recycling process and recovering the mercury as a product. \ c 4 -A - - - - /. - - - - i’ -’ PlVUS % ø—.,- - .d P ------- If you have further questions regarding how the recycling and storage requirements apply to this situation or about the mercury-containing lamps proposal, please contact. Kristina Mesc n of my staff at (202) 260-5736. Thank y ’U’for you est ±n the safe recycling of hazardous waste. Sincerely, Michael Petruska, Chief Regulatory Development Branch 3 ------- Page 2 January 31, 1995 Mr. Michael Shapiro It would seem that, n 1ikc the recycling exceptions provided for with lead-acid batteries at 40 CFR Part 261.6, the intentional crushing of characteristically hazardous fluorescent lamps to physically separate, reduce in volume, or make them more amenable for transportation, storage, or recovery meets the basic definition of treatment under 40 CFR Part 260.10. The Department understands the need for establishing leg timate recycling facilities for processing mercu1y -con mg lamps as an alternative to disposal. However, in order to be equitable to all re clers of hazardous waste ADEM does not be en an ement e sts un er the Federal regulatory structure. At this time, ADEM is seeking p eoncurrence from EPA on this issue in order to provide cor isthnt guidance to A pjfij I generators and other facilities that wish to commence l cnashing acti s , / and which do not re’ 1 ” mercuty valnes as-a flnal ..product. This is an ( important regulatory issue and we would appreciate a response at your earliest possible oppertuxiity Should you have any questions regarding this matter, please contact Mr. Michael B. Jones at (334) 271-7989. Sincerely, Steven 0. Jepl , Chief RCRA Com itnce Branch nd Division Enclosure SOJ/MBJ/lmpttdoc Copy Alan Farmer-EPA Region N Tommy Arthur- ADEM Ron Shell- ADEM File: EPA correspondence ------- This Page Intentionally Left Blank ------- FILE COPY UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 JUN is 9441.1995(22) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. James Mallory, Executive Director Non-Ferrous Founders’ Society 455 State Street Suite 100 Des Plaines, Illinois 60016 Dear Mr. Mallory: In your letter to me of May 4, 1995, you express your concern about EPA’s March 8, 1995 letter to the American Foundrymen’S Society (AFS) in which EPA reiterated its interpretation that under current regulations spent foundry sands used as molds in the casting process become solid wastes when the mold is broken and the casting is separated from the sands. You are concerned that this finding is not consistent with current EPA hazr rdous waste regulations as well as ongoing efforts to redefine RCRA jurisdiction and the definition of solid waste. Our letter did not, apparently, provide a rational basis or explanation of why spent foundry sands are regulated under RCRA that was satisfying to you. Finally, you believe that EPA’s position will result in a great expense to the casting industry, without providing a tangible environmental benefit. Our March 8 letter reiterates and explains in detail our longstanding understanding of our current rules. Moreover, because non-thermal sand reclan ation processes are not regulated under RCRA (40 CFR 261.6(c)), we do not believe that our policy will affect the reclamation of sand within the sandloop and should not signific2Tltly affect foundry costs unless other activities, such as disposal, are occurring at a site. If you have specific data that indicates otherwise, we would be happy to receive it. I understand that from your perspective it is inappropriate for our Agency to apply RCPA Subtitle C j risdiction (though not reEulation ) to spent foundry sand in the sand loop at a point when these materials are not released to the environment, and I agree that this is an issue EPA should pursue as we e;amine ways to improve the definition of solid waste. However, the current regulations try to distinguish between different types of materials and recycling processes. These distinctions are intended to manage environmental risks posed by recycling potentially hazardous secondary -materials which are similar to environmental risks posed by conventional h ,ardous waste treatment and disposal such as groundwater ContaminatOfl, air releases and releases to surface water bodies. Pnnted on Recycled Paper ------- 2 In the past, the category of materials we call “spent materials” (e.g. that were used and picked up contaminants) have caused environmental prob1 ms. The A y-sought jurisdiction over spent materials to be able to prevent recurring environmental problems, and then to reduce regulatory burdens we allowed generators to recycle on-site under minirn 1 controls. The Agency outlined three environmental concerns specific to spent foundry inik in our March 8 letter to AFS. EPA is aware of the possibility that current RCRA Subtitle C jurisdiction over recycling activities may be overlybroad in some situations v here recycling operations incur costs of regulation without commensurate envirnnni.i’t21 gain . -. Because of issues like this, EPA is currently in the process of loo1th g at ways to amend the definition of solid waste and haiardous waste recycling requirements in the future to encourage environmentally sound recycling. A major issue we’ll be looking at is how on- site recycling should be regulated, if at all. We will seriously consider options that would allow manufacturers to recycle their secondary materials at their own sites without applying RCRA jurisdiction. The Agency hopes to have a proposed rule completed by the summer of 1996. I have enclosed a copy of our Program Plan, which describes in some detail our plans to reassess how we define “solid waste”. Also, EPA committed to working with the foundry industry and the Agency’s Regional office in Dallas has begun compliance outreach to assist foundries in understanding their responsibilities under RCRA. We would welcome, your Society’s assistance in that effort. If you have any.further questions regarding the definition of solid waste or hazardous waste recycling, please call Paul Borst of my staff at (202) 260-6713. Sincerely, — •‘ ‘ i-. ‘I. L (.. . — , L.. - - L ‘_. -; - Michael Shapiro, Director ‘ ‘Offi of Solid Waste Enclosure ------- Non-Ferrous Founders’ Society 455 Stote Street • Suite 100 • Des Plaines. IL 60016 May 4, 1995 Mr. Michael H. Shapiro Director of EPA Office of Solid Waste 401 M Street, S.W./5301 ) Washington,D.C. 20460 Dear Michael: ‘7 On behalf of the Non-Ferrous Founders’ Society (NFFS) and its member foundries, I am writing in response to your letter to the American Foundiymen’s Society dated March 8, 1995. On page three (3) of the correspondence, you state “(I]t appears that spent foundry-sands are spent materials being reclaime4 and are therefore solid waste”. This finding is not consistent with existing EPA regulations. The finding is also inconsistent with EPA’s own efforts to redefine the term “solid waste” under the Resource Conservation and Recovery Act (RCRA) via its D flnition of a Solid Waste Task Force. Part of the problem is that the foundiy indust i s definition of reclamation is synonomous with EPA’s definition of recycling. It is this semantic conflict that is the premise of the Region VI determination. The question of whether or not spent foundry sand is a spent material is moot. Whether or not the subsequent physical or mechanical separation and screening of return-sand constitutes a reclamation process is also a moot question. The shakeout process itself represents the first step in foundry sand being used beneficially by the foundry. Thus, entering shakeout represents the first step in the reclamation process - the point at which the product is removed, scrap metal is recovered, and the sand is reclaimed by removing process materials. This conclusion is supported by the following statement in your letter: When the spent sand enters the shakeout process, they are reclaimed through regeneration, which involves the removal of cont2mtn ntc, including core sand butts, fines, tramp metal and other clumps of sand too large to fit through the screens. As a spent material being reclaimed, the spent foundry sand constitutes a solid waste ... [ h]owever, the fact remains that foundry sands are spent materials being reclaimed from the moment that they are separated from the cast ngs. Since foundry sands “(a]re being reclaimed from the moment that they are separated from the castings”, all foundry sand materials exiting the shakeout process have been reclaimed. Thus, foundry sand exiting the shakeout process would no longer fall under RCRA jurisdiction per 40 CFR 261.3(cX2Xi). In addition, because the mechanical process of ------- screening and separating spent foundry-sand is a reclamation process, it is generally exempt from regulation under RCRA (40 CFR 261 .6(cXl)). The issue of whether foundry sand is a spent materiaii, u i T im d fr a shakeout process is irrelevant. All materials resulting from the shakeout reclamation process (which is exempt from RCRA regulation) would be exempt from RCR.A per 40 CFR 261 .39(cX2Xi). According to EPA, only the portion of sand which is n t returned to the mold-making process remains a solid and, in certain circumstances, a h rdous waste. In the most practical sense, the reuse of foundry sand has become an integral part of the mold -mnking process in modern foundries. These foundries incorporate a sand loop-return design, the complex portion of a foundxy where return sand is reused and mixed with new sand and various binding agents to produce a casting mold. Thus, the process of sand is an inseparable, integral and generally contiguous portion of the sand mold-m tfrii process. The agency concluded foundry sand entering shakeout represents thepoint at which the product (casting) is captured for flirtherprocessing and the sand is returned ( via the RCRA exempt reclamation system ) to an ongoing production process ( mold maldng . Clearly, foundry sands are returned in an ongoing production process, making these materials exempt from the definition of a solid waste. I find it absolutely counter-intuitive to reason that spent foundry sands “have become past of the waste disposal problem, are discarded and therefore can be solid waste under RCRA” If foundry sands were inten4ed to betli enrded by foundi s at the shakeout table, would not all materials be collected in a trash dwnpster for disposal rather than processed through, in some cases, elaborate systems for subsequent reuse in the ongoing mold-production process? EPA provides no rational explanation or basis for why these materials should be subject to the onerous requirements of RCRA m2n*gement. Finally your position in the March 8 letter regarding foundry sands illustrates why Mrs. Browner’s Common Sense Initiative should be implemented by the Office of Solid Waste. EPA itself has recognized the need to encourage the recycling and reuse of industrial materials. In fact, the Office of Solid Waste has established a task forceto redefine the term solid waste under RCRA and to provide recommendations that would result in more industrial materials being recycled. Your determination seems to take a counter-position to EPA policy, at a great expense to the casting industry, without providing a t ngib1e environmental benefit Naturally, this matter is of grave concern to NFFS and its approximately 200 member-companies. I look forward to your prompt response to the arg’mtents presented here. Sincerely yours, ------- ru r riL iri ___ V g UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 JUN22 19S5 9441.1995(23) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Michael Roberts Maintenance Engineering 6436 San Diego Ln Indianapolis, IN 46241 Dear Mr. Roberts: Thank you for your letter of March 27, 1995, to the Office of Solid Waste, requesting confirmation that your fluorescent tubes are nonhazardoUS based on the data which you provided. EPA regulations require persons generating solid wastes to determine whether the solid waste is hazardouS. 40 CFR 262.11 sets forth the generator’s responsibility to determine whether his waste is hazardous, including determining whether the waste exhibits one or more of the characteristics identified in Subpart C of Part 261. When a generator makes a hazardous waste determination using the Toxicity Characteristic Leaching procedure, EPA regulations require that the generator use a “representative sample.” A “representative sample” is defined at 40 CFR 260.10 to mean a sample of a universe or whole (e.g., waste pile, lagoon, groundwater) which can be expected to exhibit the average properties of the universe or whole. After examining your sample analysis data, it appears that you tested only one spent fluorescent tube to conclude that all of your spent fluorescent tubes generated on—site are nonhazardoUS. If our assumption is correct, we believe that the data provided may not meet this definition. Based on one tube, we have no way to assess the variability between fluorescent lamps (new versus old, different manufacturers, different wattages, etc.). A representative selection of lamps randomly chosen should be analyzed to make this determination. I have enclosed chapter nine of SW-846, EPA’s “Test Methods for Evaluating So)4d Waste.” This chapter gives guidance on how to develop a sampling plan to obtain a representative sample of wastes. Under Section 3006 of RCRA individual States can be authorized to administer and enforce their owil hazardous waste programs in lieu of the Federal program. Indiana is an authorized State, therefore you should contact Mr. Dave Berry of the Indiana DEM at (317) 232—4417 to discuss your request. Mr Berry works in the Hazardous Waste Management Branch and is the State contact person on spent fluorescent tubes issues. He may Printed on Recycled Paper ------- be able to assist you in developing an appropriate-sampling plan. Ollie Fordham is also available to discuss sampling. He is in the Methods Section of EPA’S Technical Assessment Branch at (202) 260—4778. - You may be interested to know that the Agency recently promulgated the Universal Waste rule, May 11, 1995 (60 FR 25492), which facilitates the environmentally sound collection and - management of hazardous waste batteries, certain hazardous waste pesticides, and mercury-containing thermostats destined for recycling or proper disposal. This rule streamlines regulatory requirements for generators, transporters, and, interim storage facilities that manage the aforementioned wastes. The universal waste rule also provides additional flexibility in that S ates can add other wastes such as spent fluorescent tubes to tileir State universal waste program, if they so choose. I have - enclosed a copy of the Universal Waste final rule. For •further information on the universal waste rule, contact Kristina Meson at (202) 260—5736 or Bryan Groce at (202) 260—9550.o.t -my staff. Sincerel Mike Petruska, Chief Regulatory Development Branch Enclosure (2) ------- HLt. U. S? 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 ‘ IL JUN30 1995 9441 .1995(24) OFFICE OF SCUD WASTE AP.DEMECE.CY RESPONSE Mr. Douglas W. Crim Miller, Canfield, Paddock and Stone, P.L.C. 1200 Caxnpaul Square Plaza “ 9 Monroe Avenue, N.W. Grand Rapids, Michigan 49503 Deai Mr. Crini: In your June 2, 1995 letter to Paul Borst of my staff, you request EPA concurrence on behalf of your client, American Bumper and Manufacturing Company (American Bumper) thaP the secondary material which American Bumper intends to transport to Canada to a copper smelter is not a solid waste and therefore exempt from regulation as a hw’ardous waste under the Resource Conservation and Recovery Act (RCRA). The secondary material you describe in your letter is dried metal hydroxide solids in pellet powder form generated from treatment of wastewaters produced from electroplating of nickel and chrome bumpers. You state that you believe that these materials are not solid wastes because they are used or reused directly without prior reclamation per 40 CFR § 261.2(e). Based on the description in your letter, the material that American Bumper wishes to export appears to meet the definition of F006 wastewater treatment sludges from electroplating operations, a listed h ardous waste. Assuming that the sludges are being sent to the copper smelter for metal recovery, they are solid wastes that are also ha rdous wastes because they are sludges that have been listed by EPA and are being sent for reclamation. -40 CFR § 261.2(c)(3). The regulatory exclusions from the definition of solid waste you cite at 40 CFR § 261.2(e) are not applicable because reclamation is occurring.’ Although based on your description it appears these materials are a solid waste, these materials may be eligible for a variance from the definition of solid waste. Your letter indicates that these materials have been dried and pelletized prior to shipment. Because EPA considers dewatering a form of reclamation (see 50 FR 614, 639 January 4, 1985), these sludges are materials which have been reclaimed but must be reclaimed further in order to be completely reclaimed. See 40 CFR § 261. l(c)(5) defining use and reuse and limiting its applicability for use as -an ingredient. However. a matenal will not satisfy this condition if distinct components of the material are recovered as separate end products (as when metals are recovered from e aI cOflt ifling secondary materials).” 40 CFR 261. 1(c)(5)(i). ( R.cycl.d/R.cyclabIe t) (\ p, nt.d with SoyiCanO4 Ink on pr ‘CC7 con Iw g issst 50% cycISd I I r ------- 2 Materials which have been reclaimed but musLbe redaimed &mherjnay- e1j jhj for a variance which, if granted, would exclude them from the definition of sOlid waste. 40 CFR § 6 0.30(c). This variance may be granted by an authorized State and relies on factors enumerated at 40 CFR § 260.3 1(c). These factors include: - • the degree of processing the material has undergone and the degree of further processing that is required; • the value of the material after it has been reclaimed; • the degree to which the reclaimed material is like an analogous raw material; • the extent to which an end market for the reclaimed material is guaranteed; • the extent to which a material is managed to minimize loss; • other relevant factors. 40 CFR Section 260.31(c) (These factors are discussed in greatef detail in the regulatory preamble at 50 FR at 655.) To obtain more information about this variance, we recommend that you contact the appropriate State regulatory agency to inquire if they have this variance in their regulations (many States adopt the Federal program essentially verbatim). Also, please be aware that States have the authority under Section 3009 of RCRA to regulate more stringently than the Federal program. You should know that the EPA is ctuitutly undergoing two initiatives to help encourage environmentally sound recycling. First, the Agency ha ongoing activities related to the Common Sense Initiative (CSI) which relies on an industry-by-industry rather than a pollutant-by-pollutant approach to environmental protection. One of the six sectors included in the CSI is metal finishing. The Agency is currently working with representatives of the metal finishing industry as well as States, environmental groups and other stakeholders to find ways to encourage more recycling of wastes and other materials from metal finiching operations. We are currently in the process of developing a pilot project to assist the Agency evaluate the potential for some materials previously classified as wastes to be concidered commodities. Second, EPA isin the processofreevaluatingthedeflnitionofsolid waste to become. simpler, clearer and more relevant to RCRA’s environmental goals. To this end, we have developed a program plan (enclosed) to be used as the basis for developing a proposed rule in the fall of 1996. We envision developing a proposed rule that would exclude some materials destined for recycling from RCRA jurisdiction which more closely resemble normal manufacturing than traditional waste management. We also expect that those materials which remain wastes under RCRA jurisdiction would be subject to a more simplified, self-implementing set of management standards to encourage recycling. - ------- 3 We appreciate your interest in environmentally sound recycling. If you have any further questions, please contact Paul Borst of my staff at (202) 260-6713. Sincerely, David Bussard, Direct& Characterization and Assessment Division Enclosure ------- L*w OFFICES OF MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. OLOAG 2S) A PROF SS O$AL L r LIABfl2TY COb AJ Y 2 LE $ H. PADDOCk (1006 .1035 1 1200 CAMPAU SQUARE PLAZA DETkOIT MICI41GN 0 S 0. STONE ( 1U2-1 0451 M01D R 01. 99 Mol Ro6 AvE$uE,44.W. G o RAPIDS, MICHIGAN 495O3 DCk t#.a W. CaDs AF UATW OF CES: TELEPHONE (616) 454-8 656 PD4SACCLA. R.C OA FAX (616) 776-6322 W*ASAW. POLNIO June 2, 1995 Mr. Paul Borst RCRA Enforcement Division U.S. Environmental Protection Agency Office of Solid Waste and Emergency Response Washington, D.C. 20460 Re: Exemption of Secondary Materials from Regulations/ Notification to Export - American Bumper & Mfg. Co. Dear Mr. Small: American Bumper and Mfg. Company seeks the Environmental Protection Agency’s concurrence that the secondary material American Bumper intends to transport to Canada is exempt from RCRA regulation. The secondary material is dried metal hydroxide solids in pellet/powder form, generated from treatment of wastewaters produced from electroplating of nickel and chrome automotive bumpers. These secondary materials will be transported to Inco Limited, Copper Cliff Smelter, Copper Cliff, Ontario, Canada. The secondary materials will not be treated, reclaimed or otherwise altered prior to its use in the Jnco nickel process. American Bumper has a contract with Inco whereby Inco purchases the secondary materials from American Bumper. Under 40 CFR 261.2(e) the secondary materials are not solid waste. Therefore, American Bumper requests EPA’s concurrence in a determination that the secondary material is not a solid waste. If you need any more information in this reg r please call me. Pending your review of the issue of whether American Bumper’s secondary materials are solid waste, American Bumper has submitted a Notice of Intent to Export to Bob Small of the Policy Analysis and Coordination Section of RCRA Enforcement Division. ------- MILLER, CANFIELD, PADDOCK AND STONE, P.L.C. —2— If you have any questions in regard to the matters discussed in this letter or American Bumper’s Notice of Intent to Export, please call me at your earliest convenience. Sincerely, Doug W. Crim DWC/pdv cc: Laura Shears Craig Smith ------- This Page Intentionally Left Blank ------- 4 ØI 3ri, UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY WASHINGTON. D.C. 20460 / AUG —3 1995 9441.1995(25) PIcECF SCLC WASTE AI EIERGENCY ESP 4SE M3 .chael W. Steinberg Morgan, Lewis & Bockius 1800 M Street, N.W. Washington, D.C. 20036 Dear Mr. Steinberg: This replies to an issue you raised in a July 7, 1995, letter to Alan Carpien, U.S. EPA Office of General Counsel, on behalf of your client, FMC Corporations with respect to EPA’s interpretat’ion of the Agency’s carbamates listing rule promulgated on February 9, 1995. 60 Fed. Reg. 7824. This response specifically deals with issues regarding the Agency’s interpretation of the exemption in 40 CPR 261.3(a) (2) (iv) (F), a new section of EPA ’s.regulatiefls.added by the carbamates listing rule. This new section provides an exemption from the hazardous waste listing designated as X157, which encompasses wastewaters from the production of carbamates and carbamoyl oximes. The exemption provides that wastewaters are not considered hazardous waste if the maximum weekly usage of four constituents - - formaldehyde, methyl chloride, methylene chloride, and triethylamine total -- divided by the weekly flow of process wastewater (prior to any dilutions into the headworka of the facility’s wastewater treatment Bystem) contains less than 5 parts per million by weight. Calculation of the maximum weekly usage of the four constituents includes “all amounts that can not be demonstrated to be reacted in the pro eas, destroyed through treatment, or is recovered, j. ., what is discharged or volatilized.” In your letter you object to EPA’S inclusion of volatilized solvents in the calculation of maximum weekly usage. You claim that the rule unduly interposes RCRA regulations into the production process, as opposed to the disposition of wastes. , i Vgs e Bu.ø k u t00% Rs dId Pps (40% P ri ------- The Agency believes you have incorrectly £nterpreted the req uirement and believes that an expl ’ tion of the -car ’pxule preamble would clarify the issue and. perhaps,.sllay the-c021ceTns you have expressed. - First, the requirement to calculate volatilized solvents does not cover activities in the production process, but instead begins with the point of generation of wastes. EPA believes this is clear from the preamble to the rule, which states that the appropriate compliance point for application of the K157 exemption is the point of generation prior to aggregation with other carbamate and non- carbamate waste streanta.v 60 Fed. Reg. 7e32. Thus, point of generation of the wastes is the applicable starting point for calculating the volatilized portion of the constituents. of conc ru. The preamble goes on to explain that this prevents selective mixing of wastewater streams to meet the exemption cr$ t , prevents generators from excluding storage tank and other treatment unit. emissions and, thereby, meet the 5 pm criterion. Second, the Agency’s risk assessment modeled air emissions that occur from waste accumulation prior to discharge or mixing’ with other wastewatera and volatilization during treatment. These were, thus, the areas of concern for effects on public health the environment. Direct analysis during release from accumulation may not account for 4atorage losses. A facility making the claim that a single point-of-compliance meaaurement meets the exemption, must be able to demonstrate that the compliance point is representative of the waste volume discharged and precludes any loses prior to the sampling point. In the event down stream unite recover or destroy the constituents of concern, the mass captured or destroyed may be subtracted from the mass diachaged. However, any volatilization during recovery or treatment may net be excluded from the calculation of discharge concentration. - Some confusion may have been geiterated by the following two statements in the preamble: A facility can exclude that portion of the constituents of concern not disposed to wastewaters. No portion of the material ôf concern which is volatilized may be excluded from the calculation. 60 FR 7826. However, in view of the entire expl ’ tion in the preamble and the rulemaking record, particularly the Agency’ a risk assessment modeling, the proper interpretation is that • volatilization during production would not be calculated toward the 5ppm. In addition, the following preamble statement seems to need some clarification: With regard to testing, the Agency does net preclude the direct measurement of the maximum coflCefltXat .Ofl of formaldehyde, methyl chloride, methylene chloride, and ------- triethylamine using quantitative analytical methods to demonstrate the exemption requirements are met. However, the Agency concludes that end-of-pipe analytical demonstrations alone do not prove compliance with the exemption criteria. All waste treatment emissions must be considered. 60 FR 7832. It was not the Agency’s intent to preclude or require direct analytical testing of the waste diechaiged. As noted above it was the Agency’s intent that the mass reaching the environment be accounted for, and that volatilization during storage not be discounted. You also inquire as to the relationship between the new sectiOn 261.3 (a) (2) (iv) (F) exemption and the exemption in section 261.3 (a) (2) (i v) (B) ( B exemptiOfl ). The B exemption was issued in 1981, 46 Fed. Reg. 56582, and applies to wastes resulting from the use of solvents subject to the non-epecit .c or HF,” hazardous waste listings in 40 CFR S261.31. Thus, different standards would apply. Should there be a case where multiple wa’ste codes apply, the Agency would view each in accordance with the applicable exemptiofl. In such a case, both exemptions would have to be met in order for the waste to be exempt. I hope this explanation deals adequately with your concerns on the issues involved. If you have further questions, please contact John Austin at (202) 2604789. Sincerely, David Buaeazd Director Characterizati fl and Assessment DivisiOft ------- This Page Intentionally Left Blank ------- (1 May 3, 1995 Mr. Stephen Bergman United States Environmental Protection Agency Office of Solid Waste, MC-5304 401 MStreet,N.W. W chingtcnD. C. 20460 Dear Mr. Bergman: It was with great pleasure that we hosted the visit by you and Marilyn to the photographic processing fa ilities at the offices of the National Geographic Society on April 27, 1995. Messrs. Ailnut and Curry were especially gracious in displaying all of the di rent photographic processes which as a matter of course led to the treatoicat of the used silver-rich fixer and other wastestrearns prior to discharge to the P01W. The technologies utilized in all casc , were electrolytic recovery and metallic replacement cartridges. While the driving force of the entire fai IIity was the acquisition of the finest quality images for their customers, it was no doubt apparent that environmentally sound practices remained the underpinning of their opcration. Again , the main objective of our visit was to enable you to view the nature of the photoproccssOrs’ uca nent of their waste streams to meet POIW limits, and the consequent recovery of silver. We hope that this visit has provided you with the background the Agency needs to issue a definitive i 4erprctation that the silver recovery units are characteristic sludges, which when reclaimed, are not solid wastes. I have enclosed a draft copy of one of a series of docw’ being prepared for external publication entitled The Technology of Silver Recovery for Pl cprooessoii. It very dearly explains the ch mica1 reactions which occur in the pro zsses used to recover silver. In the case of metallic replacement, using metallic replacement cartridges or chemical recovery cartridges (CRC), a very rapid oxidation-reduction reaction converts the silver thiosulb.tc of the used fixer solution to elemental silver, while the iron of the steel wool is solubilized and is discharged as a thiosulMe complex. If you have any further questions, please do not h it2t to call me at 716-722-1004. Sincerely, Orlean I. Thompson, Ph. D. Senior Environmental Scientist cc: Marilyn Goode Michael Petniska Co,’porw2 environm uw HeabJi, Safety, and roiwuant Eadman Kodak Company, Rod’ , New Yo,k 14652-6279 ------- FILE COPY II eo ST 4 ., Tj UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ______ WASHINGTON. D.C. 20460 $ AUS 41995 9441.1995 (26) OFFICE OF SCUD WASTE AND EMERCE’ .CY RESPONSE Ms. Orlean Thompson Senior Environmental Scientist Corporate Enviro imenta1 Services Health, Safety and Environment Eastman Kodak Company Rochester, New York 14652-6279 Dear Ms. Thompson: This is in response to your May 3rd letter to Stephen Bergman of my staff. Both he and. Marilyn Goode found the tour that you arranged of the photographic processing facilities at the National Geographic Society to be quite informative. Based upon past conversations that we have had with you and your attorneys, it appears that it would be useful for me to clarify our policy regarding the regulatory status under the Resource Conservation and Recovery Act (RCRA) of silver recovery units used in photo processing. - A silver recovery unit used. to treat photo processing wastewater that exhibits a characteristic is considered to be a characteristic sludge (regardless of whether the sludge is produced as a result of required wastewater treatment) and, as such, is not subject to RCRA regulations when sent for reclamation. A characteristic sludge being reclaimed is not considered a solid waste, according to the provisions of 40 CFR §261.2(c) (3) Again, thank you for arranging for my staff to visit a silver recovery operation and for your continued efforts to get us the materials that we needed to-make an informed determination. If you have any further questions, please contact Stephen Bergman at (202) 260-5944 or Marilyn Goode at (202) 260- 6299. Sincerely, bL Michael Petruska, Chief I Regulatory Development Branch RcycId/RecyctabIe ’ P,In d with SoyiCinoi. Ink on cor n. g I *t 50% lICycId flb ------- FILE COPY ,cD Sr 4 . . 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 1 L O1 ’ AUG 16 1935 9441.1995 (27) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. J. M. Stoneburner Environmental Compliance Coordinator DuPont Medical Products P.O. Box 6101 Newark, DE 19714—6101 Dear Mr. Stoneburner: This is in response to your August 4th letter to Michael Shapiro regarding a July 16, 1990 determinatiOn by EPA that used fixer generated as part of your photographic film developing process is a spent material and therefore subject to the definition of solid waste when being reclaimed. In your letter you request’ EPA concurrence that the used fixer is a “by-product” and therefore not subject to the definition of solid waste when being reclaimed. Having reviewed the materials you sent to us, we continue to stand by our 1990 determination that the used fixer is a spent material. I have enclosed a recent letter to c i Corporation that addresses a situation similar to yours. I have also enclosed a copy of a March 24, 1994 memo from the Director of the Office of Solid Waste that provides •a detailed explanation of the definition of spent material. I noted your concern that current classifications and regulations are discouraging silver recovery. I would like to understand better why that is, and what EPA might be able to do to address the issue, because we are very interested in removing barriers to environmentally sound recycling. At this time, we are actively working on revisions to the Definition of Solid Waste; the enclosed Program Plan gives an overview of the project. We are also considering a request by the Silver Coalition to remove silver from the TC. If you would like to discuss this in greater detail in person, we would be happy to meet with you. To set up a meeting, pl ease call Stephen Bergman of my staff at (202) 260—5944. Sincerely, Michael etruska, Chief Regulatory Development Branch Enclosures Q Y RecycledlRecyClable Q PftI% d WIth Soy!CaflOla Ink on paper u si eantaffis it least 50% iecycted fiber ------- DuPont M thtaI Pr d t Sla590w.3uslness Community P.O Box6Wl B1PITUB Newark. DuPont Medical Products August 4, 1995 Michael H. Shapiro. Director Office of Solid Waste U.S. Environmental Protection Agency 401 MStreet,SW - Washington. DC 20460 Dear Mr. Shapiro: In our April 5. 1990 letter (copy attached), we asked for concurrence from EPA that the used fixer g?nerated by the photographic film developing process was o ‘by-product. In EPAs letter (copy attached) doted July 16, 1990, you concluded that the used photographic fixer solution meets the definition of a spent material even thoL’ h it may still hove enough ammonium thiosulfote to function effectively as a fixer. This conclusion was based on the belief that the used fixer was being removed from the process os a result of contamination. To the contrary, the used fixer is not removed because it is contaminated, but because some of the original active ingredients ore depleted. In order to adequately fix the film. a certain balance of chemicals must be maintained in the fixer bath. When new chemicals are added to maintain this balance. some of the fixer overflows and this overflow becomes the used fixer. Unfortunately, our original letter may have led to this misinterpretation due to our mention of spenr material. We used the analogy that of • a strength less than 135g/l, the solutions could be regarded as spent in much the same way that a used cleaning solvent Would be regarded as spent even though it has some efficacy, if it could no longer achieve the same degree of cleanliness as could be obtained with virgin mofenol. We were attempting to argue that the overflow fixer solution was still capable of performing the purpose for which it was manufactured. In no way did we intend to imply that the used fixer was contaminated. At lower concentrations of active ingredients the fixer could not serve the purpose for which it was manufactured: but at the concentration level where it is removed from the processor, it can serve the purpose for which it is - manufactured. ? ------- 2 Even though we did not agree with the original EPA classification, we have (with diffiCUltY) developed our market within the regulatory restrictions imposed by this ‘spent material’ classification. Unfortunately, these regulatory barriers ore limiting wide spread and rapid expansion of this environmentally friendly and potentially cost effective approach to photographic processing. Many small customers continue to discharge waste to the drain rather than selecting a recycling option because they do not want to enter the hazardous waste regulatory system. Also, many large companies do not select a recycling option and continue to discharge to the drain because they do not want to move up to large quantity generators. Common Sefl5e says that the intention of the regulations is to encourage recycling versus disposal. However, the ‘spent material’ classification encourages (if not requires) disposal rather than recycling. In the attachments to this letter, we have discussed all of the relevant aspects of this issue including the regulatory barriers, a detailed explanation of the photographic process. the DuCore® recycling program. the generation of the used fixer effluent stream, and our reasoning in support of a ‘by-product’ designation. A change from a ‘spent material’ to a ‘by-product’ classification can only have a positive affect on the environment. There is no negative. Currently, many photo processing concerns remain outside the RCRA regulations by sending their used fixer to PO1Ws. At worst, under a ‘by-product’ c assificotiofl, they will continue to send used fixer to POIW5. At best, they will recycle .the fixer and eliminate tons of effluent from the environment. We feel that a re-examination of this issue is appropriate considering the potential benefits to the environment. If you concur with oui interpretation, tons of effluent will be eliminated from the environment without complicated and time-consuming paperwork as more printing companies select DuCare® as an option. I will contact you soon to request a meeting to discuss this issue. Very truly yours, J. M. Stoneburner Environmental Compliance Coordinator Enclosures ------- This Page Intentionally Left Blank ------- UNITED STATES ENV RONMENTAL PROTECTION AGENCY August24, 1995 9441.1995(28) Ann M. Dolan Manager, Environmental, Health & Safety Ansell Perry Inc. 1875 Harsh Avenue S.E. P. 0. Box 550 Massillon, Ohio 44648-0550 Dear Ms. Dolan: I am writing in response to your letter of August 10, 1995 which requests an interpretation of the recently effective Carbamate Listing Determination (60 FR 7824, February 9. 1995) as it relates to the latex process wastes generated by your company. From your letter, we understand that Ansell Perry, Inc. uses a dithiocarbamate product (ethyl ziinate) in the formulation of latex mixtures for the production of surgical and specialty gloves as a reactant to vulcanize latex. You said you believed that your manufacturing process wastes are not regulated under the carbainate final rule. You also indicated that your company believed you do not meet the definition of a discarded commercial chemical product because ethyl zimate is not the sole active ingredient in the product. You suggested that the P and U waste codes do not refer to manufacturing process wastes that contain these substances. In response, I note that wastes to be identified as K161 are limited to the production of dithiocarbamate acids and their salts. Ansell Perry Inc. is not a producer of wastes from the production of dithiocarbamate chemicals, and, therefore, the wastes produced in your process would not meet the K161 hazardous waste description. Regarding your second point, any residue remaining in a container or in an inner liner removed from a container that has held any commercial chemical product or manufacturing chemical intermediate having the generic name listed in 40 CFR 261.33(e) or (f) is a hazardous waste if and when such a residue is discarded or intended to be discarded, unless the container is empty as defined in 40 CFR 261.7(b). Ethyl zimate is chemically bis(diethylcarbamOdithiatoS,S’) .Zinc (CASRN 14324-55-1) and is designated as U407 under 40 CFR 261.33 (f). effective August 9, 1995 (60 FR 7854). The Agency also understands Thu document has been retyped from ongina! ------- that ethyl zimate is not the sole active ingredient in the formulation and is not the sole active ingredient in the fmal product. Therefore, such latex process wastes would not be U407 because the ethyl zimate was used as a reactant and not as asoIe-a ycju vdiei izrthe formulation or in the final product. Thank you for your inquiry. If you have any further questions, please contact Jobn Austin at (202) 260-4789. Sincerely, David Bussard Director Characterization and Assessment Division Thu documera has seen retyped from ortg nai ------- Anseil pei r C , 1 b7 w( . (M AuguSt 10, 1995 Mr. Michael H. Shapiro Director. Office of Solid Waste 401 M Street SW Washington. DC 20460 RE: RCRA Carbamate Final Rule 40 CFR Parts 261, 271 and 302 Dear Mr. Shapiro: Ansell Perry, Inc. manufactures latex surgical and specialty gloves. We use dithiocarbamateS in formulating our latex mixtures. Ethyl zimate, a dithiocarbamate. is used to control the vulcanization process. We believe that our manufacturing process wastes are not regulated upon review of the Final Rule. We request your interpretation as it relates to our specific waste streams. Upon review of Per 40 CFR 261.33, we do not feel we meet the definition of a discarded commercial chemical products. and off specification species. The use of ethyl zimate in the compounding process chemically reacts to vulcanize latex. Ethyl zimate is not the sole active ingredient in the formulation and is not the sole active ingredient in the final product. Additionally, we interpret that the listed P&U waste codes do not refer to manufacture process wastes that contain these substances. We will manage the raw materials received at our facility as hazardous substances defined by CERCLA and SARA guidelines and meet all reporting and spill requirements. We look forward to your written response and interpretation of the application of this final rule. Ansell Perry. Inc. is committed to ensure compliance with all RCRA and environmental regulations. We appreciate the time and effort you and your associates will extend to this request. Respectfully submitted. AN L PERRY INC. / Ann M.Dotafl - Manager, Environmental, Health & Safety - ‘i)—\i(’ . -. AMD/ad - - - - - —-- --— —- -- -- - - Ansell Perry ric. • 1875 Harsh Avenue S.E. • P.O. Bo 550’ Massillon. Ohio 44648.0550 ‘U.S.A. ------- This Page Intentionally Left Blank ------- HOTLINE QUESTIONS AND ANSWERS August 1995 RCRA 1. Purpose and Applicability of Speculative Accumulation Provision RCRA regulates secondary materials that are defined as solid wastes when recycled. Whether or nor a given material meets the definition of solid waste when recycled dependr primarily on how the material is categorized (e.g., spent material, sludge, commercial chemical product) and the means. of recycling (e.g.. burning for energy recovery, reclamation, use or reuse). The RCRA Subtitle C regulations also indicate that materials which are “accumulated speculatively” prior to recycling are solid wastes (12612(cX4)). Whans the purpose of this speculative accithudadon provision? To which materials does the provision apply? EPA created the speculative accumulation provision to mitigate the risk posed by facilities that overaccumulate hazardous secondary materials prior to recycling. The provision serves as a safety net, preventing recyclable materials that are flO! otherwise regulated under RCRA from being stored indefinitely and potentially causing environmental d2rn2ge. EPA subjects persons who “accumulate speculatively” (i.e., persons who fail to recycle a sufficient percentage of a recyclable material during the calendar year or fail to demonstrate that a feasible means of recycling exists) to immediate regulation as hazardous waste generators or storage facilities. (50 R 1 614, 650; January 4, 1.985). The speculative accumulation provision generally applies to secondary materials that are not solid wastes when recycled ( 26l.l(c)(8), 261.2(c)(4), and 261.2(e)(2)çüi)). In other words, certain secondary materials that are otherwise excluded from the definition of solid waste become regulated as solid and hazardbus waste if accumulated speculatively. Among the materials subject to this provision are: • Materials that are not solid wastes when recycled according to §261.2(e), including materials used or reused in an industrial process to make a product; used or reused as effective substitutes for commercial products; or returned to the original process froth which they are generated, without first being reclaimed • Materials that are not solid wastes when reclaimed according to §26L2, Table 1, such as by-products and sludges which exhibit a characteristic of hazardous waste Materials identified under §2614(a) as exempt from the definition of solid waste when reclaimed, including pulping liquors that are reclaimed in a pulping liquor recovery furnace and then reused in the pulping process ( 261.4(a)(6)) and spent sulfuric acid used to produce virgin sulfuric acid ( 261.4(aX7)). The speculative accumulation provision generally does not apply to materials that are defined as solid waste when recycled. Speculative accumulation is thus not a factor 9441.1995(29) ------- in determining the regulatory status of spent materials that are being reclaimed, secondaiy materials burned for energy recovery, materials used in a manner constituting disposal, or scrap metal (50 f 614,635),. Since EPA already exerts the appropriate level of regulatory control over these solid wastes 1 as provided under §26 1.6 and Part 266, the safety net provided by the speculative accumulation provision is not needed. There are two exceptions to the rule that speculative accumulation applies to all materials that axe not solid wastes when recycled and does not apply to materials that are solid wastes when recycled. Commercial chemical products are not solid wastes when reclaimed ( 261.2, Table 1), or when they are burned for energy recovery or used in a manner constituting disposal if that is their normal manner of use ( 261.2(c)(l)(ii) and. 261.2(c)(2)(il)). Commercial chemical products are not, however, subject to the speculative accumulation provision. EPA has. not placed any time constraint on the accumulation of commercial chemical products prior to reclamation (50 EB 1 614,636). In addition, precious metal-containing materials. are defined as solid wastes when recycled but are also subject to accumulation restrictions. If accumulated speculatively prior to rec1am tion, precious metals become subject to fuli RCRA regulation, rather than the reduced standards of Part 266, Subpart F ( 266.70(d)). ------- FILE COPY .#“° S74; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 1 L OI ’ SEP13 1995 9441.1995 (30) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Ms. Patricia A. Tucker Gobe Enterprises 49 Essex Court Meriden, CT 06450 Dear Ms. Tucker: - This s in response to your August 7, 1995 letter regarding IVO International’s desire to “import and sell a new chemical within the United States.” In your letter OU asked us to clarify whether the chemical, Potassium HexacyaflOCoba1t _Fe ate U once used as part of operations at a Department of Energy nuclear plant or test site, and therefore “spent”, would be considered a “mixed waste” under the Resource Conservation and Recovery Act (RCR.A). We consider any mixture of RcRA -regulated hazardous waste and radioactive materials to be a mixed waste. Unfortunately your letter does not provide sufficient information for us to determine whether or not the spent material would be hazardous as defined by RCRA, and therefore a mixed waste. A solid waste is considered hazardous if it is either listed or fails one of the four “characteristics” (see 40 CFR Part 261, Subpart C), and assuming it has not been otherwise excluded from the definition of hazardous waste. In your letter you indicated that the spent chemical is not listed and does not fail the either the ignitabilitY or corrosiv3 .tY characteristics However, you did not adequatelY address the other two characteristics, toxicity and reactivity. According to 40 CFR §262.11, it is the responsibility of the waste generator to determine whether or not a waste is hazardous. In order to do this, ivo international will need to determine whether or not the spent material fails either of the other chacteristics and is therefore hazardous (and a mixed waste if radioactive). If you have further questions concerning mixed waste, please contact Nancy Hunt at (703) 308-8762. If you have questions regarding hazardous waste characteristics, please contact John Austin at (202) 260—4789. Sincerely, . . Michael petruska, Chief RegulatorY Development Branch Q ’ Recycled/Recyclable Q Pifttted wtlh SoyFCanOla Ink on DaDe’ tna l cOfihaIfl$ SI l e aSt 50% recycled fiber ------- - < p c •I 2 E PATRICIA A. TUCKER ‘L P - 608E ENTERPRISES I -‘ 49ESSEXCOURT.. - , MERIDEN, CT 06450 - - - TEL - (203) 235 7638 FAX - (203) 237 1855 August 7, 1995 Office of Solid Waste U.S.E.P.A. 401 M Strect, SW Washington, DC 20460 Dear Sirs: I represent a Finnich company nnmed IVO InternationaL We axe nn mpting to d sell a - . 4 inica lmthjn the United States. We have been nck d by some of our pot nti I custoniai a nfT • “ ‘ your office’s classification of this chemical, and we therefore respectlWly request a written confirmation as to your findings based on the data and questions presented below. Chemical Name: Potassium Hexacyanocobajt(IJ) - Fenate(lJ). CAS Number: 12549-23-4 Ignitabiity: Decomposition at 250 deg. CeIsius Corrosiveness: Non-corrosive solid Toxicity: Should not be swallowed. Wash if contact with skin. Reactivity: Should not be heated wiih strong mineral acids (not normally found at site for use of this chemical). MSDS Sheet: Attached TOSCA Status: Currently preparing LVE of PMN. Typical Customers: Nuclear Power Plants and the U. S.D.O.E. Expected Use: During the normal operation of nuclear plants and test sites controlled by thc D.O.E., there is a sighiflc ig build-up of thc fission products, Cs-134 and Cs-137 c ithin the woic; system. Potassium Hexac nocobalt(IJ)Fer t ) is an insoluble, granular themical which will be used as an ion exchange media (within stainless steel co1umn ) to puri r this irradiated water. It will selectively remove Cs isotopes from the water, exeh2ngiflg pI cc.tim ions in their place Purified water can then be released to the environment and the spent ch int t wmdd then be buried in approved radioactive burial sites. Our customer’s questions revolve around the Resource Conservation and Recovezy Act and ) whether the spent chemical would be considered a TM znixed waste” (waste regulated under RCRA and the / Atomic Energy Act). We are under the impression that our spent chemical is not specifically named f under RCRA and that it would not be regulated under RCRA due to clasLcificalions such as ignitablity or corrosiveness. If the product is not regulated by the EPA tinder RCRA, it would not be considered a mixed waste when the spent media contains radioactive Cs. ------- Please confirm in writing, at your earliest convenience, that our understanding of your rules are correct, and that your office u1d not consider spent Potassium Hexacyanocobalt(U)-Fcrrale(II) a mixed waste. We appreciate your time in attending to our request Sincerely, I - Patricia Tucker ------- 88187/95 11:48 283 e 9 TIE VALLEY e • ipc PAcE ei MATERIAL SAFETY DATA SHEET IDENTflY - CESIUM SELECflVE ION COIAN (1VO..C5TI t) P i(4). S!CflflN I - 1VO U’ITERNATIONAL PU*ThU NU EAR WA 1B TECLL !Z% 4CY PHONE NUMBER (203) 94 1954 $71 EThAN AU HIC 1WAY TEL 4E NUMBER PQRDWORMATION RJD , Cr o n -(203) $ 1954 TEQINIcAL& EMER ICY CONFACF DATA PR ARED - ) . JUKKA RAIY AKALLIO Maith 7,1995 UCflON II. HAZARDOTJS 1NGRRDTKN’L’S ImEpnTr, IPJPflRMA’rIflN D ( ED 1ENT CAS NUMBER POTASSIUM ACYANOCOeALTØJ). FERRATE(fl) 12549- -4 SECrIOPt III - PHYSICAL /CHDIICAL CII# iA iwu j i s BOiliNG POW! SPECIFIC CffiAV JY DECCRJIPOZflON AT 250 d . C 2.8 VA PRESSURE (nm Hg) TINGPO]!lr NO VAPOR DENSITY (AiR i) EVA JR ON RATh ( U YL ACETATE NONE —1) N SOUJBL FY fl4 WA1 MPEARMICE AND ODOR INSOLUBLE SC DARK MOWN L ------- 88/87/95 11:48 283 02% T)€ VALLEY • • INC 02 MATERIAL SAFETY DATA SHEET WENTLTY - CESIUM ECflVE ION EXaIAN R (IVO fl 1) P.ge2(4) ? 1 ’ bN 1V — ON UA7AP.D 1 A’PA - NASH PONT NONE B ff NONE EXrNGT.I1SHINO MWXA WATER, CHEMICAL FOAM, DRY CI UCALS SPECIAL FIRE FIC3HTINGPROC )UEES NONE UNUSUAL F E HAZARDS NONE SECTION V - REACI’IVTI’V DATA STABILT1Y CC4 1DIflONS TO AVOID DO NOT HEAT WITh STRONG MR AL STABLE INCOMPATABIIITY (MATERIALS TO AVOID) HOT, CONC 41PA1 I ffl AL ACIDS HAZARDOUS WOS ON ( BYPRODUCTS HYDROGEN CYM E MAY EVOLVE (INCOMPATABIIITY) - NOT HAXABDOUS PCLYME 2AflON (X [ IND1TIONS TO AVOID WILL OCCUR INNO MAL CI’ERAT [ ON NONE ------- 88/87/95 11:48 283 0296 T).E V LL.EV Q• INC PA 83 MATERIAL SAFElY DATh SHEET Th TflV - CESIUM SWflVE ION CQ1AN( ft UVO ) SWTN N yz - PfAPAPfl flATA ———--. ROUTES OF iFRY: Th RALATION? SUN? INCESTX! I? POSSfflI.E ADSOR fl O N Nor liKELY HEALIU HAZARDS: HARMFUL. IF SWAU.OW D INNAL ) (IXJSI ) HARMFUL IF CC ZFACT wmi SKIN - INHALATION OR SKIN CONTACr MAY CAUSE IRRIrAnCN CARaNO NrrY: NOT KNOWN &ON8 AND 3Yh TOM5 OP OSURC. TATION AND I T ERA’lTON (SIQN) WR AT N LA MEDICAL CONDITIONS AILY AGQIAVA’lw) BY OSURE NOT OWN EM NCy AND F ST AID PROCEDURES: U.IHAL&TION - IF IRRT AflON OCCURS MDVE SUBJECf TO FRESH A SKIN - WASH rm WM AND SOAP SWflOPt VII - PRECAIIflOfqS P SAFE R NDUNG AND USE STEPS TO BE TAK J IF RELEAE1) OR SPULIED SWEBP UP AN) WASH wrm WATER WASTE D(SPOSAL METIIOD BURY Thi AI ROVED LANIPUL PRECAUTIONS I HANDLING AND STORAGE: AVOID CONFAC WHflIE HANDLING, SIVRB fli000L DARK AREA OTi PRBCAITIION3: DO NOT HEAT wrni SThONG AL ACIDS ------- 89/87/95 i1 48 203 8296 T)E VQ..LEY g ‘INC PA 04 MATERIAL SAFETY DATA SHEET IDENTITY - CESIUM S ECflW iON EXQIANG (1vo.c rrcat) Pa 4(4) sI Cr1ON V I I I - CONI ” T RESPIRATORY PROTECI’ION DUST MASK PBOTDC I1VB VC3 RLJBB CLOVES EYE PROTECflON NOT NORMALLY REQUIRED VEN ON LOCAL EXHAMST: NOT REQUIRED OTHER PROTECnvE CLOThING AM) EQUIPMENT: NONE REQUIRED WORK I HYGIENIC PRACTiCES: WASH HANDS AprE_R HANDLING ------- This Page Intentionally Left Blank ------- FILE COPY ST •s UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY WASHINGTON, 0 C 20460 SEP 141995 9441 .1995 (31) c’ :z : SCL:C wAS a . - . RES?Ol.SE Mr. Patrick Wlodarczak GNB Battery Technologies 14500 Nelson Avenue P.O. Box 1567 City of Industry, CA 91749 Dear Mr. Wlodarczak: This is in response to your August 21, 1995 letter to David Bussard concerning the status of unused off-specification lead plates used in the production of lead-acid automotive batteries. . In your letter, you asked for EPA concurrence that the plates are not regulated as solid waste under RCRA because (a) the plates are off-specificatiofl commercial chemical products being reclaimed and (b) because the plates are scrap metal being recycled. - We concur with you on the first point. Because the material you describe is an off-specification commercial chemical product being reclaimed, it is not subject to the definition of solid waste. We further concur with your reading of the April 11, 1985 Federal Register (FR 50 14219). Although the material you describe is not a listed commercial chemical product, the status of non—listed commercial chemical products is the same as those listed under 40 CFR §261.33; “that is, they are not considered solid wastes when recycled except when they are recycled in ways that differ from their normal use” (FR 50 14219) This interpretation is accurate only if the materials you describe are unused. If they have been used prior to recycling, they are considered spent materials being reclaimed and are therefore regulated as solid waste under 40 CFR §261.2(c) (3). As for your second point, we are unable to concur with your assertion that the lead plates used in the production of lead-acid batteries meet the definition of scrap metal and are for that reason exempt from the definition of solid waste when recycled. If you have any additional questions, please contact Stephen Bergman of my staff at (202) 260—5944. Sincerely, Michael Petruska, Chief Regulatory Development Branch Q 7 Recycled/Recyclable & P mnt,d With SOYICW Oil Silk Oil DaDs, iai OOfllklllS St lIszt 50% rSCyClS tib e t ------- GNB BATTERY TECHNOLO-CIES - c 1 -. 1 ‘ August 21, 1995 Mr. David Bussard, Director Characterization and Assessment Division Office of Solid Waste U.S. Environmental Protection Agency 401 M Street, S.W. Washington. D.C. 20460 Re: Status Of Recycled. UnusecL Off-Specification Battery Plates Dear Mr. Bussard: I am writing this letter on behalf of GNB Technologies, Inc. (“GNB”) to seek yo confirmation of our position on the management of unused, off-specification lead battery plates. The GNB facility in the City of Industry, California makes lead plates which it uses in the manufacture of lead-acid automotive batteries. The lead plates are manufactured from lead ingots that are melted and formed into strips. The strips are expanded into a mesh and the mesh is coated with lead oxide paste. Occasionally, the plates are found to be off-specification because they become bent or misshaped in handling an. are returned to GNB’s nearby recycling facility for resmelting into ingots. For the reasons presented below, we believe that the unused, off- specification lead plates are not classified as RCR.A 1i ,2rdous wastes due to their status as recycled, non-listed commercial chemical products and recycled scrap metal. Non-Listed Commercial Chemical Products The unused, off-specification battery plates may be considered non-listed commercial products not subject to RCRA. Commercial chemical products listed in 40 CFR § 261.33 are not solid wastes when they are recycled by being reclaimed or when the) are accumulated speculatively before recycling by reclamation. See 40 CFR § 261.2., Table 1. Non- listed commercial chemical products also qualify for this exclusion. The April 1 1. 1985 Federal Register (50 Fed. Reg. 14219) preamble states: Although we did not directly address the non-listed commercial C\B B.itt r T hni I,. , chemical products in the rules, their status would be the same as Aute ’m ’ti B tter Di those listed in § 261.33. That is. they are not considered solid wastes P0 B I5t Cit r Indu—tr C A ‘ .. ISA TeIeph . rw I .Ls Fac .,mik I ‘I’.w .i 112921 A P . iri Duni,’r C*’mr ------- Mr. David Bussard, Director August 21. 1995 Page 2 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 § 261.33 and those that exhibit a characteristic of hazardous waste. We believe this point is implicit in the rules, as it is implicit inexisting § 26l.3 and 261.33. This position is reiterated in the March 1990 RCRA/Superfufld Industry Assistance and Emergency Planning and Community Right-to-Know Information Hotline Report that indicates that unused, off-specification printed circuit boards, when recycled, may be considered as listed commercial chemical products for the purposes of Table 1 in 40 CFR § 262.1. These circuit boards are much more heterogenous than battery plates. Further discussion of the regulatory status of recycled non- listed commercial chemical products also can be found in a February 23, 1993 letter from Ms. Sylvia Lowrance, U.S. EPA Office of Solid Waste to Mr. N.G. Kaul, New York State Department of Environmmntal Conservation. This letter makes it clear that the Agency interpretation of commercial chemical products includes materials that might not normally be considered as chemical products: Presently the Agency interprets “non-listed commercial chemical products” under RCRA to include all types of unused commercial products that exhibit a characteristic of hazardous waste, whether or not these products would commonly be considered chemicals (e.g., unused circuit boards, batteries, etc.). The unused. off-specification battery plates are unused commercial products and meet the definition of non-listed commercial chemical product. Scrap Metal In addition and alternatively, the unused, off-specification plates that meet the federal definition of scrap metal currently are excluded from federal ha22rdous waste classification if recycled. 40 CFR § 261 .6(a)(e)(ii) The federal definition of “scrap metal” is found in 40 CFR § 261.1(c)(6). “Scrap metal” is bits and pieces of metal parts ( g 1 , bars, turnings, rods, sheets, wire) or metal pieces that may be combined together with bolts or soldering (e.g. radiators, scrap automobiles, railroad box cards), which when worn or superfluous can be recycled. 11.2921 ------- Mr. David Bussard, Director August21, 1995 Page 3 Further guidance as the interpretation of this decision is provided by the January 4, 1985 preamble. Put another way, scrap metal is defined as products made of metal that become worn out (or are off-specification) and are recycled to recover their - metal content, or metal pieces that are generated from machinery operations (i.e., turnings, stampings, etc.) which are recycled to recover metal. 50 Fed. Reg. 614, 624 (Jan. 5, 1985) Scrap metal has been further defined in at least one U.S. EPA document to include only materials that are greater than 50% metal.’ The unused, off-specification battery plates consist entirely of metal with a tissue-like paper covering. The unused, off-specification battery plates are different in physical form than the drosses, slags, sludges, and liquids that are of concern to the U.S. EPA in its preamble discussion and are excluded from the scrap metal definition. Although we have not discovered a written -U.S. EPA position specific to unused. off-specification battery plates that are recycled, the Agency has provided guidance on similar recyclable materials. The U.S.EPA has determined that spent lead solder baths (“pot dumps”) meet the definition of scrap metal and are, therefore, exempt when reclaimed. 2 Pot dumps are similar to the unused, off-specification battery plates, in that they are almost entirely solid metals with a coating of oxidized metal at the surface. Solder drippings 3 (which have a larger surface area to March 1990 RCRAiSuperfiind Industry Assistance and Emergency Planning and Community Right-to-Know Information Hotilne Report . 2 Letter from Mr. Jeffrey D. Demt, U.S. EPA Office of Solid Waste to Mr. Jeffrey T. Miller of the Lead Industries Association. September20, 1993. April 29, 1993 letter from Ms. Sylvia K. Lowrance, U.S. EPA Office of Solid Waste to Mr. Kevin Tighe of Tighe, Mc lnroy & Corbett. U292 ------- Mr. David Bussard, Director August21, 1995 Page 4 weight ratio than pot dumps 4 ), lead foil from x-ray packaging 5 , and zinc bar, nickel plate, cadmium plate and steel scrap removed from spent alkaline batteries 6 , have also been classified by the U.S. EPA as scrap metal. Under federal law, scrap metal that exhibits a characteristic of hazardous waste currently is exempt from regulation as federal hazardous waste only if it is recycled. S 40 CFR 261 .6(a)(3)(iv) and 50 Fed. Reg. at 624 (Jan. 4, 1985). If a scrap metal is not recycled or if it is used in a manner constituting disposal, used for energy recovery or as a fuel, or accumulated speculatively, it is subject to the full range of federal hazardous waste regulations. S Table I in 40 CFR § 261.2. The unused, off-specification battery plates manufactured by GNB are not used in a manner constituting disposal, accumulated speculatively, or used for energy recovery. They are simply returned directly to the original smelter for resmelting. We believe that the unused, off-specification battery plates that are resmelted are not regulated as RCPA hazardous waste because they may be classified as recycled non-listed commercial chemical products and recycled scrap metal. Please let us know if our interpretation of the pertinent federal regUlations is correct. We understand that the status of the material under federal regulation may differ from state regulations. We look forward to your reply. If you have any questions about this matter, please call me at 818-937-2521 or, our attorney, Mr. Kelly McTigue at 213-623-2322. Sincerely, Patrick Wlodarczak GNB Incorporated A large surface area to weight ratio indicates a somewhat higher potential for leaching of hazardous constituents. The examples of types of materials that are excluded form the definition of scrap metal (drosses, slags, and sludges) have fairly high surface areas. April 29, 1995 letter from Ms. Sylvia K. Lowrance, U.S. EPA Office of Solid Waste to Mr. William Roger Truitt of Piper and Marbury. 6 October 29, 1986 letter from Mr. Man Strauss, U.S. EPA Waste Identification Branch to Mr. J. Mark Morford of Stoel, Rives, Boley, Fraser, and Wyse. U2921 ------- This Page Intentionally Left Blank ------- Sr UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY w WASHINGTON. D.C. 20460.. I G”. - SEP 5 L995. 9441.1995(32) Mr. Peter C. Wright Monsanto Company OFFICE OF 800 N. Lindbergh Boulevard SOUDWASTEANDEIIERGENCY st. Louis, Missouri 63167 RESPONSE Dear Mr. Wright, I am writing in response to your le terof January,3, 1995, in which you requested clarific tiofl of the RCRA “contained-in” policy. In your letter you asked several specific questions regarding this policy, and we offer our responses below. It should be understood that these responses reflect the Agency’s .current interpretation of the contained-in concept; in the Hazardous Waste Identification Rule for Contaminated Media (HWIR- media), currently under development, wewill be looking closely at the contained-in policy and other issues associated with contaminated media and will be addressing those issues through the rulemaking process. Question 1. Can a State determine whether or not soils which contained a listed hazardous waste, but were then treated to below health based concentrations, no longer contain the hazardous waste? The contained-in policy is intended to clarify the application of RCR.A hazardous waste regulations to environmental media. As stated in previous guidance on this policy, contaminated media are not considered solid wastes in the sense of being abandoned, recycled, or inherently waste-like as those terms are defined in RCRA regulations. However, environmental media that contain listed hazardous wastes must be managed as hazardous wastes because- -and only as long as- -they contain listed waste(s) 1 . EPA Regions and authorized states may apply the contained-in policy to determine èite-, media- and contaminant-specific levels, such that if the concentration of the hazardous constituents in the environmental media fall below these levels, the environmental media may be determined to no longer contain hazardous waste. Such “contained-in determinations” may be made before or after treatment of the contaminated environmental media and may include consideration of site-specific exposure pathways (e.g., potential for human exposure, soil permeability, depth to groundwater). June 19, 1989 letter from Jonathan Cannon, Acting Assistant Administrator of EPA’S Office of Solid Waste and Emergency Response to Thomas Jorling. Commissioner of the New York Department of Environmental Conservation. Q ) RecycIed RecyC1abIe Pdntsd wfth SoylCanOIa Ink on paper e t contlini at least 50% ,ecyclsd fiber ------- Question 2. Are soils that have been treated— via* th determined not to contain hazardous wastes still subject to the Land Dièposal Restrictions (LDRs) Universal Treatment Standards (VTS) prior to land dispolal? Yes. If contaminated environmental media are treated and then determined to no longer contain hazardous waste, the LDR treatment standards still must be complied with prior to land disposal. This means that the media would have to be treated to meet UTS or a treatability variance would have to be obtained 2 . Individuals who believe that the UTS are not appropriate for media containing solid waste are encouraged to work with their State regulatory agency and the appropriate EPA Regional Office to obtain a site-specific treatability variance under 40 CFR §268 .44(h). EPA’ a policy is that site specific treatability variances ar presumed to be appropriate for contamir nted media. See 55 FR 8760 (March 8, 1990) For more information -on site specific treatability variances granted in the context of environmental cleanup, please refer to the Superfund. LDR Guides Numbered 6A and 6B, entitled, Obtaining a Soil and Debris Treatability Variance for Remedial Actions and Obtaining a Solid and Debris Treatabi lity Variance for Removal Actions, respectively. For your convenience, copies of these guidance documents are enclosed. Of course, ifno land disposal will occur, the LDR treatment standards do not apply. Additionally, contaminated environmental media determined not to contain any waste (i.e., it’s just media), would not be subject to any RCRA Subtitle C requirement, including the LDRs. - - Question 3. If groundwater that originally exhibited a hazardou, characteristic is subsequently treated to below a State-deter’ft4 ed contained-in level, would the ground water still be subject to the VTS requirement, prior to land disposal? Yes. Once the LDR treatment standards attach to characteristic wastes, even if the characteristic is eliminated, the media remain subject to any applicable LDR treatment standards that have not been met through removal of the Nothing in this letter is intended to affect the status of existing regulatory or statutory exclusions to the d finitian of solid or hazardous waste. Such provisions can prevent the duty to c ly mith LDRB from attaching in the first instance. , , RCRA 5 1004(27) (exempting industrial point source discharges subject to clean Water Act permits from the definition of solid waste). In addition, the Agency does not intend in this letter to. expand the scope of activities that constitute land disposal and thus trigger LDR treatment requirements. For example, the Agency’s positions that in situ treatment and movement of contaminated media within an area of cont i’ tion do not constitute land disposal remain unaffected. Similarly, this letter is not intended to affect any statutory or regulatory exclusions to the requirement to comply with LDRs e.g. , RCRA 5 3020(b)). 2 ------- characteriStiC. As indicated in the Third Third decision, Chemical Waste Management V. U.S. EPA, 976 F.2d 2 (D.C. Cir. 1992), cert. denied , 1135 S.Ct 1961 (1993), elimination of. the characteristic does not necessarily satisfy- LDR requirements. If groundwater that exhibits a characteristic is- -treated prior to • land disposal, it must be treated in accordance -with applicable LDR treatment standards or pursuant to a treatability variance to meet LDR requirements. As.diScus sed in our response to question 2, individualS who believe that the UTS are no appropriate to their contaminated media are encouraged to apply for a site specific treatabilitY variance. - - - Of course, if no land disposal will occur, the-LDR treatment standards do not apply.. Additionally, ground water managed in accordance with one of the existing statutory or regulatory exclusions may not be 0 ubject to the LDR treatment standards even when land disposal will -occur. For example, under RCRA § - -3020 (b), contaminated groundwater may be treated in accordance with a cleanup action and then reinjected into the aquifer from which it was withdrawnwithOUt meeting LDR treatment standards, provided the treatment substantially reduces the hazardous constituents prior to reinjection and the cleanup action will, upon completion, be sufficient to protect human health and the environment. - Question 4. M y a State that is authorized only for the base RCRA program make contained-in determinations, or does the State need to be authorized for the LDR5 as well? In order to make contained-in detexminatiOfls, a State must only be authorized for the part of the base program under which the waste of concern is identified as hazardous. For example, when determining whether or not a medium contains a particular characteristic waste, the State must be authorized for that characteristic. In the same manner, if the State wishes to determine whether or not a medium contains a particular listed waste, that State must be authorized for that particular waste listing. In regard to the two sites described in your letter, both Massachusetts and Texas are authorized for the base program under -which the wastes you mentioned are identified as hazardous, and may, at their discretion, make the contained-in - determinations you depcribed. Question 5. Do contained-in determinations needed to be made under a RCRA permit, or can another mechanism be used? Authorized states and EPA regions may use any format or mechanism to document contained-in determinations. These mechanisms could include official agency correspondence, orders, and RCRA permits. We hope this will be of assistance to you in applying the 3 ------- contained-in policy. If you have any further qUestions,. please contact Elizabeth McManus, of my staff, at (703) 308-8657. In. addition, please note that authorized states have their own. regulations and policies which may be n re strin th f L- i- . regulations and policies. In authorized states, questions about application of the contained-in policy, including the interpretations put forth in this letter, should be referred to the appropriate state agency. In Texas, please contact Paul Lewis of the Texas Natural Resources Conservation Commission at (512) 239-2340; in Massachusetts, please contact John Carrigan of the Massachusetts Department of Environmental Protection at (617) 292-5584. Sincereiy, - Michael Shapiro Director, Office of Solid Waste Enclosure CC: Matt Hale, OSW, PSPD David Bussard, OSW, CAD Jim Ber].ow, OSW, W!VD Larry Starfield, OGC Dawn Messier, OGC Barbara , OGC - Bruce Diamond, OECA, OSRE US EPA Regional RCRA Branch Chiefs, Regions I - X John Carrigan, State of Massachusetts Susan Ferguson, State of Texas 4 ------- dr4;; , ,‘ 1,°’) Monsanto Monsanto Company 800 N. Undbergh 8ou evard St. LOu is. Missotin 63167 Phone: (314)694 -1000 Pnsa C. W GHT . . ENVmCIsaB(TAL Ano y (3141694 -8509 January 3, 1995 : ‘ Mr. Michael Shapiro . - United States Environmental Protection Agency ___ . . - -- Office of Solid Waste and Emergency Response ( .ti5 401 M Street, S.W. Washington, D.C. 20460 Re: Clarification of the Contained In Rule Dear Mr. Shapiro: This letter addresses an urgent issue that arises with the December 19 effective date of he Phase I I Land Disposal Restriction (LDR) rule. Your immediate attention and response is requested in order to avoid delay of planned remedial work that has been developed in concert with state authorities. Monsanto Company has two plant sites that are planning to engage in remedjation activities in the near term, which require confirmation of. Monsanto’s understanding of the operation of the Contained in rule. More specifically, as will be described in detail below, these two sites have planned to implement remedial measures that will remove hazardous waste constituents from affected environmental media so that it is Monsanto’s understanding (and that of the two RCRA authorized States) that the treated media wtfl no longer contain” a hazardous waste. The treated environmental media will likely contain traces of hazardous constituents after treatment, at concentrations below health based concentration limits established by the two states. We understand that once the media no longer Contains the listed waste (as determined by the State agency) it no longer must be managed as a hazardous waste, i.e. subtitle C no longer applies and the media may be placed on the land without regard to the Land Disposal Restrictions Universal Treatment Standards (UTS). Do you concur? We also understand that a State authorized for the base program is empowered to make the contained-in determination Without regard to the State’s authorization status for the LDR program. Do you Concur? L .Aj - \ . ------- Overview of the Sites and Remediation Projects The first. plant site is located in Everett, Massachusetts, just north óf.the City of. Boston. This long time chemical manufacturing facility was c 1 osedin No eniber. 1992. Currently, the Everett site has been proceeding under the authority of the Massachusetts Contingency Plan (MCP) with proposed remediation schedUled for completion in. 1997. In order for the Everett site to proceed on its cleanup schedule, the Agency’s interpretation of the contained inruleis.important, particularly as the site is currently under a Puróhase and Sale Agreement for development as a shopping center with construction scheduled to begin in 1997. This development is critical to the local community because the shopping center will bea major element of Everett’s tax base and asignificànt source of employment in the city. Due to historic manufacturing operations, areas of the plant site haveben Contaminated with bis 2-ethyl hexyl phthalate (BEHP), haphtha lene and phthalic anhydride still bottoms, materials which carry the RCRA hazardous waste codes U028, U165 and K024, respectively. Concentrations as high as 10,000 mg/kg of BEHP, 30,000 mg/kg of naphthalene, and 60,000 sng/kg of phthalic acid have been detected in soil samples collected at the site The remediation plan that has been under development would involve the separation of some discreet waste materials, treatment of some soil in place, and excavation andtreatment of some soil from hotspot areas with subsequent reuse of the treated soil on-site as backfill. These treatment methods would significantly reduce the concentration of hazardous constituents remaining in the soils. The Everett Plant has held discussions with the Massachusetts Department of Environmental Protection (DEP’s) Bureau of Waste Prevention regarding the impact of RCRA regulations on the planned remediation strategy and has assumed that once the soil was remedjated to meet health-based concentrations levels established by Massachusetts (a RCRA authorized state), that the sOil no longer would contain hazardous waste and could be beneficially reused as backfill on-site with no further RCRA restrictions. The planned remediation strategy would satisfy the Massachusetts Bureau of Waste Site Cleanup Program requirements to achieve a Permanent Solution, addressing potential risks to human health and the environment and eliminate the potential for constituent migration. Attached is a copy ofa DEP policy memorandum dated March 4. 1994 and a letter issued on the same date describing DEP’s understanding of how it will apply the contained in rule to a particular remediation project. The other Monsanto site is the Chocolate Bayou plant, located near Alvin, Texas. This is a large diversified chemical manufacturing site that has a RCRA permit, which includes a corrective action component that is administered by the Texas Natural Resource Conservation Commission (TNRCC). Texas is authorized for RCRA corrective action. The particular remediation project at issue, a program to pump, treat and reinject groundwater that has been contaminated by benzene, phenol and acetone, is not being conducted under RCRA permit, but rather these 2 ------- actions are being undertakeh proactively by Monsanto in consultation with thö TNRCC. The plant applied for and has received a groundwater class V reinjection permit from TNRCC for this remedial project. The groundwater at the point it is brought OUt OT me ground is characteristically hazardous for benzene. The groundwater exhibited measured levels of benzene, phenol and acetone as high as 62 mg/I, 6 mg/I and 6 mg/I, respectively without any treatment. The air stripping treatment system to be installed has been designed tO treat the groundwater so that the concentrations of bénzene. phenol and acetone are no higher than 0.001 mg/I, 6 mg/I, and 2mg/I respectively. This treatment of groundwater to these levels would mean thatall three contaminants would be below the Texas Risk Reduction Rule Standard 2 Residential levels of - 0.005 mg/I benzene, 21.9 mg/I phenolafld2.65 mg/I acetone. . The phenol and the acetone would exceed the technology Iincineratiófll based.UTS wastewater standards of 0.039 mg/I for phenol and 0.28 mgJl for. acetone. The phenol and the acetone are biodegradable organic chemicals and it is believed that the reinjection process will add oxygen to the affected groundwater. assisting in the biodegradation of the organic materials that are not removed by the treatment. Neither site has considered applying for a. Corrective Action Management Unit (CAMU). First, it was believed tO be unnecessary to employ a CAMU because of the plan to treat contaminated media to meet health based levels. . Second, the time, expense and effort on behalf of Monsanto and the state agencies to put in place the necessary RCRA permits and modifications makes the CAMU option not practical for a timely commencement of remediation activities. History of the Contained In Rule Monsanto’s understanding has been that treating affected environmental media to meet health based concentration levels that have been applied on a site specific basis by the respective authorized states would free the treated media from further RCRA regulation, including the application of any land disposal restrictions. Monsanto’s understanding is based on EPA discussions of the contained in rule. Monsanto’s understanding of EPA’s position on the “contained in rule is that it was an interpretative rule long before it was “codified” in rulemakings in the 1 990s. EPA has stated that this view of the contained in rule was supported by the 1989 Chemical Waste Management decision. Chemical Waste Management v. EPA , 869 F.2d 1526, 1538 ftnt. 15 (D.C. Cir. 1989). The contained in rule was first explained in a memorandum from Marcia Williams to Patrick Tobin dated November 13, 1986. That memorandum stated that “if groundwater is treated such that it no longer contains a hazardous waste, the groundwater would no longer be subject to regulation under Subtitle C of RCRA.” 3 ------- Subsequent memoranda and letters’ expanded on-the applicai ion of the contained in rule. These writings refined the concept that if contaminated environmental media was treated so that the levels of hazardous. Constituents that remained after treatment were below certain levels, which often have been-set-at health b a. ed levels, that EPA would consider that the affected media no longer “càntained” a hazardous waste and so no longer was subject to regulation under RCRA Subtitle C. Monsanto is not certain that the contained in rule applies to a situation like what exists at the Chocolate Bayou plant where there are no listed, but only characteristic wastes involved. Yet Monsanto can see no reason why an exit level appropriate for media contaminated with listed waste would not also apply to media contaminated with a characteristic waste. er aiso made it clear that an authorized RCRA state cou(ddötermjne;whett con :ined in levels could be. EPA guidanceto the states in making the contáinéd in determinations has stressed the need to make the contained in determination on a site-specific basis, in accordance with the general State or Federal guidelines, or. by means of a site specific risk assessment. It would appear that the Massachusetts regulations, 310 CMR 40.00 (the Massachusetts Contingency Plan) and the associated policy on the contained in rule and the TNRCC’s Risk Reduction Rules provide precisely the kind of the decision making framework EPA requires that an authorized RCRA state use for making the contained in rule decision. It is only a requirement for a state to be authorized for the basic RCRA program to be able to make contained in determination, and it is not necessary for the state to be authorized for all or parts of the land disposal program. The rulemakings “codifying” the contained in rule began with the reference in the Third Third rulemaking in which EPA “clarified” the treatment standards that would apply to soils that had been contaminated with listed waste. 53 Fed. Reg , 31138, 31142 (August 17, 1988). The contained in rule has been addressed in at least five other Federal Registe notices. 2 The most involved discussion and greatest reliance on the contained in rule is found in the Contaminated Debris rulemaking. In the proposed rulemaking, EPA stated that debris which had been Contaminated with hazardous .waste would “no longer be a prohibited waste or a hazardous waste if it achieves levels which debris no longer ‘contains’ hazardous waste.” 57 Fed. Reg at 982. EPA further explained that the levels would be that at which the potential threat to human health and the environment had been Sylvia K. Lowrance to Jeff Zeikinson, January 24, 1989; Jonathan Cannon to Thomas Jorling, June 19, 1989 (authorized states can make determination on what the appropriate health based lavsls are at which media no longer “Contains” a hazardous waste); Sylvia K. Lowrance to John Ely, March 20, 1991 (recommended that the state use a risk assessment approach to making contained in determinations) (The Massachuse letter cites additional letters). 56 Fed. Rep . 24456 (May11, 1991); 57 Fed. Rep . 958, 961 (January 9, 1992); 57 Fed. Rep . 37194 (August 18, 1992); 58 Fed. Rep . 48092, 48096 (September 1993) and 59 f , g 47982, 47986 (September 19, 1994). 4 ------- minimized. at 985. In the final rulemaking, EPA explained that treated contaminated debris would be considered to no longer contains a hazardous waste, if the debris were treated so as to achieve health based concentrations based on considerations of site hydrology and exposure pathways. EPA summarized the regulatory effect of providing treatment to these levels by stating that (djebris found not to contain hazardous waste (and not exhibiting-a - hazardous waste characteristic) would not be subject to further Subtitle C regulation, and so could be land disposed without further treatment.u 57 Fed. Reo ! , at 37226 (emphasis added). The contained in rule has also been discussed in context of the rulemaking proposing land disposal restriction standards for soil and in the final UTS rulemaking. EPA stated the primary function of a contained in deierminatlàfl has been to determine specific constituent concentrationS -at which the, media ‘t a specific site no longer ‘contained’ hazardous waste and thus woUld no longer be subject to the management standards for hazardous waste. - 58 Fed. Rea . at -48127. EPA’s discussion of -the contained in rule and its relationship to the - concept of minimized threat levels in these rulemakingS is unclear to us. Yet it appears to us that a contained in determination based on a site specific determination satisfies any requirement to achieve minimized threat levels. If this is not EPA’s position, then EPA has made a major change in policy for which no notice has been given, for which no rationale has been provided and which may mean that the work on the HWIR will be a complete waste of time. More to the point, if this interpretation about the affect of the contained in rule has changed it may bring to a halt the two remedial projects referenced above and undoubtedly countless other projects. In order to avoid delay and unnecessary additional expense in connection with approving bids from remediation contractors, we request a prompt response. Monsanto would also like an opportunity to meet with the Agency at the Agency’s convenience during January to address the matters raised in this letter. We look forward to the Agency’s urgent consideration and response on this important matter. 5 ------- cc: Barbara Pace, Esquire, EPA Office of General Counsel Steven Silverman, Esquire, EPA Richard Kinch, EPA Mr. Thomas Powers, Acting Commissioner Mr. John Carrigan. Mr. Brian Moran Commonwealth of Massachusetts Department of Environmental Protection One Winter Street Boston, Massachusetts 02108 Mr. Richard Chaplin Commonwealth of Massachusetts Department of Environmental Protection. 10 Commerce Way Woburn, Massachusetts 01801 Mr. Douglas Crist Mr. Tom Jecha Ms. Wendy Ruzacky Texas Natural Resource Conservation Commission P.O. Box 13087 Austin, Texas 78711-3087 Lowell Martin, Esquire, RCRA Corrective Action Project 6 ------- FILE COPY UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 OCT10 1 9441.1995 (33) OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE James A. Lively The TDJ Group, Inc. 760—K Industrial Drive Cary, Illinois 60013 Dear Mr. Lively: This letter is written to clarify a point regarding the applicability of RCRA to a foundry manufacturing duct system, as discussed in your August 4, 1995 letter summarizing our July 26, 1995 phone conversation. As stated in your letter and in our conversation, site-specific determinations of RCRA applicability are made by the appropriate State regulatory agency. As you state in your letter, it is correct that, in ge’ eral, a material is not considered a solid waste until it is collected in a baghouse or electrostatic precipitator. However, for point of clarification, I should note that this assumes that the material in question (e.g., baghouse dust) results from a production unit, i.e., that the baghouse dust is derived from materials that are not themselves wastes. In such a situation, determining the applicability of RCRA would generally be made when the material is removed from the baghouse. However, should the material in the baghouse result from the treatment or other management of a material already determined to be a solid waste, the question of RCRA applicability to the particulate matter will have already been determined because the particulate matter is derived from a solid/hazardous waste and the duct system is, in effect, a part of a waste management process. Therefore, to correctly ascertain the applicability of RCRA to the process of injecting a chemical additive in a foundry duct system, it is important to know the regulatory status of the materials going into the duct system. While such a distinction has little impact in manufacturing duct systems in general, it may be an important distinction in specific cases. Again, I strongly encourage you to seek a site—specific determination from the State regulatory agency or appropriate EPA Regional office. QJ! R.cyc*edlRecyc abIe & PItI I.d wnn SoyIcWlOI. mk on paper that oontWi issat 50% recycled fiber ------- 2 Thank you for your interest in making the appropriate regulatory determinations under RCRA. ______ ____ questions concerning this , pleu 1eel tree to c ta t me at (202) 260—8551. Mitch Kidwe].l Environmental Protection Specialist Generator and Recycling Branch ------- e8—04-1995 4:2jPp1 FROM ThE TDJ OI.P, INC TO i2ø22Gø9355 P.22 THE TDJ GROUP, INC. 7 60-I C It STEIM. DRIVE • C , IL lINO iS 60013 • 7084394113 • PAX 708-639-0499 August 4, 1995 Mitch Kidwell US EPA 0 5W, Regulatory Deve1opm t Division (5304) 401 M Street Southwest Washington, D.C. 20460 Dear Mx. Kidwell: I am writing this letter in response to our phone conversation pn the morning of July 26, 1995. First I would like to thank you f or your cooperation in discussing the sometimes confusing issue involving the point of generation of a waste in a foundry manufacturing duct system; your input is greatly appreciated. Secondly, I would like to take this opportunity to confirm some of the information that we discussed so that we are clear that the information was not misinterpreted and will not be misrepresented in our future discu siOfls with state agencies. • Dpi rant, you were quite clear that appropriate state regulatory bodies should be making their own decisions but that you would be willing to assist them in this capacity if they so desired. In our discussion, I asked where is the point of generation of a waste in a foundry duct system. Your response was that appropriate state authorities generally do not classify a material as a waste until it is collected in a baghouse or electrostatic precipitator. Further, I inquired about the process of injecting a chemical additive downstream from a gas conditioning tower (cooling tower), but. upstream frci a baghouse collector. Your opinion was that state authorities might consider the addition of chemical reagents i.diately proceeding cooling towers as an action that would not constitute treatments subject to RCR? permit requirements as long as no vents or exit’ ho les were present in the system downstream from the cooling tower. If we do not receive a response, we will assume that the inform tiOfl contained herein is correct. If you feel any of the above was incorrectly interpreted during our conversation, please contact us for clarification. Thank you. Si cerely, James A. Lively S ------- This Page Intentionally Left Blank ------- O3 -I V B ?4? UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 9441.1995 (34) NOV 27 1995 OFFICE OF SOLO WASTE AND EMERGENCY RESPONSE Ms. Karen E. Koster Cytec Industries Inc. West Paterson, NJ 07424 Dear Ms. Koster: I am writing in response to your letter of October 6, 1995, in which you request that EPA provide an interpretation of the applicability of the recently promulgated K156 hazardous waste listing determiration (60 FR 7825, February 9, 1995) to waste from the production of methyl carbamate at your Willow Island, West Virginia, plant. In the February 9, 199 final rule, the EPA listed as hazardous waste number K156 —- organic waste (including heavy ends, still bottoms, light ends, spent solvents, filtrates, arid decantates) from the production of carbamates and carbamoyl oximes.- A “carbamate” is a salt or ester of carbamic acid and methyl carbamate is the simplest ester of carbamic ester. Therefore, organic wastes from the production àf methyl carbamate would be subject to regulation as K156. While your methyl carbamate wastes may not contain the specific toxic contaminants for which K156 was listed, organic wastes from the production of carbamate chemicals do meet the K156 listing description and must be managed as hazardous wastes. RCRA provides any individual facility a means for obtaining an exemption from its hazardous waste management requirements via a delisting program. See 40 CFR 260.22. The authority to approve or deny delisting petitions has recently been transferred to the EPA Regional Administrators. If you are interested in pursuing a delisting, you may contact Mr. David Friedman of EPA Region III Philadelphia, PA at (215) 597-2863 for information about how to apply. You may wish to seek a delisting should you believe your wastes would qualify for such an exemption. In addition, the EPA Administrator recently signed a proposed regulation called the Hazardous Waste Identification Rule (HWIR), which provides another route by which listed wastes can exit the RCRA hazardous waste management system. This proposal will appear in an upcoming issue of the Federal Register . HWIR, if finalized 1 will allow listed waste to exit Subtitle C if the waste’s ve*e e Oil Based tks o 100% Recyded Paper (40% Pos wnel ------- constituents meet specific concentration—based exemption levels. Promulgation of HWIR is currently scheduled for late in 1996 or in early 1997. If you have further questions, please contact John Austin..àt (202) 260—4789. Sincerely yours, !l A’ )k i1 & iL ich 1 Shapiro, Director e f Solid Waste ------- I HOTLINE QUESTIONS AND ANSWERS ________ 9441.1996(01) February 1996 2. Conditionally Exempt Small Quantity Generators Treating in Elementary Neutralization Units A conditionally exempt small quantity generator (CESQG) may treat or dispose of hazardous waste on site provided the generator meets certain requirements outlined in 40 CFR § 261.5(f)(3) and (g)(3). If a CESQG chooses to treat waste in an on-site elementary neutralizatu,n uni4 must the generator meet the conditions of j261.5(f)(3) and(g)(3)? A CESQGinay treat hazardOus waste in an on-site elementary neutralization unit without meeting the requirements in § 26I.5(f)(3) and (g)(3). Elementary neulIali72tiOn units, as defined in §260.10, are exempt from RCRA treatment, storage, and djsposal standards and permitting requirements. The elementary neutralization unit exclusion does not preclude a CESQG from treating waste in the exempt unit as long as the generator meets the criteria outlined in § 2 6 4 .1(g)(6), 2 65.1(c)(1O), and §270.1 (c)(2)(v). Specifically, the elementary neutralization unit must meet the definition of a container, tank, tank system, transport vehicle, or vessel; and be used for neutralizing wastes that are hazardous only because of corrosivity characteristic. ------- This Page Intentionally Left Blank ------- €o si 41 . — UNIT.ED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 L 9441.1996(02) George E. Dials, Manager MAR 2 1996 Carlsbad Area Office OFFICE OF SOLIO WASTE AND EMERGENCY RESPONSE Depar ent of Energy P.O. Box 3090 Carlsbad, New Mexico 88221 Dear Mr. Dials: This letter provides wntten response to a request by DOE in our September 19,1995 meeting to use Fourier Transform infrared Spectroscopy (FTIRS) for hc idspacc gas sampling analysis, and follows up verbal approval at the September meeting for DOE to use the FTIRS to characterize headspace samples. Additionally, this letter notifies you that the FTIRS method has been accepted as a SW-846 draft method. It is our position that the Carlsbad Area Office (CAO) has adequately demonstrated that FTIRS is acceptable for the analysis of drum headspace VOCs. Our approval for use of F-ILKS for the analysis of drum headspace VOCs is contingent upon the CAO incorporating the requirements in the draft FTIRS method and report (INEL-95/0332, September 19, 1995), as presented and discussed at our September meeting, into the “Transuranic Waste Characterization Quality Assurance Pro w Plan” (QAPP), DOEICAO-94-lO10, Revision 0. These requirements include the use of multivariant techniques [ e.g., partial least squares (PLS)J, use of blanks, field reference standards, demonstration of compliance with appropriate QAPP quality assurance objectives and participation in the CAO paformance demonstration program as specified in the QAPP. The QAPP must be revised and implemented at the DOE generator/storage sites prior to using FTIRS for the analysis of drum headspace VOCs. Mr. Barry Lesnik, EPA-OSW Organics Method Development Manager, has been working with Dr. Michael Connolly, Idaho National Fiig ncering Laboratoty HIKS principal investigator, to get this method approved for incorporation into the EPA SW-846 methods manuaL The draft FTIR method and INEL-95/0332 report have undergone extensive review by the OSW and has been approved as an EPA SW- 846 draft method. This draft method has been assigned an EPA SW-84 method number of 8450, and will be included in the next proposed update to EPA SW-846. Copies of the draft EPA Method 8450 will be sent to the CAO when available. If you have any questions or require additional information, please contact Chris Rhync of my staff at (703) 308-8658. cc: David Neleigh, Region 6 Barry Lesnik, EMRAD Chris Rhync Pnnted on Recycled Paper ------- This Page Intentionally Left Blank ------- O S T 4 , ,t , UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 4 L pq it ’ HAY 3 0 gg5 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE 9441.1996(03) Mr. William E. O’Brien Manager of Business Operations Carboplus, Incorporated 101 Federal Street, Suite 1900 Boston, Massachusetts 02110 Dear Mr. O’Brien: Thank you for your letter of February 28, 1996, in which you asked about the status of your mixed coal products. Based on your conversation with Mr. Ron Josephson of my staff, you wanted to know more specifically about mixing Manufactured Gas Plant (MGP) wastes with coal and selling the mixed material to coke ovens or power plants. In 1993, the Agency reviewed a submission by the Edison Electric Institute (EEl) in which a strategy was devised for remediation of MGP sites (sent to you under separate cover). Basically, MGP wastes, if characteristically hazardous according to 40 CFR 261 Subpart C, may be mixed with coal or other material (such as wood chips, corn cobs, etc.) on site in a tank, container, or containment building within 90 days until the characteristic-is removed. At that point, the mixed material may be sent to a power plant or other facility that burns primarily fossil fuels assuming it no longer is characteristically hazardous as defined by 40 CFR 26]. Subpart C. The residues from combustion of fossil fuels are generally exempt from the hazardous waste regulations under 40 CFR 261.4(b) (4). instead, the mixed material is sent to a landfill, all the Land Disposal Restrictions (LDR) standards must be met-notwithstanding that the characteristic has been removed. The Agency determined at the time that this strategy would help speed up the remediation of MGP sites. This memo is still the Agency’s policy on the subject. Please be aware that the Agency’s Superfund program is working on a presumptive remedy strategy for MGP sites which will present to the public options for cleanup of these sites. You should also contact the applicable state environmental agency to determine if your technology is allowed under state law. Some states provide stricter interpretations of Federal law, and you may not be able to apply your technology to MGP sites in those states. Please remember that if the coal or the mixture is mixed with a listed hazardous waste as defined by 40 CFR 261 Subpart D, the entire mixture becomes hazardous waste subject to all applicable requirements. Pnnted on Recycled Paper ------- Thank you for your inquiry. If you have any additional questions on the MGP policy, please contact Ron Josephson at (703)308-0442 or at josephson.ron®epamail.epa.g0V. If you have questions on fossil fuel combustion, please contact Mr. Van Housman at (703)308-8419. Sinc rely, Mich4e]. H. Shapiro, Director Off iye of Solid Waste U. 2 ------- . )Carbop1us,Inc. y 101 Federal Street • Suite 1900 • Boston, Massachusetti 02110 Tel: (617) 342-7396 Fax: (617) 342-7080 Mobile Phone: (617) 584-9157 February 28, 1996 Mr. Michael Shapiro Office of Solid Waste United States Euuvirünmeiital Protection Agency Room 5301 401 M Street, S.W. Washington, D.C. 20460 Dear Mr. Shapiro: Re: Determination of mixing technology I received your name from Kristin Tensuan at the RICRA hotline who suggested that I write you. We are attempting to receive a ruling or an opinion that our mixed coal products are not hazardous wastes. Carboplus, Inc. is marketing a technology for waste removal that has been successfully used in Europe. In this process, coal is batched with burnable hazardous wastes to produce customized fuels capable of being burned in industrial furnaces. We wish to use this technology to clean up MGP and NPL sites. We realize that it will be difficult to provide a global answer to this question as coal can be mixed with many items. Nonetheless, we hope that you can provide us with a definition of coal and a determination of how mixed coal products are classified. In closing, I thank you for your assistance in this matter. Please call me under the number provided above if you have any questions or comments. Very truly yours, Manager of Business Operations cc: Herr Kamperhoff (0 ( Q) ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIFIONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 9441.1996(04) JUN H 1996 OFFICE CF SOLiD WASTE AND EMERGENCY RESPONSE Donald P. (3allo Michael, Best & Friedrich 100 East Wisconsin Avenue Milwaukee, Wisconsin 53202-4108 Dear Mr. Gallo: Thank you for your letter dated October 2O 1995, concerning the use of waste leather trimmings in the manufacture of adsorbent materials. I apologize for the delay in responding to your letter. In that letter you indicated that your client wished to use waste leather trimmings as a raw material in the production of commercial adsorbent materials. Specifically, your client was proposing to shred or grind waste leather trimmings to a certain particle size, package them, and market these materials for use as adsorbents for spilled liquids in a .fashion similar to “oil dry” or “floor dry” products. As 1 understand it, your letter requests clarification on the regulatory status under the Resource Conservation and Recovery Act (RCRA) of the leather trininiings, both prior to processing into adsorbent products, and after being used to adsorb a variety of materials. First, I will address the status under RCRA of the leather trimmings being collected and processed into adsorbent products. Because the leather trimmings may exhibit the h rdous characteristiC for chromium, it is important to determine whether these materials would be regulated as RCRA solid or hfi ardous waste in the recycling scenario you described. A secondary material that is used/reused as an ingredient in an industrial process to make a product, or is used/reused as a substitute for a commercial product, would not be defined as a solid waste provided the secondary material is not recl nnied first 40 CFR 261 .2(e)(lXi) and (ii). The EPA would not view the shredding and grinding of the leather trimmings, in order to attain the required particle size, as reclamatiorL However, a secondary material j a solid waste if the product being produced is burned as a fuel, used in a m nner constituting disposal, or used to pràduce products that are placed onthe land. 40 CFR 261.2(e)(2). It is EPA’s view that many sorbents (including adsorbents) are used on the land, which is a typical use when clenning up spilled liquids on the ground; therefore, the leather trimmings would be defined as a solid waste. The remainder of this letter presumes that the leather trimmings being ‘used to make adsorbents are defined as solid wastes. O J RcyctedIRSCYCIab O e <9 PlifliOd wflfl $ayá SlSta en pepi’ cDnt l atIeIt D% recycled 1IbS ------- As you correctly pointed out in your letter, waste scrap leather from various leather product manufacturing is defined as a solid waste that is exempt from hia7 rdous waste regulation, provided that the hazardous characteristic for chromium is the only factor defining the waste as ha7 rdous. 40 CFR 261 .4(bX6XiiXG). Thus, even if leather trimmings are solid waste because they will be used to produce products that are placed on the land, they would be exempt from hazardous waste regulation. The product adsorbents would also be exempt from hazardous waste regulation. Below I have addressed your questions about the status of the adsorbents after they are used to clean up spills of various hazsrdous and non-hazardous wastes. I agree with the statement in your letter that when the adsorbent is used to adsorb listed ha rdous waste, the resultant adsorbent/waste mixture would be defined as listed hA,ardous waste. I also agree with your statement that a RCRA waste determination must be made on mixtures of adsorbents with characteristic hazardous wastes. However, you also stated in your letter that it is your understanding that mixtures of exempt hazardous waste and non-hazardous waste are not regulated as h rdous (where the mixture onl exhibits the characteristic of the exempted material). I do agree that this interpretation applies to wastes generated from mixtures of adsorbents with spills of non-hazardous wastes; a waste determination would have to be made on the resulting mixture regarding any and all RCRA characteristics, including. chromium. The reason for this is that EPA originally exempted specific wastes from the leather tRnrnng and finishing industry based upon information submitted to EPA at that time. This information allowed EPA to determine that these wastes 1) contained chromium exclusively or nearly exclusively in the trivalent form, 2) were generated from an industrial process using trivalent chromium exclusively (or nearly exclusively), and the process does not generate hexavalent chromium, and 3) the waste is typically and frequently managed in non-oxidi ing environments. It would be inappropriate to extend the exemption for leather tanning and finishing wastes to any newly-generated wastes comprised of adsorbents (made from scrap leather) that are mixed with any number of possible spilled materials. For example, the use of these adsorbents on an acid spill would result in a waste that might no longer meet the definition of corrosivity, if the sorbed acid no longer meets the definition of a liquid or aqueous waste (see 40 CFR. 261.22). In this example, the mixture might only be h iardous due to the toxicity characteristic for chromium; and the mobility of chromium tthder these conditions would certainly be a potential concern that was not contemplated in the original information upon which the exemption in 261 .4(b)(6)(ü) was based. Therefore, the identification of this newly-generated waste as characteristically hazardous for chromium would be appropriate and would ensure the safe management of this material. Conversely, exempting this mixture because the original leather trimmings were exempt, before being ground up and mixed with an acid, does not seem like a logical extension of the original exemption (nor one the Agency wants to encourage). Another example where the Agency would have a concern would be wastes resulting from the use of these adsorbents on used oil (the example in your letter was crankcase oil). If the resultant adsorbent/used oil mixture exhibited only the characteristic for chromium, it would be difficult to determine whether the chromium was present duâ to the ------- adsorbent, the used oil (used oil can contain chromium), or some combination of both. There is no environmental benefit to making this determination in any event, as the risks posed by the adsorbed oil are the same regardless of the source of the chromium. Further, the Agency has a lengthy record for mixtures of used oil and other wastes, including sorbents, that would only be further complicated by the application of the waste scrap leather exemption. Therefore, the exemption for the original waste scrap leather would not be appropriate for this mixture. Finally, I would like to reiterate your statement that you will need to check with the implementing agency of each state where the adsorbent would be marketed. Also, state regulators are typically most f2miliar with the location and acceptance criteria of disposal facilities within their states, as well as with any particular state regulations that may impact the disposal requirements for these types of materials. If you have any questions on this information, please contact Ross Elliott of my staff at (703) 308-8805. Thank you for your interest in the recycling and safe m2nagement of solid and h l72rdous waste. Sincerely yours, Director Waste ------- This Page Intentionally Left Blank ------- iEVST p FILE COPY. 1% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 JUN I g 1396 944 1.1996(05) OFFICE OF SCUD WASTE AND EMERGENCY RESPONSE Mr. Norman H. Nosenchuclç Director Division of Solid and }hwdous Materiais New York State Department of Environmental Conservation 50 Wolf Road Albany, NY 12233-7250 Dear Mr. Nosenchuck: Thank you for your letter of May 7, 1996 concerning the jurisdictional status under the Resource Conservation and Recovery Act (RCRA) of cerain metal-rich sludges. You inquired whether the “use-reuse”exclusion of 40 CFR 261.2(e) (1)( i) would apply to wastewater treatment sludges (F006) sent to primary smelters for copper extraction by manufacturers of printed wire boards (if certain conditions were met). You also inquired whether EPA would consider applying the “use-reuse” exclusion on a pilot basis, in accordance with a Project XL proposal. In response to your first question, it appears that the sludges in question are solid wastes (and thus not eligible for the “use-reuse” exclusion) because reclamation is occurring. EPA has stated that a material will not satisfy the use-reuse condition if distinct components of the materials are recovered as separate end products, as when metals are recovered from metal- containing secondary materials (see 40 CFR 261.1 (cX5Xi)). However, based on the facts you have described, it is possible that the sludges are partially reclaimed materials needing further reclamation. If so, they may be eligible for a variance from the definition of solid waste for such materials under 40 CFR 260.30(c). This variance may be granted by an authorized State and relies on several enumerated factors to be weighed by the State. In reply to your second question, if the company involved is interested in participating in Project XL, we would carefully consider any application submitted. The “use-reuse” conditions you mentioned in your letter (designed to demonstrate that the partially reclaimed material is commodity-like and will be managed as a commodity) are highly relevant factors in deciding whether to proceed with a Project XL. i Vege le Oil Baseø IiThs on 100% RecydeO Paper (40% Post nsutner) ------- As you are aware, EPA has also undertaken two initiatives which will encourage environmentally sound recycling. The first is a Common Sense Initiative (CS!) which relies on an industry-by-industry rather than a pollutant-by-pollutant approach to environmental protection. One of the six sectors included in the Cs! is metal finishing. We are currently beginning a study to gather and evaluate information about the recycling of F006, which we hope will lead to recommendations on both recycling and pollution prevention. • In addition, the Agency is planning to modif ’ the definition of solid waste to make it simpler and clearer and to remove disincentives to environmentally sound recycling. The proposed rule will exclude from RCRA jurisdiction those forms of recycling that resemble manufacturing more than waste management. We also expect that those recyclable materials which remain under RCRA jurisdiction would be subject to simpler management standards. The proposed changes to the definition should be published in early 1997. I hope this letter addresses your concerns. If you have any questions, please have your staff contact Marilyn Goode at 703-308-8800. Sincerely yours, Michael Shapiro, Director Office of Solid Waste ------- MONTHLY HOTLINE REPORT May1996 2. Exclusion of Laboratory Wastes from the Mixture Rule A facility has a laboratory that generates a variety of listed wastes. The laboratory generates wastes listed because they are toxic wastes (with a Hazard Code of(T)), as well as acutely hazardous wastes (with a Hazard Code of(H)). In addition, the laboratory generates wastes which are listed because they are both toxic wastes and commonly exhibit the hazardous waste characteristics of ignitabilizy, corrosivizy, or reactivity (e.g., with a Hazard Code of(I,T), (C,T), or(R,T)). The laboratory discharges all of these listed wastes into the facility’s wastewater treatment system. The mixture rule exempts from Subtitle C certain• wastes from laboratory operations that are discharged to wastewater treatment systems (40 CFR §261.3(a)(2)(iv)(E)). Spec jflcally, this section notes that mixtures of laboratory wastes listed for being toxic (7 ’) and large volumes of other.wastewaters cease to carry the listing after they pass the headworks of the waste water treatment system. Are the laboratory’s wastes that are listed because they are acutely hazardous (H) or toxic and characteristic ((I, T), (C, 7’), or (Rh, T)) also exempt from the mixture nde? Wastes listed for being acutely hazardous (H) or both toxic and characteristic ((I,T), (C,T) or (R,T)) are also eligible for the wastewater treatment exemption from the mixture rule provided that the wastewater flow meets all the other conditions of §261 .3(a)(2)(jv)(E) (i.e., the concentration of laboratory wastes is less than 1 ppm of the total wastewater flow in to the headworks of the wastewater treatment facility or the laboratory contributes less than 1 percent of the flow into the headworks): This exemption does not apply, however, to wastewaters which were listed solely because they exhibit a characteristic (e.g., a Hazard Code of (I) only). If wastes which were listed solely for exhibiting a characteristic were mixed with oQ ier solid wastes, such as a wastewater, and ceased to exhibit any characteristic they would, however, no longer be considered hazardous wastes ( 26 1 .3(a)(2)(iii)). Pursuant to the derived-from rule, sludges generated from the treatment of listed wastes normally cany the same listings as the original wastes ( 26l.3(c) and (d)). Since laboratory wastewaters with Hazard Codes of (T), (H), (I,T), (C,T), or (R,T) cease to carry any listing under §261 .3(a)(2)(iv)(E), sludges generated from the treatment of these wastewaters would not carry the listings of the laboratory wastes. If the sludges exhibited any characteristics of a hazardous waste (including the characteristics for which the waste may have been listed), or if the sludges were derived from any non- laboratory listed wastes not otherwise excluded, they would have to be handled as hazardous.. 9441.1996(06) a ------- This Page Intentionally Left Blank ------- 1. Definition of Commercial Chemical Product for Solid Waste• Determination vs. Hazardous Waste Identification An instrument manufacturer has off- spec jfication mercu ry thermometers which it wishes to either discard or reclaim. Under 40 CFR §261.2, the definition of solid waste, “commercial chemical products” such as thermometers being reclaimed are not solid waste and therefore cannot be hazardous waste ( 261.2(c)(3) and (p261.3)). Under §261.33, the P and U lists of hazardous . wastes, .“commercjal chemical products”- containing merculy as a sole active ingredient are characterized as U151, a listed Waste ( 261.33(d), 261.33(f)). What is the d erence between the definition of commercial chemical product for the purposes of the definition of solid waste znd the P and U list of hazardous waste, and given the relative d4fference, would the thermometers be subject to hazardous waste regulation f reclaimed or discarded? The phrase “commercial chemical product b has different meanings in the definition of solid waste and the defmition of hazardous waste. As applied to §26 1.2, the definition of solid waste, EPA interprets the categoiy of commercial chemical products to include all types of unused commercial products, whetheror not they would commonly be considered chemicals (e.g., circuit boards. batteries, and other types of equipment). Although §261.2(c)(3), Table 1, applies this provision to “commercial chemical products listed in 40 CFR 261.33,” EPA interprets the definition to also include commercial chemical products that are not listed in §261.33, but exhibit one or more characteristic of hazardous waste (50 EE 14219; April 11, 1985). For the purposes of the P and U lists of hazardous wastes, however, EPA intended to include in the P and U lists only those commercial chemical products and manufacturing chemical intermediates known by the generic chemical name listed in §261.33. EPA considers the P and U list definition of commercial chemical product to excIude manufact d articles such as thermometers or fluorescent 1amps(45 . 78541; November 25, 1980). Therefói • manufactured articles that contain a P àr U listed chemical w uld not be considered i listed wasiè when discarded in an unused form. If the thermometers in question are to be reclaimed, they would be considered commercial chemical products being reclaimed for the purposes of the definition of solid waste, and, thus, would not be a solid waste. Since a material must be a solid waste in order to be considered a hazardous waste, the thermometers destined for reclamation could not be regulated as a hazardous waste ( 26 1.3). If the thermometers are to be discarded, then they would be a solid waste nd the manufacturer must then consider whether the off-specification thermometers are listed or characteristic hazardous waste ( 262.11). Mercury.thermometers are not among the process- and industry-specific wastes found in the Fand K lists in § 261.31 and 261.32. The thermometers would not meet the.P or U listing criteria because they are considered manufactured articles, not ommercial chemical products for the purposes of hazatdous waste, as explained above. As a result, the thehnometers would not be regulated as U151, and would only be subject to regulation as a hazardous waste if they exhibited a characteristic of a hazardous waste found in Part 261, Subpart C. REPORT August 1996 9441.1996(07) ------- This Page Intentionally Left Blank ------- 1. PCB Wastes as Hazardous Wastes Polychiorinated biphenyLc (PCBs) are organic chemicals often used as coolants and lubricants in transformers, capacitors, and other electrical equipment. Generally, the management of these substances is regulated under the Toxic Substances Control Act (TSCA), according to regulations found at 40 CFR Parts 700-799. Are PCB wastes subject to RCRA Subtitle C regulation as well? Subtitle C regulations apply tQ PCB wastes only if they R( hazardous wastes. Wastes are hazardous under RCRA if they are listed on one of four hazardous waste lists or if they exhibit a characteristic of hazardous.waste. Discarded, unused PCBs axe not listed as commercial chemical product hazardous wastes on the P- or U-lists found in 40 CFR §261.33. PCB wastestrearns are .likewise not specifically among the process- and industxy-specific hazardous wastes found in the F- and K-lists in § 261.31 and 261.32. It is possible that PCBs will be present as incidental contaminants in wastes that are themselves listed as hazardous. For example, solvents are often used to remove PCBs from transformers. These solvents, when spent, could be FOOl through F005 listed solvents. In this case, the entire wastestream, including the PCBs, would be regulated as listed hazardous wastes. Wastes are also regulated under RCRA when they exhibit one or more of four characteristics of hazardous wastes: ignitability, corrosivity, reactivity, or toxicity ( 261.21-261.24). Typically, fluids and materials regulated as PCBs under TSCA would not exhibit these characteristics. However, in a rare case, a PCB waste could exhibit ignitability, corrosivity, or reactivity, and thus be subject to Subtitle C regulation. PCBs are not among the 39 different elements and compounds which can cause a waste to exhibit the toxicity characteristic (TC) wIder §26 1.24, but any waste containing PCBs could potentially exhibit the TC for another contaminant, e.g., chlorinated benzenes. To deal with this possibility and avoid dual TSCA!RCRA regulation, certain PCB-containing wastes thatexhibit the toxicity characteristic a e explicitly exempted from RCRA requirements: Section 261.8 exempts from RCRA Subtitle C regulation PCB-containing dielectric fluid and the electric equipment which holds such fluid if they satisfy two criteria. First, these PCB wastes must be regulated under the TSCA standards of Part 761. Second, only the PCB wastes which exhibit the TC for an organic constituent (waste codes DO 18-43) may qualify for the exemption. If a PCB-containing waste exhibits a RCRA characteristic or matches a listing description, and does not qualify for the §261.8 exemption, that waste is subject to all applicable Subtitle C regulations. These include manifesting, treatment, storage, - disposal, and recordkeeping requirements. Some PCB-containing hazardous wastes may also be subject to the RCRA land disposal. restrictions. For example, PCB wastes that may be subject to LDR include liquid hazardous wastes containing PCBs at concentrations greater than or equal to SOppm (RCRA §3004(d)(2)(D), or hazardous wastes containing halogenated organic compounds in total concentrations greater than or equal to 1,000 mg/kg (RCRA §3004(d)(2)(E)). HOTLINE - - 1996 • . . . .. . .. 9441.1996(08) ------- This Page Intentionally Left Blank ------- !‘ ‘ J ) S7 t% T UNITED STATES ENVIRONMENTAL PROTECTION AGENCY S , WASHINGTON, D.C. 20460 9441.1996(09) OCT — 1 1996 - OFFICEOF SOLID WASTE AND EMERGENCY RESPONSE Mr. T.L. Nebrich; Jr. - Waste Technology. Services, Inc. 640 Park Place Niagra Falls, NY 14301 Dear Mr. Nebrich: Thank you for your Jull 8,- 1996 letter to Michael Shapiro requesting clarification of the .exemption under 40 CFR 261.3(c) (2) (ii) (A) for lime stabilized pickle lIquor sludge generated by .the iron and steel industry, a waste listed under the Resource Conservation and Recovery Act. (RCRA) as 1 <062. In your letter, you asked whether the exemption only applies. when the lime directly contacts the pickle liquor (prior to dilution in a wastewatèr treatment system) or whether it could also apply in cases where the lime stabilization is part of a wastewater treatment system that treats other wastes, including pickle liquor rinses. You also asked a question about the status of the resulting sludge if it is characteristically hazardous. have attached copies of two previous letters from the Environmental Protection Agency (EPA) that address your questions. The Agency’s position has not changed since these letters were written. In a December 28, 1987 letter to the BresLube Group, Marcia Williams (Director of EPA’s Office of Solid Waste at that time) responded to a question concerning whether the acceptance of other wastes or treatment of the pickle liquor sludge with other chemicals in addition to lime would affect the regulatory status of the sludge. Williams said that if a company accepts “another listed waste, then the exemption in Section 261.3(c) (2) (ii) (A) would not apply; that is, the sludge would be hazardous because it was derived from listed waste other than 1(062. However, if. the other wastes or other materials are not hazardous, or are only hazardous by characteristic, then the derived-from rule would not come into play and the resulting sludge would only be hazardous if it exhibits one of the characteristics.” Recycled/Recyclable 9 P 1n d wWl SoyICvic a Ink on paper that CO 1 it lest 50% rSCyded fiber ------- In your letter you also asked ihether a resulting characteristically, hazardous sludge would retain the K062 hazardous wast listing. The attached June 19, 1990 letter from Linda Cessar of EPA, explains that “stabilized 1 (062 wastes that conti-nue to’ exhibit a characteristic remain hazardous, and must continue to be handled-as (a] listed K062 waste.” It is important to point out that since your questions were hypothetical and provided only a general picture of the operation in question, we are unable to determine whether or not there may be certain site—specific factors that could alter our response. Whereas I ‘have tried to respond to your question in general terms, it is also important for you to note that in making determinations about individual facilities it is our policy to defer to RCRA authorized states or to the appropriate EPA - regional office. We suggest that you contact the appropriate office for answers to questions pertaining to a particular- site or ,operation. If you have any questions about this letter, please’ contact Stephen Bergman .of my staff at (703) 308—7262. Sincerely, l’Zidah Michele Anders,. Chief Generator and Recycling Branch ------- ‘Os L% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 L MOlt 9441.1996(10) NOV 7 1996 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Bob Breeze, Director Waste Reduction Branch Ministry of Energy and Environment 135 St. Clair Ave. West Toronto, ON M4V 1P5 Dear Mr. Breeze: Thank you for your letter of October 9, 1996 requesting clarification of the regulatozy status of chopline residue. This residue is generated from the processing of ‘scrap wire and is sold commercially for recovery. The residue consists primarily of plastics, some paper, and up to five percent copper. Under U.S. Environment4 Protection Agency (EPA) regulations, chopline residue would be considered a spent material that is being reclaimed or recycled. (40 CFR 261.2(c)(3). The chopline residue would’be considered a spent material because it can no longer be used for its origInal purpose without some reprocessing or reclaiming operation being performed on the material. Processing the scrap material to recover PVC and copper places it clearly in this category As a spent material, it would be considered to be a solid waste. .If the chopline residue were to fail the toxicity cbaracteristic(TC) test (or one of the, other characteristics tests), it would be considered a h -ardous waste. There are TC levels for vinyl chloride, lead and cadmium, although not for copper. Other TC constituents are listed’at 40 CFR 261.24. If the material is a TC hazardous waste being recycled or reclaimed, hazardous waste management requirements would apply up to the point of its resale as a product. These include the hazardous waste requirements for’manifesting, ha7ardous waste transport, and storage while the material awaits reclamation. Any residue from the recycling process would also need to be checked for its TC status. Q ) RecycledIROCyClable Q PiIntad with SoyI noIa Ink an paper that contains It lust 50% recycled fiber ------- I hope this answers your questions about the regulatory status of chopline residue under U.S. EPA regulations. If you have additional questions, please contact my office, or call Gregory Helms, at 703-308-8845.. Shapirp, Director of Solid Waste ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY F I L E COPY , WASHINGTON, D.C. 20460 A PRO ’ 9441.1996(11) • p ..LJ l (3 OFFICE OF SCUD WASTE AND EMERGENCY RESPONSE MEMORANDUM SUBJECT: Definition of Solid Waste Issues Related to Cleanup of culpeper Wood Preserving Facility PROM: Michele Anders, Chief //J1 ,4Y.4t ’ -Generator and Recyclip ranch TO: • Wayne Naylor, Chief Technical and Program Support Branch (Region III) This memo is in response to a July 16, 1996 memo from David Friedman of your staff to Stephen Bergman of my staff concerning RCRA jurisdiction over contamination at the Culpeper Wood Preservers (Culpeper) facility inculpeper, Vixginia from wastewater that was at one time managed in a surface impoundment and reused there in the wood preserving process. It is our understanding that you are in the process of determining whether contamination at the site that is currently being addressed under the Superfund program is actually more appropriately managed under the RCRA Corrective Action program. As you know, it is OSW policy to defer to authorized states and EPA regional offices regarding site specific is sues. However, if it would be helpful for me to address in a general sense the questions you raised in your letter, I am happy to do so. As you know, these answers will be based on the federal program, which may or may not mirror the environmental laws of the state of Virginia. In the memo, you asked that we answer several jurisdictional questions, related to the regulatory status of the wastewater and of the surface impoundment in which it was managed at the time the contamination was caused. Those questions are as follows: Vege abIe CI I Based Inks on 100% Recy ed Paper (40% PosIconsumef) ------- • Is the water that is collected, managed in the surface impoundment, and recycled back to the process a solid waste under the current RCRA regulations? • Can the use/reuse exemptions apply in a situation where the material is being managed on the ground? • If the water is a solid waste then does it follow that the surface impoundment is a regulated unit? The answer to your first question is yes. Assuming that, like other wood preserving operations we know of, the Culpeper process involves some reclamation (such. as filtration), it is not eligible fo± a use/reuse exclusion under 40 CFR 261.2(e) (1). However, you should know that the Office of Solid waste j 5 currently looking at the possibIlity of excluding in-process wastewaters recycled at wood preserving facilities, under certain conditions. - As a theoretical matter, .the answer to your secánd question is also yes.: The use/reuse exemptions can apply in a situation where a material is being managed on the ground, provided that it is not being reclaimed, used in a manner constituting disposal or used to make products that are placed on the land. Practically speaking however, given that treated wood is often placed on the land and that the recycled material is reclaimed, this would be a difficult exemption for a wood treater to claim. Finally in answer to your third question, if the water is a solid waste and a hazardous waste (either by being listed or exhibiting a hazardous waste characteristic), the surface impoundment is a regulated unit. I hope that this has been of some assistance to you. I understand that Stephen has had several conversations with - Elizabeth McManus of our Corrective Actions Programs Branch concerning this facility and that he suggested to David Friedman that he give her a call. I also urge you to do this. Whereas we are comfortable addressing questions related to RCRA jurisdiction and the definition of. solid waste, we are not qualified to judge whether the Culpeper site is best managed under Superfuxid or Corrective Action. In her co!lversations with Stephen, Elizabeth outlined a number of options that Region III could pursue. You can reach her at (703) 308-8657. ------- If you have any questions concerning our answers to your defInition of solid waste questions, please call Stephen at (703) 308-7262. ------- This Page Intentionally Left Blank ------- , o S7 41 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 4LpRO1t 9441.1996(12) DEC 23 Igg6 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE T. L. Nebrich, Jr., CHMM Technical Director Waste Technology Services Inc. 640 Park Place - Niagara Falls, NY 14301 Dear Mr. Nebrich: - This is in response to your October 28, 1996 facsimile which requests a clarification of the exclusion for lime stabilized waste pickle liquor sludge (LSWPLS) derived from the iron and steel industry referenced in the 40 CFR 261.3 (c)(2)(ii)(A). During a follow-up telephone conversation with Shen-yi Yang of my staff on November 5, 1996, you specifically requested an interpretation as to whether a sludge generated from lime treatment of a mixture of K062 (spent pickle liquor generated by steel finishing operations of facilities within the iron and steel industry (SIC Codes 331 and 332)) and a characteristichazardoUS waste quaiifies for the exclusion. As you and Shen-yi Yang discussed in your recent telephone conversation, the exclusion only applies to LSWPLS generited by the iron and steel industry and not to commercial hazardous waste treatment facilities. This interpretation was made clear in the May 28, 1986 final rule (see 51 E& 19320). The exclusion is restricted-to pickle liquor sludges generated by lime stabilization processes of the type used in the iron and steel industry to treat spent pickle liquors from the iron and steel industry. These spent pickle liquors n ,e commingled with other iron and steel industry wastes prior to lime treatment and still quali1 ’ for the exclusion. However, they cannot be mixed with wastes from other sources outside the iron and steel industry and qualif ’ for the exclusion. You also ask whether the K062 designation still apply if the resulting LSWPLS is characteristically hazardous. Any LSWPLS which continues to exhibit one or more of the hazardous waste characteristics fails to meet the 40 CFR 261.3 (c)(2)(ii)(A) requirement for exemption. Therefore, stabilized K062 wastes that continue to exhibit a characteristic remain hazardous, and must continue to be handled as the listed K062 hazardous wastes. I realize you originally raised these questions on your letter dated July 8, 1996, and I apologize for the lateness of this reply. Should you have any question regarding this matter, please contact Shen-yi Yang of my staff at (703) 308-0437. Q j, Recycled/Recyclable <9 PrInted with SoyICanoIa Ink on paper that contains at least 50% recycled fiber Michael Shapiro, Director Office of Solid Waste ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY _____ WASHINGTON. D.C. 20460 L Pcio1 ’ 9441. 1996(13) OFFICE CF - SOLID WASTE AND EMERGE .C’ RESPOe SE Mr. Norman E. Nosenchuclç Director Division of Solid and Hazardous Materials New York State Department - of Environmental Conservation 50 Wolf Road Albany, New York 12233-7250 Dear Mr. Nosenchuck: Thank you for you letter of November 18, 1996 in which you asked about the Agency’s recent Solvents Study. Specifically, you.wanted to know if solvents added to a paint or similar product are to be classified as regulated spent solvents based on what is printed in the Solvents Study. The Agency regulates chemicals’ as spent solvents based on “solvent use,” such as the ability to dissolve,, mobilize, or solubilize constituents, or to be a reaction or synthesis mediu n. (See 50 FR 53316, December 31, 1985.) As you have correctly pointed out, chemicals that ’are reactants or ingredients in the formulation ofcornmercial chemical products are not regulated as spent solvents, and the products themselves are not covered. This policy applies even to commercially-purchased products to which solvents have been added by the end user for viscosity adjustment, even if an unused portion of the adjusted product is later discarded. The sentence on page 3 of the Solvents Study that states, “It is important to note, however, that solvents added as a thinner to product paints and coatings after purchase ,re being used for their solvent properties and, after use, will meet any applicable spent solvent listings” is incorrect. Such use is an example of addition of a solvent to modii ’ a commercial chemical product and is thus, according to Agency policy, not a regulated solvent use. Please note that this erroneous sentence also appears on page 4 of the Listing Determination Background Document that accompanied the Agency’s August 14, 1996 spent solvents listing determination proposal (61 FR 42318 - 42354). The Agency will make the necessary changes in the documents in response to comments and when a final listing determination is published. ‘In the meantime, our staff has added your letter and our response to the docket for both the listing determination proposal and for the Solvents Study. Pnnted w Ve etabIe C d Based Inks on CG ”. Pecycea Pacer (4C% s:cctlsur.e, ------- You should be aware that addition of a spent solvent to a product should be monitored to make sure that the generator of the waste is not doing so to escape regulation. As an authorized slate, you have the authority to make that determination. Thank you for your letter. Should there be any. additional questions, please have your staff contact Ron Josephson of my staff at (703)308-8890 orjosephson.ron epamail.epa.gov. Sincerely, - cc.. David Bussard, Director FT&zardous Waste Identification Division ------- New York State Department of Environmental Conservation )ivision of Solid & Hazardous Materials 50 Wolf Road. Albany. New York 12233—7250 (518) 57-693 ’ FAX (518) 457-0629 NOV 1s199E Mr. David Bussard Director Hazardous Waste Identification Branch U. S. Environmental Protection Agency 401 H Street, S.W. (5304—W) Washington, D.C. 20160 Dear Mr. Bussard: - We wish to thank you for recently forwarding the Study of. Selected Petroleum Refining Residuals and the Solvents Study developed by EPA’s Office of. Solid Waste. - As a point of clarification, please note that there is one.- item in the Solvents Study that conflicts with prior guidance given by EPA. On the enclosed page 3 of the -study, it is stated that “. . . solvents added as a thinner to product paints and coatings after purchase are being used for their solvent properties and, after use,- will meet any applicable spent solvent listings.” This conflicts with enclosed OSW -document number 9441.1987(09), whereMr. Straus made no distixction between paints that have been thinned -by the original supplier and those thinned, by the user, and concluded that neither paint, .upon being discarded, would meet the appropriate F—listed solvent. classification. (Please see both the enclosed January 8, 1987 letter of inquiry and Mr. - Straus’ February 19, - 1987 response.) Based on this prior guidance’ and the’ enclosed Decezber 31, 1985 Federal Register that Mr. - Straus’ letter - appears - to be based upon, we have, for a number of years, advised the regulated community that paints legitimately thinned with F—listed solvents would not become F—listed when discarded even if the end user added the thinning solvent. Because this guidance remains in the RCRA Permit Compendium as policy, we are- not expecting to revise our interpretation unless you advise us otherwise. This is an issue -of some significance since the “thinning” or “cutting” of certain products with solvents is a fairly common practice. Your review of this matter and its clarification would be appreciated. - Michael 0. Zagata Commissioner ------- Mr. David Bussard 2. Please call me at (518) 457-6934 if we may be of assistance. • :L ’ . Norman H. Nosenchuck, P • E. Director Division of Solid & Hazardous Materials / Enclosures ------- F2 L9 7 Mr. Gregory A. Hexnker Vice President, Environmental Engineering QSource Engineering, Inc. Suite 300 228 Byers Road Xiamisburg, Ohi.? 45342 near Mr. Heznker: This is in response to your letter of January 8, 1987, requesting clarification on the proper hazardous classification of discarded inks, paints, and adhesives that contain certain solvents. These waste inks, paints, and adhesives are process wastes t iat are - not currently listed 3.n Subpart D of 40 CFR Part 261, and therefore, not t subtjtl. C regulations unless the waste exhibits any • of the four hazardous waste characteristics defined in 40 CFR 261.21—261.24 (ignitability, corrosivity, reactivity, or EP toxicity). In the event that fresh or commercial grade solvents are present in the product or added to these products as an ingredient in the formulation, the resulting product (or discarded product) is not within the scope of the spent solvent liltings. This point is stated in the preamble to the so vent rules as well as the listing background documents. However, should a spent-solvent (one that can no longer used for its original purpose without reclamation) be added to the discarded product, then the resulting mixture is a hazardous waste pursuant to 40 CFR 261.3(a)(2)(jv). In your case, you claim the discarded products fail the ignitabiljty test and, th.z.for., are liat.d as DOOl ignitable - hazardous waste. I agree with your interpretation of th. hazardous classification of this waste. Also, I agree with your interpretation of th. hazardous classificatiOn of the wastes in the two scenarios enclosed in your letter. If you have further questions regarding the proper classification of 5olid wastss, please contact Mr. Ed Abrams of my staff at (202) 382—4787. Sincerely, Matthew A. Straus Chief, Waste Characterization Branch ------- crn .c J L W’ilttK1N(.i, INC . .nvironmefltal, Mechanical and Process Engineers 75 Bu1 dIng Sutte 300 228 Byci Road Miim bw . Otvo 45342 513/866-4211 r. Matthew Strauss Branch Chief Waste Characterization Branch USEPA 40]. 14 Street Southwest Washington. D.C. 20460 Dear Mr. Strauss: - January 8, 1987 M CHAE . G MARJSC4J.C0 . P.Z. ( ld Ch. . iiigui .i., GREGORY A HEM CER. M.S Vl t .w. n’ ,w ,i i Eap PHOLIP L. HAYDEN. PkD.. P.L. .. Pnn & Cc’iwitsvig En m,v, i am writing to request c1a ification on the proper ciassificatioflof discarded inks, paints, and adhesives that contain listed chemicals. Much of this has been -discussed with your M i-. Scarberry in-a telephone onveraation on December 16,- 1986; Mowever, it is important for us to receive a written determination in this matter. • Several of our industrial clients use inks, paints, and adhesives that cori ain solvents that are lieted in 40 CPR 261 Subpart D. These solvents are put into the inks, paints and dheaives by the àriginal supplier and by- the user before their use. Waste inks, paints, and adhesives are-a by—product of these processes. orma1ly , cleaning solvents are n t mixed with theit - Waste inks, paints, and adhesives. - Until recently we have confidently classified these waste ttks, paints and adhesives as D001. ignitible hazardous waste. However, with the fjnalru le promulgation on February 25, 1986 of ‘ t8jOfls to 40 CFR 261 (51 FR 6537),thie classification maybe incorrect. The new language in’40 CFR 261.33 suggests that any “solvent tZtUre/b1endI’ that contains the lj ted solvents are “listed” as PPosed to “characteristic” hazardous waste. Since these inks, Punts, and adhesives contain such solvent mixtures/blends before - . it appears that are “listed” hazardous wastes. However, in SCUSS i ofl , PPears that dered “manufacturing p . , . understand thLs tjv these wastes are not classified by 261.33 even though are in the mixture. Therefore, the DOO]. - 1s seema to be the correct determination at this time. 1 sterm ation was supported by Mr. ScarberrY in cur telephone .nts 537 bad .dbe ------- Matthew Strauss january.8, 1987 page Two To summarize this matter I have prepared and attached some case scenarios with waste classifications Please review them and acknowledge whether our determination on waste classificati 0 5 are correct. If our determination is incorrect please explain tlie correct determination and why. Your written acknowledgement jg very important to the manufacturing facilities that we are supporting. If you need to discusst ija matter further. please call me at 1-513—866—4211; Thank you for .ycur assistance... Sincerely, OSOURCE ENGINEERING, I NC. Greg r A. Hemker Vice President Environmentai Engi ieerjng Attachment / GAE/d lh W2 O OURCE ENGINEERING. INC ------- WASTE DETEMINATIONS CASE 1: Paint is purchased from a supplier to coat the parts • produced by our plant. This paint contains 60% solvent f/by volule on an as received basis. it is further fl reduced in our plant for a final as applIed solvent 11 content, of .80% by volume. Most of the solvents in this are listed in 40 CFR 261.31. Because of quality assurance pràgra.ma unused paint is discard d at the end of each sh ft and at color changes. This waste paint is accumulated separate from other solv 8 rit wastes. The waste paint has a flash point of 100 F Waste Classification: DOOl NOTE: . If inks or adhesives with similar sälvent composition are used in a similar manor, I would classify the waste the same. CASE 2: I.have the same scenario as in Case 1, but now the waste paint is intermingled with cleaning solvent and clean—, up residue. The cleaning solvent is an “F listed - material. Waste Classification: F CCC (Sele t the appropriate code(s) for the solvent-(s)). SOURCE ENGINEERING. INC ------- 944 1. 1997(0 1) O S q - UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 1 •J 4 pRolt.c, 2 1 !997 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. James T. Duf our Attorney and Counselor at Law 819 F Street Sacramento, California 95814 Dear Mr. Duf our: Thank you for your letter of December 24, 1996, in which you inquired about the regulatory status of your client’s ion exchange resin waste. Specifically, you wished to know if this ion exchange resin waste used in the treatment of electroplating rinsewaters is classified as EPA Hazardous Waste No. F006 (wastewater treatment sludge from electroplating operations). In your description of your client’s process, you state that your client performs electroplating operations. Rinsewaters from these operations are sent to the ion exchange filter question, which produces “ultrapure water for use in the ejectropiatlng operation.” You state that the water is reused in the process, and not discharged, but if the water were to be. discharged, it already meets Clean Water Act discharge requirements for the local Publicly Owned Treatment Works (POTW). In previous regulatory interpretation letters, the Agency has stated that such ion exchange resins are classified as F006 wastes. The letters you cite (letter to Compliance Recycling Industries dated May 5, 1987 and letter toU.S. Filter Recovery Services dated July 21, 1994) both state the 40 CFR 260.10 definition of sludge as “any solid, semisolid, or liquid waste generated from municipal, commercial, or industrial wascewater treatment plant, water supply treatment, or air pollution contrc. facility, exclusive of the treated effluent from a wascewater treatment plant. In both letters, ion exchange resin is classi.fied as an F0O6 waste even though the purified wate.r can be recycled to the process. In your case, the definition of a sludge is, again, tied to the, type of unit in which the waste was ------- generated 1 so the Agency interpretation is unchanged. The fact that, as you atate, the ion exchange resin is not necessary to remove hazardous constituents before discharge does not affect this interpretation. Please be aware that under Section 3006 of the Resdurce Conservation and Recovery Act (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. Pursuant tO 40 CFR 260.20 and 260.22, you may petition to have your client’s waste delisted if you think it poses no threat to human health and the environment. Thank you for you inquiry. If you have any further questions or comments, please contact Mr. Ron Josephson of my staff at (703)308-8890. - Sincerely, f - i •_—,--——;_ I 9 ‘# -‘. .1 David Bussard, Director Hazardous Waste Identificaticfl- Division 2 ------- Office of __JAMES T. DUFOUR Attorney and Counselor at i...... t i) ..1,. , ,. .1 fl R E • C ii $1’) 1 Sacr.n,no... c December 24. 1996 ,I. ,Ufl..i r.t , . 14 I — •I’I .1 . i 9 I ) 111 ,,.,..,..,. ,.. .,,.I & ( ) I \ I \. Z I’) I hI .. V. 2 . I) Mr. David Bussard, Director U.S. EPA/Office of Solid Waste Hazardous Waste Identif tion D ”isin . M/C 5304W 401 M St. Southwest Washington. D.C. 20460 RE: ION EXCHANGE RESIN CHARACTERIZATION Dear Mr. Bussard: The purpose of th;s letter is to obtain a regulatory interpretation on behalf of an electronics manufacturing firm client concerning the characterization of ion exchange resins as F006 listed ha,.ardous astes hcn they are used for treatment of rinse waters used in an electroplating process. In the process in question. the electroplating rinsate does not require pollution control treatment because it does not contain any hazardous constituent which would preclude discharge untreated to the POTW. Furthermore, it is not discharged but is reused in the process. The process water stream is treated by the ion exchange resin system solely for the purpose of producing ultra-pure water for reuse in the electroplating operation. It should be noted that ion exchange resin systems are commonly used to produce ultra-pure water. We are aware that EPA has on two occasions characterized ion exchange resins treating e;ecLwp; 1uIIg SUIULIUI IS as F00ó iaaz rduus wastes subject o RCR,\ a cJ on the definition uf sludge in 40 CFR § 260.10 (letter to Compliance Recycling Industries dated May 5, 1987 and letter to U.S. Filter Recovery Services dated July 21, 1994). A sludge is “any solid. semisolid or liquid was I c generated/rum a municipal, commercial or indu.s trial wa.clewaler treatment plant. ii’aIer u,,1s lri.’ulmenl plan!. or air pollution conirol facilu_v. exclusive of the irecited effluent from a wci.ciewClIer treatment plan!.” The 1987 letter clearly states that the ion exchange resin which removes metals. chromates. and cyanide meets the definition olsludge and is therefore an F00Ô hazardous waste. In the 1994 letter. EP.A states that the resin meets the definition of sludge because it qualifies as a pollution control device as it acts to remove contaminants from wastewaters These interpretations are nc dIrep3 hr ------- Mr. Bussard U.S. EPA December 16. 1996 Page 2 based on the fact that the ion exchange resin is necessary to remove hazardous constituents of the wastewater before being discharged, therefore defining the resin not only as a pollution control device, but also a wastewater treatment unit. Ion exchange resin is more commonly used to produce ultra-pure water than to treat wastewater. Wastewater treatment unit is defined in 40 CFR 260.10 to mean a device which: (I) Is part of a waslewater treatment facility that is subject to regulation under either section 402 or 30 7(b) of the Clean Water Act: and (2) Receives and treats or stores an influeni waste water that is a hazardous waste as J fined in § 261.3 fths chup; r. Cn 1hit gcrserwe. und ucCwnuiaW.. a wasiewater treatment sludge that is a hazardous waste as defined in § 261.3 of this chapter. or treats or siores a waste water treatment sludge thai is a hazardous waste as defined in § 261.3 of this chapter: and (3) Meets the definition of lank or tank system in § 260.10 of ihi.s chapter The ion exchange resin in question at our client’s facility is not part of a wastewater treatment facility subject to the Clean Water Act because the influent electroplating rinsate could be directly discharged to the P01W before entering the ion exchange resin. Therefore, we believe that the influent water to the subject ion exchange system is not a wastewater and the resulting treatment sludge should not be subject to the F006 listing. The Agency is advised that the spent resins do not exhibit any hazardous.characteristics, including exceeding toxicity characteristic regulatory limits for any metals. The subject ion exchange resin is necessary to produce an ultra-pure electroplating rinse water to meet process water requirements in a manufacturing operation. In essence, the ion exchange resin is a water purifying step in a manufacturing process and not a pollution control device or wastewater treatment. In conclusion, since the ion exchange resin for electroplating solutions is utilized solely for the purpose of meeting iniluent water standards to a manuracturing piocess und not for removing hazardous constituents before discharge (hence not pollution control or wastewater treatment), it is not a wastewater treatment unit and therefore should not be subject to an F006 wastewater treatment sludge listing. We would appreciate your interpretation to clarify the characterization of this particular ion exchange system spent resin. If you have any questions, please contact us at your earliest convenience. Very truly your5. c t L JAMES 1. DUFOUR fYUsi ncc dIrcpa hr ------- it O S? 4 ? 4 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON. D.C. 20460 _____ 9441.1997(02) MAR I 2 1997 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Rick J. Meichiori Progressive Technologies, Inc. 4050 Westmark Drive Dubuque, IA 52002 Dear Mr. Meichiori: Thank you for your letter of November 11, 1996, requesting an interpretation of how the RCRA regulations apply to waste generated from the removal of paint from painted surfaces using a surface preparation product developed by Progressive Technologies. You described your product to members of my staff in a meeting held in November, 1996. Based on information provided to my staff, your product, PreTox 2000, is applied to the painted surface and allowed to cure. During the curing process the paint adheres to the Prelox 2000. The coating consisting of a combination of paint and PreTox 2000 is removed using standard coating removal methods: As you may know, the Agency does not endorse or support specific processes. It can, however, respond to your request for an interpretation on the general paint removal process, and the waste generated from your removal process. In general, hazardous waste regulations apply to materials which first have been determined to be a solid waste. A solid waste is a hazardous waste if it is listed as a hazardous waste in Subpart D of 40 CFR, Part 261, or if it exhibits a characteristic of hazardous waste as identified in Subpart C of 40 CFR, part 261. A generator may also use knowledge of the process to determine whether the waste generated is hazardous. In the case of lead abatement debris, the waste determination required under 40 CFR 262.11 would be rnaae once the paint has been removed from the surface of the structure. The paint removal process itself is not subject to regulation in this circumstance. Assuming that no other characteristic hazardous constituents are present in the waste, and that the waste does not exhibit the characteristics of ignitability, reactivity, or corrosivity, the TCLP waste analysis for lead would be sufficient to determine if the waste exhibits the toxicity characteristic. You indicated that the debris generated from the paint removal process using PreTox 2000 have passed TCLP tests and therefore do not meet the definition of a hazardous waste. ------- EPA, however, cannot determine whether a waste stream, such as paint removal debris containing PreTox 2000, is generally exempt from the toxicity characteristic. Each user of the Prelox 2000 product will be responsible for determining whether his or her paint removal debris exhibits the toxicity characteristic, although test data you collect could be of assistance to the users. Furthermore, please note that wastes must continue to “pass” the TCLP test until the time of. disposal to escape hazardous waste regulation. In other words, if a batch of paint removal debris “passes” the test at the time it is initially tested, but is later retested and found to exhibit the characteristic, it becomes regulated hazardous waste. Also, please be aware that generators may be held liable under CERCLA for any environmental damages caused by the release of a hazardous material into the environment. CERCLA liability is independent of any hazardous waste determination that may be made. Also note that for purposes of hazardous waste generation, the term “generator” may refer to both the paint abatement contractor and to the owner of a building or a superstructure and they are considered “co-generators” of the waste. Additionally, state requirements may be more stringent that the federal requirements for hazardous wastes and you should contact the state or states in which you intend to conduct lead paint abatement activities to determine whether additional requirements apply. I hope this information is helpful. Should you have additional questions, please contact Ann Codrington or Rajani Joglekar of my staff at (703) 308-8825 or (703) 308-8806, respectively. Sincerely, ‘Elizabeth Cotsworth, Acting Director Office of Solid Waste ------- Progressive Technologies, Inc . November I 1, 1996 Mr Michael Shapiro Director Division of Solid Waste Management MIS: 5304W 401 M StteetSW Washington D C., 20460 Dear Mr Shapiro. 4050 Wesimarlc Drive Dubuque. IA 52002 319-589-7008 Fax: 319-589-1237 receive’: i//I’ , 9/ : Progressive Technologies, Inc. is working to develop and patent a process designed to eliminate the generation of hazardous wastes during the abatement of coatings containing hazardous constituents. The objective of this correspondence is to obtain a written determination from the Environmental Protection Agency regarding any applicable statutes, rules, orders, or regulations pertaining to the permitting, tieamient, handling, and disposal of wastes generated while using this patent applied for process under Section 40 of the Code of Federal Regulations BrieCy, the process proposed involves the application of a Portland Cement based surface preparation product, called Prelox 2000, prior to the removal bf the underlying coating. After sufficient curing both the applied and underlying coatings are removed by one of the standard indusay methods. Most standard coating removal methods will work with this product. Upon collection and testing of the generated wastes for leachability under the TCLP testing procedures, the laboratory analyses show leachability levels consistently below the RCRA hazardous wastes thresholds. In pilot testing of PreTox 2000, the wastes generated have passed ten consecutive TCLP tests Based upon the application and removal process and the fact that the wastes generated are not hazardous in accordance with the RCRA requirements, Progressive Technologies, Inc. believes that the hazardous waste ti eatment, handling, and disposal regulations of 40 CFR are not applicable. As Environmental Protection Agency review and determination of applicable regulations is very important to both the process developers and end users, a written determination from your Agency will ensure that proper permitting, handling, and disposal regulations are followed. If Progressive Technologies, Inc can provide you with additional information or answer any questions you may have, please feel free to contact me at (561)234-0203 or Mr Tom Rolle at (3 19)589-7008 /57 ------- This Page Intentionally Left Blank ------- FILE COPY tO S7q UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY WASHINGTON, D.C. 20460 _____ 9441.1997(03) ‘ L ,Rolt.” APR 1H997 OFFICE OF % £ T r ’ r T SOLID WASTE AND EMERGENCY wir. dames C. uomas jr. RESPONSE Jetco, Inc. P.O. Box 11494 Memphis, TN 38111 Dear Mr. Thomas: This is in response to your letters of October 14, 1996 and Dec 3, 1996 to Michael Shapiro. I apologize for the delay in our reply. Your questions concern the regulatory provisions under the federal h r, rdous waste regulations that apply to the remixing of paint and coatings that have separated in the container, and to the establishment of collection sites for empty paint cans. First, I would like to commend you for your efforts to develop a technology that allows materials that might otherwise become wastes to be used as effective products as well as your efforts to minimize the failure of coatings which can result in unnecessary generation of waste and the need tb use new replacement materials. The Environmental Protection Agency (EPA) encourages pollution prevention and the use of technologies that minimize waste generation. Based on clarification provided to Kristina Meson and Ann Codrington of my staff and your letters, we understand that Jetco proposes to market a unit that remixes paint and coatings that have separated in the container due to age. The unit potentially miy be purchased by hardware stores and other retailers who will encourage the public to bring in paint for remixing. You also propose to establish a system to collect paint cans that have been emptied according to the provisions at 40 Code of Federal Regulations 261.7 for future recycling as scrap metal. You ask that we clarify whether h ,ardous waste regulations apply to the owner or operator of a location that collects empty paint cans destined for recycling and whether regulations apply to the storage and transportation of the cans. Hazardous Waste Determination Paint that is to be remixed using the Jetco unit and is to be used for its intended purpose (e.g., as a paint or coating) regardless of its age or condition before re-mixing is not considered a solid waste and therefore cannçt be a h2, wdous waste, and the h 7 rdous waste regulations do not apply. However if the paint must be discarded, it would be considered a waste and the generator must make a hazardous waste determination and comply with any applicable I • Pnnled with Veoetable Oh Based Inks on 100% RecyCled Paper (40% Postconsumer) ------- requirements. In general h l72rdous waste regulations apply to materials which are first determined to be solid wastes. A solid waste is a hazardous waste if it is listed as a hazardous waste in Subpart D of 40 CFR Part 261, or if it exhibits a characteristic of hazardous waste as identified in Subpart C of 40 CFR, Part 261. A generator may test.the waste or use knowledge of the process (or the material) to determine whether the waste generated is hazardous. It is the responsibility of the generator of the paint waste to determine whether the waste is hazardous. Discarded paints generally are not found on EPA’s “Lists of Hazardous Wastes” found at Subpart D of 40 CFR part 261. However, discarded paints are considered hazardous waste if they exhibit a characteristic described at 40 CFR 262 Subpart C. Paint wastes may exhibit characteristics such as Ignitability or Toxicity described at 40 CFR § 262.21 and 261 24. Paint that is considered h rdous waste and that is generated by a conditionally exempt small quantity generator (see definition below) is not subject to federal regulation under Parts 262 through 266, 268,270 and other applicable provisions, if the waste is discarded in a facility which meets the criteria of 40 CFR § 261.5(f) and/or (g). States however, may impose more stringent requirements than the federal regulations and therefore must be contacted to determine what requirements might apply where paint remixing operations are to occur. Generator Status of Household Waste Generally, wastes from households are not subject to lis, irdous waste regulation. If the remixing process is not successful, homeowners may discard the paint themselves, or the paint may be discarded at the business since household wastes are excluded from the definition of solid waste at 40 CFR 261.4(b). Therefore, the hazardous waste regulations do not apply to household waste, including household waste that has been collected, transported, stored, treated, disposed, recovered (e.g., refuse derived fuel) or reused. “Household waste” means any material including garbage, trash and sanitary residues in septic tanks) derived from households (including single and multiple residences, hotels, and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreation areas). Therefore, if the waste comes from a household, it would not be subject to the hazardous waste regulations even if it wet e later discarded on the premises of a business. Regulated Generators If however, the paint is brought in by generators other than household generators (i.e., a 2 ------- conditionally exempt small quantity generator’, a small quantity generator 2 or a large quantity generator 3 ), and the waste must be discarded (e.g., because the remixing process was not successfiul), paint that is hazardous waste would be subject to regulations and could not be discarded at the premises of the business unless the business is a permitted treatment, storage, or disposal facility licenced to accept such wastes. Household waste which is mixed with hazardous waste from regulated generators would also be regulated. Collection Program With respect to establishing a collection facility for empty paint cans, the Agency clarified its regulations pertaining to hazardous waste remaining in “empty” containers in a Federal Register notice published on November 25,1980 (see 45 FR 78524). We have enclosed a copy of this Federal Register notice for your convenience. In this Federal Register Notice, EPA explained that “except where the hazardous waste is an acutely hazardous material listed in §261.33(e), the small amount of hazardous waste residue that remains in individual empty, [ as described in 40 CFR 261.7] unrinsedcontainers does not pose a substantial hazard to human health and the environment.” The Agency also states in the November 25, 1980 Federal Register notice that “What should be clear from §261.7, however is that no “empty” containers are subject to regulatory control because no “empty” containers hold residues that are considered hazardous wastes for regulatory purposes.”(45 FR 78525, November 25, 1980) The definition of an “empty” container is found at 40 CFR 261 .7(b)( I )(i), which describes a container as empty if: (i) all wastes have been removed that can be removed using the practices commonly employed to remove materials from that type of container, e.g., pouring, pumping, and aspirating, and (ii) No more than 2.5 centimeters (one inch) of residue remain on the bottom of the container or inner lin er, or ‘A generator is a conditionally exempt small quantity generator in a calendar month if he generates no more than 100 kilograms of hazardous waste and no more than 1 kilogram per month if the waste is an acute hazardous waste listed in 40 CFR parts 261.31, 261.31, or 261.33(e). A conditionally exempt small quantity generator may not accumulate more than 1000 kilograms at any one time (see 40 CFR 261.5). 2 A small quantity generator is a generator who generates greater than 100 kilograms but less than 1000 kilograms of hazardous waste in a calendar month and the quantity of waste accumulated on site never exceeds 6000 kilograms (see 40 CFR 262.34(d)). A large quantity generator is a generator of quantities over 1000 kilograms of hazardous waste per calendar month. 3 ------- (iii) (A) No more than 3 percent by weight of the total capacity of the container. remains in the container or inner liner if the container is less than or equal to 110 gallons in size, or (B) No more than 0.3 percent by weight of the total capacity of the container remains in the container or inner liner if the container is greater than 110 galLons - in size. For the purpose of this interpretation, we will rely on the discussion found at 40 CFR 261.7(b) which focuses on containers that have held hazardous wates other than gases and acutely h ,. rdous materials, because paint wastes most often fall into this category. The Agency goes on to say in the November 25, 1980 Federal Register notice that “What should be clear from §261.7, however, is that no “empty” containersare subject to regulatory control because no “empty” containers hold residues that are considered hazardous wastes for regulatory purposes.” (45 FR 78525, November 25, 1980) Therefore, if the paint cans you propose to collect have been emptied in accoxaance with 40 CFR 261.7, the Agency would not consider them subject to regulatory control at the federal level. Please note that there are additional descriptions of “empty” that apply to containers holding acute hazardous waste or compressed gas (see 40 CFR 261 .7(b)(2) and (3)). Also note that there may be state or Local regulations which govern the collection of containers that have held paints or other coatings. Please be sure to check with the appropriate state or local agency for regulations and guidelines applicable to paint cans. However, if the cans are not emptied according to the provisions at 40 CFR 261.7, they may be subject to regulatory control if they were received from generators of hazardous waste other than household generators. Residues remaining in paint cans in quantities above the levels defined at 40 CFR 261.7, would be regulated as I__2rdous waste if they meet the defining criteria of hazardous wastes found at 40 CFR 261 Subparts C and D. In order for a business to collect such h ,ardous wastes, it must be a permitted treatment storage or disposal facility licensed to accept such waste. I hope this information is useful. As you are aware, we have not included information about air or water regulations that may apply to the activities you propose, and we recommend that you contact the appropriate offices for that appropriate information. Please direct inquiries to the Director of the Office of Air Quality Planning and Standards, Mr. John S. Seitz, U.S. EPA - MD-I0, Research Triangle Park, NC 27711, and to the Director of the Office of Water and Drinking Water, Ms. Cynthia C. Dougherty, U.S. EPA - E1209, 401 M Street S.W., Washington D.C. 20460. 4 ------- Should you have questions or clarifications about this interpretation, please contact Ann Codrington of my staff at 703-308-8825. Sincerely, ,. ‘ [ ii zabeth Cotsworth, Acting Director L- Office of Solid Waste Attachments 5 ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 944 1. 1997(04) MAY I 9 1997 The Honorable Mark W. Neumann United States House of Representatives W -chington, D.C. 2005 15-4901 Dear Congressman Neumann: Thank you for your letter of April 18, 1997 regarding your constituent John Cable’s request for information on ha ’ardous materials, and on rules for disposal of discarded concrete on land (your file number 100299-JR). In your letter, you state that Mr. Cable would like to place discarded street concrete on ‘he shores of Lake Michigan for shoreline protection. You also state that Mr. Cable has now en instructed that this violates EPA regulations on ha iirdous materials. Absent any other infonnation, we assume his concern is about hawdous waste regulations. Federal ha -ardous waste regulations under the Resource Conservation and Recovery Act (RCRA) apply to wastes that are either listed as a ha ardous waste or exhibit a characteristic of ha,ardous waste (ignitability, reactivity, corrosivity or toxicity) (see 40 Code of Federal Regulations (CFR) Subpart B). Concrete has not been identified by the Environmental Protection Agency (EPA) as a listed ha7ardous waste. In addition, it is unlikely that common concrete would exhibit any of the four characteristics of hazardous waste. However, it is the responsibility of the generator of any waste to make hzuzirdous waste determinations either by testing the material or through knowledge of the wastestream (40 CFR § 262.11). 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. 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. In addition, states may have their own rules regarding nonhazardous waste or debris. ------- Therefore; Mr. Cable should contact his state environmental agency for information on state requirements. - For inform on on Wisconsin’s hazardous waste rules, Mr. Cable should contact: Barbara Zeilmer, Section Chief FT rdous Waste Management Section WI Department of Natural Resources P.O. Box 7921 SW/3 M di on, WI 53707-792 1 Phone: (608) 266-2111 Fax: (608) 267-2768 I hope this letter sufficiently responds to your constituent’s concerns regarding the disposal of discarded concrete. If you need further information, do not hesitate to contact Kristina Meson of my staff at (703) 308-8488. Again, thank you for your interest in this matter. SincerelL Ell heth A. Cotswoi-th, Acting Director Office of Solid Waste ------- 1 W’ C ” WW Mfl7ECS VA MUO A.. . COn Z at tfje nttth tatc au e at 1aipre entattbes CCMWTTEEON YME BUDGET la5tjin ton. 3C 205 15—4901 April 18, 1997 Ms. Lyxme Ross Director Congressional Liaison Division Environmental Protection Agency West Tower, Rm.. 835, A-103 Washington, D.C. 20460 Dear Ms. Ross: I was recently contacted by a constituent, Mr. John Cable of Kenosha, Wisconsin, regarding his request for information on hazardous materials. As I understand it, Mr. Cable would like information on an Environmental Protection Agency (EPA) rule that classifies concrete as a hazardous material. In the past, he would place discarded street concrete on the shores of Lake Michigan f or shoreline protection, but he has now been instructed that this violates EPA regulations on hazardous materials. I would appreciate it if you would provide me with any background information you have on this subject. Please address a response to my Washington office, and reference my file number 100299-TR. If you have any questions about this request, John Richardson can be contacted at (202) 225-3031. Again, thank you f or your assistance in this matter.. Sincerely, Mark W. Newnanxi r iv c4l ELXNORN OfllCt JAt4ESVIUI OF lCE EIlOSMA O I RAØ$1 OF 1CE CZIy Hill On. P.,i., Placi. Room 110 6530 Shoidin Roid. Room S *ian. Covns, Counliov.. S Sosill 0io.d SI,..’ Ja.i v,lt.. WI 53515 X OAa. WI 63143 730 Wl.CSn.NI AVSfl S (IUom. W I 53171 10061 752—4030 414 1 8 54 19 01 Rcan. 403 •j•d 41 11 637.0610 ------- This Page Intentionally Left Blank ------- UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 / 9441.1997(05) 4 JUN 3 1997 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Mitchell L. Press DuPont Engineering DuPont-Chamber Works (“B”) EMSS Building Route 130 Deepwater, NJ 08023 Dear Mr. Press. This is in response to your June 20, 1996 letter to Mike Shapiro regarding the regulatory status of the units involved in the on-site recovery of process solvents from 1) an agricultural chemical manufacturing process, and 2) an automotive paint manufacturing process. According to the descriptions provided in your letter, you believe the two process solvent recovery systems meet the definition of a closed-loop system as described in 40 CFR 261 4(a)(8). The issue in the Letter on which you requested clarification was whether the recovered solvents are still exempt if less than 100% of the product that is recovered is returned to the original process. In the DuPont scenario, a small percentage, under certain circumstances, cannot be returned to the original process for chemical reasons and would instead be sold as commercial-grade product. According to your description of the agricultural chemical manufacturing process, all of the ethyl acetate and 80% of the xylene recovered will be returned to the original production process. The recovery system ends up with approximately 20% more xylene than the manufacturing process can use and this will be sold as commercial-grade product. In regard to the automotive paint manufacturing process, we understand that, at times, due to process chemistry and solvent mass balance, adjustments will need to be made to keep acetone at a certain percentage in the product, which may result in excess recovered solvent that will also be sold as commercial grade solvent. The exclusion under §261 .4(a)(8) states that secondary materials that are reclaimed and returned to the original process or processes in which they are generated where they are reused in the production process are not solid wastes provided: ------- • (i) Only tank storage is involved, and the entire process through completion of reclamation is closed by being entirely connected with pipes or other comparable enclosed means of conveyance; • (ii) Reclamation does not involve controlled flame combustion (such as occurs in boilers, industrial furnaces, or incinerators); • (iii) The secondary materials are never accumulated in such tanks for over twelve months without being reclaimed; and • (iv) The reclaimed material is not used to produce a fuel or used to produce products that are used in a manner constituting disposal. In the preamble to the rule promulgating the closed-loop exclusion, EPA clarified that a requirement of this exclusion is that the reclaimed materials be returned for reuse in the production process (51 EB 25442; July 14, 1986). The Agency goes on to explain in the preamble that the term production process is intended to include those activities that tie directly into the manufacturing operation or those activities that are the primary operation at an establishment. Because some of the secondary materials cannot be returned to the production process, the two situations you describe in your letter would not qualify for the closed-loop exclusion. As you are aware, however, under §261 6(c)(1), the recycling process (i.e., your solvent recovery process) itself is exempt from regulation except as provided in §261.6(d)(1). Furthermore, materials that are reclaimed from solid wastes and that are used beneficially are not solid wastes under §261 .3(c)(2), unless the reclaimed material is burned for energy recovery or used in a manner constituting disposal. Therefore, once recovered, your two commercial-grade products would no longer be considered solid wastes under RCRA as long as they are used beneficially. In addition, please note that authorized states have their own regulations and policies that may be more stringent than federal regulations and policies. If you have any questions or require additional information, please call Mary Beth Clary of my staff at (703) 308-1 532. Sincerely, • 41 Elizab th . Cotsworth, Acting Director Office LSolid Waste ------- , tO S7 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 s , , 9441.1997(06) 4( 0 tG JUL 4 7 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. Peter W. Colby Colby and Nance, L.L.P. 1001 G Street, NW, Suite 400 East Washington, DC 20001 Dear Mr. Colby: Thank you for your letter to Rick Brandes of January 23, 1997, in which you asked for a regulatory determination on the status of certain manufacturing wastes. Specifically, you wanted to know: 1) if warfarin tablets subject to “dissolution testing” are considered hazardous wastes. 2) if fragments from integrity testing of tablets are considered hazardous waste, 3) if certain wash down water is exempt from the mixture rule; 4) the regulatory status of disposable gloves and other personal protective equipment; 5) the status of wastewacer from the cleaning ot ’gloves and protective equipment, and 6) if air filters removed from the ventilation system in the manufacturing process are considered hazardous waste. We have considered the views expressed in your letter and provide the following response based on a general principal: in interpreting the hazardous waste regulations at 40 CFR 261.33, EPA takes the position that a point exists in the manufacturing process in which an operator creates either a commercial chemical product or manufacturing intermediates. When these chemicals meet a listing description under 40 CFR 261.33. any discard of these materials (including these materials captured on filters or mixed with other wastes) are considered hazardous wastes and must be handled accordingly. Under 40 C.F.R. 261.33, EPA may list as RCRA hazardous wastes various materials associated with chemical products that become hazardous wastes if and when they are discarded or are intended to be discarded. Acutely hazardous chemical product wastes are listed in section 261.33(e) and are known as “P-wastes.” Other hazardous chemical product wastes are known as “U-wastes” and are listed at section 261.33(f). Not all P or U listed substances wherever found, however, are RCRA chemical product hazardous wastes. A particular substance is a P or U waste only if, before discard, it is the sole active ingredient in a “commercial chemical product or manufacturing chemical intermediate.” 40 C.F.R. 261.33(a) through (f) ------- The term “commercial chemical product or manufacturing chemical intermediate” is interpreted in the “Comment” in 40 C.F.R. 26 1.33(d). The term refers to a chemical “manufactured or formulated for a commercial or manufacturing use” which consists of the comznerically pure or technical grades of the chemical and “all formulations in which the chemical is the sole active ingredient.” This is distinguished from a chemical contained in a manufacturing process waste. Process wastes are generated prior to the creation of the product or intermediate and may be listed as F or K wastes under EPA’s listing system. Once a commercial product or manufacturing intermediate is created, a RCRA hazardous waste is generated when any of the materials related to the product (as described in section 26 1.33(a) through (f)) is discarded, or intended to be discarded. Because all the activities in your letter describe discarded materials in one form or another, if’ a commercial chemical product or manufacturing intermediate containing warfarin as its sole active ingredient has been created before any of the activities you describe, the waste must be treated as a RCRA hazardous waste unless an exemption can be found. Further, your description of your client’s operation as one in which warfarin is not manufactured, but rather is simply processed into products from warfarin manufactured at another site, suggests all waste not otherwise exempted would qualiFy as hazardous because the warfarin enters the operation as a commercial chemical product. In your letter, you characterize waste from dissolution testing (i.e., placing tablets in a distilled water solution and observing the results) and integrity testing (crushing or breaking tablets into fragments) as manufacturing process waste and/or used commercial chemical products. This interpretation is incorrect. Once the product is manufactured, then the listing of a commercial chemical product under 40 CFR 261.33 attaches. As a practical matter, the crushed or dissolved waste would be expected to have the same sort of composition and pose the same sort of threats when discarded as would the untested commercial product and thus must be managed as a hazardous waste listed under 40 CFR 261.33. Your statement concerning the applicability of the de niininiis exemption under 40 CFR 261.3(a)(2)(iv)(D) to plant wash down water may be correct. The exemption applies to discarded commercial chemical products or chemical intermediates listed in §261.33 from manufacturing operations in which the materials are used as raw materials or are produced in the manufacturing process. The regulatory language in §261 .3(a)(2)(iv)(D) provides several examples of de mmimis losses envisioned by the regulatory exemption. Please remember the facility’s discharge of wastewater must be subject to regulation under Section 402 or 307(b) of the Clean Water Act to qualif , for this exemption. Also, please be aware that if the facility’s wastewater treatment system leaks before the wastewater reaches the headworks of the treatment system, the leaked material is classified as a §26 1.33 material. In addition, while the de mi,,im,s amount is not quantified in the regulatory language, large material losses would void the de miiiimis quantity exemption. As for wastewater from the cleaning of protective equipment, the regulatory language of §26l.3(a)(2)(iv)(D) includes “discharges from.., rinsing and cleaning of personal safety equipment...” Again, if the cleaning was done on the facility’s site and the discharge of 2 ------- wastewater met the requirements for exemption above, the wastewaters would be exempt from the mixture rule. With respect to the equipment, itself, the analysis should begin with an evaluation of whether the substance that comes in contact with the equipment consists of small amounts of the actual formulated commercial chemical product or manufacturing intermediate (not manufacturing process wastes). If this is the case, the discarded equipment is debris (a “manufactured object” as described at 40 CFR section 268.2(g)) containing a listed hazardous waste --discarded product or intermediate. It, therefore, must be managed as a hazardous waste until it no longer “contains” the hazardous waste. 57 Fed. Reg. 958 at 986 (Jan. 9, 1992). There is no explicit exemption for discarded equipment contaminated with minimis losses from manufacturing operations. However, the contaminated equipment could be washed to the point that it is considered to no longer “contain” the hazardous waste. This interpretation is based on the fact that the equipment would qualif ,’ as hazardous debris under 40 CFR sections 268.2(g) and (h). Under section 261.3(0(1) it would not be subject to regulation as a hazardous waste if it is washed using one of the technologies described in section 263.45, Table I. See, in particular, physical and chemical extraction technologies. - Whether air filters from the manufacturing process that contain warfarin should be managed and disposed as nonha.zardous waste depends on site-specific details. We would suggest you review the specific circumstances with the appropriate State agency. As we understand your letter, warfarin is released as it is prepared in a separate, sealed-otT area. Air filters used in the chemical production of a commercial chemical product or manufacturing intermediate meeting a P or U listing-prior to creation of such product or intermediate are considered manufacturing process wastes which do not fall wkhin the listing under 40 CFR 261.33. However, once the material starts to meet the listing description as the commercial chemical product or manufacturing chemical intermediate, the particles of warfarin, or of formulations meeting a P or U listing description captured by the filters, still constitute the listed commercial chemical product subject to regulation as hazardous waste, when disposed. The air filters are also subject to regulation as hazardous waste when disposed because they would constitute a solid waste mixed with a listed hazardous waste. The air filters, however, like the personal safety equipment, may also be able to qualiFy as hazardous debris and may be washed to remove the hazardous waste. The specifics of how your situation apply to the principles stated above should be reviewed by applicable State Agencies. Please check with the State in which your client’s facility is located with respect to the application of general principles to the specific circumstances at your facility and to make sure that other restrictions do not apply. 3 ------- Thank you for your inquiry. If you have any additional questions on this topic, please call Rick Brandes of my office at (703)308-8871. Sincerely, David Bussard, Ditector Hazardous Waste Identification Division 4 ------- COLBY & NANCE, L.L.P. 1001 G Street. NW.. Ste. 400 East Washington. DC 20001 (202) 347-5100 Fax: (202) 638-3516 January23, 1997 Mr. Richard Brandes Chief, Waste Identification Branch OSWER (5304-W) United States Environmental Protection Agency 401 M Street, SW Washington, DC 20460 Re: Request for Classification of Manufacturing Waste Dear Mr. Brandes: We represent a drug company that is manufacturing a product whose sole active ingredient is warfann sodium. Currently, the manufacturer manages and disposes of all warfarin-containing waste that is generated through compounding and laboratory operations as RCRA hazardous waste. However, based on our analysis of the federal regulations, it appears that several of the waste streams need not be managed as hazardous. We would appreciate learning the Agency’s position as to whether the waste streams discussed below must be managed as hazardous under EPA’s RCRA regulations. DISCUSSION The product at issue contains between .45% and 4.5% warfarin sodium (depending on the dose) as its sole active ingredient, and will be marketed under the name warfarin”. Accord ngly, there is no question that the finished product qualifies as hazardous waste under 40 C.F.R. 261.33(e) (“commercial chemical produCt”) when it is disposed of for being off-specification or otherwise in a manner that falls within the listing. Likewise, the active ingredient warfarin sodium, which is purchased by our client for use in the formulation of the drug, is a commercial grade chemical that falls within the listing in 40 C.F.R. 261.33(e) when it is disposed of in accordance with the terms of the listing. The issue on which we are seeking guidance is whether certain wastes èontaining warfarin which are generated in the quality assurance/quality control process or in the compounding process fall within the commercial chemical product listing. Of course, we are aware 1tt t even if these waste streams do not fall within the commercial chemical product listing, they may fall within some other listing ormay ------- Mr. Richard Brandes 01/23/97 page2 - exhibit a hazardous characteristic, However, we are not seeking the Agency’s position on any other such issues in this letter. - QUALITY ASSURANCE/QUAUTY CONTROL WASTE 1. Dissolution Laboratory Waste As a part of its quality control procedures under FDA requirements, the manufacturer routinely tests samples of the finished warfarin tablets to determine how fast they will dissolve after ingestion. Dissolution testing is accomplished by placing tablets in distilled water for a standard period of time and observing the results. After the testing is completed, laboratory pcrz-oruiel dispose of the test solution of water and drug ingredients, currently as hazardous waste. According to our understanding of the commercial chemical product listing, this waste does not fall within the listing. The commercial chemical product listing is limited to a manufactured product that is disposed of under specific circumstances listed in the regulations, including when the waste is off-specification, contaminated, or spilled. . See 40 C.F.R. 261 .33(a)-(d). The listing does not encompass every waste, “such as a manufacturing process waste”, that contains the listed chemical. . 40 261.33(d) (comment). Here, the residue produced by a quality control ‘ test is essentially a manufacturing process waste, and its disposal does not fall into any’of’the categories in the listing regulation. Therefore, the waste should not be considered hazardous under the commercial chemical product listing. Moreover, although the listing regulation does not state that the commercial chemical product must be “unused”, EPA has interpreted the listing as being limited to “unused chemicals”. Nitroglycerin Pills as Commercial Chemical Products, September 1993 Monthly RCRA Hothne Report. Under the facts set out above, . testing should be considered the equivalent of use, since the manufacturer has deliberately altered the product physically or chemically in order to serve a specific goal. Thus, the dissolution laboratory waste should not be considered to be within \ the commercial chemical product listing, and can be discharged to the local sewer - system. ) 2. Integrity Testing Waste The manufacturer also conducts physical integrity testing for quality control purposes. The manufacturer selects a sample of tablets and subjects them to controlled pressure in order to determine how well they will withstand physical chipping and breaking. When the test is completed, the manufacturer disposes of the resulting dust and fragments as hazardous waste. - Just as with the waste generated by dissolution testing, the disposal of this waste does not fall within any of the categories specified in the commercial chemical ------- Mr. Richard Brandes 01/23/97 page3 product listing. Ukewise, the dust and fragments are analogous to a used or spent product, since they have been used for the intended purpose of quality control. Therefore, the waste from integrity testing should not be considered to be within the commercial chemical product listing.’ (,.) i . . MANUFACTURING WASTE Waste that is generated in the process of manufacturing warfann tablets for sale presents different issues. The basic process is simple; the warfarin sodium is blended with various inert ingredients (primarily lactose, starch and water) and the mixture is physically converted to granular form. The granules are dried and then compressed into tablets. Three main waste streams are generated: (1) washdown water containing residues of warfann and other drug ingredients, which is generated by deaning machinery, containers, implements, and manufacturing rooms, (2) disposable gloves, gowns, and other personal equipment used by employees in the manufacturing area, all of which contain traces of warfarin, and (3) airborne dust that is collected in air filters, which are periodically replaced and discarded. 1. Washdown Water The commercial chemical product listing specifies that not all manufacturing process wastes containing chemicals on the list are thereby rendered hazardous. 40 C.F.R. 261.33(d) (comment). However, the listing itself gives no guidance as to which types of process waste, if any, are to be considered hazardous. The separate regulations defining hazardous waste contain an exdusion for “de minimis losses” of a listed commercial chemical product that occur when the listed product is used as a raw material or produced in a manufacturing process, so long as the de minimis quantities are discharged to the sewer system. 40 C.F.R. 261 .3(a)(2)(iv)(D). The regulations state that de minimis losses include spills from normal material handling operations such as the transfer of materials, leaks from pipes or process equipment, sample purgings, and discharges from safety showers and rinsing and cleaning of containers and personal safety equipment 12. This exclusion should apply to washdown water generated in the manufacture of warfann when the wastewater is disposed of through the sewer system, as this waste constitutes a “de minimis” loss from manufacturing. Moreover, the waste falls clearly within EPA’s rationale for the regulatory exclusion: These small losses of raw materials, products or intermediates are often disposed of by draining or washing them into the wastewater treatment system. This typically is a reasonable and practical means of disposing of these lost materials. Segregating and separately If EPA con ns . s condusion, the b tegrity testhig wasie I be sent for iooriera on along with aU .the other nonhazaidous phan iace w e that the manufa generates. ------- Mr. Richard Brandes 01123/97 page4 managing them often would be exceedingly expensive and may not be necessary because the small quantities can be assimilated and treated in the wastewater treatment system. 46 Fed. Reg. 56582, 56586 (November 17, 1981). In addition, the Agency has noted, because these losses constitute waste of a valuable product, the manufacturer has a strong incentive to minimize the amount that is lost. j . Here, despite the efforts of the manufacturer to minimize waste, the washdown water still contains small quantities of warfarin. The washdown water is currently collected and disposed of as hazardous waste at considerable expense. However, since the small amounts of waifarin found in the washdown water fall within this > regulatory exclusion, the manufacturer should be allowed to modify its procedures and dispose of the washdown water through floor drains or otherwise into the sewer system. . - 2. Disposable Gloves and Other Personal Equipment According to the regulatory exclusion discussed above, wastewater generated from cleaning gloves, gowns, and other reusable personal equipment would be excluded from the commercial chemical product listing if the wastewater were discharged to the sewer. 40 C.F.R. 261 .3(a)(2)(iv)(D). In this case, as a result of FDA requirements, the manufacturer uses disposable gloves and other protective equipment to avoid any risk of contaminating the product. As a result, instead of generating wash water, the manufacturing process generates dry disposable materials that contain traces of warfann. Disposable gloves and other personal equipment with traces of warfarin should be subject to management and disposal as nonhazardous solid waste. As a practical matter, this is appropriate because the waste presents the same minimal threat to human health and the environment as the de minimis losses discussed above. Because of the way the waste is generated and the manufacturer’s incentive to minimize the lost product, the waste Will contain very small amounts pLthe listed commercial chemical product. Moreover, when the waste is landfilled, the traces of warfann will soon be diluted or broken down into other substances, just as when wastewater containing trace amounts of product is discharged to the sewer system. There are at least two ways to analyze this issue under the regulations. First, the waste (defined as “disposable personal protebtive equipment containing traces of warfann”) can simply be deemed to fall outside the commercial chemical product listing. The waste is not a “commercially pure grade of the chemical” nor a “formulation in which the chemical is the sole active ingredient”, nor does it fall within any of the other categories enumerated in 40 C.F.R. 261.33. Under this analysis, the waste is simply not a listed hazardous waste, and no exclusion is required. ------- Mr. Richard Brandes 01/23197 page 5 This issue also could be analyzed under EPA’s “contained-in policy”. Under this analysis “debris”, induding dothing and other manufactured items that are being disposed of, may be considered hazardous if it contains hazardous waste (here, the traces of warfarin). If the debris were considered potentially hazardous• under the contained-in policy, then the state regulatory agency would have the optiori of determining whether the specific waste stream should in fact be considered hazardous, based on either site-specific or contaminant specific concentration levels. Under this scenario, then, the applicable state agency would have the ultimate decisionmaking authority as to whether the waste should be managed as hazardous. On these facts, the agencies should allow the waste to be managed as nonhazardous. 3. Air Filters The area in which the warfarin is manufactured.is sealed off from the remainder of the facility, and has a separate ventilation system. The air is continually filtered to remove any impurities, induding traces of warfann that may have become airborne during the manufacturing process. The air filters are periodically removed from the ventilation system and disposed of. The air filters should be analyzed in essentially the same way as the disposable gloves and other personal protective items. The simplest approach would be to determine that the filters fall outside the commercial chemical product listing. An alternative would be to analyze the fitters under the contained-in policy, so that the applicable state agency would determine whether they need to be managed as hazardous waste. In either case, based on the particular facts involved here, the air filters should be managed and disposed of as nonhazardous solid waste. CONCLUSION We would appreciate hearing EPA’s interpretation of the RCRA regulations as they apply to these issues. If you need further information, please do not hesitate to call me. Thank you for your assistance. Peter W. Colby ------- tate uf N2fu Jerze Christine Todd wh.tmon Department of Environ iental Protection Robert C. Shinn. Jr Gev.rno, Division of Solid and Hazardous w Commissioner CN 414 T,enton. NJ 08625-0414 Tel. 1609-984-6620 Fax. 1609-984-6874 Mr. Peter W. Colby Colby & Nance, L.I .P. 1001 G. Street, N.W. Suite 400 East Washington, D.C. RE: Request for Classification of Manufacturing Waste Dear Mr. Colby: This correspondence is in response to your letter of March 5, 1997 requesting a classification of various waste streams generated from the manufacturing of drugs that contain warfarin sodium. The waste screams in the manufacturing process include washdown water, disposable gloves and personal equipment, air filters, and waste product from integrity testing. You requested this agency’s opinion on your interpretation of the hazardous waste regulations as applied to the above-referenced wastescreams, and your summary conclusion that all of the above wastes may be managed as nonhazardous wastes. As per your request, each category of waste generated at various points in the manufacturing process are addressed as follows on an individual basis: 1. W shdown water containing residues of warfarin which is generated by cleazu.ng machinery, containers. iinolements. and manufacturing rooms . The hazardous waste exclusion under “de rninimis losses” at 40 C.F.R. 261.3(a)(2)(iv)D, as incorporated by reference at N.J.A.C. 7:26G-5.1, applies only to the loss of material during normal. product handling operations. The operations applicable to the generation of the above wastestreams include the following: A. Cleaning machinery due Co minor leaks. Please note that waste generated due to cleaning of the entire machinery is not included in the above reference. Therefore, the washdown water from machinery cleaning operation should be managed as hazardous waste. B. Rinsing of empty containers. The washdwon water resulting from rinsing of empty containers is exempted from the hazardous waste regulations per above reference. l.rcev Li j , Eaual O cm,nI ,i’ Em&owr ------- C. Implements - In this regard. more information is needed that describes the implements used arid details as to ho the waste is accumulated in your client’s manufacturing process. A determination of the hazardous/nonhazardous nature of the washdown water generated by cleaning implements can be made after receiving the required information. D. Washdown water from the manufacturing room. The “de ininimis losses” exclusion is applicable only when the waste contained in the washdown water is generated due to minor spill or leaks from normal material handling operations as described in the above reference. Washdown water from the manufacturing room may contain waste generated due to other reasons such as the malfunction of machinery, spillage due to accidents. etc. Wastes generated in such a manner are not exempted from the hazardous waste regulations. 2. Disposable gloves and ocher personal eaui ment . This category of waste product consists of gloves and personal equipment contaminated with manufacturing product. The ethphasis here is on the disposable nature of the items, not on the “de minimis” spill of the chemical which is removed by the washdown water. Such waste materials must be handled as hazardous wastes that consist of solid waste contaminated with listed hazardous wastes. 3. Air filters Air filters contaminated with warfarin would need to be handled as hazardous waste in the same manner as the gloves and personal equipment mentioned above, since circumstances are similar. 4. Integrity testing waste Warfarin salts are listed as a hazardous waste due to the nature of its chemical toxicity. Physical crushing of the tablets does not alter its toxicity characteristic, only the product’s physical appearance. The remains of tablet crushing. once integrity testing is performed, is considered a discarded manufacturing product and should be handled as POOl. (if it contains more than O.3’ of warfarin) or tJ248 it contains less than O.3 of warfarin). ------- Ø? i? 9? Ø j:4j P’ Y j’ H ULtiII IN.. -, NU. (CiCI t4# ( If you have further questions. or require further clarification on the matters discussed herein, please feel free to contact Dr. ShihChang of my staff at (609) 292-8341. Very tr ily yours. / bE t.Cofer e : very SC/sc and Technica P ograms 1 1197-225 C : Phil Cole. BRP John Sielamowicz, BRRTP ------- • New York State Department of Environmental Conservation Division of Solid & Hazardous Materials Bureau of Hazardous Waste Management 50 Wolf Road, Albany, New York 12233.7251 518.457.9257 FAX 518-485-8769 MAR 1 r 1997 John P. CohlU Mr • Peter . W. Colby AcIItig Cetvwivu(on., Colby & Nance. L.L.P. Suite 400 East 1001 G Street, N.W. Washington, D.C. 20001 Dear Mr. Colby: This is in response to your March 4, 1997 letter in which you request a classification of manufacturing wastes, generated by a drug company you represent. The following is a determination of the regulatory responsibility for waste management, based on the facts you have provided, by waste category. Oua litv _ Assurance/Oualitv Control Waste 1. Dissolution Laboratory Waste The warfarin tablets that are utilized in dissolution testing are a hazardous waste (POOl) pursuant to 6NYCRR 371.1 (d)(1)(ii)(’d’), known as the “mixture rule.” The warfarin tablets dissolved in water are a mixture of a solid and a hazardous waste which is listed in 6NYCP.R 371.4. The testing you describe is the equivalent of discard of a listed commercial chemical product, rather than use. Although the tablets are processed in product testing, they are “unused,” as intended. The “mixture rule,” however, does not preclude the direct discharge of this waste to Publicly Owned Treatment Works (POTW), even though hazardous. All that is needed is the consent of the sewer agency and compliance with all local pretreatment requirements and sewer use ordinances. 2. Inteority Testing Waste The testing you describe as physical integrity testing for quality control, once again, does not constitute use, although it is a necessary step following the manufacturing process. The resultant, fragmented waste would be considered off-specification commercial chemical product, pursuant to 6NYCRR 371.4 (d)(2). Your footnote indicates that, if non—hazardous, this waste will be sent for ------- Mr. Peter W. Colby 2. incineration. This waste is considered a hazardous waste, and, although the Land Disposal Restrictions (LDR) specifies combustion for treatment, these tablets must be managed as hazardous and must meet all regulatory requirements of the LDR as any other hazardous waste. Manufacturing Waste 1. Washdowrt Water The washdown water containing varfarin cannot be considered “de ininimis losses” unless these losses are unintentional . For example, washouts of formulating vat residues are routinely generated and would be considered hazardous waste. However, once again, these wastes are not precluded from disposal to a POTW if the sewer agency will accept these wastes. The “domestic sewage exclusion,” pursuant to 6NYCRR 371.1 (e)(l)(i) and (ii), only applies to the actual point source discharge, as noted after 371.1 (e)(l)(ii), and requires that hazardous wastes managed by discharge to a POTW must be managed as hazardous until such discharge occurs. Wastes managed in this manner must also meet the notification requirements of the LDR pursuant to 6NYCRR 376.1 (g)(l)(vi). Since wastes managed by discharge to a POTW are not excluded until the point of discharge, they would be considered hazardous wastes generated for regulatory purposes, including regulatory fees. Please note that management options (e.g., storage, treatment) for a hazardous waste that will eventually be excluded must be in compliance with all applicable hazardous waste regulatory requirements. 2. Disposable Gloves and Other Personal Equipment The wastes you describe in this category fall under the aforementioned “mixture rule” of 6NYCRR 371.1 (d)(1)(ii) (‘d’). Although they are not completely and distinctly identified in the listing of 6NYCRR 371.4 (d), they are a mixture of a solid waste and a listed waste, and must be managed as a hazardous waste. 3. Air Filters You are correct in stating that the air filters should be considered in essentially the same way as disposal gloves and personal equipment. If they contain, or are contaminated with, the pure or off specification couiinercial chemical product, they would be hazardous by the “mixture rule” of 6NYCRR 371.1 (d)(1)(ii)(’d’), and should be managed as hazardous waste. ------- Mr. Peter W. Colby 3. If you have any questions or would like further explanation of any statements made, above, please contact me at - (511) 485—8988. Sincerely, Lawrence J. Nadle , P.E. Supervisor Technical Determination Section Bureau of Hazardous Waste Management Division of Solid & Hazardous Materials ------- This Page Intentionally Left Blank ------- tO S7 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460 9441.1997(07) JUL 30 1997 OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE Mr. David R. Case Executive Director Environmental Technology Council 734 15th St., N.W. Suite 720 Wnshington, D.C. 20005 Dear Mr. Case: Thnnk you for your letter of July 11, 1997, concerning the regulatory status under the Resource Conservation and Recovery Act (RCRA) of certain vitrification processes for spent aluminum potliner (K088). We appreciate your interest in this important environmental issue. I am also pleased that you were able to meet with my staff on past occasions to discuss your concerns. After evaluating two proposals to recycle K088 through vitrification into various glass products, the Environmental Protection Agency (EPA) has concluded that such vitrification can be a legitimate use of this material which could also be excluded from RCRA regulation under 40 CFR 261.2(e)(1)(i). If a state makes such a determination about specific potential vitrification facilities, these facilities will be able to use these wastes to make beneficial products without the necessity of obtaining a RCRA permit. The Agency will shortly be issuing a letter explaining its conclusions. You have suggested that before this letter is issued, EPA should make a draft determination avaibible for comment by interested parties, and that these comments should be considered by the Agency before the final determination is issued. EPA has agreed to share its draft letter with various interested parties to obtain their comments on how best to frame our conclusions, but not to revisit the outcome of the determination. We will be glad to make a draft available to you, and we will be grateflul for any suggestions you may have. However, the Agency does not plan to change its decision in response to comments received. We have evaluated all relevant issues very thoroughly, and remain convinced that our conclusion is reasonable. -. - l. — . O.d —.,.d . 14k “n..al.I%Ia fl O.ca.I Infre nn 4flfleI On....Ma.4 D nar I 4fle4. Onctrflnq,,flr ------- -2- Thank you agnin for your interest in this matter. I -hope this letter addresses your concerns. If you have any questions, please call Mike Flynn at 703-308-8894. Sincerely yours, Michael Shapiro Acting Deputy Assistant Administrator ------- Environmental Technology Council 734 lSih Screei. N.W. Siiji 720 Wa%llingwn. I) C. 20(X 5 Tel: (202) 7WW)870 Fax: (02) 737.2038 BYFACS1 VOLE July Ii, 1997 Mr. hael }LShapiro, Acting Deputy Assistant Administrator Office of Solid Waste and Emergency Response United States Environmental Protection Agency 401 MStreet,S.W. W dungton, D.C. 20460 • Re: K088 Vitrification Processes as Exempt Recychj g Dear Mr. Shapiro: - I understand that your office is about to document an agency determination that certain vitrification processes for K088 spent potliner may qualify as “direct use/reuse” exempt from all RCRA management standards, permits, and enforcement. As you are aware, some forms of unregulated h -” rdous waste “recycling” have resulted in environmental releases of concern in the past, and for that reason the agency should make a specific exclusion determination under 40 CFR 261.4 before exempting any hazardous waste recyding process from RCRA. In this instance, EPA should take a very cautious approach to a determination regarding K088 vitrification, which will no doubt be viewed as establishing broad precedent relating to the scope of the recycling exemption. The Environmental Technology Council urges in the strongest terms that the proposed determination include explicit criteria that, at a minimum, require a demonstration that: (1) the process does not involve thermal destruction of h ardous wastes; (2) th b -vnrdous waste is selected to meet specifications related to the recycling pwpose (3) the h rdous wa contributes material values to the pro4uct; (4) no hazardous constituents in the waste constitute “toxics along for the ride” in the recycled product; and (5) the economics clearly demonstrate that a legitim2te product is being produced and sold, and not that the economic advantage results from uncontrolled waste treatznentfdisposai. We believe that these analytical steps are an absolute minimum and must be rigorously completed by the regulatory agency before a bo fl recycling determination can be made. To do otherwise would invite an even greater scope for uncontrolled management of h rdous waste under the guise of “recycling.” IIA FT%OU PLCYO.W ac .,aff PAP ------- Mr. ?fichaeL H. Shapiro July 11. 1997 Page 2 We understand that the agency intends to prepare a Wi tten deterTiunatiOn on this matter. In ordèib provide adequate public participation. we urge thata draft deteimination he made available for comment by ulterested parties and that these comm nt be considër by the agency before the final deterinination.!S issued. As always, the vironmental.Tc hnology Council is prepared to work with EPA On s ic r cedcntsettin8 recycling issues. sin-. DavidR. Case Executive Director cc: Mr. James Berlow Mr. David Biissard Mr. David Lennett TOTAL P.03 ------- |