United States Solid Waste and EPA/530-R-97-004D
Environmental Protection Emergency Response December 1996
Agency (OS-343)
RCRA Permit Policy
Compendium
Volume 4
9441.1990-9441.1996
Identification and Listing of
Hazardous Waste (Part 261)
• General
ATKl/3590/05 kg
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UNITED STATES ENVIRONMENTAL PROTECTION AGtNCY
\ -^|/Z *' WASHINGTON. D.C. 20460
*•*• c5"*
'"'"*'* 9441.1990(01)
MEMORANDUM
SUBJECT: RCRA Status of Dinoseb Formulations
FROM: Devereaux Barnes,
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 RCRA
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
(EP) 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, any technical grades [emphasis added] of the
chemical that are produced or marketed, and all formulations in
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which the chemical is the sole active ingredient." (See
40 CFR 261.33(d)(comment).) 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.) DINOSEB IN ORGANIC SOLVENT
In this formulation, the compound dinoseb is the sole active
ingredient and when discarded or intended for discard, it would
be a "P" or acute hazardous Waste. Additionally, because the
formulation consists of a high percentage of organic solvents, it
may also be hazardous by virtue of its ignitability (40 CFR
26l.2l(a)(l) and (3)) or corrosivity (40 CFR 261.22(a)(l)
and (2)).
3.) DINOSEB ALKANOLAMINE SALTS IN WATER
In this formulation, Dinoseb (2-sec-butyl-4,6-dinitrophenolf
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 ignitability
characteristics. Therefore, any Dinoseb formulations of this
type should be evaluated with respect to characteristics before
disposal'.
4.) PESTICIDE MIXTURES/LOW CONCENTRATIONS OF DINOSEB SALTS IN
WATER
As in the formulation above, the salts of Dinoseb are not
listed in 40 CFR 261.33(e) as acutely hazardous wastes.
Therefore this formulation, which 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 "commercial chemical
product" as defined in 40 CFR 261.33(d)(comment) and therefore
would not be an acute hazardous waste.
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When this material is discarded, or is intended for discard,
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 (TSD) facilities.
Formulations 3 and 4 above are not acute hazardous v;astes ;
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 is allowed for 90 days under
40 CFR 262.34. (See 51 FR 10168, March 24, 1986.jFurther,
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
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9441.1990(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGE\Cv
WASHINGTON. D.C. 20460
«—r-r-i 1 ^ l/~~ ~
--r_B I £ .~w~ O" ICE O?
SOLiD ^.~£-£ £N-D EVE PO£";CV PESP'
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 memorandum you
mentioned in your letter from Marcia Williams to David Stringham
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).
Printed on Recycled Paper
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If you have any questions or comments regarding this letter,
you may contact Emily Roth of my staff at (202) 382-4777.
Sincerely
Sylvia K. Lowrance
Director
Office of Solid Waste
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9441.1990(03)
J*'f
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
13 1990
SOi_iD AASTF. AND EVEHGENCv RESPONSE
MEMORANDUM
SUBJECT: Recycling of Electric Are, Furnace Dust (K061) as an
Ingredient in the IantffjlcVur* of Cement
FROM: Sylvia K. Lowr
Office of Soli
TO: Robert L. Duprey, Director
Hazardous Waste Management Division
Region VIII
This responds to your December 6, 1989, memorandum requesting
a regulatory determination regarding the use of K061 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 EAF 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 K061 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" K061 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 K061 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 EAF dust is a solid
waste (and a hazardous waste — K061) under 40 CFR
261.2(e)(2)(i). This determination does not, however, address
the legitimacy of the use of K061 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 waste as they are
processed. In other words, do the constituents actually play a
part in the manufacture of the cement (i.e., are they
Prinud a* Rteycltd faftr
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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 fate 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 waste 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
K061 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 K061 wastes.
An additional concern is that the mixing of K061 waste with
millscale (a nonhazardous solid waste) could constitute dilution
of the hazardous constituents. Mr. Wistar states in his letter
that such blending is 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 X061 waste is, in fact, ns& an effective
substitute for an analogous raw material. Furthermore, when
questioned on the possibility of using only the mill scale as an
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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 ore currently used, it would be
uneconomical to transport the mill scale 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 K061
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 the Regional Hazardous
Waste Management Division Directors concerning the recycling of
F006 electroplating sludges. Several aspects of the memorandum
are relevant in this case, especially the 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 FTS 475-8551.
Attachment
cc: Hazardous Waste Management Division Directors
EPA Regions I-VII, IX and X
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9441.1990(04.
; UNITED STATES ENVIRONMENTAL.'PROTEC -.
WASHINGTON. D.C. 20460
TV4 »*~
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40 CFR Section 261. 2 (t>) ( 3 ) provides:
Materials 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 Register
(52 FR 11332). That Federal Register 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
chlordimeform 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
chlordimeform 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 commercial 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 chlordimeform
is not a solid waste (Section 261.2(f)).
Assuming the unused chlordimeform is a waste (and the available
information indicates that it is), the end-users must determine
whether it is a hazardous waste. Although neither chlordimeform nor
chlordimeform 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 chlordimeform formulations
are not listed hazardous wastes; however, assuming the unused
formulation exhibits the characteristic of ignitability, 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
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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 ^he
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.
erel
rlvia Lowrance, Director
jffice of Solid Waste
cc: Paul Parsons, OPP (H7508C)
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9441.1990(05)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
FEE 26 ;=?:•
OFf ICE OF
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 chlorofluorocarbons (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 chlorofluorocarbons are then sent off-site for either
recycling or disposal.
Proper waste classification depends upon having sufficient
knowledge 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
chlorofluorocarbons 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 F001 - F005 spent solvent listings. Specific
examples include "solvents used in degreasing, cleaning, fabric
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scouring, as diluents, extractants, and reaction and synthesis
media." In the case of foam production, the chlorofluorocarbons
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 CFCs 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
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MEM3 RANDOM
UNITED STATES ENVIRONMENTAL PROTECT!' 9441.1990(06
MAR \
SUBJECT: Texas Industries' Use of Wastewaters Generated by Off-site Sources as an
Effective Substitute for a Commercial Product
FROM: Joseph S. Carra, Director
Permits and State Programs Division (OS-340)
Susan E. Bromn, Director
RCRA Enforcement Division (OS-520)
TO: William K. Honker, Chief
RCRA Permits Branch
Hazardous Waste Management Division (6H-P)
The purpose of this memorandum 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 memorandum from a Texas
Water Commission (TWC) staff attorney to the TWC Executive Director, and a copy of
a letter from the Executive Director to the Environmental. Manager of Texas
Industries (TXI) (both dated September 18, 1989). As we understand, TWC had
tentatively approved the use by TXI of industrial wastewaters generated off-site
as an effective substitute for fresh water in their cement manufacturing process.
The basis for the decision was that the proposal appeared to fit the exclusion
provided in 31 Texas Administration Code 335.1 (40 CFR 261.2(e)(1)(ii)}. The
decision was subsequently overruled under the provisions of the Texas air program
because the wastewater was found to contain volatile organic compounds (VOCs) and
the process neither met best available control technology nor demonstrated 99.991
destruction of several of the organic compounds. You requested any views that we
may have on this issue. However, at this point, we will only address the issues
pertaining to the proper methodology for characterizing the waste stream.
The information provided states that TXI was using an off-site industrial
wastewater, containing VOCs, to produce the slurry in their cement 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)(i), materials used to produce products
that are applied to the land are solid wastes. Cement is a product that is
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typically applied to the land. This clearly makes the wastewater a solid waste
(although the owner/operator of the cement kiln may document a claim that none of
the cement produced using this wastewater'is 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 supplied 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 (e)(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. treatment.
Determining whether a secondary material is an effective substitute for a
commercial product requires a comparison of the secondary material to the
commercial 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 commercial 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 (cement) 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 impact to the
environment posed by the use of the secondary material to the impact to the
environment posed by using the commercial product that would otherwise be used, is
in error. This would lead us to conclude 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 some 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 information, we are enclosing a copy of an April 26, 1989 memorandum
from Sylvia Lowrance to the Regional Hazardous Waste Management Division Directors
regarding recycling vs. treatment for F006 wastes. This memorandum includes
criteria for helping to decide if a waste is being legitimately recycled.
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We hope our views are useful to you. If you have any further questions,
please contact either Dave Eberly, OSW, (PTS 382-4691) or Reggie Cheatham, OWPE,
(FTS 475-9360) of our staffs.
Enclosure
cc: Mitch Kidwell, CAD, OSW
Reggie Cheatham, OWPE
Ken Gigliello, OWPE
Scott Parish, OWPE
Dave Eberly, PSPD, OSW
Jim Michael, PSPD, OSW
Liz Cotsworth, PSPD, OSW
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RCRA/SUPERFUND HOTLINE SUMMARY
9441.1990(07
MARCH 1990
I. SIGNIFICANT QUESTIONS AND RESOLVED ISSUES—MARCH 1990
A. RCRA
1. Clarification of Bv-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 FR 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 FR 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
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9441.1990(08)
RCRA/SUPERFUND HOTLINE SUMMARY
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)(l)(A)). Use of a material in a manner constituting disposal is
a recycling activity (Section 261.2(c)(l). All substances recycled in this
manner are considered solid wastes (see 40 GFR Section 2612 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.
Source: Mitch Kidwell, OSW (202) 382-4805
Research: Kent Morey
Cynthia Hess
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RCRA/SUPERFUND HOTLINE SUMMARY 944]_ 199o(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)(l) state that waste
generated at a household is excluded from regulation as a hazardous
waste. According to the November 13, 1984 Federal Register, 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 FR 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 FR
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 Wehling, OGC (202) 382-7706
Research: Monica Genadio
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9441.1990(09a)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
MARCH 1990
1. Clarification of Bv-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 FR 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 FR 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.
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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 Toxirity. 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)(l)(A)). Use of a material in a manner constituting disposal is
a recycling activity (Section 261.2(c)(l). All 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 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.
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9441.1990(10)
(m)
^•^a*
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
APR 10 1990
E Of
SOLID WASTE AND EMEMGENC" MES'OMSE
Richard G. Stoll
Freedman, Levy, Kroll, 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 washwaters from RCRA Subtitle C, including the
requirement for 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 State
regulatory agency may have regulations that are more stringent
or that may otherwise differ from Federal regulations. I
strongly encourage you to seek such regulatory determinations
from the appropriate State agencies.
Sincerely,
Sylvia K. Lowrance
Director
Office of Solid Waste
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UNITE,, 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 l, 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 Solid 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 Regulations
(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, F010, F011 and F012) or
characteristic wastes for cadmium (Extraction Procedure Toxicity
Test level of 1.0 mg/1, 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
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- 2 -
entitled: "EPA's BOAT 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 (FR) ,
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/1 (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 cadmium 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 Technology
(BOAT) 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 FR 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/1
cadmium based on chemical precipitation followed by filtration.
The other option is to set a treatment standard of 1.0 mg/1
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/1 (as
measured in the extract by the TCLP) based on stabilization. The
other one is to set a treatment level of 1.0 mg/1; based on the
characteristic level for cadmium wastes, as measured by TCLP or
EP Tox.
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- 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
anticorrosive-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
efforts to reduce the discharges of cadmium to the North Sea.
Sincerely,
-*\
David Bussard
Acting Director
Waste Management Division
Enclosures (5)
cc: Keith Chanon, Infoterra
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A *
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 (RCRA 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 RCRA
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 261.4(b)(l). Thus,
persons managing these effects need not comply with permitting or
other hazardous waste requirements when disposing of them.
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This letter has described the federal hazardous waste
requirements; states or localities can have stricter regulations, or
requirements that are broader in scope. I suggest that you contact
the appropriate state and local agencies to determine what their
requirements cover.
If you have further questions, please contact Becky Cuthbertson
at (202)475-9715.
Sincerely
rfice
Director
of Solid Waste
cc: EPA Regions 1-10
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9441.1990(11
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFUCE OF
SOLID WASTE AND EMERGENCY R£SP(
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 01?
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 RCRA (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)(1)). 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.
Primal an RtCfctel Paptr
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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 FR 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 FR 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) exclusion 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.
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9441.1990(13b)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
MAY 1990
1. Ground water "Contained in" Policy
The owner of a permitted facility 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) "lis] not
considered a solid wastels] in the sense of being abandoned, recycled,
or inherently waste-like as Ihose 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.
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9441.1990(130)
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 across 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)(l): 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
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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,
nickle 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 recycled, 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.
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9441.1990(136)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
MAY 1990
3. Sample Exclusion
A facility owner/operator generates a spent solvent (F004) 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 261.4(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 F004 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
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9441.1990(14)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
I2|990
OFFICE OF
SOLID WASTE AND SMERGENCV RESPONSE
MEMORANDUM
SUBJECT: Regulatory Status o£-«astes /ffom Piedmont Manufacturing
Co. , Altavista, v;
FROM: Sylvia K.
Office of Solid Wast
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 Ill's offices. As a result of this review, we agree with
your determination that Wastestream #4 is EPA Hazardous Waste Mo.
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 particular 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 discussion primarily
centers around the amount of material removed from the brass
parts during their operation (on the order of 1/10 mil) as
compared to a statement in the document that "...chemical etching
is the same as chemical milling except that relatively small
amounts (1-5 mils) of metal are removed."
frinud «* KicfcUd feptr
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Our conclusion that the Piedmont process is an etching
operation is based upon the nature of the physical change that
occurs 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).
The 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.
Attachments
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UNITED STATES ENVIRONMENTAL PROTE
WASHINGTON. D.C. 20460
JUN U 1990
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Disposal of Personal Protective Gear
FROM: Sylvia K. Lowrance, Directo
Office of Solid Waste
TO: David Ullrich, 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 FR 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, wastes 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
friitud a* RtcycUtt Paftr
-------
higher cost. My staff will contact OERR to see if they want to
pursue any 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.
ATTACHMENT
cc: Waste Management Division Directors, Regions I-X
Russ Wyer
Dave Fagan
Paul Nadeau
Rod Turpin
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9441.1990(16)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
JUN I 9 1990
OFFICE Of
sot 'O WASTE AND EMERGENCE RESPONSE
Mr. Kenneth T. Bowman
Assistant Counsel
Commonwealth of Pennsylvania
Department of Environmental Resources
1303 Highland Building
121 S. Highland Avenue
Pittsburgh, Pennsylvania 15206-3988
Dear Mr. Bowman:
I am writing in regard to your June 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 K062
exemption) .
As we discussed in our May 31, 1990 telephone conversation,
the K062 exemption only applies to K062 waste generated 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 Eft 19320) . Any lime stabilized K062 sludge
which continues to exhibit a characteristic 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.
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 K062 wastes. ^he_K062 exemption
d_id not apply to these situations^ because Tricil jand Enyiri^e^are
commerciaTTiazarHpus ^treatment: "f acil it ies , _an2Tnpt ir 6iT and stee 1
manufacturers. This" Interpretatio'n "is baseH on "the May" "28," 1986
final rule.
We currently have four petitions under review which are
specifically requesting the exclusion of non-lime stabilized K062
wastes; none of these facilities is a commercial hazardous waste
:reataent facility. We are also reviewing a draft sampling and
malysis plan for an electroplating facility which generates
.eachate from closed surface impoundments containing K062 wastes.
:n addition, we proposed decisions for non lime-stabilized K062
faste petitions for Perox, Inc., and Bethlehem Steel Corporation,
Pr'uoui o" Ktcycled Paptr
-------
on January 12, 1989 (54 FE 1189) and July 31, 1989 (54 FR 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 K062 waste is then managed as
a non-hazardous waste, per Mill Service's interpretation of the
K062 exemption at 40 CFR 261.3 (c) (2) (ii) (A) . Based on our
understanding of the K062 exemption, it is unclear to us how Mill
Service qualifies.
If you wish to pursue the Agency's interpretation of the K062
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,
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
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9441.1990(17)
.••tOS''v
** '-,
3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
29 1990
Mr. John W. Sutton
Sterlington Plant
IMC Fertilizer, Inc.
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 NACE Standard TM-01-69 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
Pnaud at RtCfcltd Faptr
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RCRA/SUPERFUND HOTLINE SUMMARY
JUNE 1990 9441.1990(18)
I. SIGNIFICANT QUESTIONS AND RESOLVED ISSUES—TUNE 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
non waste waters. What is an F001-F005 waste water? Is it the same as a
"solvent-water mixture" or an "aqueous solvent waste?"
The preamble to the "First Third" final rule (53 FR 31145; August 17,
1988) references 51 FR 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," "F001-F005 wastewater" and "aqueous
solvent waste" are equivalent. (51 FR 40613: November 7, 1986) The
terms refer to any F001, 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 £R
40613; November 7,1986; also 40 CFR Section 268.2(a)(6))
Source: Steve Silverman, OGC (202) 382-7706
Research: Monica Genadio
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RCRA/SUPERFUND HOTLINE SUMMARY
9441.1990(19)
JUNE 1990
2. Dves 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, aiid
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
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9441.1990(20)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
•JUL 3 !990
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Paul G. Burkholder
President, Bowyer Properties
400 South Washington Street
Winchester, Virginia 22601
Dear Mr. Burkholder:
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), whereas, 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 CFR 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 wastewaters from the wood preserving processes that
use creosote and/or pentachlorophenol (K001), and wastewater
treatment sludges generated in the production of creosote (K035)}
as hazardous waste in Subpart D of 40 CFR Part 261. Additionally,
in the December 30, 1988 Federal Register (53 £R 53282), the EPA
proposed to amend its regulations by listing as hazardous, several
additional wastes from wood preserving operations that use
chlorophenolic, creosote, and/or inorganic (arsenical and chromium)
preservatives.
friiaid tm RtefcUd faptr
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Finally, please note that State and local regulatory agencies
nay 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
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UNITED STATES ENVIRONMENTAL PRl
WASHINGTON. D.C. 2C 9441.1990(21)
Honorable Richard G. Lugar
United States Senate
Washington, DC 20510
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 use
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 determiner
by how much of the chemical may leach from the poles. The TC
regulatory levels are set at 100 times the health-based level,
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,
_,- / _
Sylvia- K. ;Lowrance, Director
6ffice of Solid Waste
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9441.1990(22)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OP
AIIKN i -T irw^ SOLID WASTE AND EMERGENCY RESPONSE
ALJG i 1 I99G
Mr. Gilbert H. Lewis
President
American Industries, Inc.
2166 Wisconsin Avenue
Washington, O.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 FR 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 Ibs./month of hazardous waste
and not accumulate at any time more than a total of 2200 Ibs.
(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
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9441.1990(23)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
AU6 2 I 1990
MEMORANDUM
SUBJECT: RCRA Applicability to Military Munitions
TO: James Reidy, P.E., Chief
Caribbean Facilities Section (2AWM-HWF)
PROM: Sonya M. 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 (NAF) at Vieques Island,
Puerto Rico does not, as you point out, conduct a regulatable
activity when storing "unserviceable" military munitions (e.g.,
damaged, outdated or possibly defective munitions) which have not
been designated for demilitarization.
EPA supports Oept. 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 the last approval authority
acknowledging receipt of the munition or ordnance at a
demilitarization facility. This happens when the U.S. Atlantic
Fleet Weapons Training Area receives unserviceable munitions sent
by NAF to be demilitarized.
In your letter, you mention that NAF 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 requirements of 40 CFR Parts
260-272 apply.
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- 2 -
I agree with your strategy that interim status for the
facility should not be terminated immediately even though the NAF
is withdrawing its Part B permit application. Before the
facility at NAF 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 NAF further, please feel free to call me, or Chester
Oszman at 382-4499.
cc: Chester Oszman
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NUCLEAR REGULATORY COMMISSION
Below Regulatory Concern; Policy Statement
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement.
SUMMARY: This policy statement establishes the frame-
work within which the Commission will formulate rules or
make licensing decisions to exempt from some or all regu-
latory controls certain practices involving small quantities
of radioactive material. Opportunity for public comment
will be provided with each rulemakingand each He
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 accessible environment or to persons who
would be exempt from Commission regulations. Practices
for which exemptions may be granted include, but are not
limited to, (1) the release for unrestricted public use of
lands and structures containing residual radioactivity; (2)
the distribution of consumer products containing small
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 practices
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 millisievert per year]) and a collec-
tive dose criterion (1000 person-rem per year [10 person-
sievert per year]). 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 materials, and focuses the Na-
tion's resources on reducing the most significant 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 a manner 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 Commission's jurisdiction.
EFFECTIVE DATE: 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 Office:
Region I - Dr. Malcom Knapp, King of Prussia,
Pennsylvania; telephone (215) 337-5000
Region n - Mr. J. Philip Stohr, Atlanta, Georgia;
telephone (404) 331-4503
Region m - Mr. Charles E. Norelius, Glen Ellyn,
Illinois; telephone (708) 790-5500
Region IV - Mr. Arthur B. Beach, Arlington, Texas;
telephone (817) 860-8100
Region V - Mr. Ross A. Scarano, Walnut Creek,
California; telephone (415) 943-3700
Federal and State Government Officials may contact:
Mr. Frederick Combs, U.S. Nuclear Regulatory Commis-
sion, Washington, 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 Commission,
Washington, DC 20555.
Dr. Donald A. Cool, Office of Nuclear Regulatory
Research; telephone (301) 492-3785
Mr. John W. N. Mickey, Office of Nuclear Material
Safety and Safeguards; telephone (301) 492-3332
Mr. L. J. Cunningham, Office of Nuclear Reactor
Regulation; telephone (301) 492-1086
SUPPLEMENTARY INFORMATION:
Statement of Policy
L Introduction.
Ionizing radiation is a fact of life. From the day we
are born until the day we die, our bodies are exposed to
-------
BRC Policy Statement
censing, inspection, and enforcement programs. For ex-
ample, the Commission may promulgate regulations that
would require some type of labeling so that consumers
could make informed decisions about purchasing a prod-
uct containing exempted materials. Such fobrling is pres-
ently required by the Commission for smoke detectors
containing radioactive material (see 10 CFR 32J26). The
NRC ensures that manufacturers label the detectors in
compliance with the labeling requirement through licens-
ing reviews and inspections. Specific source controls and
exemption conditions are not discflrcw? further in this
policy because they will be more appropriately addressed
in developing the exemption requirements for specific
exemption proposals.
The concept of regulatory exemptions is not new.
The Atomic Energy Act of 1954, as amended, authorizes
the Commission to exempt certain r*a«**i quantities, or
uses of radioactive material when it finds that such ex-
emptions will not constitute an unreasonable risk to com-
mon defense and security and to the health and safety of
the public. In the 1960s and 1970s, the Atomic Energy
Commission used this authority to promulgate tables of
exempt quantities and concentrations for radioactive ma-
terial. These exemptions allow a person or a licensee,
under certain circumstances, to receive, possess, use,
transfer, own, or acquire radioactive material without a
requirement for a license (30 FR 8185; June 26,1965 and
35 FR 6425; April 22,1970). The Commission 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 example, regulations currently specify the con-
ditions under which licensees are allowed to dispose of
small quantities of radioactive material into sanitary
sewer systems (see 10 CFR 20303). These existing regu-
lations specify requirements, conditions, and constraints
that a licensee must meet if radioactive material is to be
"transferred" from a regulated to an exempt 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 exempt specific
radioactive waste streams from regulation ... due to the
presence of radionudide$£. in sufficiently low concentra-
tions or quantities as to be below regulatory concern."
The Commission responded to this legislation by issuing a
policy statement on August 29,1986 (51 FR 30839). That
policy statement contained criteria that, if satisfactorily
addressed in a petition for rulemaking, would allow the
Commission to act expeditiously in proposing appropriate
relief in its regulations on a "practice-specific" basis con-
sistent with the merits of the petition.
Federal and State agencies have also developed and
implemented similar exemptions based on evaluations of
their risks to the public and the environment. The Food
and Drug Administration (FDA), for example, has ap-
plied sensitrvity-of-method, risk-based guidelines in con-
nection with the regulation of animal drugs, food con-
taminants, and trace constituents in some food additives.
Similarly, the Environmental Protection Agency (EPA)
established exemption or threshold levels based on indi-
vidual risks in the regulation of pesticides and other toxic
and carcinogenic chemicals, For example, EPA employs
such a concept in defining hazardous waste through the
new Tenacity Characteristic rule in 40 CFR Pan 261 [55
FR 11798; March 29,1990].
The Commission believes that the Below Regula-
tory Concern policy is needed to establish a consistent,
risk-based framework for making exemption decisions.
Specifically, this framework is needed to (1) focus the
resources of NRC, Agreement States, and licensees on
addressing more significant 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
radioactivity criteria and requirements for decommission-
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
Commission's jurisdiction; (6) provide decision criteria
for reviewing petitions to exempt very low-level radioac-
tive wastes in accordance with the Low-Level Radioactive
Waste Policy Amendments Act of 1985; and (7) ensure
that existing exemptions involving radioactive materials
are consistent and adequate to protect the public.
The Commission's BRC policy establishes an ex-
plicit and uniform risk framework for making regulatory
exemption decisions. This policy will also be used by the
Commission as a basis for Devaluating existing NRC ex-
emptions 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 case-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 above, 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
wfll play an important role in the implementation of the
Below Regulatory Concern policy, specifically in the ar-
eas of developing and enforcing compatible State regula-
tions, regulating cleanup and decommissioning of certain
types of contaminated nuclear facilities, and exempting
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BRC Policy Statement
processes. Underground ore bodies depleted
by these solution extraction operations do not
constitute "byproduct 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 source of radiation (or practice involving the use
of radioactive material). Note: The calculated collective
dose used to determine compliance with the criterion of
this policy need not include individual dose contributions
received at a rate of less than 0.1 mrem per year (0.001
mSv/year).
"Committed effective dose equivalent" is 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 cm.
"Dose" or "radiation dose" in this policy is the total
effective dose equivalent.
"Exemption from regulatory control" refers to a de-
cision process that may allow radioactive material to be
transferred 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 small risk to
public health and safety and the environment and that the
small magnitude of the risk does not warrant expenditure
of additional resources of regulatory agencies and the
regulated community in attempting to further reduce the
risk.
"Exposure" means being exposed to ionizing radia-
tion or to radioactive material.
"Licensed material" means source material, special
nuclear material, or byproduct material that is received,
possessed, used, transferred, or disposed of under a gen-
eral or specific license i^ped by the Commission or an
Agreement State.
"Licensee" means the holder of an NRC or Agree-
ment State license.
"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 occurrence of a health effect (such as latent cancers
and genetic effects), and that there is no dose level below
which there is no risk from exposure to radiation.
"Natural background dose" means the dose received
from naturally occurring cosmic 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 similar 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 lands and structures with residual
levels of radioactivity; the distribution, use, and disposal
of specific consumer products containing small amounts
of radioactive material; and the recycle and reuse of spe-
cific types of residually contaminated materials and
equipment are examples of practices for which this policy
will have potential applicability. (See Section m for fur-
ther discussion of practice).
"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 5 x 10*4 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
Commission recognizes that the risks from exposure to
radiation are greater for children than adults and that
there are increased risks from exposure to the embryo/
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 accor-
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 percent (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, nranium-233, uranium enriched in
the isotope 233 or in the isotope 235, and any
other material which the Commission, pursu-
ant to the provisions of Section 51 of the Act,
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BRC Policy Statement
quirements for further dose redactions 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 are 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
Commission 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 described in
the Appendix to this policy statement, the technical ra-
tionale for the Commission's BRC 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 process.
The Commission notes that adoption of the individ-
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 small
compared to other individual and societal risks that fur-
ther cost-risk reduction analyses are not required in order
to make a decision regarding the acceptability of an ex-
emption. 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 are sufficiently small or
unlikely; (2) further reductions in the doses are neither
readily achievable nor significant in terms of protecting
the public health and safe&and the environment; and (3)
the collective dose from the exempted practice is
ALARA.
B. The Individual Dose Criterion.
The Commission has noted that, although there is
significant uncertainty in calculations of risks from low-
level radiation, in general these risks are better under-
stood than the risks from other hazards such as toxic
chemicals. Moreover, radiation from natural background
poses involuntary risks (primarily cancers), which must be
accepted as a fact of life and are identical to the kinds 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
exemption is comparable to other voluntary and involun-
tary risks which are commonly accepted by those same
individuals 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
definition of a BRC dose level can be developed from this
perspective.
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
rarem 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 mrera dose received during a
typical roundtrip coast-to-coast flight, or incremental
doses from other activities that fall well within common
variations in natural background radiation. These factors
lead to the conclusion that differential risks correspond-
ing to doses on the order of 5-10 rarem (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 individual 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 mSv per year) received continu-
ously over a lifetime corresponds to a risk of about 4
chances in 10,000 (3.5 x 1 (T4) or a hypothetical increase of
about 025% 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 Appendix to
the policy statement provides a more complete discussion
of the risks and uncertainties associated with low doses
and dose rates.
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BRC Policy Statement
should
of those individuals whose
annual effective dose equivalent is less than or equal to
1 mrem peryear (04)1 mSv per year). In the sensitivity-of-
measnre, risk-based guidelines used by EPA and FDA, a
1 0"4 lifetime risk of cancer hasbeen used as a quantitative
criterion of ins*gTi'fkiu"!yi Using an annnai tisk coeffi-
cient of 5 x 10"4 health effects per rem (5 z 10~a per
sJevert), as discussed in the Appendix, the 10~* lifetime
risk value would approximate the calculated risk that an
individual would incur from a continuous lifetime dose
rate in the range of 0.01 to 0.1 mrem (0.0001 to 0.001
mSv) per year.
As a practical matter, consideration of dose rates in
the microrem peryear range and large numbers of hypo-
thetical individuals potentially exposed to an exempted
practice may unduly complicate the dose calculations that
will be used to support demonstrations that proposed
exemptions comport with the criteria in this policy. The
Commission believes that inclusion of individual doses
below 0.1 mrem peryear (0.001 mSv per year) introduces
unnecessary complexity into collective dose assessments
and could impute an unrealistic sense of the significance
and certainty of such dose levels. For all of these reasons,
the Commission concludes that 0.1 mrem (0.001 mSv) per
year is an appropriate truncation value to be applied in
the assessment of collective doses for the purposes of this
policy.
IV. Implementation.
The Commission's BRC policy will be implemented
principally through rulemakings; however, exemption
decisions could also be implemented through specific li-
censing actions.
In the first case, a proposal for exemption, whether
initiated by the NRC or requested by outside parties in a
petition for rulemaking, must provide a basis upon which
the Commission can determine if the bask policy criteria
have been satisfied The Commission intends to initiate a
number of rulemakings on its own (e.g., to establish a dose
criterion for decommissioning) and may initiate others as
a result of NRCs review of existing codified exemptions
(e.g., consumer product exemptions in 10 CFR Parts 30
and 40). Rulemakings maj4l$o be initiated in response to
petitions for rolemaking submitted by outside parties,
such as a BRC waste petition submitted in accordance
with Section 10 of the Low-Level Radioactive Waste Pol-
icy Amendment Act of 1985. In general, rulemaking ex-
emption proposals should assess the potential health and
safety impacts that could result if the exemption were to
be granted.
The proposal should consider the uses of the radio-
active materials, the pathways of exposure, the levels of
radioactivity, and the methods and constraints for ensur-
ing that the assumptions used to define afi^__
appropriate as the radioactive materials move from a
regulated to an unregulated status. Any such rulemaking
action would follow the Administrative Procedure Act,
which requires publication of a proposed rule in order to
solicit public comment on the rulemaking action under
consideration. The rulemaking action would include an
appropriate level of environmental review in accordance
with the Commission's regulations in 10 CFR Pan 51,
which implement the National Environmental Policy Act
If a proposal for exemption results in a Com
regulation containing specific requirements for a particu-
lar exemption, 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 promulgation of the regulation would, under these
circumstances, constitute a finding that the practice is
exempted in accordance 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 additional health physics practices which
may, in fact, reduce actual doses significantly 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 decontamina-
tion and decommissioning, where the Commission antici-
pates that emerging technologies over the next several
decades should enhance existing technical 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
exemptions.
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 guidance
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 transfer radioactive material to an unregu-
lated status will be noticed in the Federal Register if they
differ from previous generic exemption decisions.
One of the principal benefits of the policy is that it
provides a framework to evaluate and ensure the consis-
tency of past exemption decisions by the Commission.
With the adoption of this BRC policy, the NRC will
initiate a systematic assessment of exemptions currently
existing in NRC's 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 basis, review the exemptions granted under
-------
BRC Policy State
information nay be useful in characterizing a practice on
a national basis.
3, As low as is reasonably achuwablt (ALARA). An
analysis should be provided that demonstrates that radia-
tion exposure and radionudide releases associated with
the exempted practice overall will be ALARA consistent
with the criteria inthis policy. The ALARA principle
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 areasas low as is rea-
sonably achievable. Appendix I to 10 CFR Pan SO 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 design, 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 materi-
als are transferred to an unregulated status in accordance
with an exemption granted under this policy.
D. 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 assessments and regulatory analyses required to
implement the exemption will be based on the impact
analyses and supporting characterizations.
L Radiological impacts. 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 exemption. In either
case, the following impacts should be assured:
Average doses to the critical population group;
Collective doses to the critical population
group and the total exposed population (under
conditions defined in Section HI); and
The potential for and magnitude of doses asso-
ciated with accidents, misuses, and recon-
centration 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
accurate. Average doses to this group are the controlling
factors limiting individual doses and risk, and should be
compared with the individual dose criteria, as appropri-
ate. The critical group should be the segment of the
population most highly exposed to radiation or radioac-
tive materials associated with the use of radioactive mate-
rial under unregulated conditions. The second pan of the
population exposure is the general population exposure,
exclusive of critical group exposure. For this group, the
individual exposures should be smaller, and the assess-
ment will often be less precise. The impacts analysis
should present an estimate of the distribution of doses
within the general population. In situations where trunca-
tion of the collective dose calculation 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 assumptions,
data, and results used in the analysis in order to facilitate
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. Othtr 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 Pan 51. The analysis
should also consider 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 pan 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.G. should also be covered. Any legal
or regulatory constraints that might affect an exemption
decision should be identified. For example, one such con-
straint might stem from Department of Transportation
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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 arise through various practices for which
exemptions are being considered, the Commission has
decided to apply the concept of the "total effective dose
equivalent.'' This concept, which is based on a comparison
of the delayed health effects of ionizing radiation expo-
sores, 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 organizations throughout
the world and has gained wide acceptance. 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
2822). The Commission recognizes that, in considering
specific exemption proposals, the total effective dose
equivalent must be taken into account.
IL Estimating Health Effects From Radiation
Exposure
A. Individual Risks.
In the establishment 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 cancer devel-
opment because (1) the mortality risk represents a more
severe outcome than the nonfatal cancer risk, and (2) the
mortality risk is thought to be higher than the risk associ-
ated with genetic effects and developmental effects on
fetuses.2 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 background3 requires a significant extrapolation
2 Further discussion of these topic* a provided in "Source*, Effects
and Rita of loaning Radiation," United Nation Scientific
Committee on the Effects of Atomic Radiation (UNSCEAR),
1988 Report to the General Aaembly win Annexe*.
3 Natural background radiation can vary with timeaad location. la
Washington, D.C., natural background radiation (excluding ra-
don) renlti in individual dotes of about 90 mrem per year (0.9
mSv/yr), while in Denver. Colorado, the value is about 160 mrem
per year (1.6 mSvtyr). In both cases, naturally occurring radioac-
tive material in the human body contributes approximately 40
mrem per year. Radiation from inhalation of the daughter prod-
ucts of radon contributes an average additional doae of 200
mrem per year(2 mSv/yr) to members of the U.S. population
(NCR? Report No. 93, "Ionizing Radiation Exposure of the
Population of the United States^
from the observed effects at much higher doses and dose
rates.4 This results in significant uncertainty in risk esti-
mates as reflected by the views of experts in the field. For
example, the Committee on the Biological Efforts of
Ionizing Radiation (BEIR m) of the National Academy of
Science cautioned that the risk values are "...based on
incomplete data and involve a large degree of uncertainty,
especially in the low dose region." This Committee also
stated that it "...does not know whether dose rates of
gamma or x-rays (low LET; low linear energy transfer
radiation) of about 100 mrads/year (1 mCy/year) are det-
rimental to man." More recently, the BEIR 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 low doses.
Departures from a linear model at low doses, however,
could either increase or decrease the [estimation of] risk
per unit dose." The Commission understands that the
Committees' statements reflect the uncertainties- in-
volved in 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....[A]n 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-
cient value between7x 10'5and3.5x 10"4 per rad(7x 10°
and 3.5 x 10'1 per Gy) based on an UNSCEAR risk coeffi-
cient of 7.1 x 10"4 per rad (7.1 x 10"2 per gray) for 100 rad
(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 is at
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, similar to the findings of
4 The health effects dearly attributable to radiation have occurred
principally among early radiation workers, sutvivon of the
atomic bomb explosions at Hiroshima and Nagasaki, individuals
exposed for medical purposes, and laboratory animals. Natural
background radiation causes an annual dose that is at least two
orders of magnitude less than the dose received by human popu-
lations from which the cancer risks are derived. Experiments at
the cellular level, however, provide similar indications of biologi-
cal effects at low doMi.
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BRC Policy Statement
Table 1
Incremental Annul Dote*
lOOmrem
lOmrem
1 mrcm
0.1 mrem
(1.0 mSv)
(0.1 mSv)
(0.01 mSv)
(0.001 mSv)
Hypothetical
Incremental
Aiuoal Riak**
5xlO-J
SxlO-4
SxlO-7
SxlO-*
Hypothetical lifetime Risk
From Continuing Annual Dose**
3.5xlO-J
3 3 x 10-4
3.5XHT5
3.5 xlO-4
The expression of dose refers to the Total Effective Dose Equivalent This term is the sum of the deep [whole
body] dose equivalent for sources external to the body and the committed effective [whole body] dose equivalent
for sources internal to the body.
Risk coefficient of 5 x 10~*per rem (5 x 10-*p_er Sv) for low linear energy transfer radiation has been conserva-
tively based on the results reported in UNSCEAR 1988 (Footnote 2) and BEIR V (see also NUREG/CR-4214,
Rev. 1).
Commission would consider exempting from regulatory
control must be based on input of these measurements
into exposure pathway models, using assumptions related
to the ways in which people might become exposed. These
assumptions incorporate sufficient conservatism to ac-
count for uncertainties so that any actual doses would be
expected to be lower than the calculated doses. The Com-
mission believes that this is an appropriate approach to be
taken when determining if an exemption from some or all
regulatory controls is warranted.
Dose and Risk Estimation
The Commission recognizes that it is frequently not
possible to measure risk to individuals or populations
directly and, in most situations, it is impractical to meas-
ure annual doses to individuals at the low levels associ-
ated with potential exemption decisions. Typically,
radionuclide concentrations or radiation dose rates can
only be measured before the radioactive material is re-
leased from regulatory control Estimates of doses to
members of the public from the types of practices that the
The additional views of Commissioner Curtiss and Chairman Cant's comments are attached.
1990.
Dated at Rockville, Maryland, this^-^
For the Nuclear Regulatory Commission.
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BRC Policy Statement
the individual and collective dose criteria can be desig-
nated below regulatory concern, it is unclear why the
Commission would then go on to say that it expects addi-
tional steps to be taken to keep exposures ALARA. As a
general matter, I do not object to the ALARA concept.
Indeed, I support the notion that collective 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 Com-
mission to say on the one hand that the individual and
collective dose criteria reflect levels below which no regu-
latory resources should be expended, while at the same
time encouraging voluntary ALARA efforts to achieve
lower doses, sends a confusing regulatory message.3 For
the sake of regulatory clarity, I would explicitly identify
the individual and collective dose criteria as floors to
ALARA.
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 social and cultural value
judgments should be made by affected ele-
ments of society and not the regulatory
agency. Consequently, the Commission will
not consider whether a practice is justified
in terms of net societal benefit.
At another point, the Policy Statement indicates that:
The Commission may determine on the ba-
sis of risk estimates and associated uncer-
tainties that certain practices should not be
considered candidates for exemption, 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 practices involving children
• I am abo concerned that tMitoroaeh to ALARA set forth in
the Policy Statement appean to oe motivated, ia put, by a
concern that the Environmental Protection Agency may at woe
future point act more stringent criteria for BRC Of particular
note it the statement that-
Thb [approach to AIjKRA) is particularly pertinent
in the area of decontamination and dfmmmnrinn-
in|._ where other federal agenda are in the proem
of developing standard* which may affect thoae re-
ceiving
In my view, the ALARA one should be approached with the
objective of formulating a towtd and defensible puucv, rather
than with an eye towards trying to anticipate what policy EPA
might establish in the future.
from all other practices, will inevitably lead to confusion.
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 rifk posed by such a
practice is too high, yet authorize a practice directed at
the general public that could, coincidentally, expose an
even greater number of children, even though the prac-
tice itself is not specifically directed at children.
In my view, this ambiguity should be resolved in favor of a
dear and unequivocal statement endorsing the principle
of justification of practice. 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 accepted health-physics
principle. Indeed, the Commission already takes such
considerations into account, either explicitly or implicitly,
in many of the decisions that it renders.
Accordingly, 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 determina-
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
State compatibility. The one area where I disagree in-
volves the treatment of matters involving low-level radio-
active waste disposal
As I 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. Accordingly, 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
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BRC Policy Statement
Chairman Carr's Response to Commissioner Curtiss' Views on the BRC Policy
Statement
I am proud of the Commission's accomplishment in
completing a comprehensive Below Regulatory Concern
policy statement I appreciate Commissioner Curtiss' en-
thusiasm and strong support for the policy. Commission
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 material* 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 Com-
mission 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
Commission's technical analysis of the issues associated
with regulatory 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 Commission's decision to
approve the policy statement in its present form and
reject the differing views put forth by Commissioner Cur-
tiss.
Commissioner Curtiss clearly endorses the policy
and the concept of establishing a comprehensive frame-
work for making decisions on regulatory exemptions.
However, he takes issue with five elements of the policy:
(1) the interim nature of the 1-millirem-per-year criterion
for practices with widespre** distribution, (2) selection of
the 1000-person-rem-per-year criterion for collective
dose, (3) the manner in which the Commission views the
BRC criteria as a "floor" to ALARA, (4) omission of the
principle of justification of practice, and (5) malting BRC
roles an item of compatibility for Agreement State pro-
grams. These issues were fully considered by the Commis-
sion and the NRC staff in the coarse of developing the
BRC policy. Indeed, Commissioner Curtiss voted in Sep-
tember 1989 to approve the BRC policy, the essence of
which is preserved in the final BRC policy in today's
notice. *^
Interim Individual Dose Criterion
On the first issue, Commissioner Curtiss would pre-
fer to establish the 1-millirera-per-year criterion as a final
criterion,, rather than an interim value.
As stated in the BRC policy, the Commission is
establishing the 1-millirem-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-millirero 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 millirem per year. This is highly improb-
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 1-millirem-per-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-mil-
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
Commission gains experience with the potential for mul-
tiple exposures to exempted and licensed activities.
The initial ruleroaJtings 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 Commissioner
Curtiss that a final criterion would be desirable from the
standpoint of "administrative finality," it would be prema-
ture to establish the 1-millirem criterion as a final crite-
rion until after the Commission gains more experience
-------
BRC Policy Statement
deanup for contaminated ptrt Specifically, does the col-
lective dose criterion apply genetically to the practice of
decommissioning or would it be applied on a site-specific
basis? Similarly, how should the collective dose criterion
be applied in cases where nodear operations have con-
taminated groundwater resources that could potentially
supply municipal drinking water systems? Resolution of
these and other issues could cause the Commission to
revise its selection of the magnitude of the collective dose
criterion through future rulemakings and development of
generic guidance. However, based on the technical infor-
mation and recommendations currently before the Com-
mission, 1000 person-rem/year appears to be an appro-
priate magnitude for the collective dose criterion.
For all of these reasons, the Commission established
a collective dose criterion of 1000 person-rem/year for
each practice.
A1ARA
Commissioner 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 raillirem/10 millirem and the collective dose is
100 person-rem. Specifically, Commissioner Curtiss 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 definition of the
term ALARA. ALARA is the regulatory concept that
radiation exposures and effluents should be reduced as
low as is reasonably achievable taking into account the
state of technology, and the economics of improvements
in relation to the benefits to public health and safety and
other societal and soqoeconomic considerations, and in
relation to the utilization of atomic energy in the public
interest (10 CFR 20.1(c)). Hie ALARA 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 statement and on
proposed revisions to 10 CFR Part 20 urged the Commis-
sion to define "floors" tP'ALARA or thresholds below
which NRC would not require further reductions in doses
or effluents.
The Commission responded to these comments in
the policy by stating that"... a licensee using the exemp-
tion would no longer be required to apply the ALARA
principle to reduce doses further for the exempted prac-
tice provided that it meets the conditions specified in the
regulation'' established for a p»tMii«r exemption. In
other words, the BRC criteria and implementing regula-
tions will provide "floors" to ALARA for the exempted
practice. In this regard, I agree with Commissioner Cur-
tiss because the truncation of further efforts to reduce
doses is one of the principal regulatory motivations for
establishing the BRC policy.
However, I disagree with the rest of Commissioner
Curtiss' view on this issue. It would be inappropriate to
tell the regulated community that they cannot reduce
doses below the BRC criteria. In short, although we will
not require 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 inappropri-
ate because it dearly falls outside of the health and safety
focus of the NRC
In formulating the BRC policy, the Commission 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 explicitly recognized m the
definition and application of the term "ALARA." Thus, I
believe it would be inappropriate to tell licensees that
they cannot implement new technologies and health
physics practices to further reduce doses if they want to.
Justification of Practice
Commissioner Curtiss would prefer to endorse the
principle of justification of practice (Le., whether the
potential impacts of a practice are justified in terms of net
societal benefits) and retain the prerogative to reject ap-
plications for exemptions regardless of the risk they pose.
I disagree with Commissioner Curtis' view on this
matter because it puts the Commission in a position of
making decisions in areas outside the normal arena of its
expertise, where the agency would be especially vulner-
able, perhaps justifiably so, to criticism. Consistent with
the mission of the NRC, the Commission should base its
judgments on an explicit, objective, and rational consid-
eration of the health, .safety, and environmental risks
associated with practices, rather than on what many
would perceive as personal preferences of the Commis-
sioners. Such an approach fosters long-term stability in
regulatory decisionmaking on potential exemptions.
Decisions on justification of practice involve social
and cultural considerations that fall outside the Commis-
sion's primary focus and expertise for ensuring adequate
protection of the public health and safety from the use of
nudear 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 agendes that generally do not
regulate on the basis of whether a particular practice is
-------
BRC Policy Statement
Atomic Energy Act of 1954, as amended. Absent the
execution of a Section 274b Agreement with the NRC, a
State is preempted by Federal law from exercising 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 Commission'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 Energy (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
committee removed the language 'to the extent
feasible' in subsection g. of the original AEC bill
considered at hearings from May 19 to 22,1959.
The committee recognizes the importance of the
testimony before it by 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. Repc No. 870, September 1,1959,86th Cong., 1st.
Sess.
The potential problems from conflicting standards
identified by the JCAE in 1959 are fully apparent in the
context of BRC and demonstrate why the scope of com-
patibility findings to be made by the NRC cannot be
drawn to exclude low-level radioactive waste disposal
For instance, the Commission intends to use the risk
criteria identified in the policy statement to establish
decommissioning criteria, that is, the level at which a
formerly licensed site may be released for unrestricted
use. If the States are permitted to require that low-level
waste streams designated 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 funding
requirements that would be adequate to assure that all
licensed facilities will set aside sufficient funds over the
life of a facility to pay for decommissioning. The resulting
confusion from these conflicting standards could well re-
sult in delays in adequate decommissioning of contami-
nated sites 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 designating 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 PROTECT 9441.1990(25)
AUG241990
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
Regulations. 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 questions 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
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9441.1990(26)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
SEP 2 01990
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 Federal Register 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.
Printtd OK Rtcycltd Paper
-------
Fuel oil that has escaped from a tank nay 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 FR 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
Federal Register on August 2, 1990 (55 FR 31387). Due to the
inconsistences observed in the March 29, 1990 Federal Register
notice (55 F_B 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
[via K. Lowrance.
Lrector
'Office of Solid Waste
-------
UNITED STATES ENVIRONMENTAL PROTECT 9441.1990(27)
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 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 "grease1* because it lacks the saponif ication 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 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
-------
«r
^
*
9441.1990(28)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT I 8
OPPiCE OP
MEMORANDUM 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 FR 624. In this situation, the equipment servicer is
not 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 chlorofluorocarbon
manufacturing unit. The used refrigerants meet the definition of a
"spent material" in 40 CFR 261.1(c)(l), and are solid wastes when
reclaimed, according to 40 CFR 261.2. See 54 FR 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
Prinltd on Ktcyeled Paptr
-------
Attachment
Definition of Solid Waste Arguments
Made by the Alliance for Responsible CFC Policy
Point #l:
The Alliance states that "in many cases removed refrigerant may
simply be re-inserted in refrigeration and air conditioniny 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.
-------
Point #3:
The Alliance points 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 14:
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.)
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9441.1990(29)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MEMORANDUM
OFFICE OF
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 tetrachloride
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.
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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
will. 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.
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9441.1990(30)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT 3 0 1990
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT:
FROM:
TO:
Regulatory De
Sylvia Lowra
Office of Solid
Robert L. Duprey/, Director (8HWM-RI)
Hazardous WacLe Management Division
EPA Region VIII
Used Oil Filters
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
Bparated 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 mm 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^s 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.
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4. Generally, automotive oil filters are not considered to be
containers 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 FR 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,
the generator or recycling facility should drain (gravity) the filter
for 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
rjedommends 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.
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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 FR 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 Hotline
Regional TC Contacts
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9441.1990(31)
RCRA/SDPERFUND HOTLINE MONTHLY SUMMARY
OCTOBER 1990
2. Regulatory Status of Petroleum Contaminated Media and Debris Under
the Toxidtv Characteristic UST Temporary Deferral
The owner/operator of a petroleum underground storage tank (USD 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)etroleum-contaminated
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..." arc excluded from the definition of
hazardous waste. The preamble to the March 29,1990, Federal Register
does not explicitly define petroleum contaminated "media" and
"debris." (55 F£ 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?
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RCRA/SDPERFDND HOTLINE MONTHLY SUMMARY
OCTOBER 1990
Regulatory Stafas of Petroleum Contaminated Media and Debris Und?T
the Toxicitv 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 USTs and subject to the
Subtitle I program is necessary in order to determine whether an
exemption for such materials is warranted...." (55 FR 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) hazardous 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 TC
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 FR 26986) Therefore, those constituents
previously regulated under the EP Toxirity rule (DOQ4-D017)
and now regulated under the TC are not eligible for the TC
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) 382^769
Research: Mic LeBel, GRC
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9441.1990(32)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OfFCEOF
SOUD 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.
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Thank you once again for the useful information 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
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 9441.1990(33)
3 OI89Q
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 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.
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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
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RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
NOVEMBER 1990
9441.1990(34)
1. Mixture Exclusion
A generator meets the mixture rule exclusion of 40 CFR Section 25!3(a)(2)(iv)(A), by
proving that the concentrations of trichloroethylene in his waste srream before it
enters tha hsadwcri^ of h*s wastewater treatment facility is below one part per
million, ."his was'c'.v.ter treatment facility produces t sludge which exhibits a
hazardous chz-- -'.. ..c Does the mixture rule exclusion also apply to the sludge
produced in the ganerator's wastewater treatment facility? Or is this sludge a newly-
generated hazardous waste subject to full RCRA regulation?
Aftjudge generated from a wastewater mixture that meets all of the criteria
specified in Section 2613(a)(2)Gv) would be'exempted from the hazardous
waste listing because the original wastewater mixture became exempt at the
headworks 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 not apply if the wastewater met another listing
1. Mixture Ex.cJufioft (Confd)
The sludge, moreover, might be a hazardous waste for other reasons. For
example, the exemption criteria in Section 2613(a) (2) Gv) 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, GRC
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9441.1990(35)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
DEC 21 1990
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Earl F. Bouse
Vice President
Minerals and Environmental Services
Pacific Basin Resources
3480 Buskirk 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 regulatory 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
^classified 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, aii ingredient in a
manufacturing process, a comparison must be made between the constituents contained
in the hazardous waste and the constituents in the analogous raw material. Because the
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hazardous wastes and raw materials may change at each different site, this analysis 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 manufacturing 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 legitimate 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 legitimate
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 "legitimate" 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 hi 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
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WASTE MANAGEMENT DIVISION DIRECTORS
EPA REGIONAL OFFICES
Region 1:
Merrill S. Hohman, Director
Waste Management Division
USEPA Region I
John F. Kennedy Bldg.
Boston, MA 02203
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 2:
Conrad Simon, Director
Air & Waste Management -Division
USEPA Region II
26 Federal Plaza
New York, New.York 10278
Region 7:
David Wagoner, Director
Waste Management Division
USEPA Region VII
726 Minnesota Ave.
Kansas City, KS 66101
Region 3:
•tephen R. Wassersug, Director
Hazardous Waste Management Division
USEPA Region III
841 Chestnut Street
Philadelphia, PA 19107
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 4:
Patrick M. Tobin, Director
Waste Management Division
USEPA Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
Region 9:
Rich Vaille, 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)
K30 S. Dearborn Street
Chicago, 111 60604
Region 10:
Charles E. Findley
Director
Waste Management Division
USEPA Region X
1200 6th Avenue
Seattle, WA 98101
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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-ie filter press sludqe.
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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
planned. 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 samples. You must also submit results from
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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.
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.
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.
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.
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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
-------
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY '1991 (02)
FEB I 2 1991
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
Purpose
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.
Background
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."
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- 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.
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- 3 -
Applicability 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 RCRA-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).
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- 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
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9441.1991(03)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
1 9 !??•;
OFP1CE OF
SOLID WASTE AND 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 skimmings, when removed (i.e., skimmed
Printed-
-------
off) from the process due to contamination of the molten solder
bath during its use in the process, would more clearly meet the
definition of a spent material than a by-product. Rather than
being a by-product of the solder itself, the skimmings are spent
materials from the use of the solder.
As you know, this regulatory interpretation reflects the
Federal program. You should also contact the appropriate State
regulatory agency to determine the regulatory status of the
solder dross under their program.
I hope this has helped to answer your questions. Should you
have any further questions, you can contact Mr. Mitch Kidwell, of
my staff, at (202) 475-8551, or Ms. Jeannie Paige, of the EPA
Region IX office, at (415) 744-2073.
Sincerely,
David Bussard
Director
Characterization and Assessment
Division
cc: Jeannie Paige
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UNITED STATES ENVIRONMENTAL PROTECTION ACENC*
9441.1991(04)
MAR 2 6 1991
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 will 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. I 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 application of the "contained-in" policy to
contaminated media was upheld by the D.C. Circuit Court of
Appeals in Chemical Waste Management. Inc. v. U.S. EPA. 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.
+-V.O arr.ar,,*,, fr ? c. n~4- JCCM^ an" ^ f j V«" JV -"«*•-•• •• ''•
-------
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
Federal 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.J
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
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9441.1991(05)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
APR 22 1991
OF
SOLID WASTE AND EMERGENCV 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 Corp. 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
Agency clearly stated this in the September 1, 1989, Final Rule
(54 FR 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 Agency 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,
Printed
-------
-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 beneficiation
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.
nee
'Director
Office of Solid Waste
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9441.1991(05a)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAY 2 1 199!
MEMORANDUM office OF
SOLID WASTE AND EMERGENCY RESPONSE
SUBJECT: Classification of Waste Fluids Associated with
Clean Up of crude Oii_^Leaks ^n Active Oil Fields
FROM: Sylvia K. Lowrance
Office of Solid Was
TO: Max H. Dodson, Diretor
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 RCRA regulatory status of certain oilfield
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 RCRA 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
\£& Primed on 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 a'ttempt 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
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
manufacturing 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 RCRA
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 all wastes generated by the pipeline would be nonexempt,
the above discussion of the contaminated snow-melt would apply to
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. Kreizenbeck, 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
environmental laws, specifically, we must comply with
the"relevant provisions of the Resource Conservation
and Recovery Act of 1976 (RCRA) 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.
-------
SutM Rayon 10 AJukl
Protection 1200 Stan Av»nu« Idaho
S*4ffltWA 96101 Or^on
WtjWngton
-------
EPA, in fact, has chosen to design and operate the U1C program as. essentially, a
waste management program. Thus, the regulations often classify wells based upon tne
types of wastes (fluids) that would be injected in a well and the location of the injection
zone wrth-respect to USDWs. Although Class II and 111 wells are explicitly defined in terms
of their uses rather than the fluids they inject or the location of the injection zone with
respect to USDWs, each of 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
nearty USDWs. Similarly, the regulations specify the conditions under which injection may
occur and impose a collection of design, construction, and operating requirements on the
owners and operators of various classes of injection wells including Class 11 wells. We
would, therefore, conclude that the UIC program has become a waste management
(regulation) program. This is. in our view, the conceptual foundation for the operation of
the program. EPA is not limited, however, in its authority to regulate any underground
injection activity which may endanger USDWs, including those which may not technically
constitute "waste management" (such as ground-water reinjection).
Second, we also agree that the SDWA does restrict the manner in which the U1C
program may regulate oil and gas development activities. Specifically, the statute provides
that
"Regulations of the Administrator under this section for 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 SL •• ,ce in connection with oil or natural gas production or
natural gas storage requirements, or
(B) any underground injection for.the secondary or tertiary recovery of
oil or natural gas,
unless such requirements are essential to assure that underground sources of
drinking water will not be endangered by such injection.' §l421(b)(2) Emphasis
supplied.
This statutory language does njot specify what types of fluids may or may not be injected in
a weQ being used in oil and gas exploration, development, or production. That decision is
left to the discretion of the Administrator. 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
any underground injection." Thus, EPA and stales with primacy may restrict, interfere with
or impede these injection activities in any manner we deem necessary to prevent the
endangerment at A USDW. This conclusion is consistent with the fact that the primary
purpose of this portion of thi statute is the protection of USDWs.
Finally, in implementing the UIC program, SPA and the states, are required to comply
with other applicable environmental laws. Specifically, we must comply with the relevant
provisions of the Resource Conservation and Recovery Act of 1976 (RCRA) as amended by
the Hazardous and Solid Waste Amendments of 1984 (HSWA). Thus, in implementing the
program we a/e required to be consistent with the temporary hazardous waste exemption
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-3-
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* previsions 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. We can also not authorize the injection of any hazardous wastes falling within
th« scop* of the land ban In joy. injection well, except under a very limited set of
circumstances1.
When all of these statutory provisions are taken together with EPA's chosen approach
of regulating injection activities based on the source and type of fluid involved, the definition
of Class II fluids becomes a more critical question. This is true because the injection of
any fluid determined to be a Class II fluid is "entitled* to the less restrictive regulation
provided for by §142l(b)(2) of the SDWA.
RCRA HAZARDOUS Warms
As stated above, no RCRA hazardous waste may be injected down any Class II well.
To determine whether a waste from oil and gas production is hazardous under RCRA. a
two 10 mree-step analysis must ba performed. First, the program director must determine
whether the waste would fall within the scope of the exemption from RCRA regulation for
'drilling fluids, produced wastes, and other wastes associated with the exploration,
development, or production of crude oil or natural gas or geothermal energy."
RCRA 53001 (b)(2)(A).
The two RCRA documents we discussed previously provide guidance for answering this
question. First the regulatory determination published on July 6, 1988 (53 FR 25446)
provides a list of wastes (fluids) which fall within the scope of the temporary exemption. It
also provides a list of wastes which are not covered by this exemption.
[Pages 25453-25454).
If the fluid is not one of the listed exempt wastes, the next (second) step which the
program director must take is to determine whether ft meets the RCRA definition of
hazardous waste: Is the waste listed as hazardous under 40 CFR §§ 261.31-.34 and/or
does the waste exhibit one of the hazardous characteristics under 40 CFH §§ 261.11-.14? rf
the fluid is a listed or characteristic waste, then the program director must make one more
check (the third step) to determine whether the fluid may still fall within the scope of the
RCRA exemption. The most logical guidance for this determination Is the general language
in the Report to Congress (enclosed) quoted in the recommendations made in our
performance audit of the Commission's U1C program.
There is one additional point of clarification 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. Aftar th« ipptlccbi« tffvcflv* tftu of *• land ba/i for tf* wutM in cuuten (t-S-, M«y 8,1MO for WMIM which
«ft*it« htzaraou« cftwmeurittie) m*M WMIM may t« land <3*poMd (Inj»e»d) «nty I *• w«u (« ffiMO
*ppDc*tu nitmtnt emdvdt. (b) it th« subject of an «pp
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-4-
determinaflons w to whether a fluid Is an 'associated waste' wtthln the scope of the RCRA
exemption in order to adapt to the differences among oil fields. This is not what EPA
means by integrally or intrinsically associated wtth oil and gas production. The terms
(integral and/or intrinsic) are meant to be applied to the industry as a whole, and not to any
particular "oil field. Thus, if a fluid Is a characteristic or listed hazardous waste, is not listed
in the regulatory determination as being exempt and is used or produced by operations
other than oil and gas production operations (for example in another industry), then it is not
covered by the RCRA temporary exemption and may not be disposed of via a Class !i well
or used in an enhanced recovery injection well.
Cuss 11 FLUIDS
Once t determination has been made that the waste in question is not hazardous
under RCRA, the LJIC program director must then determine whether th» wast* may b«
injected into a Class I! well. Class II wells are defined explicitly in the terms contained in
the statute. The sections of-the U1C regulations which your letter cites [40 CFR §144.5(b)
and 40 CFR f146.5(b)J mostly reiterate the statutory language at §1421 (b)(2) as a definition
for Class II wells. The one amplification in the definition is, as described above, that fluids
cannot be injected if they are classified as hazardous wastes at the time of the proposed
injection.
Class It fluids are not completely defined in the UlC 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 HSWA,
First, for Class ll-D (disposal wells), brines 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 hazardous waste. These fluids may be commingled with
waste waters from gas plants which are an integral pan of production operations, unless
those waters are classified as hazardous at the time of injection. The Judy 31, 1987
memorandum from Michael Cook does not alter or expand the list of allowable fluids in any
substantial way. It clarifies what fluids fall within this "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 For- purposed integrally associated wtth on and gas production or storage.
Its purpose is simply to guide a state program director's decision when a fluid is proposed
for injection that is not explicitly listed anywhere else as either a Class II or non-Class II
fluid.
Second, wt have not attempted to develop a generic definition for the types of fluids
which can be injected in enhanced recovery wells (II-R or EOR wells). EPA, as a whole.
has not done this, in part, because of the wide range of fluids which have been and are
used for enhanced recovery especialry in tertiary oil recovery projects. The only explicit
restriction in current law and Agency policy is that hazardous waste (listed or characteristic)
as defined under RCRA, HSWA, and their implementing regulations, may not be injected in
enhanced recovery injection wells.
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•5-
As you wffl recall, ARCO asked for and received permission from the Commission to
inject treated sanitary waste in some of its EOR wells at Prudhoe Bay. Similarly, British
Petroleum (BP) is currently designing a waste management and disposal project in which it
is conterqplating injecting treated industrial waste effluent in COR w«lls. 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 requirement 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 water being produced at the Prudhoe Bay Waterflood Project
This demonstration would need to be made wfth respect to all substances of concern that
might exceed acceptable levels in groundwater. Alternatively, the operator could be
required to demonstrate that the proposed injectate is chemically similar to fluids typically
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 typically used in the
industry for tertiary recovery. As a general rule, this demonstration would include
injectate sampling under appropriate data quality assurance and quality control
procedures. 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.
CONCLUSIONS
recognize, from our conversations wrth you and the content of your letter, that this
issue is very important to the Commission. Due to the significance of your concerns, we
developed this response with the assistance of our Office 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 expressed in this letter concerning how a UIC program director
should determine whether a particular fluid may be injected down a Class II injection well.
We would like very much to bring these issues to closure with you, as we know that
they will continue to arise (as in the case of BP Alaska'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 protective disposal alternative. Nonetheless, we are bound to interpret
existing (duly adopted) regulations in a consistent manner nationwide. After you have had
a chancs to review this letter, please contact Janis Hastings, Chief of the Drinking Water
Prograr.j Branch at (206) 442-4092 to discuss our next steps, including changes to the
MOA, to reserve the issues.
Sincerely,
A. Kreizenbeck, Acting Director
Water Division
Enctcsur*
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The tut of whether a particular waste qua! iff as under the exemption
can be made 1n relation to the following three separate criteria. No one
criterion can be used as a standard when defining specific waste streams
that are exempt. These criteria are as follows:
1. Exempt wastes must be associated with measures (I) to locate oil
or gas deposits, (2) to remove oil or natural gas from the ground,
or (3) to remove impurities from such substances, provided that
the purification process is an integral part of primary field
operations.1
2. Only waste streams intrinsic to th* exploration for, or the
development and procuction of, crude oil or natural gas are
subject to exemption. Waste streams generated at oil or gas
facilities that are not uniquely associated with exploration,
development, or production activities are not exempt. (Exaop'es
would include spent solvents from equipment cUanup. or air
emissions from diesel engines used to operate drilling rigs.}
Those substances that are extracted from the ground or Injected
into the ground to facilitata the drilling, operation, or
maintenance of a well or to enhance tha recovery of of! and gas
are considered to be uniquely associated with exploration,
development, or production activities. Additionally, the
injection into the wellbore of materials that keep the pipes from
freezing or serve as solvents to prevent paraffin accumulation is.
intrinsically associated with exploration, development, or
production activities. With regard to injection for enhanced
recovery, the injected materials must function primarily to
enhance recovery of oil and gas and must be recognized by the
Agency as being appropriate for enhanced recovery. An example
would be produced water. In this context, "function primarily"
means that the main reason for injecting the materials is to
enhance recovery of oil and gas ruhir than to serve *s a sieans
for disposing of tha injected materials.
3. Drilling fluids, produced waters, and other wastes intrinsically
derived from primary field operations associated with the
exploration, development, or production of crude oil, natural gas
or geotheraal energy are subject to exemption. Primary field
operations encompass production-related activities but not
transportation or aanufacturing activities. UUh respect to oil
production, primary field operations encompass those activities
usually occurring at or near the rellhaad, but prior to the
MIUI mecmte •>•• i,^- sracttm is stl rtfimng me
trt net tuoo: :KJw
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transfer of oil from an individual field facility or a centrally
located facility to % carrier (i.g., pipeline or trucking concern)
for transport to a r*fin«ry or to a refiner.
With respect to natural gas production, primary field operations
are those activities occurring at or near the wellhead cr at tne
gas plant but prior to the point at which the gas is transferred
from an individual field facility, a centrally located facility,
or a gas plant to a carrier for transport to market. Primary
field operations encompass the primary, secondary and tertiary
production of oil or gas.
Wastes generated by tne transportation process itself are not
exempt because they are not intrinsically associated with primary
field operations. An example would be pigging waste from pipeline
pumping stations. Transportation (for the oil and cas industry)
may be for snort or long distances.
Wastes associated with manufacturing are not exempt because they
are not associated with exploration, development, or production
and hence are not intrinsically associated with primary field
operations. Manufacturing (for the pil and gas industry) is
defined as any activity occurring within & refinery or other
manufacturing facility the purpose of which is to render the
product commercially saleable.
Using these definitions, Table 1 presents definitions of exempt
wastes as defined by EPA for the purposes of this study. Note that this
is only, a partial 11 s£. 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 b« applied to
determine the status of these wastes under Section 3002(m).
CHARACTERIZATION OF WASTES
Organic constituents, present at levels of potential concern in oil
and gas wastes, are shown on Table 2. These include the hydrocarbons
benziflt and phenanthrene. Inorganic constituents of concern include
lead, arsenic* barium, antimony', and fluoride.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION Vfll
999 18th STREET - SUITE 500
DENVER, COLORADO 80202-2405
Ref: 8WM-DW
MEMORANDUM
JN 3m
TO: Mike Fitzpatrick
Special Waste Branch, OjSW
FROM: Paul S. Osborne'^"^
Regional Ground Water Expert
SUBJECT: Classification of Waste Fluids Associated vith
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 defined as Class II wastes
under the UIC Program. This is based on the fact 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 the 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
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Class II well? The existing Uic rpgulations 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
Exemption 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, RCRA
Don Olson, Chief
Compl. & Enf. Sect., ODW
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9441.1991(06)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
ICE Of
SOLID WASTE AND EMERGENCY RESPONSE
MAY 2 9 199!
Mr. Philip s. Bell
Amerock Corporation
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 baas
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 J?
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).
Printed on P-
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d. If and when they become a hazardous waste, is the proper
waste code for them solely D003 for CN 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 plating 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 (F0077/F008?) in addition to the D003?
These wastes would be considered both D003 and F008 (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
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9441.1991(08)
ro
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
,'jM. 1 0 c v OP sice o<=
SOLID WASTE AND EVERGENCv 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 wastewater 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
Printed on Recycled Paper
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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 the 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,
Don R. C3
Assistanr-#cdministrator
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9441.1991(09)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN 21 1991
SOLID WASTE AND EWERGENO RESPONSE
Mr. Basil G. Constantelos, Director
Environmental Affairs
Safety-Kleen
777 Big Timber Road
Elgin, Illinois /JB0123
Dear Mr. CdnstAmrelos:
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
Lowrance, Director
Office of Solid Waste
Enclosure
Printed on Recycled Paper
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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 thfc 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)(1). 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 wastes 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
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classifies materials as "flammable" if the liquid has a
flashpoint < 100°F, and classifies liquids with flashpoints
between 100° and 200°F as "combustible." EPA classifies
hazardous wastes as "ignitible" with a flashpoint < 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.
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y>ltlr>, »44l.l991(10)
• UNITED STATES ENVIRONMENTAL PROTECTION AGEN
WASHINGTON. D.C. 20460
JUN 2 I 1991
E Or
SOLID WASTE AND EMERGENCY RESPONSE
Melanie K. Pierson
Assistant United States Attorney
Southern District of California
United States Court House
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
determination 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 to you, EPA has
previously indicated in regulatory interpretations (including
Federal Register preamble discussions and guidance manuals) that
dross or skimmings 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 skimmings) 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 skimmings) that are generated from solder that is
melted prior to use (which is analogous to the further refinement
Printed on Recycled Paper
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of a product). However, drosses 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 "dross"
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 us«d 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
off. 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 drosses 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 drosses, 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
-------
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. Douglas1
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. Kinburn 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
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9441.1991(11)
JUN 2 8 1991
Mr. Rudy Leutzinger
Burns & McDonnell
P.O. Box 419173
Kansas City, MO 64141-6173
Dear Mr. Leutzinger:
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
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9441.1991(12)
MEMORANDUM
JUL3I
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 wastestreams.
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 wastestream), 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
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
generated depends on both the influent and physicochemical
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 FR
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 £B 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(o)(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(o)(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.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Q: Is 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
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ADDITIONAL INFORMATION ON HAZARDOUS WASTE DETERMINATION
In a discussion on sampling points, the preamble of the TC
final rule (March 29, 1990, 55 IB 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."
EPA developed a TC clarification notice which includes
examples of regulated surface impoundments managing newly
identified TC wastes (September 27, 1990, 55 ZE 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 FR 11830,
and 55 IB 39410).
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."
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
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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).
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9441.1991(13)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
JULY 1991
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 trichloroethylene in de 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 hazardous waste under Section
2613(a)(2)(iv)?
Yes, the waste still qualifies for the exemption. Section 2613(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 facility subject to regulation under
either section 402 or section 307(b) of the Clean Water Act and the wastewater
must meet the de minimis levels established in paragraphs (A) through (E).
Source: Ron Josephson, OSW (202) 260-6715
Research: Melicent Brenner
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9441.1991(14)
RCRA/SUPERFDND HOTLINE MONTHLY SUMMARY
AUGUST 1991
1. Regulatory Status of Off-Specification Circuit Printing Boards
Periodically, in a circuit board manufacturing process, individual circuit 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
circuit 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 hazardous waste regulations?
No, reclamation of the off-specification circuit boards would not be subject to
the RCRA Subtitle C hazardous waste regulations because the circuit boards
are not hazardous wastes.
By definition, for a waste to be a hazardous waste, it must be a solid waste (40
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, commercial chemical product, or scrap metal
(See 40 CFR §261.2(c)(3).) An unused arcuit board is classified in the
chemical products category. Although the commercial in the chemical
products category in Table 1 ot 40 CFR §261.2(c)(3) is labeled "commercui
chemical products listed in 40 C FR iZo 1 33," as explained in a Federal Rt>y i w
notice published on April 11, 19>?. > 50 FR 14219) the status of commeraxi
chemical products not listed in 40 CFR §261 (i.e., those that exhibit hazaniou»
wastes characteristics) is "the same as those that are listed in Section 26133."
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 circuit boards are not solid wastes, they are
not hazardous wastes and the reclamation is not subject to the RCRA Subtitle
C hazardous waste regulations. It should also be noted that the 40 CFR
§261.2(f) requirement (persons who raise a claim that a material is not a solid
waste document must meet the terms of the exemption) may be applicable.
Source: Charlotte Mooney, OSW (202) 260-6926
Research: Cynthia Hess
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DEC- 2-92 KED 13:0! WBX K<« SU, 2C2962358: 944l.l99l(l4a)
1 UN" ~r-r> STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON. DC. 20460
8'S8i j
AUG - 5 «* QffiCI
SOLID WASTE *NO fve«6ENCv
MEMORANDUM
SUBJECT: Regulatory Status cf Residues From Secondary Lead
Smelters That Recycle X069 Wastes
FROM: Sylvia K. Lowrance, Director A
Office of Solid Waste _jZ>()
TO: Waste Management Division Directors, Regions I-X
It has come to my attention that there is an issue about the
status ci wastes such as slags and drosses that result from
secondary lead smelting when the smelter returns its emission
control dust/sludge (Hazardous Waste K069) to the smelting
furnace as feedstock. This memorandum reiterates that such
residues are hazardous wastes subject to Subtitle C regulation if
they exhibit a hazardous characteristic (e.g.. toxicity for
lead), and it discusses the Agency's intent regarding whether
such residues are considered listed hazardous wastes pursuant to
the "derived from" rule,
EPA stated in the February 21, 1991 "Boiler/Industrial
Furnace" Final Rule ("BIF Rule") (56 Fed. Reg. 7134, 7144) that
residues from metal recovery of listed hazardous wastes normally
are considered to be "derived from" treatment of hazardous waste
and thus listed hazardous waste themselves. Although this
general principle remains valid, we note that EPA did not intend
for the "derived from" rule to apply to K069 slags and drosses
that result from returning the K069 to the smelting furnace as
feedstock. The Agency initially attempted to achieve this result
through application of the so-called "indigenous" principle to
: ;63 slags. See August 17, 1988 "First Third" Land Disposal
Restrictions Final Rule, 53 Fed. Reg. 31138, 31198-99. The June
1, 1990 "Third Third" Land Disposal Restrictions Final Rule (55
Fed. Reg. 22520, 22565-68) also presumed this result in its
discussion of slags from secondary lead production, which were
discussed exclusively in the context of D008 wastes. However, a
subseguent decision by the U.S. Court of Appeals, in American
Petroleum Institute v. EPAf 906 F.2d 726, 740-42 (D.C. Cir.
1990), called into question the validity of the "indigenous
principle" as EPA had applied it. (See BIF Rule, 56 Fed. Reg. at
7142, 7144, for a brief discussion of the court's decision.)
Although SPA maintained in the BIF Rule that residues from
treating listed hazardous wastes in metals recovery processes
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DEC- 2-92 WED 13:02 WBN FAX NO. 2029628587 P. 03
generally are subject to the "derived from" rule, the Agency
overlooked the ^©cycling practices in the secondary 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 K069 dusts are recycled to the smelting process
as feedstock.
We expect to address these issues more formally in the
context of upcoming rulemakings. In the interim, please contact
Mike Petruska at 475-8551 if you have any questions.
cc: Regional Counsel RCRA Branch Chiefs
Gary Jonesi, OE-RCRA
Steve Silvennan, OGC
Susan Bromm, OWPE-RED
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9441.1991(15)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
Str- £ 0 I9SI
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Ms. Mary R. White
Corporate Environmental 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 Federal Register 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 oil 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;
Printed on Recycled Paoer
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• 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 Joglekar
at (202) 260-3516. Thank you for your interest in the safe and
effective management of hazardous waste.
Sincerely
)irector
of Solid Waste
Enclosure
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9441.1991(16)
OCT 2 2 !99i
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 CFR 260.10, they are exempt from regulation
under Subtitle C of the Resource Conservation and Recovery Act
(RCRA) 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.
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UHITED STATES ENVIRONMENTAL PROTECTION AGENCY
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
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UNITED STATES ENVIRONMEMTAL PROTECTION AGENCY 9441.1991(17)
NOV 4 J99I
MEMORANDUM
SUBJECT: Response to Region V Fuel-Blending Concerns
FROM: Sylvia K. Lowrance, Director
Office of Solid Waste (OS-300)
TO: David A. Ullrich, 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
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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 blending
(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.
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If you have any question concerning our interpretation of
these fuel-blending issues, please call Sonya Sasseville (260-
3132) or Chester Oszman (260-4499) of my staff.
Attachment
cc: Hazardous Waste Division Director, Regions 1-4 & 6-10
Regional Subpart X Contacts
Regional Incineration Contacts
Sonya Sasseville, OSW
Chester Oszman, OSW
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9441.1991(18)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
DEC - 9 1991 OFF.CEOF
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 skimmings 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 Paper
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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 skimmings 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.
-------
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
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9441.1991(19)
RCRA/SUPERFUND HOTLINE MONTHLY SUMMARY
DECEMBER 1991
1. Reclaimed Spent Wood Preservative
Exclusion in 40 CFR Section 261.4(a)(9)
In the December 6,1990, Federal Register (55
FR 50450), EPA promulgated hazardous waste
listings for three wastes generated from wood
preserving processes: F032. F034, and F035.
These listings include spent wood preserving
solutions which are often collected on drip pads,
reclaimed (usually by means of filtration or oil/
water separation), and reused again in wood
preserving processes. If a wood preserving facility
uses reclaimed spent preservative (F032, F034, or
F035) to treat wood products which are
subsequently placed on the land, would the
reclaimed spent preservative be regulated as a
hazardous 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, materials
reclaimed from hazardous wastes that are used in a
manner constituting disposal continue to be
regulated 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 treatment, 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 treated 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 treated 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
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9441.1992(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
JAN j 5 1992
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
waatewater. 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 Ir.tter
(such as corrosive groundwater samples) will probably lose tie
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
SYMBOL
SURNAME
DATE
Form 1320-1A(1/90)
Printed on Recycled Paper
OFFICIAL FILE COPY
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9441.1992(02)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
• JAM I 5 1992
OFFICE OF
SOLID WASTE AND EVERGESCV 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 you ?z- -our letter of December 10, 1991 in which you
expressed concern _ver the contamination problem resulting froro
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 for
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.
Since
Dire
Off
'ce
wran<
or
of Solid Waste
cc: Chester Oszman, OSW
PriiUtJ .*> "• - i .• r i^t
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New York State Department of Environmental Conservation
Wildlife Pathology Unit
Wildlife Resources Center
Delmar, New York 12054 Thomas C. Jorllng
Commissioner
December 10, 1991
Ms. Sylyra K. Lowrance
Director
Office of Solid Waste and
Emergency Response
U.S. Environ. Prot. Agency
Washington, B.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
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UNITCO ITATCS EN VIKONMINTAL MOTCCTJON
O.C t04»0
9**'Ct 0»
•Okie WAITC A*e t«<«ai ».•:> »(i»t
SEP 6 J968
Ms, Jane Magee
Aeaistant Commieiionsr for
Solid and Hazardous Waace Management
Indiana Dept. of Environmental Msnagenent
P.O. Box 6015
Indianapolis, Indiana 462K-601S
Dear Jan*t
Thit it in response to your Ittttr on tht applicability of
Resourc* Conatrvation and Rtcovtry Act (RCJU) raoulttiont to»
shooting ranges. In your lattet you indicated thae th» Indiana
Univtrsity in Blcomington naa ractivtd a prfliffiniry notict of
:nicn. to aut ondwr ftCXA, alltgin? that th« university •hooting
rsngea are hazardous vastt landfills/ fully iubjfct to thv
t«quir«»tnt for an operat;n9 pacnit and all applicable facility
atandarda.
Th« discharge of ball and aport AAffgr.itien at ahooting
ran^ts doai not/ in out opinion, constitute hasardoua waste
dlapocal. Thia is because w% do not consider the rounds to bt
diacardcd, which is a neeesaary criterion to be net befott a
naterial can be considered a solid viftt *nd, lubsequently« s
hacacdous waite (see 4i Cfft 2«l,3(s)). Rather, the sheeting of
bullets is within the normal and expected use pattern of the
manufactured product. This intarpretstion extends to the
•xpended cartridges end gnexpisded bullets tnat fall to the
ground during the shooting exerciee. The situation, in ou;
oind, is analogous to the use of pesticides whereby the
«xpect«d. noraai use of s pesticide aey result in seae
discharge to .the soili. This :• • discharge incident to norml
product uee and is not considered e hessrdous or solid waate
activity felling under the jurisdiction of KCftA.
-------
if you have my questions rtgirdir.g out intarprttation ot
vculd lifct to discuss the issue further, pia«t« call tnzabtth
CotcwortK (212) 382-3132 or Chat 0*xni«n (292; 312-4495.
cct tliitboth Cotoworth
MStt Hil«, OSW
fr«d Chtnani*, OGC
Karl Brtm«r, Rvgicr. 5
Ch«t Oiimjin, OSW
Jinctrtly
Sylvia K.
Dirtetor
Ofliet of lolid Wast*
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9441.1992(03)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
JANUARY 1992
1. Regulatory Status of Waste from OH
Gathering Pipelines
An oil production facility uses gathering
pipelines to transport oil from its production site to
a site owned by another facility. The oil has
already undergone initial oil/water separation.
Waste forms in the gathering lines during the
transportation of the oil. Is the waste that forms
subject to the hazardous waste exclusion at 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
25446, footnote 1) defines associated wastes as
those wastes other than produced water, rigwash,
and drilling 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 El-17 that "(t]he 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.
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9441.1992(04)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
FEBRUARY 1992
1. Speculative Accumulation
Calculation
In March 1991, a facility generated 200 kg
of sludge that exhibited the toxicity
characteristic (TC)for lead (D008). The
operator of the facility placed these materials
in storage to await reclamation of lead. At
that time, the facility was not accumulating
any other recyclable materials. Since the
sludge will be reclaimed, it is not considered a
solid waste while stored prior to reclamation
(40 CFR §261.2(c)(3)). On December 31,
1991, the facility still had not 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 to 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 it can
show that (1) the material is potentially
recyclable and has a feasible means of being
recycled, and (2) during the calendar year
(commencing on January 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 (§261.1(c)(8)). A facility owner/
operator must show that he or 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 £R 14490; April 4,
1983). For the above facility, the amount of
material in storage on January 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
January 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 F_R 14490;
April 4,1983). The period of one calendar
year starring on January 1 was selected,
however, to facilitate enforcement and achieve
uniformity (50 ER 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 635-6; January 4, 1985).
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RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
FEBRUARY 1992
(CONTINUED)
The RCRA 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
(§261.2(c)(3)). The requirement that materials
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 ER 635; January 4,1985). It
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 FR
14489; April 4,1983).
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9441.1992(05)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR -6 1992
OFFICE OF
SOLID WASTE AMD EMERGENCY RESPONSE
Mr. Rock J. 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 included in the 2 Edition of SW-846 is still valid
until the 3r 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 3r
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.
Printed on R--
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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,
Oliver M. Tordham, Jr.
Chemist
Methods Section (OS-331)
cc: Alec McBride
Gail Hansen
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9441.1992(06)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR 26 1992
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
carefully 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 261.1(c)(l},
and would be a "solid waste" when reclaimed (§ 261.2(c)(3)). A
''spent 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.
Printed on Recycled Paper
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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 environmentally sound ways. In that context, 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 yours,
Don R.
Assistant Administrator
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9441.1992(07)
UNITED STATES ENV5RONM ENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 3! 1992
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 hazardous 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 low-level mixed waste. Based on earlier reports and from preliminary results from
a joint survey issued by Nuclear Regulatbry 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 contaminated equipment
(3) Heavy metal contaminated wastes such as discarded lead shielding and/or
containers, chromium containing ion exchange resins and corrosion inhibitors, and
decontamination resins containing cadmium.
(4) Aqueous corrosive liquids such as those used at nuclear power plants or in
industry to clean contaminated 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
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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 hazardous waste facilities that generate or hold storage permits for mixed waste.
Therefore, the specific list that you requested is not available. However, I have provided
you with information (attached) on the potential universe of mixed waste generators
compiled for an EPA mixed waste training course from various reports. You also may try
railing 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 RCRA
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. Estimates 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
management activities, and it is currently in the final stages of collection and analysis, The
final 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 hazardous
waste treatment, storage and disposal facilities (TSDFs) are required to report biennially
on their hazardous waste generation and management 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 hazardous waste (including 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
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facility's current permit would authorize disposal of mixtures that are very low activity,
"naturally occurring11 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 faculties would also have
to be licensed by NRC or an NRC agreement State. The attached July 3, 1986 and
September 23, 1988 Federal 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,
te
State and Regional Programs B&fnch
Office of Solid Waste
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February 19, 1992
Suzanne Rudzinski, Chief
State Programs Branch
Office of Solid Waste (05-342)
401 M Street, SW
Washington, DC 20460
Dear Ms. Rudzinski:
My questions regarding mixed waste information were referred to you by
Mr. Randolph Wood, Director of the Nebraska Department^: Environmental Control.
Specifically, I would like a detailed listing ot the elanents _contained
in Low-Levej^Mixed/Viaste., Also, please supply me with .§_ list of those entitled
which produce__inixed^ waste_as well as those entities which hold licenses or
permits'Tor IFtorage" of mixed waste.
fJhat amount of mixed waste is. .being. held by producers, and at which point
are~they required" to' report the_anount they. arejioidinq? Where is the mixed
waste produced in the" United States disposed of? What is the current charge
per cubic foot for disposal of mixed waste?
Are there curren^iy any commercial mixed waste ^disposal permits issued
nationally? Uho_has .the .authority to issue a permit .JEor dTsposal ot mixed
waste? What agency has the authority to site, construct, operate and regulate
mixed waste disposal?
Is there any way a State or a Compact can ban mixed wast 2 from outside
its" State or Compact region from being disposed of within its State or Compact
Region?
finally, please explain what a State does to acquire the status of a
.RCRA/authorized state with mixed waste authorization and what this status
means.
I look forward to a p.rcrapt response. I have a '•^C?^ Perspective for NRC
Licensees Pooklec.
Sincerely,
Jane Vogt
Rt. 1, Box 37C
Naper, ME 68755
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9441.1992(08)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
APR 23 1099
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
Act (RCRA). Thank you also for meeting with my staff on January 9, 1992 to discuss
your concerns.
We understand that the airbag inflators in question are sealed metallic devices
containing propellants that generate a prescribed volume of nitrogen gas when they are
activated. Some of the manufactured inflators 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 undeployed inflators appear to be "off-
specification" commercial chemical products. Under the RCRA 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 RCRA.
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.
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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 yours,
Sylvia K. Lowrance
Director
Office of Solid Waste
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9441.1992(09)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAY - 4 1992
OFFICE OF
SOLIQ WASTE AND EMERGENCY RESPONSE
Arline M. Seeger
Morgan.,, l^-wis, & Bockius
Counselors at Law
1800 M Street, N.W.
Washington, D.C. 20036
Dear Ms. Seeger:
Thank you for your letter of April 23, 1392, 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 261.4(e) and 261.4(f) allow exemptions froa
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 these
regulations on July 19, 1988. In the preamble to the rule, the
Agency exempted "...samples sent for treatability studies fro»
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
nder Section 261.4(f) or has an appropriate RCRA permit or inter la
.tatus." In addition, Section 261.4(e)(2)(v)(C)(2) requires the
generator or sample collector claiming the exemption to k««p
records of the EPA identification number of the laboratory or
testing facility receiving the waste. Laboratories or testing
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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 treatability study sample
bound for export. However, 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. France, 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 transboundary movements of hazardous and other wastes with
non-Parties, except when a separate international agreement exists
for those 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.
yr. 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 off site."
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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,
Sylvia K. Lowrance, Director
Office of Solid Waste
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9441.1992(10)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAY I 5 [992
OFFICE OF
SOtIO 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 tc your request for guidance regarding the
Bevill Amendment as it applies to this industry, I am
including with this letter copies of two important and relevant
Federal Register notices. The first of these two notices,
published July 3, 1986, (51 FR 24496) permanently exempted mining
extraction and beneficiation wastes from RCRA 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
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-2-
vessels) and used lubricating oils. Wastes that are uniquely
associated with phosphate extraction and beneficiation include
nine 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
processing wastes. Among those twenty mineral processing wastes
retained within the exemption are phosphogypsum and process
wastewater 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 v~=>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.
Si
Offf.ce of
Enclosures
cc: Alan Farmer, EPA-Region IV
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9441.1992(11)
FILL uun
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
HAY 28
OF
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
cleaning filters. I apologize for the delay in responding to your inquiry.
You requested a regulatory determination regarding a process to crush spent dry
cleaning filters to remove the solvents from 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
cleaning 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 minimise your costs while helping your customers maintain full
compliance with RCRA regulations.
Printed on Rpr.vdoa
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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 regulatory 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,
Ivia K. Lowrance,
Director
Office of Solid Waste
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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 of in a
landfill, be regulated as a mixed waste under
both RCRA (because the containers exhibit the
toxicity characteristic for lead) and the Atomic
Energy Act (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)(l)(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
health and the environment when 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
9432.00-2; October 4,1989).
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9441.1992(13)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
MAY 1992
2. Secondary Materials Used as
Effective Substitutes for Commercial
Products
Section 2612(e)(]) excludes certain
recycled secondary materials from the
definition of solid waste. Section 26I2(e)(l)(ii)
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
qualify for the exclusion in §2612(e)(l)(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.
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9441.1992(14)
June 3, 1992
Ms. Elizabeth R. Walker
Quality Assurance Officer
USPCI
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
semivolatiles 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
semivolatiles 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
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9441.1992(15)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUN 31992
OFFICE OF
SOLID WASTE AND EMERGENCV 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?
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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 Federal
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.
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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?
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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. He
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 Register. 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 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?
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
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ALASKA
WASHINGTON
MONTANA
IDAHO
OTAH
Northwest Interstate Compact
On Low-Level Radioactive
Waste Management
WASHINGTON DEPARTMENT OF ECOLOGY. P.O. BOX 47600. OLYMPIA. WA 98504-7600
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?
1. 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
mixed waste storage?
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.
1. How should a low-level radioactive waste, otherwise dischargeable to a sewer, be
disposed of if a hazardous component is present? Similarlyjjvoiujaust 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
"identifieo"?
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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. 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?
5. Generators within the Compact ask for a redefinition and clarification of storage rules
which 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).
Sincerely,
Elaine Carlin,
Executive Director
EC/BC:dr
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9441.1992(16)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUn 1 i 135c 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 RCRA. 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 FR 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
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discussed above, the activity you described is not "treatment,"
storage," or ."land 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,
rlvia K. Lowrance, Director
'Office of Solid Waste
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9441.1992(17)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
UN 161992 oFfic£OF
SOLID WASTi 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
characterizing 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 AmBe sealed
sources are not 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
constituents from the non-solder portion of the waste.
It also appears to be unlikely that any trace amounts of TC metals in the americium
Printed on ffecycted Paper
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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 n-3, Figure n-1, the third decision triangle in the series asks Is the
Waste Listed as P or U Waste in 40 CFR 261337* Hie decision to the right
of the triangle says "Yes or Maybe". We suggest you remove the word maybe
because it is vague and not explained.
2. On page II-5, Section 2.13, the last sentence refers to identifying "beryllium
powder" as P015 waste. We suggest you delete the word "powder" since P015
is designated as "beryllium" not "beryllium powder" in 40 CFR 26133.
3. On page n-6, in the last paragraph, you may want to mention that discarded
beryllium residues generated during the manufacturing process for sealed
sources ~&: e considered P015 wastes.
4. On page n-8, 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 mixed 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) 260-2210.
Sincerely,
Office of Solid Waste
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9441.1992(18)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
JUNE 1992
1. Wastewater Treatment Units:
Regulatory Status of Waste
According to 40 CFR §§264J(gX6),
265J(cX10),and270J(c)(2)(v). wastewater
treatment units (WWTUs) as defined in
§260.10 are exempt from Pans 2641265
permitted and interim status requirements for
treatment, storage, and disposal facilities. If
the WWTU itself is exempt from Subtitle C
regulation, what is the status of the hazardous
waste that it treats?
As stated in an internal Agency
memorandum, "[o]nly the wastewater
treatment unit (i.e., the tank) is exempt; the
exemption does not 'follow' or attach to the
waste." Consequently, all applicable hazardous
waste management standards apply to the
waste prior to treatment in the WWTU, and to
any residue generated by the treatment of that
waste. In other words, solid waste resulting
from the treatment of a listed hazardous waste
in an exempt WWTU will remain a listed
hazardous waste, and solid waste resulting
from the treatment of a characteristic hazardous
waste in an exempt unit will remain hazardous
as long as the solid waste continues to exhibit a
characteristic (§§261.3(c) and (d)).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9441.1992(19)
July 1, 1992
Ms. Sara C. Brothers
Operations 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 Ulmer
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«). 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.
\
SURNAME ^
DATE ^
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I am enclosing a copy of a recent paper published by the U. S.
Geological Survey in Environmental Science & Technology on this
issue. I hope that you find it useful. If I can be of any further
assistance, please call me at (202) 260-7459.
attachment
Sincerely,
Barry Lesnik, Chemist
Methods Section (OS-331)
RCRA Organic Methods Program Manager
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9441.1992(20)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
HJL 09 1992 OFF.CEOF
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.
Printed on Recycled Paper
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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,
Ivia K. Lowrance, Director
Office Of Solid Waste
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9441.1992(21)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
ENFORCEMENT CONFIDENTIAL—NOT FOR PUBLIC RELEASE
e i»W* OFF ICE OF
1 D J992 SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Request for Regulation Determination — Spent Solvent
Listings and the Mixture Rule
FROM: Sylvia K. Lowrance, Direct
Office of Solid Waste
TO: Earl E. Devaney, Director
Office -* 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., F001 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 Shell 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 F001 - F005 listings cover
approximately 30 different substances that, when used as a
solvent and are "spent," become listed hazardous wastes. The
Agency defines a "spent11 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 description. 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
Printarl nn Rorvnlarl Panar
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ENFORCEMENT CONFIDENTIAL—NOT FOR PUBLIC RELEASE
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 its Ptatus 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.
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9441.1992(22)
Ms. L.T. Kelly ^ 2 I J3; ,
Ceram Research
Queens Road
Penkhull
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 o^her 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/1 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
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.
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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 t>s 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 che
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].
Sincerely,
Rick Brandes, Chief
Waste Identification Branch
Enclosure
CONCUMtENCeS
SURNAME^
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EPA Form 132CU1 Oi-/0)
OFFICIAL FILE COPY
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9441.1992(23)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
JUL 231992
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Regulatory Interpretation on Rinsewater from Aluminum Anodizing
FROM: David Bussard, Director Vy/^^t^V/
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 Wdwell 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 rt is
appropriate that the relevant EPA Region make the necessary determination. We will
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 a'c (202) 260-8551.
cc: Steve Silverman, OGC
Printtd on Ri eyelid Paper
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9441.1992(24)
UNITED STATES ENVIRONMENTAL PROTECTION AGENC
WASHINGTON, D.C. 20460
1 7 1992
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 client
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
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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 may 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.
Rick Bri
Chief
Waste Identification Branch
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9441.1992(25)
f
\
lt>
?
UNITED STATES ENVIRONMENTAL PROTECTION AGENC
WASHINGTON, D.C. 20460
£ff F flap
- * i-, .:_ v.. '. .
AUG 2 5 1992
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Clarification of the Conditionalfy Exempt Small Quantity Generator
(CESQG) Provisions of 40 6FR\261.5
FROM: Sylvia K. Lowrance,
Office of Solid Wast1
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
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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 § 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 CFR 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 §§ 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 fouh 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.
1Thus 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.
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9441.1992(26)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AIJG 26 1992
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. W. Z. Baumgartner
W. Z. Baumgartner & 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 lognormal 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 you 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)(i) - Submission of data in support of
petitions to exclude a waste product at a particular
facility (delisting petitions).
Printed on Recycteo PVH«
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(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)(i)(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,
Oliver M. Fordham, Jr.
Chemist
Methods Section
cc: Alec McBride, TAB
Gail Hansen, TAB
Tom Beisswenger, OGC
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9441.1992(27)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
FILE COPY
2 6
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT:
FROM:
TO:
Regulatory Status
Sylvia K. Lowran
Office of Solid
Waste Management D
Regions I-X
ircuit Boards
ision Directors,
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 reelaimed/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.l(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.
Printed on Recycled Paper
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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 boards
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
-------
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 Regulatory Development Branch at (202) 260-
8551.
cc: RCRA Enforcement Branch Chiefs, Regions I-X
NEIC
OWPE
OE
I PHI
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9441.1992(28)
/tf
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
AUG 2 8 1992
MEMORANDUM
SUBJECT: Follow-up on Vaille Affidavit
FROM: Richard J.
Deputy Assi
Assistant Sur^e&ri'General, USP^S
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.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1992(29)
F'LE COPY
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
SEP - 4 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.
Printed on Recycled Paper
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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 waste".
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 consult 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,
Sylvia K. Lowrance, Director
Office of Solid Waste
cc: Incinerator Permit Writers' Workgroup
Subpart X Permit Writers' Workgroup
Devereaux Barnes
Matthew A. Straus
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9441.1992(30)
FILE COPY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 2Q460
100'i OF ICE OF
StrDS 133Z SOLID WASTE AND CMERGENCV 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 faculty
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)(11) 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 und«r
§ 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)(l).
Printed on Recycled Ptptr
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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(f)(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 waste to be used in these
studies during the current year (§ 261.4(f)(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
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9441.1992(31)
i ii-fe,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
IJ^n "^ "1 1 I
Acted 3 S!J
SEP 24 1992 OFF.CEOF
SOLID WASTE 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
clubs and ranges.
Printed on Recycled Paper
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Thank you for your interest in this issue.
Sincerely yours,
)on R" Clay
Assistant Administrator
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9441.1992(32)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
SEPTEMBER 1992
1. Filters Used to Reclaim CFC
Refrigerant
While servicing air conditioners, a facility
generates spent CFC-11 which exhibits the
toxicity characteristic for carbon tetrachloride
(DO 19). 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(b){12), 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 §261.4(b)(12) since
they are generated by the reclamation of an
excluded waste?
As explained in the February 13,1991,
Federal Register (56 ER 5910), the purpose of
the exclusion provided in §261.4(bX12) 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 noj 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.
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9441.1992(33)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT - 8 1992
OFFICE OF
SOLiO v. AST £ AND EVERGENCV RESPONSE
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 *~ remove sulfur and chloride from the slurried baghouse dust.
We appreciate your aoiiir .D 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 encourage you to do so. However, 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,
effery D. Denlt
Deputy Director
Office of Solid Waste
>
Printed o- -
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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 xs
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
Corporate Offices 1111 West Mockingbird Lane/Dallas. Texas 75247
Telephone (214) 631-6070. Telex 213-760. Pax C214) 631-6146
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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° vastewater from the operation would be transferred
to an on-site -'astewater 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 X. 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 loox forward to your prompt response.
Sincerely,
Gerald A. Dumas
Manager, Environmental Services
-------
CORPORATION
August 18, 1992
Via Hand Delivery
Mr. Jeffery D. Denit
Deputy Director
Office of Solid Waste
U.S. Environmental Protection Agency
Room M2101
401 M Street, S.W.
Washingtcn, DC 20460
Mr. Matthew A. Straus
Director
Waste Management Division
Office of Solid Waste
U.S. Environmental Protection Agency
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
:7~rc: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 Lane'Dallas. Texas 75247
Telephone (214) 631-6070. Telex 213-760. Fax (214) 631-6146
-------
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 .prc- >ss would occur as follows. First, the dust
will be conveyed fr-.n its point of generation via an enclosed screw
conveyor to a 1,000 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
carbonate 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 :f
solid waste materials that are returned to the process from wn:«.'n
they were generated, provided the materials are not reclaimed pr::r
to their reinsertion into the process. Based upon PSR's
understanding of this provision, processing steps that do r.ct
themselves regenprate or recover material values and that are r.ot
necessary to material recovery are not considered reclamation r :r
purposes of this provision. See 48 Fed. Reg. 14489 (Apr. 4, 198s .
50 Fed. Reg. 639 (Jan. 4, 1985).
The purpose of RSR's proposed process is to remove t..rn
chlorides and sulfm from 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.
These processing steps will not themselves regenerate or recover
material values and are not necessary to metal recovery at RSR's
-------
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)(1)(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?
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 in
liquids:
i. Prior to WWTS before treating dust?
The average concentrations in parts per
million ("ppm") are as follows: Pb: 80 - 100
-------
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.
iii. 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: < l.O.
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)
Prior to WWTS before
treating dust
Prior to WWTS after
treating dust
In discharge to POTW
prior to treating
dust
In discharge to POTW
after treating dust
Pb
80-100
80-100
< 0.3
< 0.3
Sb
20-50
20-50
< 2.0
< 2.0
Cd
4-10
4-10
< 1.0
< 1.0
As
20-40
20-40
< 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 what 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
desulfurization/dechlorination 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,
"Gerald ty Dumas/^
Vice President
Environmental Services
cc: Lynn L. Bergeson, Esquire
-------
CORPORATION
September 9, 1992
Via Hand Delivery
Mr. Jeffery D. Denit
Deputy Director
Office of Solid Waste
U.S. Environmental Protection Agency
Room M2101
401 M Street, S.W.
Washington, DC 20460
Mr. Maft^.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
iOO 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 in
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
EPA believes this dust would meet the K069 hazardous waste
listing at 40 C.F.R. 261.32 when disposed.
Corporate Of'Ces 1 1 1 1 West Mockingbird Lane'Daiias Texas 75247
Toionhonp r-idl RTi.Rn7n Toio, 311.780 Fax '?141 631-6146
-------
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 EFA that
the removal of these contaminants is not "reclamation" under RCRA
and that the process would qualify for the exclusion codified at 40
C.F.R. Section 261.2(e)(1)(iii).*/
During our meeting, Mr. Straus stated that whether RSR's
desulfurization process would be is considered reclamation for
purposes of Section 261.2(e)(1)(iii) may have little regulatory
impact on whether the process would be subject to RCRA permitting
or interim statu - •• .quirements. Mr. Straus stated that even if the
process were c- -red "reclamation," the entire process or the
unit(s) in whicr. z.ie reclamation is conducted may be exempt from
permitting under 40 C.F.R. Section 261.6(c)(l). Mr. Straus also
stated that alternatively those units that'cire 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)(10). 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 for
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 somewhat
superfluous. In addition, there is no good reason to characterize
this process as reclamation if it is not reclamation, or to avoid
characterizing the process at all merely because the dust :s
reclaimed in a recycling unit and is thus exempt from regulation
under current law.
This provision excludes from the definition of solid was*«
materials that are returned to the primary production proc»*»
from which they were generated, provided the materials ar» ~--t
reclaimed prior to being returned. Although RSR's operators
are "secondary" production processes and ostensibly would r.ct
qualify for this exclusion, RSR understands that in the Phase
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
September 9, 1992
Page 4
In summary, RSR's proposed process is not "reclamation11
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
desulfurization 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 economy by conserving business assets, it should do so. This
result is consistent with EPA's RCRA Reform Initiative and Mr.
Bush's moratorium on Agency initiatives that impose unnecessary
burdens on
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.
Sincerely,
Jerald A. Dumas
Vice President
Environmental Services
cc: Fredric Chanania, Esquire
Mr. Richard Kinch
Lynn L. Bergeson, Esquire
Mr. Chris Bryant
-------
Proposed DesulfurizatioB Proces
s
Baghouse
Dust
Dust
iSodinm
.Carbonate I
Water
iL—
Slurry
Slurry
Furnace
4 Sludge
•^ 1=x
Filtel
Wastewater „
A
Sludge
Wastewater
POTW
-------
9441.1992(34)
\
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
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 tetrachloride 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
Printed 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.
Sincerely,
ector, Office of Solid Waste
-------
0CNNCTT L. AARON a
«OBCRT L. BLACKSBCRG
HOWARD A. BLUM
OAVIO J.
SYLVAN M. COMCN
HOWARD J. ClCHCNBAUM*
ROBCRT TRCCOMAN
w. jcrrREY CARSON
V1NCCNT C.GCNTILC*&*
*4ICHAEL H. CLUCK*
DAVID J. GOLDACAG*t
ROBCRT C, GOLDSMITH
MICMAftO J. GOLDSTEIN*
ORCGORY Q. OOSFICLD
OAVID GUTiN*
MCIL K. MAIMM'A
0ROCES. HAINES*
KIMON C. HATZA
AXCmCW S. KIU.MAM
AOKAMME C JAYNC*
ALAM KLCIN
MURRAY J. KLCIN*
MICHAEL. J. KUNC-
JANCT S. KOLC
JUOAX t. LABOVlTZ"^
SUSAMNA t. LACKS
AOBCRT
ALAN M. LCRNCR&
JON AT MAW L. LCVIN
BRUCC LUB«TZ»T
C. SCOTT MCYCR-
JCTRCY fVAK PA£CK*A
RICHARD B »CARi_
CDWARO N. ROUSMCR
ROSLYW C. POLLACK
IVAN j. RUNCHATJ*
CLAC* RADOw*
HCRSMCL J. RlCMMAM
^HI|_fR M. SHlCKHAM^
RiCHARO M SOUIRC
CRtC C STCRM
CTCRMCN C. SUSSMAN
ROBERT| TUTCUR*
rRANCCS M. VISCO
WILLIAM L. WARRCN*^T
RICHARD N. WCINER
DIANC ROSCCRANS W
COHEN, SHAPIRO. POLISHER. SHIEKMAN AND COHEN
PRINCETON PIKE CORPORATE CENTER
IOO9 LENOX DRIVE-BUILDING FOUR
LAWRENCEVILLE. NEW JERSEY O6648
(6O9) 895-I6OO
FAX (6O9) 895-1329. B95 O5B7
CHAttLCS BCNOCB
SUSAM B. BtZCNOv*
SUZAMNC C BLANCK
RAUL BON i*
or COUNSCI-
C. SMCRIOAN*aT
TEN ALLCN STBECT. SUITE IB
TOMS RIVER. NEW JERSEY O87S4
(9O8) 614-8873
FAX: (9O6) 914-0693
PENNSYLVANIA OFFICE
PSFS BUILDING. 12 SOUTH I2TH STREET
PHILADELPHIA. PENNSYLVANIA ISIO7-396I
(215) 922-I3OO
FAX: (2IS) 592-»329
CAOIXCOSAC
• AOMITTCC «•« NO* J
A AOMITTtO IM NO" T
T «OT AOMITTCO tH
October 19, 1992
DIRECT DIAL:
LCSUC T MO MAN BRAOLCY
OAVID W. BUZZCLU*
VCRNON R, BYRO. JR
CLARC M OlCMCR*
MARK A. OROGAUS*
CLCTMA L. Durnr«t
^OHNf R. CPlCKSON-
JAHCS C. fCARON*&
^O«M M. GCMBCR*
OUCMTM \. OUtASOM*
ROBERTA A. OOLOCN
CURTIS L. GOLKOW-
CRiC A, HCiNZ*
MARK S. HCRR'f
SUSAN c. HorrMAN*
NAO'WC HOU-ANDCR*
OAVIO L. MY MAN'
LtNOA T. JACOBS*
JOHN P. JUOOC*
COUNSCL
RCMO J. BUTCRA
CCORCC WARRCN*
REPLY TO:
SARA BCTH
MIONON O. KLCIN*
STCWART «.
CUZASCTM o. UTTCN-
LORI A, MILUS-
JANIS A. MORCLLl'^t
ALISC R l
STCVCN M
LAURlC M, KOLINSKY*
HOCtV T. RlflCCT'
JUDITH L. ROSCNTHAJ."
ROBERT ROSS*
LAWRENCE -J. SCMEMPR*
RAULC. SHAPIRO* At
AMY r. STCCJtMAM*
OOI.DA WCBCR STCIC**
JEANNE M. »TlCrEL*f
CHRISTINA WOOOWARD STRONG*!
AMY l_ VO
MlCHAADA, WC
ROBERT j. YARBROUCM
STEPHEN v, YARNEU.
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
tetrachloride is listed by the Agency as U-211.
2. The soil around the tank is sampled and found to be contaminated with carbon
tetrachloride. 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 contaminated
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 OFFICES
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 v^ry truly,
William L. Warren
/
WLWmp x
-------
*«O"AMO A. BLUM
^errneY L. »«AFF-
D J. ClCHCNftAU
FHCCOMAN
neT GAMSON
T C GCMTILC*At
L H. CLUCK*
. GOLoac*o t
C, GOLDSMITH
JONATHAN L, LCV1N
Bnucc Luatrz*T
C, SCOTT MOT**
LAW OFFICES
COHEN. SHAPIRO. POLISHER. SHIEKMAN AND COHEN
PRINCETON PIKE CORPORATE CENTER
IOO9 LENOX DRIVE-BUILDING FOUR
LAWRENCEVILLE. NEW JERSEY O86-48
:••* (6O9) 895-I6OO
FAX (6O9I 8S3-I3Z9. 895-0387
OUST B •AKKCTO*
CMAMUC3 0CMOCM
SUSAN • •IZtNOV-
O N. POUSHCft
G. POU.ACK
G*CGO*Y G. OOSriCLO
OAViO GUTIM*
NCIL K. MAJMM*A
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niMOH C. wATZA
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ALAN KLClN
MI/M4AY J. KLCIN*
MlCMACL J. *UWC»
JANCT S KOLt
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SUSANNA c. LAC MS
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CCAAMS WCNOCM
'Z SOUTH 12TM STRCCT
PHILADELPHIA, PENNSYLVANIA 19IQ7-396I
(215) O22-I3OO
TAX. (21%) S92-O29
CABLC COSAC
COUNSEL
MO^. BUTCftA
August 26, 1992
MkUI. VONI*
CNWISTOPMCH W. BOV1.C-
UCSUC THOMAN BMAOLXY
DAVID w. •U1ZCU--
Ct^MC M. OICMCR*
MA«K A. OAOOAUS*
CLCTWA u. oorrv*t
^OMN M. CA'CKSOM*
JAMCS C. rLAMON*^
JOHN M. ocaacft*
OUOtTM I. OUCASON*
noacRTA A. GOLOCN
euirrts i. COI-KOW*
CM< A. MCtNZ*
MA«M S. MCftft*t
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DIRECT DIAL:
REPLY TO:
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 and July 16, 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
tetrachloride is listed by the Agency as U-211.
2. The soil around the tank is sampled and found to be contaminated with carbon
tetrachloride. However, the contamination is below state remedial requirements.
State policy and/or regulations does not require any remedial actuary with respect
to the contaminated soils.
Under these circumstances, I would like to know whether the undisturbed contaminated
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.
n
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L«w OTiCCS
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,
WilHam t. Warren
WLW:np
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9441.1992(35)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT 2 3 1992
OFFICE OF
SOUD WASTE AND EMERGENCY RESPONSE
Mr. Dennis Y. 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 commonly 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-plated 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
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(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 manufacturers
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 different1.
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.
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Used Oil Management 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 your 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,
A/L *.
Sylvia K. Lowrance, Director
Office of Solid Waste
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9441.1992(36)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT28 1992
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. Basil G. Constantelos, Director
Environmental Affairs
Safety-Kleen
777 Big Timber Road
Elgin,
Dear Mr. Cbn^rtfahtelos:
Thank you 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 responses
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.
Sincerely yours,
Sylvia/:
Off ice'of Solid Waste
Enclosures
Printed on flecyc<«J PIC*'
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Z. QUESTIONS 0V WASTE CHARACTERIZATION REQUIREMENTS
Question II: 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 ti*a 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 waste
was last sent to on-site or off-site treatment, storage, or
disposal.
Question 12: 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
nonhazardous?
If the waste solvent does not exhibit the characteristic of
ignitability, the generator is not specifically required to test
the wastes to d^erpine 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 testino
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 13: If the waste solvent exhibits the characteristic
of ignitability, must a generator also test hi*
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
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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 14: 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
result n^ 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 a* to
whether or not their wastes are hazardous (40 CFR 262.11). Thi«
determination may be made either by testing the waste or by
applying knowledge of the characteristics of the waste, in liqht
of the materials or the processes used in its generation.
Question 15: If a generator can rely on an analysis of his
unused mineral spirits, and knowledge of his
operations to conclude that his waste solvent :•
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 waste
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 16t If the waste mineral spirits contains a listed
hazardous waste (e.g., waste brake cleaner or •<•••
other chlorinated solvent), and the mineral
spirits/listed waste mixture is blended into u»*d
oil, is the entire mixture defined as a listed
hazardous waste?
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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)(i)).
XI. QUESTIONS ON WASTE MINIMISATION
Question J7: Is the practice of diluting a characteristically
hazardous waste into used 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 feedstock 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. QUESTIONS ON TEE REGULATORY STATUS OF MIXTURES OF WASTE
SOLVENTS AND USED OIL
Question fa: 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
as 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 due
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, 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.
mixtures of used oil and waste which is hazardous solely because
it exhibits the characteristic of ignitability will be subject to
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regulation as used oil provided that the resultant mixture does
not exhibit the characteristic of ignitability (40 CFR
279.lO(b)
Question 49 t 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.
Question flO: 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 CFR 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 flit 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 CPU
Part 261.6(a)(4) will exclude mixtures which are regulated as
used oil and recycled (destined for energy recovery as 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 requirement* of
Part 279.
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Question f!2s Is th« 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 113t It 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^ °?.rt 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 114: 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 flSs If the practice of mixing hazardous waste mineral
spirits with used oil is considered treatment, is
this type of treatment regulated under RCRA? That
is, are 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
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8
262.34 and 268.7(a)(4) as well as Part 279, Subpart C when it
becomes effective.
Question fits 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 to Bake 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 its
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 nonwastevater ignitable wastes
containing greater than or equal to 10 percent total organic
carbon is fuel substitution, recovery of organics, or
incineration (40 C5T 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 FR 22532). As mentioned in our answer
to Question 3, there was a new O.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.
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9441.1992(37)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT291992
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, are units
that qualify for the recycling exclusion.
Printed on Recycled Paper
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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 properly 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 units' 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 wast«s
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.
Sin
Sylvia'K.
Director
Office of Solid Waste
bcc: Steve Silverman, OGC (LE-132S)
Ken Gigliello, OWPE (OS-520)
Waste Management Division Directors, Regions II-VI, VIII
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9441.1992(38)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
NOV 5 1992
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
jCQ: _ .
CCO Printed on
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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,
Sylvia K. Lowrance
Director
Office of Solid Waste
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9441.1992(39)
\
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
NOV 101992
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 resccr.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/1 (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 26l.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.
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If you have further questions on the domestic RCRA
regulatory status of spent photo- conductor drums, please call
Ross Elliott of ay staff at (202) 260-8551. If you have
questions regarding the RCRA export regulations, you may call
Angela Cracchiolo at the same number. '
Sincerely,
..
Lowrance, Director
of Solid Waste
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9441.1992(40)
im
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
NOV 17 1992
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: RCRA Regulation of DDT-Treated Wool Blankets
as Hazardous Wastes \ •'' |
FROM:
TO:
Sylvia K. Lowr
Director, Office
Soli'd Was tie
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 dichlorodiphenyltrichloroethane (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 not 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 tv/o 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 §
Printed on <
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
- 2 -
261.33(1:)), 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 Badalamente, OGC
Barbara Pace, OGC
COHCUMBNCfS
SURNAME |
DATE
EPA Fsr-> i320-1 02-70}
OFFICIAL FILE COPY
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9441.1992(41)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
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. y-.r letter and attached materials, you identified the feed materials to the
treatment process as a mixture of D009, K071 and K106. 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,
Sy^aK/Lbwrance"
^rector
Office of Solid Waste
Printed O.T Recycled Paper
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9441.1992(42)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
HFC I bW> SOLID WASTE AMD EMERGENCY RESPONSE
Mr. William M. Guerry, Jr.
Collier, Shannon, Rill & Scott
3050 K Street, N.W.
Suite 400
Washington, D.C. 20007
Dear Mr. Guerry:
As a fol'owup to our meeting with you and representatives of Classification
Internationa;. Limited (GIL) on September 22,1992, EPA has considered the
information you have provided on the GIL glassrfication process for electric arc furnace
(EAF) dust or K061 whan the EAF dust is a hazardous waste. Based on the
information that you have provided us, EPA understands that GIL utilizes EAF dust
from steel milis to produce a glass frit which is then sotd for use as abrasive blast, and
as an 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 frit product has been whether EAF dust incorporated Into GIL glass
*rrt 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
excluded 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
-- rurdous waste (See 40 CFR Sections 261.2(c)(1) and 261.2(e)(2)(5)). Products used
m a manner constituting disposal are not eligible for the exclusion.
As mentioned above, GIL intends to sell its glass frit 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 genera! this end use is not applied to or
placed on the land in a manner constituting disposal. The other end uses (roofing
granules, glass ceramics, ceramic glaze) are aiso not typically applied to or placed on
the iand in a manner constituting disposal.
Primed on Recycled Paper
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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.
Depty -Director
Office of Solid Waste
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9441.1992(43)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
SOLID WASTE AND EMERGENCY RESPONSE
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 your August 5, 1992 letter to Michaej. 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,
Lowrance, Director
of Solid Waste
Enclosure
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9441.1992(44)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE OF
DEC 22 1992 SOLIDvVASTEASO EMERGENCY RESPONSE
Mr. JacV- E. 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 solvent11 is critical in this definitional
issue.
Your letter of inquiry was received by OSW 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 spre^ed separately, in sequence. Since the coating
materials cannot come in contact with each other 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 the
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 ..."
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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 F005 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 "...
process wastes where solvents were used as reactants or
ingredients 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 went 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 F005 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
-?<-ngnical process using the unaltered top and bottom coats to
physically clear the gun's nozzle from the undesired coating.
This is, to OSW, different than a process in which the clearing
spray uses a solubilizing 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
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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 b 'iard, we rely on another mechanism for
bringing wastes'in*.:- the hazardous waste management system. If a
waste exhibits one of four "characteristics" of hazardous 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.
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Please be aware that many states are authorized to implement
Federal regulations and may be more strict. Thus, you should
always check with the appropriate State environmental authority.
Sincerely
Of
of Solid Waste
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9441.1993(01)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
•) 3 IQQO OFFICE Of
L O R«» SOLIO WASTE AND EMERGENCY RESPONSE
Mr. Larry E. Perry, P.B.
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 CFR 261.3(a)(2)(iv)(E) 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 experiment*
in the laboratory. These laboratories have quality control (QC)
functions incidental to production. However, the filtrate fro»
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 addition,
you noted the presence of chloroform as a commercial chemical
product, EPA Hazardous Waste No. U044, in your wastewater.
On December 22, 1992, Messrs. Abrams, Brandes, and JosepbMSj
of my staff participated in a conference call with you and you*
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 there 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 listed hazardous wastes
(that are designated as toxic (T)) from laboratory
operations and only at the headworks of the wastewater
treatment facility. As we understand it, your facilities
would only qualify for this exclusion if unused chloroform
was disposed of in your laboratory sinks or drains (U044).
Chloroform is not an F001 or F002 solvent, but is on the
toxicity characteristic list and on the commercial chemiosi
product list (40 CFR 261.33(f)}. Chloroform used as a
solvent and then disposed would not meet the listing
description for U044.
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2) Th» exclusion applies to incidental losses of listed
hazardous wastes (in your case, unused chloroform) from
laboratory operations, not deliberate bulk, discharges of
chemicals that are not part of laboratory operations.
3) This exclusion applies to vastevater 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 publicly-owned treatment works (POTW). The POTH, in
turn sets indirect discharge standards to avoid plant
upsets, generation of hazardous sludges, health hazards to
their employees, and violation of its-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 CFR 261.3(a)(2)(iv)(A) - (E)) may void the exclusion for
the facility.
5) If any of the wastes in the laboratory wastewater discharge)
are subject to the Land Disposal Restrictions (40 CFR 268)*
the facility must keep records showing their generation
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 wastestream.
regulations at 40 CFR 262.11 require each generator of sol 14
waste to determine if that waste is hazardous.
You note in your letter that 1) the total annualized averts*
flow of laboratory wastewater is below one percent of total
facility flow, and 2) the total laboratory chemical concentrat Ie»
at the headworks of the facility wastewater treatment system,
based on facility purchase and inventory records is less than ens-
part per million. A facility must meet one of these two criteete
in order to qualify for the vastewater exclusion.
Laboratory wastes that are hazardous because they exhibit
one of the characteristics of a hazardous waste (see 40 CFR 2ftI
Subpart C) are not addressed by the exclusion in
40 CFR 261.3(a)(2)(iv)(B). Therefore, TC hazardous levels of
silver and chloroform in your laboratory wastewater would be
dealt with under the Clean water Act, especially since the are
discharged to publicly owned treatment works (POTHs). However
the pretreatment (before discharge to POTWS) of laboratory
wastewaters could generate a sludge that would be under RCRA
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Subtitle c control if it exhibited any of the hazardous waste
characteristics.
You should be avare that, even if the facilities meet the
terms of the> laboratory wastewater exclusion according to Federal
regulations, states may have more stringent hazardous waste
regulations. Please 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.
Sincere!
ce
Director
Office of Solid Waste
cc: Ken Gigliello, OWPE (OS-520)
Mark Badalamente, OGC (LE-132S)
Ron Josephson, OSW (OS-333)
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9441.1993(02)
RCRA/SUPERFUND/OUST HOTLINE MONTHLY REPORT QUESTION
FEBRUARY 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
§26J.4(a)(8) are met. Would secondary
materials managed in a system that includes
storage in open-top tanks fall within the
exclusion in §261.4(a)(8)?
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
pan 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 EE
25443; July 14,1986).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
.... _
C|l T Pfini/
OFFICE OF
SuLIO WASTE AND EMERGENCV RESPONSE
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 petroleum1) 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).
Printed on Recycled Paper
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the definition of recycling, and therefore would not require a RCRA permit under the
federal RCRA regulations (40 CFR 261.6(c)(l)); 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 fB 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 FR 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
2However, the recovered oil returned to the refining process is exempt from hazardous
waste regulations per 40 CFR 261.6(a)(3)(vi), as are the fuels produced from such oil (see
§261.6(a)(3)(v) and (vii)).
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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 FR
21450) and subsequently withdrawn on October 30, 1992 (57 £R 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-
8551. Thank you for your interest in the safe recycling of hazardous waste.
Sincerely,
'Jcffjrf
Deputy Director
'Office of Solid Waste
cc: Mr. Daniel M. Steinway
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9441.1993(04)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
APR 2 6 1993
OPFICE 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 status of solid waste generated from gold/mercury
amalgam retortino. 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 FR 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 realm
of mineral processing. Here, the physical structure of th«
ore or mineral is destroyed, and neither the product streaa
nor the waste stream(s) arising from the operation bear any
close physical/chemical resemblance to the ore or mineral
entering the operation (54 FR 36618).
Mineral processing wastes do not retain the Bevill exemption
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
generated from the retorting operation is no longer covered by
the Bevill exclusion in 40 CFR 261.4(b)(7).
Printed on fl«rcc'«J Paper
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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 FR 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,
Office of Solid Waste
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9441.1993(05)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
.nn o n OFFICE OF
f-.r'P. d. b) 1953 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 26l.l(c)(6)
["...bits and pipers 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.l(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 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.
j y •
Printed on Recycled Paper
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If you have further questions, please contact Ross Elliott of
staff at (202)260-8551. Thank you for your interest in the safe
recycling of hazardous waste.
Director
ffice of Solid Waste
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9441.1993(06)
/'^\
! UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
APR 29 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 Dufficy 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 following 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 mg/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. Dufficy's letter in 1987.
If the secondary material is a solid and hazardous waste
(e.g., a spent material or listed sludge 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
Printed on Recycled Paper
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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.
Sylvia Lowrahce,''Director
Office of Solid Waste
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9441.1993(07)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
APR 2 9 1993
'^"^ OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. Kevin Tighe
Tighe, Mclnroy & 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
261.6(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.1 Good housekeeping
would include 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
•pastes 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.
'If the solder drippings are not going to be recycled, the scrap metal exemption does not
apply.
Printed on Recycled Paper
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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 3.009 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.
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9441.1993(08)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
OFFICE Of
MfiY fi NQ3 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(0(3))'. It is EPA Headquarters'
position that the interpretation regarding §261.2(c) presented in the EPA letter you cited
from Robert Bellinger 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 £R. 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", "\vhen 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 deemjd to be managing a solid or
hazardous waste, according to Table 1 in §2612. 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 it 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(0).
^'Materials noted with a "*" in column 3 of Table 1 are solid wastes when reclaimed."
(emphasis added).
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In the January 4, 1985 final rule on recycling, EPA acknowledged the risks
associated with accumulating hazardous secondary materials prior to reclamation (and
chose a more stringent approach as a result; 50 £K 617); however, EPA also noted
exceptions to this general rule2. 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 overaccumuJated 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 considered to be
hazardous wastes and would become subject to regulation... (emphasis
added)(50£R635).
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 RQRA (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 FR 634.
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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.
Sincerely,
Ivia
'Director
Office of Solid Waste
cc: EPA Regional Waste Management Division Directors,
Regions I-X
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( 9441.1993(09)
FILE
^ri^k.
I ^*7 ^ UNITED STATES ENVIRONM ENTAL PROTECTION AGENCY
\*Skt>j WASHINGTON, O.C. 20460
MAY 6 1993 OFF.CEOF
SOLID 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. Jose 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/1, as measured by
EP Toxicity Test. Wastes that leach cadmium above 1.0 mg/1, as.
measured solely by the TCLP, and that show cadmium levels below
1.0 mg/1, as measured by EP Toxicity Test, 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 parcicular, should
ycu meet a treatment level in 40 CFR 268.41 or must these
bacteries meet the cadmium-battery recycling standard in 40 CFR
268.42 (a)? (See June 1, 1990, 55 Fed. Rea. {22562-22563}.)
Zinc-carbon batteries are not subject to the cadmium-battery
recycling standard. This determination is based on the informa-
tion provided in the BDAT Background Document for DO06 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/1 (as measured by TCLP), EPA considers these wastes newly
identified cadmium wastes and therefore these wastes are not subject to the
existing land disposal restrictions. See 40 CFR 268.1 (e) (3) . EFAwill, however,
be proposing treatment standards for newly identified TCLP wastes later this
year.
PritudtmKtejcUdPoftr
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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 Kinch, Chief of the Waste Treatment
Branch, at (703) 308-8434 or Mr. Jos6 E. Labiosa, Staff Engineer,
of the Waste Treatment Branch, at (703) 308-8464.
We trust this information will be helpful in assessing your
waste management options for your zinc-carbon batteries.
Sincerely,
K. Lowrance
'Director
Office of Solid Waste
Enclosures:
(1) Comment LD12-00218
(2) List of Zinc Recovery Facilities
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9441.1993(10)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUN 2 1993
SOLID WASTE AND EMERGENCY RESPONSE
John C. Chambers
McKenna & 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 is 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 point.
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 sulfurfcc 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.
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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 261.2), 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 manufacturer.
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 your interest in the RCRA
program.
ncerely,
fenit
fctor
olid Waste
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9441.1993(11)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUN 30 1993
MEMORANDUM
Clarification of RCRA Regulatory Application
to Soils Containipatfed J0y Cement Kiln Dust
Sylvia K. Lo
Director
Office of Soli
SUBJECT:
FROM]
Lisa K. Friedms
Associate Gener-a-45^ 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 RCRA 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 hazardous waste identified
at 40 CFR Part 261 Subpart C.1 With respect to CKD-contaminated
1 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 § 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 on Rocydad Paper
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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. (See
Chemical Waste Management v EPA. 869 F.2d 1526, 1537-1540 (D.C.
Cir. 19891 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 CKD are not the reason for the soil exhibiting
the TC, then the contaminated soil would not enjoy the Bevill
exemption from RCRA Subtitle C requirements.
(...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 S 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.
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- 1 -
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 yo.u 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.
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9441.1993(12)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
JUN 30 1993
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Regulatory Status of VJas^e Streams from Searles Lake
Operations
FROM: Sylvia K. Lowra
Office of Solid Wa
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 Searles 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).
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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 FR 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 FR 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
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1993(13)
OPFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
AUG 0« 1993
Response to Request for Comment on Draft Region IV Guidance:
Regulatory Status of Plastic Chips from Reclamation of Lead-Acid
Batteries
MEMORANDUM
Subject:
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.
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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 261.6(c) and" between "40 CFR"
and "Parts 264 and 265".
4. On page 4, I 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".
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8. The summary of regulatory status and the guidance as a whole should include a
discussion 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.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1993(14)
SEP I 1993
OFFICE OF
SOLID WASTE AMD 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., recycle) waste
printer's ink from sheet fed lithographic printers. We also
appreciated the opportunity to meet with you on several
occasions, roost 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(0)(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
Printed on Recycled Paper
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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
(D001), or 2) by meeting a spent solvent listing in Section
261.31 (F001 - 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 off 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., F001 - 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"
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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 to 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 hazardous
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.
Requirements for CESQG Waste
In your letter, you indicated that 80% of sheet-fed
lithographic printers are conditionally-exempt small quantity
generators (CESQGs). 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 re
reclaimed from solid wastes and that are used beneficial./ are
not solid wastes and hence are not hazardous wastes under this
pr -ision unless the reclaimed material is burned 'or energy
r* very or used in a manner constituting disposa 40 CFR
2ba.3(c)(2)(ii)
2You 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.
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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 CESQGs
(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-CESQGs (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
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discouraging environmentally sound recycling projects. As you
know, a Definition of Soli:' 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 1 .)06 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
ector,
Office of Solid Waste
enclosures
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\
i UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
f WASHINGTON, D.C. 20460
9441.1993(15)
SEP 14 1993
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
Iraj Yazdanpanah
Environmental Manager
Price Pfister Inc,
13500 Paxton Street
P.O. Box 4518
Pacoima, 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
Rtcyclad/Reeyclabl*
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9441.1993(16)
office of
SOLID WASTE AND EMERGENCY RESPONSE
SEP I 5 1993
MEMORANDUM
SUBJECT: Clarification of RCRA Regvlatory Application to Soils
>nt*minated by Cement Kiln Dust
FROM: ffl&f&ry D. Denit, Acting Director
Office of Solid Waste
TO: / \J 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 (CKD). 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 BIF 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
•for 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 ^evill amendment to wastes produced
from an industrial process tha: ^-processes RCRA hazardous wnstes.
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.
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If you have any comments or further questions, please have
your staff contact either Steve Silverman of the Office of General
Council on 202-260-7716 or Richard Kinch of the Waste Management
Division on 703-308-8434.
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>^ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ WASHINGTON, D.C. 20460
fT
9441.1993(17)
20 1993 OFFICE OF
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. (LIA) 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.1 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.
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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,
Acting'
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1993(18)
SEP 2 4 1993
OFFICE OF
SOLO WASTE AND EMERGENCY
RESPONSE
Mr. Eli Hoffman
Technical Advisory Services
358 Rolling Rock Road
Mountainside, New. Jersey 07092-2120
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 recently 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
Enclosure
R«cycl«
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/ S \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1993(19)
SEP 27 1993
OFFICE OF
SOLID WASTb 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 FR 41566), and subsequent
conversations with EPA staff. The specific preamble you referred to (57 JFR 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
Recycled/Recyclable
Prlnttd wtlh Soy/Ctnoli Ink or paper that
contain* al total SO* racyeltO fiber
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was describing the regulatory status under RCRA of any material or waste1 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 mur "irst meet the definition of solid waste, which may not include materials,
for example, uiat 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 wipers 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 FR 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 any facility) that are conveyed through a sewer system to a PO" W,
Alternatively, because industrial laundries are not defined as POTWs, hazardous wasie
mixed with domestic sewage conveyed by a sewer system to an industrial laundry would
not be excluded.
'In other words, not solely rags or wipers.
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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,
-JefferyM Denft
/•Actin/Direotor
Office of S61id Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9441.1993(20)
OCT 22 1993
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 26 1.6 (a) (3) (ii). As discussed in the preamble to the proposal for that
R«cycl»d/R«cyclable
PrlmtdwmiSoy/Canol*lnkonpip*rth«t
contain* it MMt $0% raeyd*d flMr
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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,
fBruce^Weddle
Acting Director,
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
*
9441.1993(21)
OFFICE OF
MOV; i "V"i SOLID WASTE AND EMERGENCY
MOV ! !?9 • RESPONSE
Mr. Ronald L. Andes
Marathon Oil Company
539 South Maui 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 (DAP) 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
DIG Cir. 1987). EPA is currently in the process of taking final action on portions of the
January 8,4988, proposed amendments to the Definition of Solid Waste (53 FR 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 pan of a wastewater treatment
R«cycl«d/R«cyclabl«
7~\ £\ Prlntwt with Soy/dnoli Ink on p«p«r thit
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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 implements 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,
Bruce R. Weddle
Acting Director,
Office of Solid Waste
cc: William E. Muno
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9441.1993(22)
MOV 2 !3S3
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 based
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 produced
from "clinker" from kilns using hazardous waste fuel relative 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 wast*
regulations, thus ensuring that the burning is protective of
human health and the environment. In addition, there are cases
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
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must meet treatment standards based on the Best Demonstrated
Available Technology (BOAT). 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
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9441.1993(23)
NOV I "
OFFICE OF
SOLID WASTE AND EVERCEN1: v
RESPONSE
Mr. Christopher L. Freed
Chemical Waste Management, Inc.
Manager - Environmental Regulations
3001 ButterfieId 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 rulemakings 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 10 refers only to
lead acid or cadmium batteries that are not intact. Such
batteries would still net be subject to the treatment standards
for debris because there is a more specific treatment standard
R«cycl«d/R»cy—"•-
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for lead acid cr 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,
Bruce/R. Weddle
Acting Director
Office of Solid Waste
- 2 -
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1993(24)
DEC 22 1993 OFFICE OF
SOLID 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 CH2401) 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 (LiSo2)
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.
Recycled/Recyclable
PflnttawHhSoy/CinoUlnkonpjperthjt
oontUnt it iMtt 50% recycled liber
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I hop* 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 J. Petruska, Chief
Regulatory Development Branch
Enclosure
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(01)
21 1994
OFFICE OF
SOLID WASTE AND EMERGENCY RESPONSE
Mr. James M. 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, howevert 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.
Printed on Recycled Paper
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I hope this information is useful to you. Thank you for
your interest in environmentally sound management of spent
antifreeze.
Sincerely yours,
\jfi Michael H. Shapiro, Director
ty Office of Solid Waste
Enclosure
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(02)
FEB I 4 S
OFFICE OF
SOLD WASTE AND EMERGENCY
RESPONSE
MEMORANDUM
SUBJECT: Industrial Wipers and Shop Towels under the Hazardous Waste
Regulations
FROM: Michael Shapiro, Directo:
Office of Solid Waste
TO: Waste Management Division Directors
Regions 1-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 (RCRA) regulations from the users and launderers of these wipers, and
the regulatory agencies responsible for implementing the RCRA regulations. In
addition, manufacturers, 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
alternative approaches for addressing wipers contaminated with listed solvent (May 20,
1992 Federal Register: 57 FR 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.
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Status of Used 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 Pan 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 site-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 I-X
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$ 4% \ UNITED STATES ENVIRONMENTAL PROTECTION AGERCY
| ^$2. 5 WASHINGTON. D.C. 20460
"""^ 9441.1994(03)
OFFICE OF
SOLID WASTE AND EMERGENCY
FEB J 8 !£'-4 RESPONSE
Mr. Brian J. 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
Recycled/Recyclable
Printed with Soy/Cinoia Ink on piper lh«t
contilni «t lull SOU recycled liber
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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
discussed by the Definition of Solid Wastes-Task Force, you should
contact, James Berlow on 202-260-8104.
Sincerely yours,
Michael Shapiro, Director
Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(04)
MAR 22 I99;1
SOLID 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:
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 F003) 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 waste 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 would 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)).
printea or-. Becyc'ed Paper
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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.
sincerely,
Shapiro
or, Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(05)
•',«- ? ^ ICldl OFFICE OF
-° J^a SOLID WASTE AND EMEftCSNCV
RESPONSE
MEMORANDUM
SUBJECT: -Magcprp BevilL. Exemption
n /I i rT\ IJ «o^ H Y
FROM: /CHic^eisfiapiro, Director
O^-Oflijde of Solid Waste
TO: V\ 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 VIII'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 underflow
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.) Based upon this evaluation,
EPA intended to distinguish between Magcorp's special waste
streams and other aqueous wastewaters.
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 FR
36609, September 1, 1989). As applied to Magcorp, 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.
/~r\
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Magcorp states in its April 21, 1993, letter that the
aggregate wastewater stream from the facility is a Bevill exempt
waste. This is inconsistent with to EPA's statement in the
preamble to the 1989 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 Bevill wastes are
amenable to Subtitle C controls" (see 54 PR 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 "[tjhe 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 £g 36610, September l, 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 wastewater ditch downstream from the point of convergence of
the component waste streams. Magcorp 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
separata inflows into the impoundment. When EPA arrived onsite
to conduct sampling, the Agency, therefore, already understood
that there were multiple inflows ei.rering 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 11 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 wastewaters 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
wastewater that are not special wastes from mineral processing
operations (e.g., calcium repulp liquor, calcium chloride
thickener, and additional beneficiation wastewaters) . . ." With
respect to volumes, EPA relied on Magcorp's comments addressing
the October 20, 1988, Notice of Proposed Rulemaking (53 FR 41288)
that approximately 2,465,000 metric tons cf process wastewater
and 1,060,000 metric tons of non-contact cooling water (not a
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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 wastewater 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 Bevill
status of the two aqueous wastestrearns.
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 £R 36622 September 1, 1989; 40 CFR
261.3(a)(2)
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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 underflow process wastewater
and scrubber liquor process wastewater from the Magcorp 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 FR 36619, September
lr 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
Magcorp's 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 Hall or
Steve Hoffman of my staff at (703) 308-8424 or (703) 308-8413,
respectively.
Attachments
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9441.1994(06)
MAR 2 4 1994
OF
SOLIO WASTE AND EMbHGENCY RESPONSE
MEMORANDUM
SUBJECT: Regulatory Status of Mercuric Chloride Catalyst
FROM: , //MIc£fcrxShapiro7 Director"
J&s Offjcejbf Solid Waste
TO: \J Allyn M. Davis, Director
Hazardous Waste Management Division
Region VI
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 hi 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 (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 (i.e., for treatment by reclamation). (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 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
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when the material is no longer serving its original purpose 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 ihe 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 Inc.. 996 F. 2d 1126 (llth 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 reclamed, 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)(3i, Ilco. supra.)
If you have further questions on this issue, please contact Mitch Kidwell or Becky
Daiss at (202) 260-8551.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(07)
MAR 241994
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
MEMORANDUM
SUBJECT
: , Definition of Spent Material
ffice 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)(l). 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 apply ing 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 original, though not identical, purpose and not yet be classified as a solid waste.)
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Similarly, we consider the part of the definition staring 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 original purpose and is being reprocessed instead. EPA has consistently
maintained this interpretation since it promulgated the definition of spent material.1
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 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. ?d 1126 (llth Cir. 1993), where the court
held that all batteries sent to a secondary lead sme^er 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 hearing 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 thermostats 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 contamination can no longer serve the purpose for which it was
produced without processing." 40 CFR §261.1(c)(l). 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.
1 See 50 FR at 650 (January 4, 1985), indicating 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 Matt Straus to 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.
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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 can 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 bv 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 origina] 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 changing 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 RusseU indicating that spent pickle
liquor becomes a spent material/solid waste when it is removed from pickling line baths for reclamation
regardless if 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.
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Conclusion
Because spent materials being reclaimed (or to be reclaimed) are within the definition
of solid W£ -..s, 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 Bromm
Susan O'Keefe
NEIC, Frank Covington
ASTSWMO, Tom Kennedy
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(08)
MAR 30 1994
OFFICE OF
SOLID 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 for 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 PR 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 "ingredient" 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) (i) .
However, the reclaimed mercury that results from distillation may
Printed on Recycles Paper
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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 mercury referred to in
your letter without further information on how the mercury is
generated.
Finally, you ask how the RCRA regulations 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 type
of case-specific regulatory determination you are seeking, you
should contact the appropriate state agency or EPA regional
office.
If you have further general 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
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(09)
APR I 2 199/3
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 1, 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 themselves 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?
Printed on Recycled Paper
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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 is
unsure whether TC hazardous substances are present, then
representative samples of the filters and solvents should be
collected and analyzed to verify tht.ir status under RCRA. 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 type'of 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 man1, sed 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 t;:an
to say it must be enough to satisfy § 262.11.
Assuming that the filters are not regulated as hazardous
wastes, 40 CFR Part 260, at. seq.. 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 ^e hazardous waste program. EPA requires
only that state progratr ->Q at 7east as stringent as the Federal
program. States always ve t option of being more stringent
if they choose.
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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
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C. 20460
14 1992
SO<-iO
MEMORANDUM
SUBJECT: Regulatory Status of Waste* Streams from Searles Lake
Operations ,.-"• '"• I \ • (i
•'' /•' J ]i
FROM: Sylvia K. Lowra
Office of Solid
TO: Jeffrey Zelikson-, Director
Hazardous Waste Management Division, Region 9
In reference to the July 12, 1991 letter (attached) from
John J. Kearns, California Toxic Substances Control Program, to
Administrator Reilly regarding the regulatory status of waste
streams from Kerr-McGee Chemical Corporation (KMCC) Searles 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) , KMCC,
and the current operator of the Searles Lake facility North
American Chemical Company (NACC) . These documents include KMCC's
responses to DTSC's and E$A's specific questions 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.
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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. (See 45 £B
76619, November 19, 1980 and 54 £B 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 RCRA
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 ZR 36622 September 1, 1989 40 CFR
261.3 (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 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.
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 26l.4(b)(7)).
-------
Therefore, the lime waste pile qualifies for the Bevill
exemption.
3 - Trona/Argus 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 Bevill-exeitpt
beneficiation 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,
beneficiation, 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 (a)(2)(i)).
However, insufficient information is provided to allow the Agency
to determine whether waste mixtures in the Trona/Argus 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 after the operations that process an
-------
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 LLX2 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
FR 36618). Wastes generated before this step, including spent
brine, are beneficiation 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.
Argus Plant
From the information provided, it appears that the
operations API 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 FR 36618). Wastes
generated prior to this step, including spent brine, are
beneficiation wastes and subsequently retain the exemption.
Wastes generated during or after the WB5 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.
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The anhydrous sodium sulfate production operation at WB7 is
a beneficiation operation because it is primarily crystallization
and filtration (40 CFR 261.4(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 261.4(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 beneficiation 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 KACC Searles Lake. If your
staff needs to discuss this matter further, please contact Robert
Tonetti of my staff at (703) 308-8424.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(10)
M./JV _ C '00 <1
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 large 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.
Recycled/Recyclable
Printed with Soy Canoia Ink on paper tra:
contains at least 50% recycled liber
-------
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 §262.34.
In your case, the process of emptying the canisters could be considered part of a
recycling process (i.e., scrap steel 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 not 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 RCRA 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
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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 RCRA 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
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DEPARTMENT OF THE NAVY
NAVAL FACILITIES ENOIN EERINQ SERVICE CENTER
560 CENTER DRIVE
PORT HUENEME CA 83043-4328
January 18, 1994
Mr. Michael Shapiro
OS-300 USEPA
Director of the Office of Solid Waste
40 1M Street S.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 summarizing 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
primary concerns are safety, compliance with all local, state and federal regulations, and protection of the
environment. I would greatly appreciate your assistance to review the literature and commem 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.
GARYS. GASPEPJNO
Division Head, Pollution Prevention Division
By direction of the Commanding Officer
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
? WASHINGTON, D.C. 20460
'/
9441.1994(11)
MAY I I 199/1
Of FlCC OF
SOLID WASTE ANO EWcRCr.'.^
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 PR 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 FR 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, beneficiation, or processing operations.
Recycled/Recyclable
Primed with Soy/Canoia Ink on paper lhai
contains al least 50% recycled (Iber
-------
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 beneficiated 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,
Michael Shapiro, Director
Office/of Solid Waste
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STATE OF MICHIGAN
NATURAL RESOURCES
COMMISSION
JCRRY C. 6ARTNHC
JOHN ENGLER, Governor
DEPARTMENT OF NATURAL RESOURCES
JOEY M. SPANO John Htfnrfi BuMIng, P.O. Box 40241, Un^ng. Ml 4<80(
JORDAN B. TATTER «X>NO HARMES. 0^W
April 15, 1994
Mr. Michael Shapiro, Director
Office of Solid Waste, 5301
U.S. Environmental Protection Agency
401 M 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 kilns 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. Reg. 76,618, November 19,
1980). The MDNR believes waste refractory brick from a lime kiln
are not uniquely associated .with mining operations for the
following-reasons. . .
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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 oras 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
raining 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.
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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 Schinderle, Waste
Management Division Hazardous Waste Program Section, at
517-373-8410.
im Sygo, Chief
'aste Management Division
517-373-9523
cc: Mr. Norm Niedergang, U.S. EPA Region 5
Mr. Jim McLaughlin/Mr. Phil Roycraft, MDNR-Cadillac
Mr. Phil Schrantz, MDNR
Mr. Jack Schinderle, MDNR
Mr. Mark Stephens, MDNR
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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.
-------
(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 retyped from tht original.
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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.
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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 HC1. 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 RCRA 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 "(i) 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.
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-2-
which they are generated without first being reclaimed" 40 CFR Section 261.2(e)(l). 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 Bv-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.
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- 3 -
RCRA (40 CFR Section 261.2(e)(l)(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 Bv-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)(l). 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)(l)(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
Tliis document has been retyped from the original.
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
r $ WASHINGTON D.C. 20460
9441.1994(14)
JUN ~ 9 !994
OFFICE OF
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"). The response 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
landfilied cement kiln dust. Under the current regulatory
framework, the regulatory status of the products (e.g., clinker and
fertilizer) produced using previously landfilied 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
n*cyc!ed/H9cyc!abto
Printed with Soy/Can on Ink on paper that
comilnt u la*K iV* recycled lltxr
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cement kilns (as I understand, the Recovery 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 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
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
questipns 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,
'1 Shapiro, Director
of Solid Waste
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_yt3Sr",
f
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(15)
JUN ID
OPPiCE OF
SOLID WASTE AND EMERGENCY RESPONSE
Ms. Mary Ann Habeeb
Albright & 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 perchloroethylene
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
perchloroethylene. 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 perchloroethylene 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
perchloroethylene 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
reclamation). These issues are addressed by 40 CFR §§261.1 and
261.2 (e) . Spent materials being reclaimed are regulated as solid
waste under RCRA regulations. A "spent material" is "any
material that has been used and as a result of contamination can
Printed on Recyceo P.icer
-------
no 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. A3 previously noted, 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 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
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Albright & Habeeb
Deborah E. Albright Attorneys At Law Telephone 317-251-2308
w * u w. i. "15 Broad Rjpple Avenue
Mary Ana Habeeb ™ Facsimile 317-251-1941
.. . „ ... Indianapolis. Indiana 46220
'Associates No( la Partnership* r
May 18, 1994
USEPA
Office of Solid Waste
401 M. St., SW
Washington, DC 20460
ATTN: Michael Shapiro
RE: Regulatory Status of Perchloroethylne used in
Drycleaning
Dear Mr. Shapiro:
My office is currently working with a drycleaning business
which utilizes the solvent perchloroethylene. Perchloroethylene
("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 amount 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 nay, 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.
Stillbottoms 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
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! UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(16)
JUN 10 1994 O-.CEOP
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 igated 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 sump 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 F001 - 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
wastewater treatment exemption of §261.3 (a) (2) (iv) (A) - (E) . Tr.-e
-------
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 environmental 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,
/ ,-v
/7 1 /> * / } S~> -
''/ ' /-?' ' tf 1 ^^
. ? ^o<:z/Lt;>~6-ci_ j~'~f"--?,wf'*.'...
4-<>~ MichaejL H. Shapiro, Director
,• •" Office,- of Solid Waste
1 ' —-^
cc: Larry Starfield, OGC (2366)
Gary Jonesi, OECA (2246)
John Gorman, EPA Region II (2AWM-HWCB)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
JUn JO 1994
9441.1994(17)
Mr. John Maguire
President
Maguire and Strickland Refining, Inc.
1290-81st Avenue, N.E.
Minneapolis, Minnesota 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 ihey 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,
Michael J: Petruakn
Chief, Rtgu^uury Develupineiu
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Precious Metal Kejimn,; ,„.«/ ,l.».,w«v iVIAGUIRE & STRICKLAND
_ — REFINING, INC.
Cold ' Platinum • Palladium • Silver
April 190, 1994
U. S. EPA
Office of Solid Waste
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
I I i (612)786-2858
1290-81ST AVE. NE -L (800)486-2858
MINNEAPOLIS, MN 55432 FAX (612) 786-7793
n._ O> Printed nit Rn u !td 1'ii/icr
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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.e.. 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, corrosiviry, 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 (i.e.. 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).
This document has been retyped from the original.
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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. Straus
Chief
Waste Characterization Branch
This document has been retyped from the original.
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
? WASHINGTON, D.C. 20460
9441.1994(18)
OFFICE OF
SOUD 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 provided in the letter you cite is
merely a reiteration of the Agency's position as initially
cliri~ien in the preamble co the April 11, 1986 technical
correct'.or. notice to the January 4, 1985 Definition of Solid
Waste final rule. In the preamble to the technical correction
notice, SPA clarified that. "Although we do not directly address
non-listed commercial chemical produces in the rules, their
status would be the same as those chat are listed in §261.33 --
That is', they are not considered solid 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
b-.e excluded, as commercial chemical products. Again, the answer
i? yes. i-'irst, as discussed above, these materials would be
Recycled/Recyclable
Primed with Soy/Canola Ink on paper inal
contains at least 50% recycled liber.
-------
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 Pagan at (703) 308-
8620.
David Bussard II I
Director (/
Characterization and
Assessment Division
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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 Ann A. Spaner
Cabinet Secretary April ^0, 1994 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
-------
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
commercial 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 paraffins, cycloparaffins
and aromatics. Since gasoline is not listed specifically as a commercial
chemical product or a manufacturing chemical intermediate under 261.33, it does
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 commercially pure grades or technical grades and none of these chemicals
are the sole active ingredients of gasoline.
Off 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/k.w
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. O.C. 20460
JOLIIW
OFFICE OF
SOLiD WASTE AND EMERGENCY
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.
SPA 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 of f -specif ication commercial chemical products.
The RCRA hazardous waste regulations provide an exclusion for
of f -specif ication 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) (I) (ii) , 261. 2 (c) (2) (ii) and 261. 2 (e) (2) ) .
Therefore', if the outdated resins are determined to be off-
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
Recycled/Recyclable
!~\ O) Prtni»d with SoyiCanola Ink on poper thai
contains sliesjl 50% recycled liber
-------
process to make a produce, 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 Kidwell 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
PRESS, INC
1120 E. Stevens • P.O. 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.
-------
y_
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9441.1994(20)
AUG -2 1994
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:
R»cycled/R8cyclable
Prfnwd with Soy/Canon In* on paper thai
oonumt tt Itttt 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:
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.
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.
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 thai 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.
Si
lYiichael ShapiroTDirector
Office of Solid Waste
cc: Waste Management Division Directors, Regions I - X
-------
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. Lowrance:
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 26L.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.
New Center One Building 3031 West Grand Boulevard P.O. Box 33122 Detroit. Michigan 48232
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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,
Michelle T. Fisher
Attorney
MTF:kt
Attachment
c: William Collinson
Carl Messenheimer
David Tackman
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(21)
AUG " 5 1994 0^,10,
SOLID WA3TE AND EMERGENCY
RESPONSE
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 vessels, 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 net 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
Rtcycltd/Rtcyclabl*
PrinMd with Soy/Cingl* Ink on paper tn»l
contain* at M»*t 90% 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 part 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 after the
vessel is placed in reserve or is otherwise no longer in service, without a RCRA storage
permit.} 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 "hazardous 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 definition 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 RCRA regulations (40 CFR
261.6(a)(3)(iii)). Scrap metal, as defined at 261.1(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
-------
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 vessels 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. We 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, Director
Office of Solid Waste
Enclosures
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
. WASHINGTON, D.C. 20460
^i^
-------
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.
Da&id Bussard, Dirpotor [
Characterization ana Assessment Division
Office of Solid Waste
-------
Susan L. Prior
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:
Sample Exclusion
A waste management company takes samples of all incoming waste containers, analyzes the
samples, arid 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-run 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 §26l.4(d)(l)(vi)r!
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 Pan
B permit.
Thank you for your consideration and I look forward to your reply.
Very truly yours,
e.e.
Susan L. Prior
Regional Environmental Manager
Laidlaw Environmental Services (North East), Inc.
221 Sutton Street North Andover, Massachusetts 01845 Phone 508683.1002 Fax 508.794.9665
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(23)
OPPICE OF
SOLID WASTE AND EMERGENCY HESPONS6
Mr. Paul R. DiBella
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 Nucor Corporation's electric arc steel furnace in Darlington, South
Carolina. The lead/copper metal is derived from MRT's recovery process of K061/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 until a 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.
Printed 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 management 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
-------
Metals Recycling Technologies Corp.
3350 CUMBERLAND CIRCLE
SUITE 970
ATLANTA, GEORGIA 30339
TELEPHONE (404) 951-1542
FACSIMILE (404) 955-7610
July 26, 1994
VTA 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 MRT Process (defined below). MRT 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 MRT 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 reojiire 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)).
Backeround
MRT 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 MRT Process faculty is operating
adjacent to Nucor Corporation's Darlington, South Carolina ("Nucor-Darlington")
steelmaking plant. This facility recycles the EAF Dust generated at Nucor-
Darlington.
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Mr. Michael Shapiro
July 26, 1994
Page -2-
Overview of the MRT Process
The following is a general overview of the MRT Process. See Appendix "A" for
a detailed flow chart of the MRT Process.
The MRT Process uses a heated, aqueous ammonium chloride solution to
leach solubles in the EAF 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 EAF Dust, contain
primarily iron oxide.
After the EAF Dust is digested 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 in the steelmaking process as an ingredient to make
steel.
Following filtration, the remaining 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/Cower Metal
Prior to the operation of the first commercial scale recycling facility at Nucor-
Darlington, MRT 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, MRT 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, MRT 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-
raetal is sold as a product. The zinc salt is placed into the digestion step of the MET
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 MRT's experience at Nucor-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.1 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
making 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.
Sincerely,
METALS RECYCLING
TECHNOLOGIES CORP.
cc: Paul A. Borst, U.S. EPA
John E. Johnston, U.S. EPA Region IV
'LEAD INDUSTRIES ASSOCIATION, INC., PROPERTIES OF LEAD AND LEAD ALLOYS.
-------
r
The MRT Process
Carbon
ammonium chloride solution recycled
amnoriaconcertrate
Digester Tank
heated ammonium
chloride solution
^ 1 1
^. 1
Slurry
••; |:; :;: '_ !.v'. ;.:. ;-; • -.' '. . •
= ::i^;^ij(i;er= Press
'• •:::-';::::;i:!:=::;;: -iv: :: : : ' :
:--;:;8^^!ifjMki=
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*^
Loaded
Solution
Cementation
Tank
Precipitation of Zinc
Concentrate
I
I
Carbon-enriched Iron Cakes
65%-70% of original EAF dust
A
I
I
Crystallization
Tank
Pure zinc oxide
cystals grown
I ' — - I
'—3.
Wash
IrcnCstes
Iron Cakes
Lead Concentrate
3%-5% of original EAF dust
Dry
Returned to steel mill for use as raw material replacement
Zinc solution to digester tank
Separation Process
Lead /Copper metal
I Bagging |
<- 0000
99.9% Pure Zip- Oxide
20%<30% of origin.
TJ
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x
-------
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 original.
-------
^«°sr"^
~ . UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
! WASHINGTON, D.C. 20460
9441.1994(24)
AUG 30 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 43Z16
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 RCRA. 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
Racyctod/RecyclabI*
Prtnad with Soy'Canote Ink on paper mat
conuln* «IM* 50% wcyd«d fl bw
-------
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 Department
Knslina W. Woods
Environmental Counsel
(614) 889-3678
Asn.'ano Oernicai Company Address .Reply
Division o! PQ aox 2219
Ashland Oil me Colurrdus. Ohio 43216
Fax (614) 389-4268
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 II(I)(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 U.S. 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,
Ashland Chemical's
Commitment to
Quality and Productivity
Headquarters:
5200 Blazer Parkway
Oubim On.o 43017 '
(614) 889-3333
J :C'e Acs.-ess Aropiaz CH
~-?9< 245385
-•••s-.-.e'cacK ASHCHEM
-.u i6i4) 389-4119
-------
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
Kristina M. Woods
Enclosures
cc: Herb Richardson
-------
John Hall, Chairman
Pam Reed, Commissioner
Peggy Garner, Commissioner
TEXAS WATER COMMISSION
PROTECTING TEXANS HEALTH AND SAFETY BY PREVENTING AND REDUCING POLLUTION
March 23, 1993
Mr. Don E. Gebhardt
Environmental Engineer
Ashland Chemical, Inc.
P.O. 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.
-------
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)(l), 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 feedstock, 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.
511 llth 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)(l). It is therefore a hazardous waste since spent materials being reclaimed 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 hi 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 §261.2(c)(3).
This document has been retyped from the original.
-------
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 definition 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(f).
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 RCRA 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)
TTiij document has been retyped from the original.
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
9 WASHINGTON, D.C. 20460
9441.1994(26)
SEP 28 1994
OfFCEOF
Ma. Susan L. Prior SOLID WASTE AND EMERGENCY
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.
Your first question pertained to use o-f 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.
F003. POPS. DOOi
In the second: scenario* a solvent mixture consisting of F003
and F005 exhibits the .'chairacterlstic of ignitability.. You asked
if, for purposes ~ of •• Land Disposal Restriction, compliance, the
treatment standard foe D001 (ign±tability> should be included.
Your letter-states -that although the characteristic constituents or
properties^ar^nbt specifically addressed in the treatment standard
for the . l^ted^r wastes, the characteristic of ignitability is
ef feet ivei^^moved during treatment for POOS and. F005.
Yes, FOOl^and F005 wastes that are also ignitable should also
be identified as DOOJ. This will assure that the applicable
treatment standards for the spent solvent wastes will be met, as
well as the treatment standards for D001 that were established in
the Third Third rule in 1990 (for high TOC D001 wastes) and in the
Interim Final Rule promulgated on May 24, 1993 (D001 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).
Rccyctoi/Rtcydabfe
PrintM with Soy/Cmota Ink on piper tint
conttfnt it IMM 50% racyctfd nlar
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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 CFR §
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 RCRA while in storage'at the TSDP, 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 - recyclable 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 separately,
beginning^with the reclaimed characteristic by-product. Under the
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
FR 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 CFRr 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- determiner the regulatory status
of a materials (with ther exception of speculative accumulation,
explained below}. Itt 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 waste,- according.-to Table 1 irr$ 251.2'.- 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 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 § 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..
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 £S 617) . The purpose of
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promulating the speculative accumulation provisions was to allow
EPA to regulate certain materials, intended for recycling, as solid
waste if the person claiming that his/her waste was 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-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 considered to be hazardous wastes and would become
subject to regulation...(50 FR 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 (§ 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 &he 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.
Finally, your letter states that the waste code F001 contains
a constituent listed as "chlorinated fluorocarbons" in 40 CFR Part
261 Subparf D,. and that the treatment standards for the F waste
found in 263.43 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 F001 - F005 in § 268.43.
Only the treatment standards for the spent chlorinated
fluorocarbons identified as constituents of concern in F001 - F005
wastes must be. met for purposes of satisfying the treatment
standards for F001 - F005 wastes. You should be aware, however,
that there is one fluorocarbon waste included in Appendix III to
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268, in the- list of halogenated organic compounds regulated under
§ 268.32: dlchlorodifluoromethane. 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)260-4779. For questions pertaining to
the Land Disposal Restrictions program-, please call Rhonda Craig at
(703)309-8771. Thank you for your, interest in the safe and
effective management of hazardous waste.
Sincerely,.
Shapiro, Director
of. Solid Waste
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Susan L. Prior
Northeast Regional
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 hazardous
waste issues discussed below:
1. Manifest 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 ail manifest for the same shipment?
2. F003. F005. DQ01
An F003 and F005 solvent mixture carries a D001 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 F003/F005 solvents would effectively
remove the characteristic.
3. Waste Destined for Recycling
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(c)(3)].
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 hazardous 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 50a.68ai002 Fax 50a794.9665 <# '''"
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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 (t 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 F001 contains a constituent listed as "chlorinated fluorocarbons" in 40
CFR Pan 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 FOCI - F005 in 268.43?
Thank you,for your consideration and I look forward to hearing from you at your convenience.
Very truly yours,
^^Kj^te/—. V. » \A—
Susan L. Prior
Regional Environmental Manager
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,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON. D.C. 20460
9441. 1994(27)
OCT 4 IQQ/'
UOI « 13 Jt. OFFICE OF
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 wastestreams identified as D001 high TOC subcategory, and
D001 high TOC subcategory/D002, that would be bilayered through
phase separation at a licensed TS'DF. You asked whether the two
phases can be treated as different EPA hazardous wastes. In
particular, you asked whether the D001 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
pretreatraent step for these wastes. Therefore, the D001 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,
1 Shapiro
iredtor
Office of Solid Waste
cc: Richard Kinch
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WASTE TECHNOLOGY SERVICES INC.
September 8, 1994
Mr. Michael Shipiro
Director - OSW
Environmental Protection Agency
• p» » * o •*--__ -* *- <" * *
H u i n o uj. cc o , ij . t> .
Washington, DC 20460
Dear Mr. Shipiro:
We have a client who has two (2) wastestreams identified
as D001 (>10% TOC) and D001 (>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 DOOl (>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
If you should have any questions, please do not hesitate
to call.
Very truly yours,
WASTE TECHNOLOGY SERVICES, INC.
T. L. Nebrich, Jr., CHMM
Technical Director
TLN/kjl
640 Park Place, Niagara Falls, New York, 14301 Telephone 716-282-4100
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(28)
nrr ^ 1994
Uul J
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
Mr. Thomas Dufficy
The Silver Coalition
c/o National Association of Photographic
Manufacturers, Inc.
550 Mamaroneck Avenue
Harrison, New York 10528
Dear Mr. Dufficy:
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. Kastner'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 RCRA regulations when sent for
reclamation, since = they would; not be. considered; a solid waste. 40
CFR §261.2(c) f3>v . Hes then.-aska forvconfirmation that the
exclusion provided a£. §261.2 (c)r (3)-! would apply to characteristic
sludges being reclaimed regardless of whether the sludges are
produced as a result of required waste-water treatment i.e.,
whether the treatment'is necessary to achieve compliance with a
specific discharge limitation or pretreatment requirement.
As we?;.indicated in our recent meeting with Mr. Kastner, the
-r- -~ sludge is not limited to materials generated from
wastewater^fc'reatment undertaken specifically to meet Federal,
state or local discharge or pretreatment requirements. Instead,
the term applies to materials generated from wastewater 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 photoprocessing
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
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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, based 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 RCRA.
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 Pefcruska
Chief
Regulatory Development Branch
cc: Kenneth M. Kastner
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BRYAN CAVE
ST. LOUIS. MISSOURI 700THIRTEENTH 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
PHOENLX, ARIZONA FACSIMILE: (202) 808-6200 LONDON. ENGLAND
KANSAS CITY. MISSOURI RIYADH. SAUDI 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 original.
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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.
See attached letter from Matthew Straus, Chief, EPA Waste Characterization Branch
to Thomas Dufficy (January 6, 1987).
Id., see 40 C.F.R. §§ 40 C.F.R. §§261.1(c)(2), 260.10, and 261.2 Table 1. See
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").
See 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.
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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
See 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 original.
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o
T
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(29)
NOV 9 1994
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
Prabhakar Kulkarni
Quantum Tech, L.L.C.
8660 Scranton, #B
Houston, Texas 77075
Dear Mr. Kulkarni,
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)(l))
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
Recycled/Recyclable
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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.
incerely,
)avid Bussard
Director
Characterization and
Assessment Division
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
"«****"
9441.1994(30)
NOV 23 1994
'^' OFFICE OF
SOLlO 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 regarding 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)(l) 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 2714(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 chemical 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
Printed 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,
.Michael Shapiro, Director
Ofgfce of Solid Waste
\J
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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(fecenp
inclusion of medical waste in their definition of hazardous waste, the VA MedicaTCinter
{VAMC} is faced with a problem for which we need regulatory clarification. The question that
we need answered is whether, aJI things being equal, the VAMC would be required to adhere
to EPA regulatory requirements for a large-quantity genarator if the hazardous medical waste^
they produce increases the combined total hazardous chemical waste and 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 medicaJ, 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.
-------
• 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 / 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 (138C4)
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VERMONT AGENCY OF NATURAL RESOURCES
FACTSHEET
INFECTIOUS WASTE
WHAT IS INFECTIOUS WASTE AND HOW IS IT REGULATED? 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 VT07. 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 fully 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 original.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1994(31)
OFFICE OF
HFC 20 1994 SOLID WASTE AND EMERGENCY
RESPONSE
Mr. David J. Monz
Updike, Kelly & Spellacy, 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 RCRA
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 2)' 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.n
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
R*cyc!ed/Recyclable
Printed with Soy/Cinol* Ink on piper thai
contains X least 50% recycled fiber
-------
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.
Sincerely
Michael J. Petruska, Chief
Regulatory Development Branch
-------
Updike, Kelly & Spellacy, P.C,
Counselors at Law
David J. Monz
Hartford (203) 548-2627
One State Street. P O Box 231277
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:
Qn November 9, 199j4_, we transmitted to you a request for a
regulatory 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, please regard the request
dated November 9, 1994 as withdrawn and substitute therefor 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 (i.e., baghouse dust) that is generated by the operation
of a brass furnace is excluded from the definition of solid waste
pursuant to 40 C.F.R. 5 261.2(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
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Updike. Kelly & Sp acy. P.C.
Michael Shapiro, Director
Page 2
November 14, 1994
an electrolytic refining process where preleached zinc sulfides 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 mg/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.
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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 following 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 bona 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
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* •». ^»
13B
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
23 C9'l 9441.1994(32)
OFFICE OF
SOLID WASTE AND EMERGENCY
Mr. Michael L. 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 considers 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 CFR 262.
Furthermore, 'China (aa a Basel Party) would be in violation of the terms
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.
avid Bussard, Direct
Characterization and Assessment
Division
Recycledffiecyclable
Prtnl»0 with Soy/Canon Ink on
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THE
»:*
RUN
COMPANY
5U:T5 300
'30: °A3K 2"0 D3IVE
5' '_OiJi5 '.iG63'-6
LARRY J.5TOEHR -ELEX 93-3554
C-X 3--J -53-7'3C
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. definitions, 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.
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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
LJS/jkc
enc: Nickel Matte Analysis
-------
RUN
SUITE 400 • 11885LACKLAMDROAC
Cu (%) :
Ni (%) :
Ag (G/MT) :
Co (%) :
Pb (%) :
FeO (%) :
S (%) :
Zn (%) :
Na (%):
As (%) :
Sb (%) :
Bi (%):
Cd (%):
NICKEL MATTE
TYPICAL ASSAY
23
17.5
300
1.7
24
4.7
6.3
1.0
0.9
6.4
1.0
Nil
0.02
May 1991
ANALYSIS
RANGE
16.6 - 23.0
16.4 - 24.0
100 - 400
1.0 - 2.0
20 - 29
2-6
4-10
0.2 - 1.5
0.3 - 1.5
4-8
0.6 - 1.5
Nil
0.01 - 0.04
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JAM '2 ""* 9441.1995(01)
OFFCEOF
SOUD 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 regeneration" from the hazardous
waste regulations, and its applicability to lead-acid 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 PR 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 Summary. 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 be
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
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eootrim « toot $0% racyctod "*••
-------
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 vm*t« management
cycle, to the usual hazardous waste provisions that would
otherwise apply. For lead-acid batteries, this would be
Subpart 6 of 40 CFR Part 266. For other hazardous waste
batteries, this would be the full hazardous waste regulations.
Thus, if it is not known whether 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 questions.
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,
L
Michael J. Petruska, Chief
Regulatory Development Branch
Enclosures (2)
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"HETECHNICALGROUP. 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.
Environmental Consulting
1500 I STREET. S\V • SUITE 1000 WEST • WASHINGTON. DC 20005
-------
THE'I.CHNICALGROLIP. ir
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.
Sincerely,
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01/31/95 12:47 tJ202 260 0837 EPA CAD RDB/IO
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1995(02)
JAN 3 I 1935
OFRCEOF
BOUD WASTE AND EMERGENCY
RESPONSE
Mr. Bruce s. Gelber
Acting Chief
Environmental Enforcement Section
U.S. Department of Justice
1425 New York Avenue, K.W.
Washington D.C. 20005
Dear Mr. 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 naphtha feedstocks by the Neville Chemical company.
Specifically, you ask whether LX-830 would be considered a co-
product fuel or a by-product hazardous waste fuel under EFA's
regulations implementing Subtitle C of the Resource Conservation
and Recovery Act (RCRA).
Based on Neville's written information submitted to Region
III subsequent to May 1994, it would appear that LX-830 better
meets the definition of a co-product and nance 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 26l.l(c)(3) (definitions of by-product and co-
product) .
LX-830 results from a reaction of petroleum and/or coal tar
naphtha feedstocks 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-baaed fuels), a
conclusion based on its BTU value, product specifications and
market history. While most of the LX-830 is burned on-site 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 off-sita use, and there is no
evidence that the material was burned, either on-»ite or off-
site, with the intent to discard it (e.g., burning amounts in
excess of what was needed as a fuel source).
Y Rteyoted/JVwwtoW*
T\ FiMxl KOI SmiKUKlt It*
'iv —.—..—:«•«_^
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01/31/95 12:47 O202 280 OC37 EPA CAD RDB/IO
Another factor supporting a determination that LX-830 is
better classified as a co-product is that the LX-830 contains no
hazardous constituents that arc not otherwise typically found in
conventional fuels.- Thus, the burning of LX-830 does not
constitute the discard of hazardous constituents and does not
raise any greater environmental concerns than those* raised by the
burning of commercially available conventional fuels.
Therefore, since Neville has represented that the chemical
makeup and subsequent handling and U;^ of LX-830 is essentially
similar to that of a commercially available fuel product, the
Agency believes LX-830 should be considered a co-product. If,
however/ the LX-830 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
reconsider whether LX-830 is truly a co-product rather than a by-
product. Such mixing 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 specifications and handled in a
manner consistent with a valuable product, the Agency considers
LX-830 to be a co-product; however, to the extent that the LX-830
appears to be simply the end residual of a production process
that happens to have high BTU value and is handled as a
wastestream with 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 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 hope this response has clarified the regulatory status of
Neville Chemical's LX-830. If you have further questions, you
should contact Mitch Kidwell, of my staff, at (202) 260-4805.
Sincerely,
Michael R. Shapiro, Director
Office of Solid Waste
Enclosures
cc: Thomas c. Voltaggio
Hazardous Waste Management
Division Director, EPA Region III
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01/31/95 12:48 O202 260 0837 EPA CAD RDB/IO
8)003
Enclosure 1
It is EPA's understanding that LX-830 results from Neville's
resin manufacturing process. LX-830 is solely comprised of
unreacted material that results from this resin manufacturing
process. Neville manufactures various types of resin by feeding
raw materials into a polymerization reaction. These raw
materials are a blend of petroleum hydrocarbon feedstocks and
coal tar naphtha feedstocks ("feedstock blend"). The temperature
and length of time of any polymerization reaction is completely
controlled by Neville's intent to produce a specific 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 material: 1) venting and 2} steam stripping. Neville
vents a certain amount of unreacted material from the vessel in
which the polymeri2ation reaction took place ("polymerization
vessel"). A portion of this vented unreacted material may be
recycled back into the feedstock blend. The unreacted material
that cannot be vented from the polymerization vessel is separated
from the reacted material by steam stripping. By introducing
steam into the reaction vessel, Neville stripe the unreacted
material from the reacted material. This stripping1 process
results in a mixture of steam and unreacted material; this
mixture is cooled, allowing the steam to condense into water; the
water is then decanted from the unreacted material. A portion of
the remaining unreacted material may be recycled back into the
feedstock blend. Any remaining unreacted material vhich is not
recycled is mixed with the vented unreacted material. This
mixture of unreacted material is "LX-SSO."
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US. Department of Justice
90-7-1-689
. D.C 3OOO
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
401 H Street, S.W.
Washington, D.C. 20460
Re: Classification of Neville Chemical Company's
LX-83O Distillate Under EPA'e RCRA Regulations
Dear Mr. Shapiro:
I an writing to request that th« 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-830.11
Neville has previously requested such a determination from EPA
Region III, and the classification of LX-830 is one of the
principal issues in United states v. Neville Chemical Company.
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 Neville provided to EPA
Region III concerning LX-830.
Very truly yours,
Assistant Attorney General
Environment and Natural Resources Division
By:
Bruce S. Gelber
Acting Chief
Environmental Enforcement Section
Attachments
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NEVILLE
Neville Chemical Company
March 6, 1992
CERTIFIED MAE- • RETURN RECEIPT REQUESTED
Mr. Robert E. Greaves, Chief
RCRA Enforcement/UST Branch
U. S. Environmental Protection Agency
Region m
841 Chestnut Building
Philadelphia, PA 19107
RE: RCRA Section 3007 Information Request
Neville Chemical Company
Product Classification of LX*-83Q
Dear Mr. Greaves:
As you may recall, during our meeting with you and your staff in Philadelphia on November
27, 1991, you invited Neville Chemical Company ("Neville*) to submit additional information
for your consideration in determining whether our LX*-830, also referred to as "fuel oil* or
"fuel oil distillate," is a product or a waste. Accordingly, this letter serves to provide you with
all of the specific information requested by your staff. Such information includes a detailed
process description, the quantification of chloride compounds in feedstocks purchased by Neville
and in our LX*-830 fuel oil, and a comparison of the purchase price of the feedstocks and the
sales price of our LX*-S30 fuel oil. This tetter also serves to memorialize the basis for
Neville's elimination of its LX*-S30 as a product.
As a practical matter, because the U.S. Environmental Protection Agency ("EPA" or "the
Agency*) authorized the Commonwealth of Pennsylvania to implement the base Resource
Conservation and Recovery Act ("RCRA*) hazardous waste program, a determination of whether
LX*-830 should be classified as a product or a waste is based solely on an application of the 25
Pa. Code Part 261 regulations of the Pennsylvania Department of Environment Resources
("PiDER" or "the Department"). These regulations have been in place since the early 1980s
and have not yet been revised to be consistent with the pce-Kazardous and Solid Waste
Amendment ("pre-HSWA") definition of solid waste regulations promulgated by EPA on January
4, 1985. $ee 50 Fed. Reg. 614. Although Pa DER's regulations do not contain the'CO-
ATTACHMENT l
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:22 ?M ;OOJ
Mr. Robert E. Greaves, Chief
U. S. Environmental Protection Agency March 6, 1992
Philadelphia, PA 19107 Page 2
product* versus 'by-product' distinction as found in EPA's current definition of solid waste
regulation1, 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. S« 25 Pa. Code § 261.6 (formerly 25 Pa. Code 6 75.261(e)(i)).
By letter dated October 19, 1983, the Department granted Neville the 25 Pa. Code § 261.6
exemption for LX*-830. Although a PaDER follow-up letter dated August 15, 1991 called the
exempt status of LX*-830 into question 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?-S30 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 Department's
pending regulations would replace the existing beneficial reuse exemption at 25 Fa. Code §
261 .6 with 'product,' "co-product* and by-product" designations it 25 Pa, Code {260.2. These
imminent Pennsylvania regulations, which clarify the issue of which materials are products and
which are wastes, go beyond the existing federal distinctions among these terms.
Specifically, a "product' is defined is a "commodity that is the sole or primary intended result
of a manufacturing or production process." 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 thai is consistently
equivalent to, or exceeds, the physical character and chemical composition of an
intentionally manufactured product or produced raw material, provided that the
use of the material presents no greater threat of harm to human health or the
environment than the use of the product. The term only applies to such material:
CO if the material is to be transferred in good faith as a commodity in trade,
for use in lieu of an intentionally manufactured product or produced raw material,
without processing, and the material is actually used on a regular basis; or
00 if the material is to be used by the manufacturer or producer of the
material in lieu of an intentionally manufactured product or produced raw
material, without processing, and the material U actually used on a routine basis.
1. Evca under the Agency's definition of solid waste. LX*-830 is a •co-product* because It is one of
two primary products that is intentionally and separately produced by Neville, and LX*-830 is
suitable for end use as is (i.e., as a fuel oil) without any additional blending. SfiC 48 Fed. Reg.
14472 at 14476 (April 4,19S3) and SO Fed Reg. 614 at 625 and 630 (January 4,19S5).
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Mr. Robert F.. Greaves, Chief
U. S. Environmental Protection Agency March 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-
producf regardless of its value. In contrast, the federal definition sets forth a different
standard.
As documented extensively in this letter and in our prior letters to the Agency dated June 17,
1991, August 8, 1991, September 4t 1991, October 11. 1991 and October 24, 1991, because
Neville's LX*-830: (1) is of the same composition and quality as other raw materials that would
be used by our customers in their production processes if the LX*-830 were no longer available
(and our customers will support this assertion); and (2) is actually used as a commodity in trade
on a "regular" and "routine" basis in lieu of a more expensive raw material, our LX*-830 is
correctly classified by the PaDER as exempt under the authorized Pennsylvania hazardous waste
program, would be clarified as a •co-product" under EPA's hazardous waste program and
would be classified as a "co-product" under PaDER's revised definition of solid waste.
Detailed Process Description
At Attachment A, we have provided you with t resin production diagram that also depicts the
production of distillates, which make up the LX*830 product line. As illustrated by the
diagram, the process feed streams must include sufficient amounts of generically compatible non-
reactables in order to manage the polymerized portion of the feed subsequent to polymerization.
After separation, two streams (products) are produced: (1) Hydrocarbon resins; and (2)
Distillate. Part of the distillate is recycled back to the feed stream in order to maintain the
proper concentration of polymerizables. 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 distillate). Without the
production of the fuel oil distillate, resin could not tje 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, 19SS 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 OH
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 feedstock chloride
compounds carry through to, and accumulate in, the distillates. Neville does not add any
chloride-containing materials to its LX*830. Analyses provided at Attachment D illustrate
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Mr. Robert E. Greaves, Chief
U. S. Environmental Protection Agency March 6, 1992
Philadelphia, PA 19107 Page 4
the chloride content similarities between the raw material feedstock blends and the resultant
distillate streams. Attachment D also illustrates the organic chemical similarities between the
feedstock blends and the distillate streams.
Comparison of Feedstock Purchase Price
and LX+-83Q Fuel Oil Sales Price
The cost of raw materials range from approximately 5.80/gallon to approximately $1.2Q/gallon.
The value of the LX*-S30 fuel oil Is approximately $.4Q/gallon, but depends upon the market.
Sales at lower values have occurred, due to high inventory levels or depressed market
conditions.
Customers Use of LX+-830
LX°-830 customers* use include viscosity modification within their fuel blending operations.
Enjet, Inc. specifically advised EPA that they blend LX*-830 with other cutter stock-fuel oil to
produce a blended product suitable for use In marine fuels and/or fuel oil. Enjet customers
include BP North America, Hill Petroleum and Chonoil Gulf Coast SfiC Enjet tetter of
September 10, 1991 submitted in response to EPA's RCRA { 3007(a) Information Request
We appreciate your cooperation with regard to the proper classification of our U^-830 fuel oil
and request that you reconsider your earlier categorization of this product as a hazardous waste
in light of all available information. If you have any additional questions or concerns, please
bring them to my attention at your earliest convenience. Your prompt review of this information
and reconsideration 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
determination.
Sincerely,
Thomas F. McKnight
Vice President & General Counsel
TFMijhb
Attachments
cc: William D. Roper
Lawrence Falkin/EPA
Gale Campbell/PaDER
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1995(03)
OF
SOLID WASTE AND EMERGENCY RESPONSE
MEMORANDUM
SUBJECT: Letter to CLC on Regulatory Status of Acrylic Plastic
Dust
FROM: Michael Shapiro, Director
Office of Solid Waste
TO: Joseph R. Franzmathes, Director
Waste Management Division
Region IV
Allyn M. Davis, Director
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
India 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
Printed on Recycled Paper
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FILE COP
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OP
SOLID WASTE AND EMERGENCY
rE3 6 1995
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 (El'A) of your interpretation of
how RCRA applies to acrylic plastic dust that is generated from
Plastic Media Blasting (PMB) 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)(i) 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 methylmethacrylate monomer (MMA monomer) that
is used to produce acrylic plastic sheets. The first step
involves heating the PMB dust in the presence of a molton lead
bath. In this process, the acrylic polymer is depolymerized to
produce MMA monomer and cadmium and chromium present in the PMB
dust are partitioned off to the molton lead bath. The MMA
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 reclaimed if it is
processed to recover a usable product, or if it is regenerated.
In the process you describe, the PMB dust clearly undergoes
reclamation prior to its use as an ingredient to produce acrylic
-------
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" 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 PMB 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, EPA Regional 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.
-------
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.
Sincerely
Michael Shapiro .^Director
Office of Solid Waste
Enclosure
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REQUEST FOR CLARIFICATION
OF TEE REGULATORY STATUS OF
RECYCLED ACRYLIC PLASTIC DUST UNDER
THE RESOURCE CONSERVATION AND RECOVERY ACT
Submitted To;
Michael H. Shapiro, Director
Office of Solid Waste
United States Environmental Protection Agency
401 M Street, S.W. (M2101)
Washington, D.C. 20460
Submitted Bv;
G. Alan Perkins
Williams & Anderson
Twenty-Second Floor
111 Center Street
Little Rock, AR 72201
(501) 372-0800
Nancy D. Tammi
Beveridge- & Diamond, P.C.
1350 I Street, N.W.
Suite 700
Washington, D.C. 20005
(202) 789-6059
Date Submitted:
December 8, 1994
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December 8, 1994
VIA HAND DELIVERY
Michael H. Shapiro, Director
Office of Solid Waste
United States Environmental
Protection Agency (M2101)
401 M 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 Corporation ("Composite") , we
write to request- confirmation from the United States
Environmental Protection Agency ("EPA" or "the Agency") that
acrylic plastic dust resulting from the Plastic Media Blasting
( "PMB") of paints and coatings from aircraft and aircraft
components (hereinafter "PMB dust") is not a "solid waste" within
•Che meaning of the Resource Conservation and Recovery Act
( "RCRA" ) when used as an ingredient in the manufacture of acrylic
plastic sheets. This issue warrants the attention of EPA
Headquarters in light of conflicting determinations issued by EPA
Regions IVf VT . and VIII Concerning the regulatory sta-hns of
recycled PMB dustf yhich sometime^ pYhlhit'-i tn» PTfl Tmnm'ty
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) (l) (ir,
and thus the PMB dust is not a solid waste from its point of
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. § 261. l(a).
I. Background
A. Description 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 pneumatic process similar
to sandblasting, but uses engineered plastic abrasive instead of
sand. The plastic abrasive is harder than the coating to be
removed, yet softer than the underlying surface, thereby allowing
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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 environmentally sound and effective
substitute for wet chemical strippers. Depainting of airframes
and components traditionally has been achieved by using methylene
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) (proposed 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 AFB"). 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.-/ 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 Recycling Program
In 1989, Composite began working with Hill AFB 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 Globe Plastics, India, for use as an ingredient in
I/ The plastic abrasive media may be used 40-80 times
prior to being removed from service.
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Michael H. Shapiro
December 8, 1994
Page 3
the manufacture of rtnrylir plpigtlr ejhafat
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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 MMA monomer is used by Globe Plastics to produce
transparent acrylic plastic sheets. Further refinement of the
liquid MMA monomer product therefore is necessary in order to
meet product specifications for the acrylic plastic sheets. The
liquid MMA rnnrtnTnei- is pin-if Tori 1-h-rnugh distillation and
recondensed to liquid form. The organic chemical still bottoms
resulting from the purification of MMA monomer are routed to the
oil-fired furnace used to heat the molten lead bath, where they
are burned as a supplemental fuel.-/
In the final step of the production process, MMA 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 M. Henabray, Office of the Staff Judge Advocate,
5/ The volume of still bottoms, consisting of various
esters, is about one percent of the volume of MMA produced, and
comprises only a small fraction of one percent of the fuel for
the furnace.
6/ 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).
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Michael H. Shapiro
December 8, 1994
Page 5
Hill Air Force Base ("1992 Utah DEQ Letter") (Attachment 3) .^/
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 PHB dust.
Fourteen months later, in April 1994, EPA Region VIII sent a
letter to Utah DEQ stating that the PMB dustTproduced at Hill AFB^
was a "spent materIgj" -frha-fr. «aa Ho-ing ggni- frvr "-i-gGlaTna-hJor^ 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 y*-rr*> ?A( 1<»Q4_
Memorandum from Michael Shapiro, Director, Office of Solid Waste,
EPA, to Hazardous waste Management Division Directors, Regions I-
X, entitledJ"Definition of Spent Material" ("March 24", 1994
Memorandum11! (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 i.S/
Z/ See also Letter dated June 24, 1992 from Dennis R.
Downs, Director, Division of Solid and Hazardous Waste, Utah DEQ,
to Col. William M. Henabray, Office of the Staff Judge Advocate,
Hill Air Force Base (Attachment 4).
B/ Composite notes that it disagrees with the conclusion
of EPA Region VIII that PMB dust is properly characterized as a
"spent material." PMB dust is removed from the blasting process
not because it is "contaminated,11 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. § 261.1(c)(l) (definition of spent material limited
to "contaminated" materials). PMB dust instead is properly
classified as a "sludge" because it arises from the capture of
acrylic plastic dust particles in the air filtration system of
the blast booth. See 40 C.F.R. §§ 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. § 261.2(e)(1)(i).
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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 AFB] 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 Haste 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
determined that the recycling of PMB dust involves "reclamation."
Region IV concluded that "the cracking operation will regenerate"
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 MMA 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) . Reqioji_VI
also determined, hnw*^7*^—that the PMD duiat!. was a ChdidL.Lm-3.stic
"sljidge" 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.R. § 261.2(e)(1)(i). For example,
11 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
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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 solid 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.l(c)(5)(i), 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 fi.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.
§ 261.l(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 MMA
monomer, and those constituents are then catalytically recombined
along with coloring agents to produce a new product — acrylic
plastic sheets.
The recycling of PMB 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, 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.
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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 pl.astic sheets
does not constitute "reclamation." PMB dust is not "processed to
recover a usable product." 40 C.F.R. § 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. MMA 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 VT 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
9/ Moreover, contrary to the assertions of EPA Region VI
and the Utah DEQ, the cracking of PMB dust to yield MMA 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 "[t]he 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.
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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 PMB dust is analogous to the recycling
of spent sulfuric acid, a process that EPA has concluded does not
involve "reclamation." PMB 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)(d) 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: (l) "used in a manner constituting disposal"; (2) "burned
for energy recovery, used to produce a fuel, or contained in
fuels"; (3) "accumulated speculatively"; or (4) identified at 40
C.F.R. § 261.2(d)(l)-(2) as "inherently waste like materials."
40 C.F.R. § 261.2(e)(2). As demonstrated below, PMB 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. § 261.2(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.g..
fertilizer, asphalt, cement). Instead, PMB dust is used to
produce MMA monomer, which then is reacted to produce acrylic
plastic sheets. Neither MMA monomer nor acrylic plastic sheets
are "applied to the land."
Second, PMB dust is not Vburned for energy recovery, used to
produce a fuel, or contained in fuels." 40 C.F.R.
§ 261.2(e)(2)(ii). PMB dust is depolymerized — not "burned" —
to produce MMA 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." PMB dust is
used only to produce MMA monomer, all of which is used to
manufacture acrylic plastic sheets. Although the organic
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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
Third, PMB dust is not "accumulated speculatively. " 40
C.F.R. § 261. 2(e) (2) (iii) . PMB 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.-^/
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.
§ 261.2(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 40 C.F.R. § 261.2 (e) (1) (i) , and thus the PMB dust
10/ Indeed, it makes little sense to characterize PMB dust
as a solid waste by reason of the burning of MMA monomer still
bottoms for energy recovery. If the still bottoms instead were
disposed of (such as by means of incineration), there would be no
question whether the PMB 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 MMA 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.
ll/ The use of PMB dust to manufacture acrylic plastic
sheets is easily accomplished within the "75 percent" turnover
requirement of 40 C.F.R. § 261.1(c)(8).
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Michael H. 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 recycling process. If you have
any questions about the contents of this letter, or would lifce to
arrange a meeting to discuss the Composite PMB dust recycling
program, please contact either of the undersigned at the numbers
listed below.
Thank you for your consideration of this matter.
Sincerely,
G. Alan Perkns
Williams & Anderson
Twenty-Second Floor
111 Center Street
Little Rock, AR 72201
(501) 372-0800
Nancy iy. Tammi
Beveridge & Diamond, P.C.
1350 I Street, N.W.
Suite 700
Washington, D.C. 20005
(202) 789-6059
enclosures
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FILE COPY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
9441.1995(04)
Of
SOLID WASTE AMP EMERGENCY RESPONSE
Mr. John W. Osborne
Manager of Safety and
Environmental Quality
United Beechcraft, Inc.
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
chemical products. 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 number 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 off-
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,
rmfcvf etn Recycled Paoer
-------
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 for 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
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United Beecficraft. Inc. ? "76 5201
PO Box 2966
Wcnita KS 67201-2S66
United t?eechcraft
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 similar
situation is discussed and interpreted. We want to be sure of any extension of the
interpretation to our particular situation so that we remain 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 flight, 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 small 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 maintenance
of the fuel system or aircraft refuelers small drippages result in the generation of
residual fuel.
t?eechcraft
-------
Mr. David Bussard
Page -2-
October 18, 1994
4. And the last case would be where we have had a leak or spillage 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 kind
3. The fuel soaked clean-up material has enough Btu value to be used as a fuel to
run kirns, 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. Assuming 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
Manager of Safety and
Environmental Quality
United Beechcraft, Inc.
JWOrvlb
Attachment
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1995(05)
FEB ! 7 1995
OFFICE OF
GENERALCOUNSa
SUBJECT! Interpretation of Industrial Wastewater Discharge
~cclu.sion From the-Definition of Solid Waste
/) / J^f / J /]f S*f) 4 „
TROKt
.X^ire&b
of Solid Waste (5301)
Lisa K.
Associate General/Counsel
Solid Waste and Emergency Response Division (2366)
TO: Waste Management Division Directors, Regions I-X
This memorandum is to clarify that the Resource Conservation
and Recovery Act (RCRA) requirements apply to discharges of
leachate into groundvater from leaking waste management units,
even when the groundvater 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
connection between the point source and nearby surface waters of
the United states. However, discharges of leachate from waste
management units to groundwater are not excluded from the
definition of solid waste in RCRA section 1004(27), because the
exclusion extends only to "traditional," pipe outfall-type point
source 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.)
piecussion
RCRA section 1004(27) excludes from the definition of solid
waste "solid or dissolved materials in . » . industrial
-------
[section 40*2 of the Clean Water Act].* For the purposes of the
RCRA program, EPA has consistently interpreted the language
"point sources aub-ieet to permits under [section 402 of the Clean
Water Act]" to Bean point sources t-hat ahould have a NPDES permit
in place, whether in fact they do or not. Under EPA's
interpretation of the "subject to* language, a facility that
should, but does not, have the proper NPDSS 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. § 261.*(a)(2) that states:
The following materials are not solid wastes for the purpose
of this part:
. . . Industrial vastevater 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 "comment11 that also appears in the Code of
Federal Regulations following the final rule language:
This exclusion applies only to the actual point source
discharge. jit does not exclude ind.u,rtrjal waatewaters while
t-frftY ffire b^eing collected, stored or treated before
discharge, nor does it exclude sludges that are generated by
industrial wastewater treatment.
40 C.F.R. S 261.4(a)(2) (comment) (emphasis 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-type situation
(i.e., ultimate release to waters of the United States). As EPA
explained in the preamble:
The obvious purpose of the industrial point source discharge
exclusion in section 1004(27) was to avoid duplicative
regulation of point source discharges under RCRA and the
Clean Water Act. Without such a provision, the discharge of
waatevufrffir ;tnto nav^gat^g WfltflM would be "disposal** of
solid waste, and potentially subject to regulation under
both the Clean Water Act and RCRA Subtitle C. TJb&ftfi
considerations do not apply fco industrial waatewatera prior
to disotiai-ye since Most of the envigonaental ha garde
waatewq'te.rs, in trftfltimit ajflfl holding facilities »•
under the Clean Water Act or other EPA statutes<
45 Zed Bflfl- 33098 (May 19, 1980) (emphasis added).
-------
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 intend that the exclusion cover
groundwatar discharges from treatm«»nt processes that occur prior
to the "end-of-the-pipe" discharge, V^us, this exclusion only
covers a subset of point sources regulated under the CWA.
Therefore, vastevater releases to groundvater from treatment
and holding facilities do not come within the Meaning of the RCRA
exclusion in 40 C.F.R. s 261.4 (a) (2), but rather remain within
the jurisdiction of RCRA. In addition, such groundwater
discharges are subject to CWA 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 subject to the
prohibition against unpermitted discharges, and thus are subject
to the NPDES permitting requirements. See 55 Fed. Reg. 47990,
47997 (Nov. 16, 1990)(storm water permit application
regulations); 56 Fed. Reg. 64876, 64892 (Dec. 12, 1991)(Indian
water quality standards regulations); 58 Fed. Reg. 7610, 7631
(Feb. 8, 1993)(Region 6 general permit for feedlots).
If you have any questions on this memorandum, please call
Xattiy Nam1 of O&C at (202) 260-2737 or Hitch Kidwell of OSW at
(202) 260-4805.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
"?• 2 I 1995 9441.1995(06)
MEMORANDUM
RESPONSE
SUBJECT: lufec£ious and/pr^Genetically Engineered Waste
IjShap
fof Solid Waste
IT «^/
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 produced at 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 to 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 regulatory
definition in Part 261. 40 C.F.R. § 261.Kb)(2) provides that,
even if a material is 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 RCRA section
1004 (27), and a hazardous waste within the meaning of RCRA
section 1004(5). The materials may also be addressed under
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-------
section 7003 if the statutory elements are established. Regions
have the authority to make case-by-case decisions on whether such
material meets the statutory definition of hazardous waste.1
Your letter also questioned whether section 3004 (u) applies
in this case. Section 3004(u) requires corrective action 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, SWMUs
containing these wastes would be subject to section 3004(u). In
the proposed Subpart S rule, EPA interpreted "hazardous waste"
for purposes of section 3004(u) to encompass the statutory
definition of hazardous waste. Based on this interpretation,
the Region could use section 3004(u) authority to require
investigation of any SWMUs to determine 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 finalized, 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(u). 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 not a bar to EPA action 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 (TSCA) . 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 licrht of the fact that this is a RCRA
facility.
Finally, you asked whether EPA's authority to address these
wastes under RCRA is tied to any particular date. We do not
believe that dates are relevant to the applicability of RCRA
corrective action authorities, since sections 3004(u) and 3007
clearly have no such limitations.
1 In addition, CERCLA section 104 (e), which covers "hazardous
substances", also could be used here.
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We hope that you find this information helpful. Please
contact David Pagan at (703) 308-8620 if you have any questions,
cc: M. Hale
D. Barnes
B. Pace
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VIII
999 18th STREET - SUITE 500
DENVER, COLORADO 80202-2466
OCT i 3 I394
Ref: 8HWM-HW
SUBJECT: Infectious and/or Genetically Engineered Waste
FROM: Robert L. Duprey, Director
Hazardous Waste Management
TO: Michael H. Shapiro, Director ^ v
Office of Solid Waste
We are requesting clarification of the extent of EPA's
authorities pertaining to the Dugway Proving Ground (DPG) ,
Department of Array facility, in Tooele County, 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 permit. DPG has a RCRA storage permit and
is subject to corrective action.
DPG 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. (About 30 years ago, DPG had
several sheep kills from some type of experimentation it was
conducting.) Chemical agents have 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 management units at the facility, and we are doing so.
Pathogens, non- pathogens, and other biological agents were
probably experimented with at DPG. Waste from these experiments
were disposed on-site and perhaps off -post. Under RCRA" §1004 (5)
the Agency has statutory authority to address infectious
charateristics waste, but no regulations 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, has
expired, and so it is no longer germane to our concerns.
/Wnrtrf an Rtcyciid P»p*r
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we are requesting clarification as to whether tne Region
has the authority to require the submittal of information from
DPG under § 3007 of RCRA, regarding the types of
biological/infectious waste material handled and disposed by DPG.
We also need confirmation that we do have the authority under
§ 3004 (u) and (v) and elsewhere in RGRA to address human health
and environmental concerns from any improper or mishandling of
these types of infectious waste materials.
Further, the Toxics Substances Control Act (TSCA) has given
to EPA the authority to regulate genetically engineered
organisms, even though our application of this authority has been
minimal. DPG may have experimented with genetically engineered
biological materials. Does TSCA provide EPA vith authority to
pursue investigation of the disposal of genetically engineered
wastes? Can these materials be regulated under RCRA as an
infectious waste? If yes, does our authority begin with the
passage of RCRA in 1976 or with the inception of the hazardous
waste program on November 19, 1980?
We recognize that we are asking difficult questions, but our
concern is real. Even though DPG is in a remote, desert area in
Utah, we still want to have the facility meet a clean-up standard
that is protective of human health and the environment If only
chemical waste can be addressed by the Agency, then we may be
leaving potential human health and environmental concerns
unaddressed from biological and genetically engineered organisms.
We don' t know if DPG has any problem from, the mismanagement of
these types of waste materials, but we need clearly defined
authority to be able to ask the questions and effect remediation
as necessary.
Your assistance in clarifying the extent of these statutory
authorities will be appreciated. Please call Larry Wapensky
(303) 293-1509 if you have any questions.
CC: D. Downs tJDEQ
M. Grey UDEQ
M. Strauss EPA EQs
L. Goldman EPA HQs
S. Herman EPA HQs OECA
S. Wuerthele EPA
P. Hull EPA
S. Zawistowski EPA
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FILE COPY
UNITED STATES ENVIRON MENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
FEB281995 9441.1995(07)
OFFICE OF
SOLO WASTE AND EMERGENCY
RESPONSE
Mr. John McNally
Coll, 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)(l) 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 choos.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.
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You may also be interested to know that EPA has developed a
new streamlined regulatory system for used batteries and other
waste streams generated by non-households, which we call
"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
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COLL DAVIDSON CARTER SMITH SALTER & BARKETT
JAMIE L. ANDERSON
JOHN M. BARKETT
FRANCIS U CARTER
NORMAN A. COLU
MICHAEL J. COMPACNO
TED C. CRAIG
BARRY R. DAVIDSON
YALE d FISHMAN
MICHAEL J. HIGER
JOHN J. MCNALLY
JIMMY L. MORALES
GARY M. MURPHREE
DARRELL w. PAYNE
VANCE E. SALTER
HARRIS C. SISKINO
RICHARD C. SMITH
SHERRY A. STANLEY
COURTNEY B. WILSON
PROFESSIONAL ASSOCIATION
ATTORNEYS AT LAW
32OO MIAMI CENTER
ZOI SOUTH BISCAYNE BOULEVARD
MIAMI, FLORIDA 33131-2312
(305) 373-S200
TELECOPIER <3O5) 37<-7Z»e
PHYLLIS SHAMPANIER
or COUH*CL
Februaiy 13, 1995
VIA FACSIMILE (202-260-0225)
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)
hazardous waste regulatory requirements apply to the handling, shipment and disposal of
household appliance components removed from residences during routine maintenance and
repair services. I have been in contact with representatives of several EPA region offices to
address this subject as the activity involves removal of appliance components from
households in numerous states 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
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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 tLis component would
be considered within the RCRA household waste exemption and not subject to the RCRA
hazardous 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.
Sincerely,
JJM:mag
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1995(08)
f |995 GENERAL COUNSEL
MEMORANDUM
SUBJECT: Applicability of the Bousehold Waste Exclusion
to Lead-Contaminated Soil
FROM: Lisa K.
Associate General Counsel
Solid Waste and Emergency Response Division (2366)
TO: Pamela A. Hill
Deputy Regional Counsel
Region I
jBackcrround
Your staff has asked us whether the household waste
exclusion in 40 CFR S 261.4(b)(l) applies to lead-contaminated
soil in residential yards that exhibits the hazardous
characteristic of toxicity. (See Margery Adams, Senior Assistant
Regional Counsel, Memorandum to Larry Star field, Assistant
General Counsel for RCRA (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. Id^ 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.
Issue
Do lead-contaminated soils in residential yards that exhibit
the toxicity characteristic fall within the household waste
exclusion in 40 CFR 261.4(b)(l) such that the soil would not be
subject to RCRA Subtitle c regulatory requirements?
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Conclusion
If the 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)(l), even if the soil exhibits the
characteristic of toxicity under 40 CFR S 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 RCRA
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
(Hay 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. See 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)(l).
Although the definition of household waste does not indicate
whether a waste is household waste as a result of the place of
generation, e.g.. a residence, or as a result of who generated
it, e.g.. a resident of a household, EPA limited the exclusion's
application to those wastes which meet two criteria: (1) the
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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 (Kov. 13, 1984).1 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 exclusion no longer
applies. 45 Fed. Reg. 33084, 33099 (Hay 19, 1980).
In applying these criteria to circumstances analogous to
those discussed in your April 7, 1993 memorandum, this office has
previously taken the position that lead-contaminated paint chips
resulting from stripping and re-painting of residential walls by
a homeowner or a contractor2 (as part 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)(l), 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).
1 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.
5 This office's oral 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
Hotline Report - March 1990, RCRA Question 6. (Attached.)
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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:
...contaminated media and debris generated from residential
heating oil tanks are "household wastes" under 40 CFR
261.4(b)(l). 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 heating oil tanks are not hazardous wastes
under subtitle C of RCRA.
Id. at 8505 (emphasis added).
Given these .existing EPA positions on the reach.of 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 environmental 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 also 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 RCRA
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 consumers in their homes").
4 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, including-hazardous household waste,
at municipal solid waste landfills. 'The original "open dumping"
criteria (40 CFR Part 257) promulgated under RCRA sections
1008(a)(3) and 4004(a) 'are not applicable to "backyard" disposal
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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 generation,
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, please contact Andy Gordon at
(202) 260-3596.
Attachment
cc: Mike Shapiro, OSW
David Bussard, OSW
Regional Counsel RCRA Branch Chiefs, Regions I - X
RCRA Branch Chiefs, Regions I - X
David Nielsen, OECA
Joe Carra, OPPT
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FILE COPY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
-8 1935 9441.1995(09)
OFFICE OF
Mr. Jack H. Goldman SOLD WASTE AND EMERGENCY
. , . . , _ , . RESPONSE
Morgan, Lewis, and Bockius
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 inis information is useful to you.
Sincerely,
Michael J. Petruska, Chief
Regulatory Development Branch
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JACK H. GOLDMAN
December 6, 1994
Mr. Michael J. Petruska
Chief, Regulatory Development Branch
Office of Solid Haste
U.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 this letter is to confirm that
the Agency's'policy with regard to 40 C.F.R. § 261.4 (c), as
stated in a November 4, 1987 memo from Thea McManus (copy
attached) ,V is still in effect. I represent a company that has
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 trying to ascertain the applicable
deadlines for removing the hazardous waste from the tanks and
shipping the waste off-site for treatment or disposal.
Hazardous waste in product or raw material storage
tanks, in "manufacturing process units," and in "non-waste-
treatment -manufacturing units" (collectively "MPUs") is currently
exempt from applicable hazardous1 waste regulations at 40 C.F.R.
Parts 262-265, 266, 270, 271, and 124 until the waste is removed
from the MP0 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 1987 memorandum, is that after the passage of ninety
days, the waste is subject to the hazardous waste management
I/ U.S. Environmental Protection Agency, memorandum from Thea
McManus, "Final Monthly Report -- RCRA/Superfund Industry'
Assistance Report for August 1987," at 6-8 .(November 4,
1987) (hereinafter "Hotline Memorandum").
2J 40 C.F.R. S 261.4 (c) (1993).
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?SOK MOBGAN. LEWIS & BOCKIUS (IED) 12.07' 94 17: 7:08/NO. 3560556265 P 3/14
MOKOAN, Lewis £ BOCKIUS
Mr. Michael J. Petruska
December 6, 1994
Page 2
regulations and may then be stored on-»ite without a permit or
interim status for an additional ninety days pursuant to the
accumulation rule at 40 C.F.R, 5 262.34(a) .^ 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 extinction, 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.R. 5 261.4 (c) can continue to
remain in that un^t for up to an additional ninety days under the
ninety-day accumulation rule at 40 C.F.R. f 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 (a) are met,
including that the tank complies with all applicable requirements
for tanks at 40 C.F.R. 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.
K. Goldman
I/
Enclosure
Hotline Memorandum, supra note 1; personal communication,
Michael Petruska, Office of Solid Waste (November 1994)
(enclosed).
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
MAR 8 1995 9441.1995(10)
OFFCEOF
SOUO WASTE AND EMERGENCY
RESPONSE
Mr. Christian M. Richter
Washington Representative
American Foundrymen'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 meetings between representatives for the American
Foundrymen's Society (AFS) and the U.S. Environmental Protection Agency (EPA) on the regulatory
status of spent foundry sand under the Resource Conservation and Recovery Act (RCRA). Thank 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 hazardous wastes within the sand loop and at what point do they become
wastes, and 2) what is the regulatory status under RCRA of the type of thermal reclamation units
discussed at our meeting, which are used to remove clay and resin binders from spent sands prior to
reuse in mold making. The opinions expressed below are based on your general factual description
and thus necessarily 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 at which the mold is broken and the sand is separated from the casting at
the shakeout table. These solid wastes are also hazardous wastes if they exhibit the characteristic of
toxicity for lead or other hazardous constituents specified at 40 CFR 261.24. Moreover, the process
of separating bits and pieces of metal, fines, core sand butts and other clumps of mold sand at the
shakeout table and screen to create return sand (for reuse in the moldmaidng process) is a reclamation
process. As we stressed at our last meeting, because the recycling process is generally exempt from
RCRA regulation, the Agency believes 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 reclamation processes for
foundry sands will not subject foundries to any substantive requirements. Regarding the regulatory
status of the type of thermal reclamation units discussed at our November meeting, EPA believes that
these units are incinerators, which are subject to RCRA Subpart O standards under 40 CFR Parts 264
and 265.
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The balance of this letter: 1) describes the foundry process and foundry sand management, 2)
presents the basis for our regulatory analysis, 3) states EPA's belief with regard to foundry sand
waste fnanagement, 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 understanding between EPA and
AFS members.
1. Description of Foundry Processes/ Overview of Spent Foundry Sands Management
A. Description of Foundry Processes
Based on prior correspondence from representatives of AFS member companies and materials
subrvtted to EPA by AFS during our November 16th meeting, our understanding of the typical
foundry process is as follows. Foundries are facilities where ferrous and non-ferrous metal castings
are produced. The metal castings are produced from sand molds and cores which have been formed
in a separate moldmaldng process. The sand molds and cores are 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
castings at a table referred to as a "shakeout table".
In the process of breaking me molds, several things occur simultaneously. First, the casting
r separated from the broken mold and core and sent off for cleaning. Second, sand fines become
airborne and are typically collected under negative pressure in a vacuum aspiration tube located
proximately to the shakeout table. These fines may be wetted and deposited into a tank where iron is
added in an attempt to fix lead in the fines prior to disposing of mem in municipal landfills or on-site
industrial landfills. Third, the broken molds are placed into a reclamation process consisting of a
vibratory drum with perforations and a series of conveyors and screens.
Sand (hereafter referred to as return sand) which passes through the drum and screens is
returned to the moldmaldng process to be used to make new molds. The entire process of making
sand molds and reclaiming return sand for producing new molds is referred to as the sand loop.
Some chunks of sand from the broken molds and cores cannot be broken down and are too
large to fit through the drum/screening process. This sand together with bits and chunks of metal
(referred to as tramp metal), is removed from the screening process and sent to a ball mill where the
mixture is milled and remaining metal is removed for reinsertion into the casting process or sold for
recycling. Iron may be added to the clumps of sand prior to or during the milling process in an
attempt to fix lead in the sand. The milled sand is then sent to a municipal or on-site industrial
landfill.
B. Overview of Spent Foundry Sand Management
As you mention in your incoming letter to EPA, AFS estimates that 100 million tons of sand
used to make molds in the ferrous and non-ferrous foundry industry and that approximately 94
percent of these sands are reused within the industry. In an April 26, 1993 article of American
Metals Market. AFS is quoted as estimating mat only about 4 percent, or 240,000 tons of the
estimated 6 million tons of discarded foundry sand are hazardous waste. The article indicates that this
is particularly a problem with manufacturers of leaded brass. However, Dan Twarogi AFS Director
of Research, indicatffd in this article that contamination of foundry sands "is not a huge problem".
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Based on data submitted to EPA by brass foundries, most spent foundry sands which are
hazardous 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 Canada reported that the sand
exhibited the characteristic of toxicity for cadmium. D006.
2. RCRA Subtitle C Regulatory Starus of Spent Foundry Sands and Thermal Reclamation Unit
As stated above, AFS has raised two particular issues for EPA's consideration: 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. Each of these issues is discussed in turn.
A. Regulatory Status Under RCRA 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
being "reclaimed,' 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 stakeout table. At this point, the used sand contains contaminants, such as chunks of brass, fines,
and hard lumps of sand, that must be removed from the sand prior to its reuse in the making of
molds. Thus, the used sand is a "spent material" because it is no longer fit for its original use
without further processing. 40CFR § 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 clay-coated mold sand,
fines, and metal pieces appears to be a "reclamation process." 40 CFR § 261.l(cX4).
When the spent sands enter the shakeout process, they are reclaimed through regeneration,
which involves the removal of contaminants, tnc^irijng 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. Indeed, the Agency has so held on very similar tacts, fe the
Matter of Lee Brass Company. RCRA Appeal No. 87-12 (August 1, 1989). EPA also determined on
January 6, 1986 mat spent foundry sands being reclaimed are solid and hazardous wastes, in
correspondence to Mr. John Robbins, a project chemist for Kohler Co., about one year after the final
rule amending the definition of solid waste was promulgated (see enclosure).
Once die return sands are completely reclaimed, removed from the reclamation process, and
are being returned to the moldmaking process, they cease to be wastes and are no longer under
RCRA jurisdiction. 40 CFR §261.3(cK2Xi). The portion of spent sand which is not returned to the
mold making process remains a solid and (if hazardous) hazardous waste.
Because this mechanical process of screening and separating hazardous spent foundry sand is
a reclamation process, it is generally exempt from regulation under RCRA. 40 CFR § 261.6(c)(l)
(exempting actual recycling processes from regulation unless otherwise specified).
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However, with respect to the portion of foundry sands that is removed from the reclamation
process and is not beneficially reused, foundries remain subject to all applicable RCRA standards for
managing these materials under 40 CFR Part 262. These standards include manifesting and standards
for storage in tanks, containers, drip pads and containment buildings, as set out in Section 262.34. In
addition transporters of these hazardous wastes are subject to 40 CFR Part 263. Furthermore,
foundries that treat these hazardous wastes in conformance with these less-than-90-day storage
provisions would not be subject to RCRA permitting requirements. Our expectation is that operating
foundries should be able to operate in ways such that they do not trigger requirements for RCRA
permits pursuant to the Federal regulations.
EPA's views about the point of generation for jurisdiction purposes do not imply that we
believe tfat the non-thermal reclamation process of screening and separating sand following the
separation of. the casting requires a RCRA Subtitle C permit. When this screening and separation of
sand is pan of a reclamation process, it is exempt from RCRA Subtitle C regulation. 40 CFR
261 .6(cXl). Nor does this opinion imply any belief on the pan of the Agency that state regulation
under Subtitle D of RCRA is warranted for nonhazardous foundry sands undergoing reclamation.
The scope of our regulatory concern is limited to foundry sands which are considered
characteristically hazardous under Subtitle C of RCRA.
Notwithstanding these points, EPA cannot agree that the point of generation occurs after the
sand raold is separated from the casting. The AFS interpretation, that foundry sands are generated
after processing at the shakeout table, would have two adverse effects mat are potentially damaging to
health and the environment.
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 sand 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 hazardous waste. This argument would be based on the assumption that they were
"generated" after the addition of iron, possibly masking the toxicity characteristic for lead. It would
follow that these foundries would not be subject to standards required for hazardous waste generators
treating characteristic wastes in tanks, notwithstanding mat they are engaged in a classic treatment
activity. Moreover, these iron-treated sands would not be subject to Land Disposal Restriction
treatment standards, thus possibly avoiding effective immobilization of the hazardous constituents in
the sand fines. As we noted in our February meeting, for more discussion of the relationship between
land disposal restriction standards and die process of adding iron filings to spent foundry sands,
please see 60 FR 11702, 11731 (March 2, 1995).
The second effect of arguing that foundry sands are generated as wastes after their processing
at the shakeout table would be to allow some foundries to incinerate hazardous sands "prior" to the
generation of hazardous waste so that they may claim mat the hazardous waste treatment activity is
not regulated. Regardless of any attempt to conduct unregulated treatment, however, the Cut remains
that foundry sands are spent materials being reclaimed from the moment that they are separated from
the castings.
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AFS has argued that EPA is without jurisdiction to regulate spent foundry sands being
reclaimed because the sand is "part of the industrial manufacturing process." However, courts have
held that secondary materials which either: I) 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 pan of the waste disposal problem and is subject to £PA's
jurisdiction. See American Petroleum Institute v. EPA. 906 F.2d 729 (D.C. Cir. 1990); American
Mpine Congress v. EPA. 907 F.2d 1179 (D.C. Cir: 1990XAMC II).
B. Regulatory Status Under RCRA of Thermal Sand Reclamation Units
For the reasons discussed below, me type of thermal sand reclamation 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 Parts 264
and 265, Subpart 0.
We understand that this type of thermal treatment unit consists of a combustion chamber that
holds the spent sand and a firebox chamber immediately below, in which hot gases are generated by
the combustion of natural gas. The two chambers are separated by a refractory membrane through
which hollow ceramic tubes and "T" nozzles allow the hot combustion gases to move from die
firebox to the combustion chambers. The flow of hot gases through .the spent sand causes me
combustion chamber to operate as a fluidized bed. Controlled flame combustion of the organic resins
occurs in the fluidized bed. As a result, the organic resins, binders and solvents are destroyed.
Under the Agency's regulatory regime, thermal treatment devices are classified as either
boilers, industrial furnaces, incinerators, other interim status thermal treatment units, or miscellaneous
permitted treatment units. Definitions of a boiler, industrial furnace, and incinerator are provided in
40 CFR § 260.10. If a thermal treatment device does not meet the definition of boiler or industrial
furnace, it is classified as an incinerator if it uses controlled flame combustion; if it does not, it is
either an interim status thermal treatment unit (Pan 265 Subpart P) or a miscellaneous permitted
treatment unit (Part 264 Subpart X).
The thermal sand reconditioning device you presented 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 whether the device should be regarded as either an incinerator or a miscellaneous/other
treatment unit.
Given mat the device uses controlled flame combustion to burn natural gas and that the
combustion gases are exhausted into the combustion chamber containing the spent sand, the device
should be classified as an incinerator. Among other 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 contaminants; and (2) the
temperature would be controlled by nwh^aHng the natural gas burner in the firebox, or, in some
designs, burners in the combustion chamber itself.
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AFS has maintained that because, in its opinion, sand which is part of the sand loop is not
discarded and therefore not a solid waste, that spent foundry sand 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 pan 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 not fit 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 pan of the waste management problem because of the tact that incinerators are a type of
treatment technology which clearly engages in waste management. In this regard, the placement of
hazardous foundry sand into a thermal combustion unit is analogous to the placement of secondary
materials into surface impoundments. Both activities may result in the release of hazardous waste to
the environment if improperly managed. AFS' argument mat mis type of thermal reconditioning unit
is simply reconditioning sand for reuse in the moldmaking process ignores the tact 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 dioxins and turans, as well as
volatile metals such as lead and cadmium, makes clear that management activities using these units
can be viewed as part of the waste disposal problem. In addition, the build up of metallic lead in the
resulting s*nd in a more teachable form likewise supports this conclusion. Thermal waste treatment
units such as incinerators, like surface impoundments, are a central focus of the RCRA program.
RCRA Section 3004
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A. Landfill Disposal of Spent Foundry Sands; Treatment of Lead-Contaminated Sand With 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 kx.p in some foundries
and disposed of in landfills. For those foundries whose sand contains hazardous constituents, such as
lead, cadmium and organics, the Agency has a st^rg interest in seeing that these sands are properly
managed. Left untreated, lead-contaminated sanc.s may result in releases to groundwater, possibly
threatening nearby drinking water wells. Improper L^oosal of untreated hazardous waste has
historically led to many landfills becoming Superfund sites. Thus, when foundry sands exhibiting the
hazardous 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 hazardous waste
remediation sites.
Effective treatment for hazardous waste being land disposed must assure the long-term
immobilization of hazardous constituents to minimize potential short and long term threats to human
health and the environment. RCRA Section 3004(m). We understand that some foundries attempt to
treat their hazardous waste foundry sand with iron filings prior to land disposal, in an effort to reduce
the teachability of the hazardous constituents (typically lead) so that the waste can be land disposed.
EPA is concerned, however, that the addition of iron filings to lead-contaminated foundry sands is
ineffective as a long-term treatment method and that it could constitute impermissible dilution under
40 CFR §268.3.
In developing the Land Disposal Restriction program 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 setting section 3004
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8
We believe that these three types of environmental concerns address your question of how we
could consider the sand being reclaimed for further on-site use to be pan of the waste management
problem. These concerns underlie the existing regulatory structure which we believe classifies the
sands after their ''.se in the casting process as a "spent material," which is being "reclaimed" prior to
reuse.
4. Compliance Assurance and Industry Outreach
We understood you to say to us that some members of the industry do not think of the
foundry sands being reconditioned and reclaimed for reuse on-site as a "waste" being managed at the
foundry. If that is the case, there may be a need to work with you to change practices within the
industry. We hope 'hat the American Fouodrymen's Society and other groups would be willing to
help us with that task and that we can organize the resources within EPA to work with you on
bringing about that change.
Conclusion
If you have any questions regarding the status of foundry sands as solid and hazardous wastes
under RCRA, please call Michael Petruska of my staff at (202) 260-8551. If you have any questions
about the status of thermal reclamation units under RCRA as incinerators, please contact Robert
Holloway of my staff at (703) 30S-846I. Again, we appreciate your patience in arranging for the
and your coming to Washington to discuss the issue with us.
Sincerely,
Enclosure
»iro, Director
>lid Waste
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AMERICA* FOUHDRYUEHS SOCIETY, INC
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October 31, 1994
Mr. Michael Shapiro, Director
Office of Solid Waste, M2101
USEPA Waterside Mall
401 M Street S.W.
Washington, D.C. 20460
Dear Mi. Shapiro:
Representatives of the American Foundrymen'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 foundries. We are
concerned that Region 6 has seriously misapplied current USEPA
regulatory policy regarding solid waste and recycling under the Resource
Conservation and Recovery 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 primary 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 regarding the agency's
application of RCRA solid waste and recycling policy to metalcasttug
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 aDoys - 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
HAI
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IL POLICY RAMIHCATIONS
Sand reuse by foundries - a conventional industry practice - is an integral part of the
production process. Not only is regulatory control of this extremely low-risk component
of production unnecessary, but from a practical standpoint, constraining or regulating
sand reuse under RCRA only encourages disposal - not recovery - of high volumes of
raw material
The Region 6 approach to sand reuse under die RCRA regulatory framework is a wholly
novel interpretation of the law. If allowed to stand, ft could have dramatic consequences
for foundries nationwide, particularly small facilities (80 percent of the nation's foundries
employ fewer than 100 employees).
m. ACTION NEEDED
We do recognize the agency's interest in constraining certain recycling practices and
mismanagement of materiak Accordingly, we would like to discuss with you the
regulatory status of foundry sand at various points in the metakasting 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
program. In fact, it has never occurred to us, nor EPA staff with whom we have
interacted, that sand is a soh'd waste when reused in ongoing, onrite .production 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 appreciated. We have sent a similar letter
to Mr. Bussard, and will be contacting your office to arrange a convenient date and time
to meet
Christian M. Rkhter
AFS Washington Representative
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%
UNITED STATES ENVIROKIAEhfTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
HAK 2 2 ISS5
9441.1995 (Hi
MEMORANDUM
SUBJECT: Revised Implementation Strategy for City of Chicago v.
EDF Municipal Waste 'Combustion (MWC) Ash Supreme Court
Decision / - •**•• _,
FROM: Elliott P. Laws
Assistant Adaini«stra.tjDr for Solid Waste
and Emergency'' Response (OSWER)
. ,> &>
Steven A/.Heonan
Assistant ftdminastrator for Enforcement
and Cofnpiiance Assurance (OECA)
TO: Regional Administrators (Regions I-X)
Baekqxound
Supreme Court Decision
On May .2, 1994, the U.S. Supreme Court issued the opinion in
Citv of Chicago v.. EDF. _ 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 resource
recovery facilities (,j.e. , waste- to-energy facilities burning
household wastes and nonhazardous commercial wastes) that
exhibits a hazardous waste characteristic -is not exempt from the
hazardous waste requirements .of RCRA .Subtitle C. " The Court's
decision took effect as a matter of federal law on June I1, 1994.
It makes eligible for regulation a waste that, under EPA's prior
interpretation of RCRA, Was exempt fronv Subtitle C.
Recent EPA Actions
1. Implementation Strategy
On May 27, 1994, the Assistant Administrators for OECA and
OSWER issued an implementation strategy for the City of ^ Chicago
v. EDF decision to the Regions. This initial strategy intended
to bring waste-to-energy (WTE) facilities affected by the
decision into compliance- with RCRA Subtitle C as quickly as
possible. In addition, th« strategy stated that EPA would
xevisit it within S months. D£ its issuance. Xhe purpose of this,
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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 Jurisdiction for
MWC Ash
In the City of Chicago v. EOF case, the .Supreme Court, issued
a narrowly focused opinion holding that $ 3001 (i) does not exempt
ash generated by WTE facilities. • The Court, however/ failed to
reach the issue of the precise point at which regulation of ash
must begin, and § 3001(i} does not expressly address the issue.
In an effort to address the issue, EPA recently published (a
Notice of Statutory Interpretation entitled "Determination jof
Point at Which Subtitle C Jurisdiction Begins for Municipal Waste
Combustion Ash at Waste-to-Energy Facilities" (60 FR 6666,
February 3, 1995).
As discussed in the .Notice of Statutory. Interpretation, EPA
believes it is reasonable to interpret S 3001 (i) of RCRA 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 vhich
the Land Disposal Restrictions will begin to apply) is the point
at which ash exits the combustion building following the
combustion and air pollution control processes.. We emphasize
that EPA's decision on the appropriate location to make the
hazardous waste determination for WTE ash is uniquely based1 on
the Agency's interpretation of RCRA § 3001 (i). EPA's analysis
and conclusions are not relevant to facilities that do not fall
within the scope of RCRA S 3001(i).
Nearly every resource recovery facility is configured
differently. In several instancesf these facilities are not
confined within a single' structure enclosed by four walls. A few
facilities, in fact, exist where the combustion device is not
enclosed at all within a building structure. Ho< «v x, in WJTE
facilities where the ash always moves between' structures in
enclosed conveyors, such configurations would fall within the
common sense meaning of the "resource recovery facility11 that
Congress exempted in S 300l(i). These configurations -are
illustrated in examples one through three, below. In contrast,
in the fourth example, ash is exposed to the environment rajther
than in an enclosed system. The definition of "resource recovery
facility" does not include ash' handling operations allowing
exposure to the environment.
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Example l. Many resource recovery facilities automatically
convey, via enclosed conveyor, the fly ash collected at various
locations {including any air pollution control equipment such as
the acid gas scrubbers, baghouse filters, and electrostatic:
precipitators that may exist outside the building where the"
combustion device is located but are connected to the building
via enclosed conveyors) to a quench tank within the combustiion
device building where it is combined with, the bottom -ash. The
combined ash is then loaded into .trucks for direct transport to
an off-site disposal facility. In this example, the "resource
recovery facility0 is composed of the combustion device buillding
the air pollution control equipment, and the enclosed conveyors.
The point at which RCRA hazardous waste jurisdiction would -begin
for these facilities would be the point where the ash exit's the
building housing the combustion device,
Exantple 2. Several resource recovery facilities collect, the
bottom ash and the fly ash separately and convey these two |ash
types separately via enclosed conveyors to an ash building 'where
the two ash types are then mixed and loaded into a transporjt •
vehicle for off-site disposal. 'The ash building'may abut tie
combustion device building, or it' may be separate "from the
combustion device building but connected by.enclosed convenors.
In this example, the "resource recovery facility" is. composed of
the interconnected combustion device building, the air pollution
control equipment, the ash building, and the enclosed conveyors.
The point at which RCRA hazardous waste jurisdiction would begin
for these facilities would be the point where the ash exits the
ash building.
Example 3. A few resource recovery facilities exist where -the
combustion device is. not housed within a building. In these
instances, the combustion device, the a-tr- pollution .control;
equipment, the proximate enclosed ash handling areas, and the
interconnecting enclosed conveyors constructively constitute the
"resource recovery facility." Thus, if fly ash and bottom lash
were handled in an enclosed- system that operates in the same
manner as if a building existed and the fly ash-and bottom ash
"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 RCRA hazardous waste jurisdiction would begin
would be the point where the combined ash exits the last enclosed
ash management unit that is located proximate to the combustion
device.
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Example 4. Some resource recovery facilities nay collect bottom
ash within the building housing the combustion device and collect
the fly ash outside the combustion device building in a manner
that exposes that ash to the environment; for example, in r|oll-
off containers. In these instances, the "resource recovery
facility" is composed of the building housing the combustion
device a.s veil as the air pollution control equipment. In this
example, RCRA hazardous waste jurisdiction begins at the two exit
points from the "resource recovery facility,11 specifically,, at:
(1) the point where the bottom ash ultimately leaves the
combustion device building and (2) the point vhere the fly -ash
becomes exposed to the environment as it is discharged from the
air pollution control equipment into open roll-off containers.
The-WTZ facility operator would thus make a hazardous waste
determination at each location. Should the operator determine
that cither the bottom ash or fly ash is hazardous, management of
that ash would have to be conducted pursuant to RCRA Subtitle c.
If you have any questions about EPA's § 3001 (i)
interpretation, please contact Andrew Teplitzky (703-308-7275) or
Allen Geswein (703-308-7261) of OSWER, or Kate Anderson (202-564-
4016) or Andrew Cherry (202-564-5011) of OECA.
Revised Inplenentation Strategy
1. Overview
In the May 27, 1994 implementation strategy, EPA
acknowledged that, for economic and technical reasons, it vjould
be difficult for affected facilities to immediately, comply .with
the City of Chicago v. EOF decision and all applicable RCRA
Subtitle C requirements. In recognition of this difficulty, EPA
adjusted its enforcement priorities for three months for
facilities to implement 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. . Through
these actions, -EPA has demonstrated a commitment to working with
states and the regulated universe to phase affected facilities
into compliance with Subtitle C with minimal disruption of. ji/aste
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 Crtv of
Chicago y. EOF decision and its ramifications for the management
of hazardous ash. since all WTE facilities should now have
programs in place to make hazardous waste determinations of 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.
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2. situations Presenting1 Potential Health and Environmental
threats and Releases of Hazardous Constituents
In all circumstances, when considering appropriate
enforcement responses for potential violations of Subtitle C,
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 and the environment.
Regions should, of course, bring actions, pursuant to RCRA S
7003, upon information that improper handling of any ash (whether
it is hazardous or not) may present an.imminent and substantial
endangerment. In addition, Regions should evaluate whether
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 RCBA Section 3008faT
As discussed above, EPA now. expects all generators to have
in place an effective hazardous waste 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 characteristic 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 implementation strategy allowed any WTE
facility to sample and test combined bottom ash and fly ash, the
Agency's recent § 3001(i) interpretation of "resource recovery
facility" may now require some WTE facilities to make separate
l. On Kay 24, 1994, OSW 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 Register Notice
of Availability requesting comment.on the draft (59 FR 32427,
June 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 1995
EPA continues to encourage the use of the draft (and when
finalized, the final) •"Sampling ***** Analysis of y*""*^*p»T Ac£ns<
TTVP
-------
determinations on the fly ash and bottom ash. £?A will very-
likely regard as ST. indicator of environmentally irresponsible
management of hazardous ash (which may warrant an enforcement
action under RCRA § 3008 (a)) any failure to implement./ within 75
days of the date of the February 3, 1995/ interpretive notice (60
f_R 6666), all modifications to existing hazardous waste
determination programs necessary to allow, separate hazardous
waste determinations for fly ash and bottom ash. . During the
first 75 days/' however, environmentally sound management of ash
in accordance with the results of combined testing is unlikely to
merit an enforcement response.
If you have specific questions as to the appropriate
enforcement response for a particular situation, please contact
Mark Pollins (202-564-4001) or Kate Anderson (202-564-4016) of
OECA-RCRA Enforcement Division.
Thank you-for your continued support in ensuring the-proper-
management • of hazardous WEE ash. If 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 OECA-Office of Regulatory Enforcement, Andrew Cherry-
(202-564-5011) of OECA-Office of Compliance, or Audrew Teplitzky
(703-308-7275) of OSWER-Office of Solid Waste.
cc: Scott C. 'Fulton, OECA
Tim Fields, OSWZR
Robert Van Heuvelen, OECA/ORE
Elaine G. Stanley, OECA/OC
Earl Devaney, OECA/OCE
Michael Shapiro, OSWER/OSW
Regional Counsel (I-X)
Regional Waste Management Division Directors (I-X)
Regional Counsel Branch Chiefs (I-X)
Regional Waste Branch Chiefs (I-X)
Sus an'Bromm, OECA/OC
Susan O'Keefe, OECA/ORE
Bruce Weddle, OSWEX/OSW
Dev Barnes, OSWER/OSW
Lisa Friedman, OGC
David Nielsen, OECA/ORE
Mark Polling, OECA/ORE
Gary Jonesi, OECA/ORE
Mimi Guernica, OECA/OC
Terrance Grogan, OSWER/OSW
Jon Silberman, OECA/ORE
Andrew Cherry, OECA/OC
Kate Anderson, OECA./ORE
Andrew Teplitzky, OSWER/OSW
Allen Geswein, • OSWER/OSW
Tina Kaneen, OGC
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HOTLINE QUESTIONS AND ANSWERS
9441.1995(12]
March 1995
RCRA
4. Definition of Formerly Bevill Exempt
Wastes
According to 40 CFR §268.1 (e)(3), wastes
identified or listed as hazardous waste after
November 8, 1984, are not 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 ihe Bevill Amendment,
but lost that exemption are considered to be
newly identified and therefore not subject to
LDR until EPA promulgates standards '
specific 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, beneficiarion, and
processing of ores and minerals (including
coal), including phosphate rock, and
overburden for the mining of uranium ore"
(45 EE 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. 766 19). On
September 1, 1989, EPA published a final
rule that narrowed the scope of the
exclusion as it applies to mineral
processing (54 fjl 36592).
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 thai 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 13,199.1, 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 from the extraction/bcncficiation
of ores and minerals remain covered by
the exclusion generally, and are not subject
to Subtitle C.
EPA considers all mineral processing
wastes which are not currently listed in
§261.4(b)(7), to be newly identified wastes
and therefore not subject to LDR
requirements until treatment standards are
promulgated. Treatment standards for
these wastes are currently being developed
as pan of the court-ordered LDR Phase IV
Proposed Rule.
fte exclusion fbrfh.
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HOTLINE QUESTIONS AND ANSWERS
9441.1995(13)
March 1995
RCRA
3. Hotel Dry Cleaning Waste and the
Household Waste Exclusion
A hotel generates spen: solvents from Us
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 hotel dry cleaning
•wastes be excluded from RCRA Subtitle C
regulation as household waste?
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 nor 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 §26l.4(b)(l) (49 ££ 44978;
November 13,1984).
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* •..»
\m.
^t)—«^
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
? WASHINGTON, D.C. 20460
9441.1995(14
APR 12 1995
OFFICE OF
SOLD WASTE AND EMERGENCY
RESPONSE
Mr. John M. Adams, Jr.
Senior Attorney
American Electric Power Service Corporation
1 Riverside Plaza
Columbus, 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
waste1' 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, 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 6 261 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.
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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 garbage, refuse/ or other
discarded materials, including s 2! .id-waste materials resulting
from industrial, commercial, and agricultural operations, and
from community activities, but do&4 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 common
water pollutants,"
As noted on page 2 of the enclosed "First Report to Congress:
Resource Recovery and Source Reduction," delivered to Congress on
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 sweepings, and miscellaneous (e.g., sludge
disposal) (emphasis added).11
Based on this information, we would consider the scrubber
waste leaving the absorber vessel to be a sludge and a solid waste,
according to both the definition of solid waste included in the
Solid Waste Disposal Act of 1965 and EPA's current regulations.
If you have any questions or would like to discuss this matter
further, please contact me or Angela Cracchiolo of ay staff at
(202)260-0163.
Thank you for your interest in the safe and effective
management of solid waste.
Sincerely,
Michael Shapiro, Director
Office of Solid Waste
Enclosures
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FILE copy
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
? WASHINGTON. D.C. 20460
"""^ APR 20 895
9441.1995(15)
OFFCE OF
SOLID WASTE 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 provided at 40 CFR 261.4(c) for tanks,
vehicles, vessels, process or manufacturing units, or pipelines if
these units have been shut down for ninety'days. The letters also
request definition of when a material comes within the listing
description for K050 listed hazardous waste.
Regulations at 40 CFR 261.4(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-manufacturing 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 RCRA 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 transportation 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, except when in the case
where a tank, vessel, or unit ceases to be operated for its primary
purpose, in which case the perjlod starts when operation 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 TOt the Agency's Intent to regulate wastes in these
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Alyeska pifDdi
IBM SO/TXBRAGAWSTREET AWCHCfUCtAUSKAMMJ TBJEP*ONE<90r)27H«U.fAX»5-«U.T£LEi2to*.
December 23, 1994 APSC Letter #94-2663 G
Michael Shapiro
Director
Office of Solid Waste
US Environmental Protection Agency
401 M Street
Washington, D. C. 20460
SUBJECT: INTERPRE TA TION OF TIME OF GENERA TION OFHEA 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 terminal where the crude oil is loaded on tankers for transportation to
lower 48 states' refineries. As a part of TAPS, Alyeska operates three crude oil topping
units (COTJJ) at pump stations.6,8, and IQ.^The COTU distill fuel to operate pump
station machinery from the crude oil transported by TAPS. The COTU 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 this-waste type "heat exchanger bundle cleaning sludge from the petroleum
refining industry" (emphasis added) Alyeska wishes to clarify when K050, heaf 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 K050. 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.
-------
e
Changing to another matter, I ask you to respond to a letter, 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 Cadrington (sp?), of your staff, was
working on that request. Aiyeska would 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
(907) 265-8634, if you have any questions on this matter.
Sincerely,
W. J. Sweeney
Manager, Environment Depart
WJW:csp
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HOTLINE QUESTIONS AND ANSWFRS
9441.1995(16)
prill 995
RCRA
1. Status of Fossil Fuel Combustion
Waste Exclusion
In 1980, EPA temporarily exempted,
among other things, large volume fossil fuel
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 of fossil fuel 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-
fired 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 FR 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 arc produced in
conjunction with the combustion of coal, and
wastes generated by fluidized bed combustion
operations. Low volume coal combustion
wastes that are 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 tower 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.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1995(17)
OFFICE OF
tin/ O HV*r SOLID WASTE AND EMERGENCY RESPONSE
MAY -o 1995
Ralph J. Colleli, Jr., Esq.
American Petroleum Institute
1220 L Street, Northwest
Washington, 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
Organic Chemical Manufacturing Industry (SOCMI) Units
The recovered oil rule provides an exclusion from RCRA
regulation for oil that is recovered from "normal11 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 tzrom 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
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wastewater from these units is discharged into the refinery's
wastewater treatment system. According to API, the wastewater
from these units 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 SOCMI
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
refining 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
refineries, 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 refining'operations. The difference
in this case is that the petrochemical processes are located off-
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.
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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 refinery for recycling via
any route other than a shared wastewater treatment system (e.g.,
via truck, rail, etc).
B. Request for Reconsideration of Recovered 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
narrowly defined those pe-roleuir. 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 this error as soon as
possible given resource constraints.
2) Status of Primary Oil/Water separators 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.
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3) Status of Petroleum Refinery Cokers
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 under RCRA. This
review was prompted in part by concerns raised by API in response
to the recovered oil rule. Additionally, however, EPA is
reviewing the regulatory status of cokers 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
determinations on 14 specifically identified petroleum refinery
residuaxs. 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 wil]
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 yon may have.
Sincerely,
, ' Michaep. Shapiro, Director
4-
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The Gasification Unit
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 for under 40 CFR §261. 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 BIF standards set forth in 40 CFR 266, Subpart
H.
The Fe«dstocJc
Based on your presentation, the feedstock to be used in the unit
would include petroleum coke, other hydrocarbon streams and a number
of RCRA- listed hazardous wastes, including: API separator sludge
(K051), acid soluble oils (DO01 an DO18), 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 would
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)
5944.
Sincerely,
Q.
260-
Shapiro, Director
f Solid Waste
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HOTLINE QUESTIONS AND ANSWERS
May 1995
9441.1995(19;
RCRA
2. Restaurant Waste and the
Household Waste Exclusion
(§261.4(bX1))
Are restaurant waxes excluded from
RCRA Subtitle C regulation as household
wastes per 40 CFR $26L4(bX!)?
Wastes produced by restaurants are not
household wastes and therefore wiH not be
excluded from RCRA hazardous waste
regulation. The applicability of the household.
waste exclusion is based on two conditions:
the place of generation and die type of waste
generated. 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. Restaurants do not serve as
temporaiy or permanent residences for
individuals and therefore do not meet both of
the criteria for household waste and wifl not
qualify for the household waste exclusion (49
EB, 44978; November 13,1984). If however,
the restaurant is part of temporary or
permanent residence, the waste generated
would qualify for the household waste
exclusion as it would be generated on die
premises of a temporary or permanent
residence and be comprised primarily of
materials generated by consumers in their
homes.
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HOTLINE QUESTIONS AND ANSWERS
May 1995
9441.1995(20;
RCRA
1. Solid Wast* Determination for
SpllM Comnwrdai Chwnlcal
Products
According to 40 CFR $2612, Table 1,
haiardous commercial chemical products,
when recycled, are exempt from RCRA
because they are not solid wastes. If a
manufacturer spills a commercial chemical
product into the soil and intends to reclaim
the spill residue, is the spill residue exempt
from RCRA standards?
The latent to recycle a commercial
chemical product spill residue does not
exempt the material from RCRA jurisdiction.
In fact, EPA has stated that contaminated soils
and other cleanup residues generally axe solid
wastes because of the difficulty associated
with recycling wastes contained within
environmental media (54 £R 48494;
November 22.1989). Sometimes, however, a
spill residue can be returned to a process or
otherwise put to use, and thus remain exempt
from RCRA soadwdt.
In order todaaoBCrate that a spill residue
is not a solid MB, die generator has the
burden of proving that legitimate recycling
will take place. The Agency has adopted
objective considerations to evaluate a
generator's claim mat a spilled product will be
legitimately recycled. The length of time the
spill residue has existed is one such
consideration. In order to prove that
kgirimarr recydinfr will occur, a peneratoi
may also show that recycling has already
begun, the material is valuable, the material
can feasibly be recycled and/or the company
has recycled such material in the past (55 £K
22671; Jane 1,1990)..
la the absence of strong, objective
indicators of recycling or intent to recycle a
spill residue, "the materials are solid wastes
immediately upon being spilled because they
have been abandoned" (54 £R 48494;
November 22,1989). and must be managed in
accordance with all applicable RCRA
standards.
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FILE COPY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUh -5 1935 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 mercury-containing lamps. In your letter, you
reference two documents from our Agency that appear to provide
conflicting guidance on the status of lamp crushing 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 under 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 interpretation,
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
mercury-containing 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
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preamble is requesting comment on appropriate management
standards for mercury-containing lamps under the proposed
Universal Waste option. Management of lamps under the Universal
Waste rule would provide streamlined requirements for persons
generating, transporting or collecting hazardous waste lamps. As
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 two options
presented in the proposed rule for spent fluorescent lamps 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 technical issues. The Agency notes
that in light of the resources needed to finalize a rulemaking
for fluorescent lamps and the President's initiative 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 streamlines 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 .environment. 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.
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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 Meso.n
of my staff at (202) 260-5736. Thank you for your interest in
the safe recycling of hazardous waste.
Sincerely,
Michael Petruska, Chief
Regulatory Development
Branch
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ALABAMA N^S^'
DEPARTMENT OF ENVIRONMENTAL MANAGEMENT -%LJ
January 31, 1995
Mailing Address: . . _, . _.
•o BOX301463 Mr- Michael Shapiro, Director
MONTGOMERY At Office of Solid Waste
t£i30-i4&3 United States Environmental
Protection Agency
Washington, D.C. 20460
Governor
Fob James, Jr
751 CM*. W. I.
Mcfcimon Drive
tontgomtry.Al.
41M4CO*
2054271-7700
AX270-5612
Md Officer.
10 Vulcan ftMd
Jrmingham.AL
5709-4702
ZW) 942-616*
AXM1-1CO3
oo vwei street
.O.tox9&3
tecatur.AL
5*024953
105)353-1713
AX 340-935}
204 Perimeter Road
lObilt.AL
(£15-1131
205)450-3400
AX 479-2593
Dear Mr. Shapiro:
The Alabama Department of Environmental Management (ADEM) has recently
received correspondence from the Monsanto Company, Anniston 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.
The July 28, 1993 guidance states, in part, "..Jf crushing fluorescent lamps that
fail the toxicity characteristic is a necessary part of a legitimate recycling process, it
would not be subject to RCRA Subtitle C regulatory requirements except as specified
in 40 CFR 262.6(d). T*** finishing n^^ti** may occur at the generator's facility ^or
atihe recycler's facility and remain exempt under 40 CFR 261.6 (c)u. The letter goes
TSxfto address applicable storage requirements and OSHA standards, and the
Authorized states ability to regulate this activity, under a more stringent
interpretation.
As you know, the July 27, 1994, Federal Register Proposed Rule(59 FR 38288),
outlines management standards that may be adopted for mercury-containing
lamps. The first option would be to exclude mercury lamps from regulation as
a hazardous Waste and the second option would be to add them to the
Universal Waste i^posal (February 11, 1993. 58 FR 8102).
Contained within the July 27th Federal Register at Section IV (B) (2), next to
the last paragraph states in part, "... The Agency also requests comment on whether
generators or consoliflf^nn pftfcfa «fe™rftf fr» allowed to intentionally crush lamps Jo~
minimise volume for storage or shipment and what, if any, standards should be
imposed to protect against mercury *»!«*«*« Aajne crushing nr th* «/fr»/./pi*n£^
management of crushed lamps. The proposed unwersal waste management system
include*
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Page 2
January 31, 1995
Mr. Michael Shapiro
It would seem that, unlike the recycling exceptions provided for with load-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 legitimate recycling
facilities for processing mercury-containing lamps as an alternative to disposal.
However, in order to be equitable to all recyclers of hazardous waste ADEM
doesjiot befievelhar a less Strinpenfmanagement system exists under tbe^'
current Federal regulatory structure.^ At this time, ADEM is seeking ~~
^concurrence from EPA on this issue in order to provide consistent guidance to
generators and other facilities that wish to romm^n^ IflrnpTrrushing activities.
and which do not reclaim mercury vaiin»g as a fina| product. This is an
important regulatory issue and we would appreciate a response at your earliest
possible opportunity
Should you have any questions regarding this matter, please contact Mr.
Michael B. Jones at (334) 271-7989.
Sincerely,
Steven O. JeaJaio, Chief
RCRA Compliance Branch
Land Division
Enclosure
SOJ/MBJ/lmptrtdoc
Copy: Alan Farmer-EPA Region IV
Tommy Arthur- ADEM
Ron Shell- ADEM
File: EPA correspondence
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.f
W ^^%k ^
FILE COPY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON. D.C. 20460
JUN 19 1995
9441.1995(22)
OFFICE OF
SOLID WASTE AMD 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 hazardous
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 reclamation 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 significantly 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
RCRA Subtitle C jurisdiction (though not regulation) 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 examine 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 hazardous waste treatment and disposal such as groundwater
contamination, air releases and releases to surface water bodies.
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In the past, the category of materials we call "spent materials" (e.g. sands that were
used and picked up contaminants) have caused environmental problems. The Agency 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 minimal
controls. The Agency outlined three environmental concerns specific to spent foundry sands
in our March 8 letter to APS. EPA is aware of the possibility that current RCRA Subtitle C
jurisdiction over recycling activities may be overlybroad in some situations where recycling
operations incur costs of regulation without commensurate environmental gain.
Because of issues like this, EPA is currently in the process of looking at ways to
amend the definition of solid waste and hazardous 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,
t
"!• :\
i L,.W.',---t/v. U I''
• * Michael Shapiro, Director
'".^ '"• 'Office of Solid Waste
Enclosure
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Non-Ferrous Founders' Society
'55 Siote Stree- • Suite 100 • Des Ploines, IL 60016 • (708)299-0950
FAX (708) 299-3598
(Nffi)
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:
On behalf of the Non-Ferrous Founders' Society (NFFS) and its member foundries, I am
writing in response to your letter to the American Foundrymen'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 reclaimed, 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 Definition of a Solid Waste Task Force.
Part of the problem is that the foundry industry'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 contaminants, 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 ... [hjowever, the feet remains that foundry sands are spent materials
being reclaimed from the moment that they are separated from the castings.
Since foundry sands "[ajre 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(cX2)(i). In addition, because the mechanical process of
-------
screening and separating spent foundiy-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 material being reclaimed in a shakeout
process is irrelevant. All materials resulting from the shakeout reclamation process (which
is exempt from RCRA regulation) would be exempt from RCRA per 40 CFR
26l.39(cX2XO
According to EPA, only the portion of sand which is not returned to the mold-making
process remains a solid and, in certain circumstances, a hazardous waste. In the most
practical sense, the reuse of foundry sand has become an integral part of the mold-making
process in modern foundries. These foundries incorporate a sand loop-return design, the
complex portion of a foundry where return sand is reused and mixed with new sand and
various binding agents to produce a casting mold. Thus, the process of sand reclamation
is an inseparable, integral and generally contiguous portion of the sand mold-making
process. The agency concluded foundry sand entering shakeout represents the point at
which the product (casting) is captured for further processing and the sand is returned (via
the RCRA exempt reclamation system') to an ongoing production process (mold makingY
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 part
of the waste disposal problem, are discarded and therefore can be solid waste under
RCRA." If foundry sands were intended to be discarded by foundry's at the shakeout
table, would not all materials be collected in a trash dumpster 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 management.
Finally your position in the March 8 letter regarding foundry sands illustrates why Mrs.
BrowneVs 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 force to 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 tangible environmental benefit. Naturally, this
matter is of grave concern to NFFS and hs approximately 200 member-companies. I look
forward to your prompt response to the arguments presented here.
Sincerely yours,
_
Executive Director
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FILE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
22 1895 9441.1995 (23)
SOCID 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 Solid 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 owri 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
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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
reguirements for generators, transporters, and, interim storage
facilities that manage the aforementioned wastes. The universal
waste rule also provides additional flexibility in that Spates
can add other wastes such as spent fluorescent tubes to their
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 of my staff.
Sincerely,
Mike Petruska, Chief
Regulatory Development Branch
Enclosure(2)
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FILL uun
«" £% \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I ^7^7 | WASHINGTON. D.C. 20450
V
JUN30 1995
9441.1995(24)
OFFICE OF
SOLID WASTE Af.D EME ACE.'
RESPONSE
Mr. Douglas W. Crim
Miller, Canfield, Paddock and Stone, P.L.C.
1200 Campaul Square Plaza
n9 Monroe Avenue, N.W.
Grand Rapids, Michigan 49503
Dear Mr. Crim:
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) that-
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 hazardous 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 hazardous waste. Assuming that the sludges are being sent to the copper
smelter for metal recovery, they are solid wastes that are also hazardous 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.1
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.
1 See 40 CFR § 261.1(c)(5) defining use and reuse and limiting its applicability for use as-an
ingredient. "However, a material will not satisfy this condition if distinct components of the material are recovered
as separate end products (as when metals are recovered from metal ^containing secondary materials)." 40 CFR
261.1(c)(5X:;.
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Materials which have been reclaimed but must be reclaimed further may be eligible for
a variance which, if granted, would exclude them from the definition of solid waste. 40 CFR §
260.30(c). This variance may be granted by an authorized State and relies on factors enumerated
at 40 CFR § 260.3 l(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 260.3 l(c) (These factors are discussed in greater
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 (mary
States adopt the Federal program essentially verbatim). Also, please be aware that States hav
the authority under Section 3009 of RCRA to regulate more stringently than the Federal program.
You should know that the EPA is currently undergoing two initiatives to help encourage
environmentally sound recycling. First, the Agency has 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 finishing 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 considered commodities.
Second, EPA is in the process of Devaluating the definition of solid 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 mat those materials which
remain wastes under RCRA jurisdiction would be subject to a more simplified, self-implementing
set of management standards to encourage recycling.
-------
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, Director
Characterization and
Assessment Division
Enclosure
-------
SONET T. MIUEft 11M4-1 MCI
GEORGE L CANRELO (1I86-H2I1
irws H. PAOOOCX n ien« 36i
KWUS 0. STONE (1 MM »**!
DOUGLAS w. CUM
LAW OFFICES OF
MILLER, CANFEELD, PADDOCK AND STONE, P.L.C.
A PROFESSIONAL LIMITED LIABILITY COMPANY
1200 CAMPAU SQUARE PLAZA
99 MONROE AVENUE, N.W.
GRAND RAPIDS, MICHIGAN 49503
TELEPHONE 1616) 454-8656
FAX 1616) 776-6322
ANN AR8OA. MICHIGAN
N.OOMHELD MIlXSx^^'HIC
DETROIT. MICH1&M
GAANO RAPIDS. M. M
KALAMA200. MICHIGAN
LANSNO. MICHIGAN
MONP.OC. MICHIGAN
WASHINGTON. O.C.
AfRUATED OWCES:
PENSACOLA. R.OAIOA
ST. PETERSBURG.
GDANSK. POLAND
WARSAW. POLAND
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 Inco 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 regard, 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, CANFTELD, 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,
DougMs W. Crim
DWC/pdv
cc:
Laura Shears
Craig Smith
CWSl\I090»o.UO(B2Z7-OOCI32
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
? WASHINGTON. D.C. 20460
AUG -3 (995 9441.1995(25)
OFFICE OF
SOU2 WASTE AMD EMERGENCY
. . RESPONSE
Michael 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 Corporation, with respect to EPA's interpretation
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 CFR
261.3 (a) (2) (iv) (F) , ,a new section of EPA's>regulations.added by the
carbamates listing rule. This new section provides an exemption
from the hazardous waste listing designated as K157, which
encompasses wastewaters from the production of carbamates and
carbamoyl oxitnes.
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 proces's
wastewater (prior to any dilutions into the headworks of the
facility's wastewater treatment system) 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 process, destroyed through
treatment, or is recovered, i-fi. / 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.
-------
The Agency believes you have incorrectly interpreted tl
requirement and believes that an explanation of the carbamate rule
preamble would clarify the issue and, perhaps, allay the concerns
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 K1S7 exemption is the point
of generation prior to aggregation with other carbamate and non-
carbamate waste streams." 60 Fed. Reg. 7832. Thus, point of
generation of the wastes is the applicable starting point for
calculating the volatilized portion of the constituents, of concern.
The preamble goes on to explain that this prevents selective mixing
of wastewater streams* to meet the exemption ffi-i»»r-j» ^r^A pi-^wat-g
generators from excluding storage tank and other treatment unit
emissions and, thereby, meet the 5 ppm criterion.
Second, the Agency's risk assessment modeled air emissions
that occur from waate accumulation prior to discharge or mixing
with other wastewaters and volatilization during treatment. These
were, thus, the areas of concern for effects on public health and
the environment. Direct analysis during release from accumulation
may not account for ^storage losses. A facility making the claim
that a single point-of-compliance measurement 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 units
recover or destroy the constituents of concern, the mass captured
or destroyed may be subtracted from the mass discharged. However,
any volatilization during recovery or treatment may not be excluded
from the calculation of discharge concentration.
Some confusion may have been generated 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 of concern which is volatilized nay be excluded from
the calculation.
60 FR 7826. However, in view of the entire explanation in the
preamble and the rulemaking record, particularly the Agency's risk
assessment modeling, the proper interpretation is that
volatilization during production would not be calculated toward the
5 ppm.
In addition, the following preamble statement seems to need
some clarification:
With regard to testing, the Agency does not preclude the
direct measurement of the maximum concentration 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 discharged. .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) (iv) (B) ("B exemption"] . 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-specific source, cr "F,"
hazardous waste listings in 40 CFR §261.31. Thus, different
standards would apply. Should there be a case where multiple waste
codes apply, the Agency would view each in accordance with the
applicable exemption. 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 Bussard
Director
Characterization and Assessment Division
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FILE COPY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
AU6 4 »95
9441.1995(26!
OFFICE or
SOLID WASTE AND£M£SCE\CY
RESPONSE
Ms. Orlean Thompson
Senior Environmental Scientist
Corporate Environmental 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
5261.2
-------
May 3,1995
Mr. Stephen Bergman
United States Environmental Protection Agency
Office of Solid Waste, MC-5304
401M Street, N.W.
Washington D.C. 20460
Dear Mr. Bergman:
It was with great pleasure that we hosted the visit by you and Marilyn to the photographic
processing facilities at the offices of the National Geographic Society on April 27,1995. Messrs.
Allnutt and Curry were especially gracious in displaying all of the different photographic processes
which as a matter of course led to the treatment of the used silver-rich fixer and other wastestreams
prior to discharge to the POTW. The technologies utilized in all cases were electrolytic recovery
and metallic replacement cartridges.
While the driving force of the entire facility 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 operation. Again, the main objective of our visit was to enable you to view
the nature of the photoprocessors' treatment of their waste streams to meet POTW 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 interpretation 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 documents being prepared for external publication
entitled The Technology of Silver Recovery for Photoprocessors. It very clearly explains the
chemical reactions which occur in the processes 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 thiosulfate of the used fixer solution to
elemental silver, while the iron of the steel wool is solubilized and is discharged as a thiosulfate
complex.
If you have any further questions, please do not hesitate to call me at 716-722-1004.
Sincerely,
/
Orlean I. Thompson, Ph. D.
Senior Environmental Scientist
cc: Marilyn Goode
Michael Petruska
T^>ratf Environmental Services
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FILE COPY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
AU£ 16 1995
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 Shapirt>
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 CPI 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, please call
Stephen Bergman of my staff at (202) 260-5944.
Sincerely,
/A.
Michael P"etruska, Chief
Regulatory Development Branch
Enclosure?
-------
OuPont Medical Products
Glasgow Business Community
P. 0 Box 6101
Newark. DE19714-6101
DuPont Medical Products
August^. 1995
Michael H. Shapiro, Director
Office of Solid Waste
U.S. Environmental Protection Agency
401 M Street, 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 generated by the photographic film developing process was
a 'by-product.' In EPA's letter (copy attached) dated July 16,1990. you
concluded that 'the used photographic fixer solution meets the definition of a
spent material even though it may still have enough ammonium thiosulfate to
function effectively as a fixer.' This conclusion was based on the belief that the
used fixer was being removed from the process 'as 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 are 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 'spent' material. We used the analogy that at * 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 material.' 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.
-------
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 are
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 sense 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 DuCare® 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 POTWs. At worst, under a 'by-product* classification, they will
continue to send used fixer to POTWs. 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,
7
J. M. Stoneburner
Environmental Compliance Coordinator
Enclosures
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
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 zimate) 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 carbamate 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. AnseJl 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(diethylcarbamodithiato-S,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
T?ii! document has keen retyped from original
-------
that ethyl zimate is not the sole active ingredient in the formulation and is not the sole active
ingredient in the final product. Therefore, such latex process wastes would not be U407
because the ethyl zimate was used as a reactant and not as a sole active ingredient in the
formulation or in the final product.
Thank you for your inquiry. If you have any further questions, please contact John
Austin at (202) 260-4789.
Sincerely,
David Bussard
Director
Characterization and Assessment Division
This document has been retyped from original
-------
Perry
I Ansell]
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,
PERRYJNC.
Ann M. Doran
Manager, Environmental, Health & Safety
AMD/ad
Ansell Perry Inc.* 1B75-Manh Avenue&£.•• P.O.Box 550 • Mwtflkm. Ohfc<44t4*4)6SD • D.
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HOTLINE QUESTIONS AND ANSWERS
August 1995 9441.1995(29)
RCRA
1. Purpose and Applicability of
Speculative Accumulation
Provision
RCRA regulates secondary materials thai
are defined as solid wastes when recycled.
Whether or not a given material meets the
definition of solid waste when recycled
depends 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 (§2612(c)(4)). What is the purpose of
this speculative accumulation provision? To
which materials does fhe 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 not otherwise
regulated under RCRA from being stored
indefinitely and potentially causing
environmental damage. 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
lacilrdes. {SO£S 614. €50; January-*, 1985).
The speculative accumulation provision
generally applies to secondary materials that
are not solid wastes when recycled
(§§26U{c)(8),261.2(c)(4),and
261.2(e)(2)(iii)). In other words, certain
secondary materials that are otherwise
excluded from the definition of solid waste
become regulated as solid and hazardous
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 from which they are
generated, without first being reclaimed
• Materials that are not solid wastes when
reclaimed according to §261.2, Table 1,
such as by-products and sludges which
exhibit a characteristic of hazardous
waste
• Materials identified under §261.4(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 (§26l.4(a)(6)) and
spent sulfuric acid used to produce
virgin sulfuric acid (§261.4(a)(7)).
The speculative accumulation provision
generally does not apply to materials that are
defined as solid waste when recycled.
Speculative arrumuiiff'f>n isihosaoi* ftcic~
-------
in determining the regulatory status of spent
materials that are being reclaimed, secondary
materials burned for energy recovery, materials
used in a manner constituting disposal, or scrap
metal (50 £R 614,635).. Since EPA already
exerts the appropriate level of regulatory
control over these solid wastes, as provided
under §261.6 and Pan 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 are not solid wastes when
recycled and docs 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)(ii)). 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 f£ 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
reclamation, precious metals become subject to
full RCRA regulation, rather than the reduced
standards of Pan 266, Subpan F (§266.70(d)).
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FILE COPY
4% UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
' WASHINGTON, D.C. 20460
SEP 13 1995 9441.1995(30)
OFFICE CF
SOLID WASTE AND EMERGENCY
RESPONSE
Ms. Patricia A. Tucker
Gobe Enterprises
49 Essex Court
Meriden, CT 06450
Dear Ms. Tucker:
This is 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 you asked us to clarify whether the chemical,
Potassium Hexacyanocobalt(II)-Ferrate(II), 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 (RCRA).
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 corrosivity
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
-------
PATRICIA A. TUCKER
QOBE ENTERPRISES
49 ESSEX COURT
MERJDEN. CT 06450
TEL-(203)2357636
FAX-(203) 23 7 1655
August 7,1995
Office of Solid Waste
U.S.E.P.A.
401M Street, SV,'
Washington, DC 20460
Dear Sirs:
I represent a Finnish company named FVO International. We are attempting tojmport and sell a
je\y chemical within the United States. We have been asked by some of our potential customers to clarify*
your office's classification of this chemical, and we therefore respectfully request a written confirmation as
to your findings based on the data and questions presented below.
Chemical Name: Potassium Hexacvanocoball(II) - Ferrate(II).
CAS Number: 12549-23-4
Ignitabiliry: Decomposition at 250 deg. Celsius.
Conosiveness: Non-corrosive solid
Toxicity: Should not be swallowed. Wash if contact with skin.
Reactivity: Should not be heated with 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.SD.O.E.
Expected Use: During the normal operation of nuclear plants and test sites controlled
by the D.O.E., there is a siguificcat build-up of the fission products, Cs-134 and Cs-137 within the water
system. Potassium Hexacyanocobalt(II}-Fcrrate{II) is an insoluble, granular chemical which will be used
as an ion exchange media (within stainless steel columns) to purify this irradiated water. It will
selectively remove Cs isotopes from the water, exchanging potassium ions in their place. Purified water
can then be released to the environment and the spent chemical would then be buried in approved
radioactive burial sites.
Our customer's questions revolve around the Resource Conservation and Recovery Act and
whether the spent chemical would be considered a "mixed waste" (waste regulated under RCRA and the
Atomic Energy Act). We are under the impression that our spent chemical is not specifically named
under RCRA and that it would not be regulated under RCRA due to classifications such as ignitablity or
corrostveness. If the product is not regulated by the EPA under 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 would not consider spent Potassium Hexacyanocobalt(Il)-Ferrate(l]) a mixed
waste. We appreciate your time in attending to our request
Sincerely,
Patricia Tucker
-------
88/87/95 11M8 283 8296
VALLEY 6F
INC
PAGE 61
MATERIAL SAFETY DATA SHEET
IDENTITY - CESIUM SELECTIVE ION EXCHANGER (IVO-CsTnet)
SECTION I-
TVO INTERNATIONAL
HNNISH NUCLEAR WASTE TECH.
«71 ETHAN ALLEN HIGHWAY
JUDGEFELD, CT 06877
TECHNICAL* EMERGENCY CONTACT
MR. JUKKA RALJTAKALLIO
EMERGENCY PHONE NUMBER
(203)8941954
TELEPHONE WUMBEK. FUK. INfUKMA I K>N
-(203)8941954
DATA PREPARED
Man* 7, 1995
SECTION D • HAZARDOUS INGW.1HKNTO /IHRNTnV INFOHMATION
INGREDIENT
CAS NUMBER
POTASSIUM HEXACYANOCOB ALT(D>
FERRATB(II)
12549-23-4
SECTION m-
ITKS
BOUJNG POINT
DECOMPOSITION AT 250 defi. C
VAPOR PRESSURE (nxaHg)
NONE
VAPOR DENSITY (AIR-1)
NONE
SOLUBILrry IN WATER
INSOLUBLE
SPECIFIC GRAVITY
2.8
MELTING POINT
NONE
EVAPORATION RATE (pUTYL ACETATE
-1)
NONE
APPEARANCE AND ODOR
SOLID DARK BROWMBLACK GRANULES
-------
68/87/95
283
T>€ VALLEY GF
INC
PAGE 82
MATERIAL SAFETY DATA SHEET
IDENTITY - CESIUM SELECTIVE ION EXCHANGER (IVO-Crtta!:)
SECTION IV-FIRE AND EXFLQSmON HAZARD PAT A
FLASHPOINT
NONE
FLAMMABLE LIMITS
NONE
EXTINGUISHING MEDIA
WATER, CHEMICAL FOAM. DRY CHEMICALS
SPECIAL FIRE FIGHTING PROCEDUB£S
NONE
UNUSUAL FIRE HAZARDS
NONE
SECTION v - WEAcnvrry DATA
STABmiY
STABLE
INCQMPATABILrry (MATERIALS TO
AVOID)
HOT, CONCENTRATED MINERAL ACIDS
HAZARDOUS DECOMPOSTnON OR
BYPRODUCTS
HYDROGEN CYANIDE MAY EVOLVE
0NCOMPATABHJTY)
HAXARDOUS POLYMERIZATION
NONE
CONDniONS TO AVOID
DO NOT HEAT WTIH STRONG MINERAL
ACIDS
CONDITIONS TO AVOE) WILL NOT
OCCUR IN NORMAL OPERATION
-------
88/87/95 11:48 283 B2S6 T>€ VALLEY 6T 'DC PA6E B3
MATERIAL SAFETY DATA SHEET r«ge3(4>
mEMTTY - CESIUM SELECTIVE ION EXCHANGER (TVO-Crtr«t)
SECTION VI-HEALTH HAZARD DATA
ROUTES OF ENTRY: INHALATION? SKIN? INOESTIQN?
POSSIBLE ADSORPTION NOT LIKELY POSSIBLE
HEALTH HAZARDS: HARMFUL IF SWALLOWED OR INHALED (DUST)
HARMFUL IF CONTACT WITH SEN
INHALATION OR SKIN CONTACT MAY CAUSE IRRITATION
CARaNCXZNTTY: NOT KNOWN
SKINS AND SYMPTOMS OF EXPOSURE. IRRITATION AND DEHYDRATION (SKIN}
BWITAIIiCN (INHALATION)
MEDICAL CONDITIONS GENERALLY AGGRAVATED BY EXPOSURE NOT KNOWN
EMERGENCY AND FIRST AID PROCEDURES:
INHALATION - IF IRRITATION OCCURS, MOVE SUBJECT TO FRESH AIR
SKIN-WASH WITH WATER AND SOAP
SECTION Vn-Pim^imONS FOR SAFE HANDLING A?ff> USE
STEPS TO BE TAKEN IF RELEAED OR SPILLED-.
SWEEP UP AND WASH WTTHWATER
WASTE DISPOSAL METHOD:
BURY IN APPROVED LANDFILL
PRECAUTIONS IN HANDLING AND STORAGE:
AVOID CONTACT WHILE HANDLING, STORE IN COOL, DARK AREA
OTHER PRECAUTIONS: DO WOT HEAT WITH STRONG MINERAL ACIDS
-------
88/37/95 11:48 283 B296
THE VALLEY GF "> INC
PAGE 84
MATERIAL SAFETY DATA SHEET
IDENTITY - CESIUM SELECTIVE ION EXCHANGER (IVO-CaTrot)
SECTION Vffl - CONTROL MEASURES
RESPIRATORY PROTECTION
DUST MASK
EYEIftQTECTION
NOT NORMALLY REQUIRED
VENTILATION
LOCAL EXHAUST: NOT REQUIRED
OTHER PRQTECTTVB CLOTHING AND
EQUIPMENT: NONE REQUIRED
WORK / HYQDEMC PRACTICES:
WASH HANDS AFTER HANDLING
FRDTDCnVC OLO VEO
RUBBER CHIVES
-------
FILE COPY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
TI
. ^^fJL , WASHINGTON, D C. 20460
SEP 1 4 1995
9441.1995(31)
c
SCUD WASTc AND EVE-I:
Mr. Patrick Wlodarczak
GNB Battery Technologies
14500 Nelson Avenue
P.O. Box 1567
City of Industry, CA 91149
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-specification*
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
-------
GNB
BATTERY TECHNOLOGIES
August 2 L 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. Unused. Off-Specification Batten-Plates
Dear Mr. Bussard:
I am writing this letter on behalf of GNB Technologies, Inc. ("GNB") to seek your
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 and 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 RCRA hazardous 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 they are
accumulated speculatively before recycling by reclamation. See 40 CFR § 261.2., Table 1. Non-
listed commercial chemical products also quality for this exclusion. The April 11. 1985 Federal
Register (50 Fed. Reg. 14219) preamble states:
Although we did not directly address the non-listed commercial CS.B B>uterv Tvx.hn>,u.
chemical products in the rules, their status would be the same as AuMnvtneBjttm DU
those listed in § 261.33. That is. thev are not considered solid wastes u?0°Xtl*'11 Av ••-
P.O. Bo\ l?nr
Citv nt InJiistr.. v...
-------
Mr. David Bussard. Director
August 21. 1995
Pa°e2
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
in existing §§ 261.3 and 261.33.
This position is reiterated in the March 1990 RCRA/Superfund Industry Assistance and Emergency
Planning and Community Right-to-Kno\v 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 Environmental 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 hazardous 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 (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 cards), which when worn or superfluous can be recycled.
-------
Mr. David Bussard, Director
August 21, 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.1 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 drippings3 (which have a larger surface area to
March 1990 RCRA/Superfund Industry Assistance and Emergency Planning and
Community Right-to-Know Information Hotline Report.
Letter from Mr. Jeffrey D. Demt, U.S. EPA Office of Solid Waste to Mr. Jeffrey T. Miller
of the Lead Industries Association. September 20,1993.
3 April 29,1993 letter from Ms. Sylvia K. Lowrance, U.S. EPA Office of Solid Waste to Mr..
Kevin Tighe of Tighe, Mclnroy & Corbett.
-------
Mr. David Bussard, Director
August 21,1995
Page 4
weight ratio than pot dumps ), lead foil from x-ray packaging , and zinc bar, nickel plate,
cadmium plate and steel scrap removed from spent alkaline batteries6, 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, gee 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 constiruting disposal, used for energy recovery or as a fuel, or accumulated
speculatively, it is subject to the full range of federal hazardous waste regulations. See Table 1 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. Matt Strauss, U.S. EPA Waste Identification Branch to
Mr. J. Mark Morford of Stoel, Rives, Boley, Fraser, and Wyse:
-------
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
* WASHINGTON. D.C. 20460
SEP I 5 1995-
9441.1995(32)
Mr. Peter C. Wright
Monsanto Company OFFICE OF
800 N. Lindbergh Boulevard SOLD WASTE AND EMERGENCY
St. Louis, Missouri 63167 RESPONSE
•Dear Mr. Wright,
I am-writing in response to your letter "of.January,3, 1995,
in which you requested clarification 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, we will 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 baaed concentrations, no longer contain the
hazardous waste?
The contained-in policy is intended to clarify the
application of RCRA 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 site-, 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).
1 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.
-------
Question 2. Are soils that have been treated and then
determined not to contain hazardous wastes still subject to the
Land Disposal Restrictions (LDRs) Universal Treatment Standards
(UTS) prior to land disposal?
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 obtained2.
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's policy is that site specific treatability
variances are presumed to be appropriate for contaminated media.
See 55 £R 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 Treatability Variance for Removal Actions,
respectively. For your convenience, copies of these guidance
documents are enclosed.
Of course, if no 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
hazardous characteristic is subsequently treated to below a
State-determined contained-in level/ would the ground water still
be subject to the UTS requirements 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 net through removal of the
3 Nothing In this letter is intended to affect the status of existing
regulatory or statutory exclusions to the definition of solid or hazardous waste.
Such provisions can prevent the duty to comply vith LDRs from attaching in the first
instance. See, e.g. RCRA 5 1004(27) (exempting industrial point source discharges
subject to Clean Hater 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 contamination do not constitute
land disposal remain unaffected. Similarly, this letter is not intended to affect
any statutory or regulatory exclusions to this requirement to comply with LDRs (see
RCRA S 3020(b)}.
-------
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.discussed .in our response to .question
2, individuals who believe that the UTS are not appropriate to
their, contaminated media are encouraged to apply for a site
s.pecific 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 =>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 withdrawn without' meeting LDR treatment standards,
provided the treatment substantially reduces the hazardous
constituents prior to reinjaction and the cleanup action will,
upon completion, be sufficient to protect human health and the
environment.
Question 4. May 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 LDRs as well?
In order to make contained-in determinations, 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 described.
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
-------
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 more stringent than federal
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.
Sincerely,
Michael Shapiro
Director, Office of Solid Waste
Enclosure
cc: Matt Hale, OSW, PSPD
David Bussard, OSW, CAD
Jim Berlow, OSW, WMD
Larry Starfield, OGC
Dawn Messier, OGC
Barbara Pace, OGC
Bruce Diamond, OECA, OSRE
US EPA Regional RCRA Branch Chiefs, Regions I - X
John Carrigan, State of Massachusetts
Susan Ferguson, State of Texas
-------
Monsanto
.IAW DCPAfnUENT
PCTCRC. WMSHT
EMVwoNMBcm ATTOWCV
1314) 6S4-8S09
Monsanto Company
800 N. Lmdbergh Boulevard
St. Louis. Missouri 63167
Phone: pi4)694-K»0
January 3, 1995
Mr. Michael Shapiro
United States Environmental Protection Agency
Office of Solid Waste and Emergency Response
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 II 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 remediation
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 will 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?
-------
Overview of the Sites and Remediation Projects
The first.plant site is located in Everett, Massachusetts, just north of the City of
Boston. This long time chemical manufacturing facility was closed in November,
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 (n rule is.important,
particularly as the site is currently under a Purchase 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 be a major element of Everett's tax base and a significant source of
employment in the city.
Due to historic manufacturing operations, areas of the plant site have been
Contaminated with bis 2-ethyl hexyl phthalate (BEHP), naphthalene 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 mg/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 and treatment 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
remediated 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 of a 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
-------
actions are being undertaken proactively by Monsanto in consultation with the
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 of the ground is characteristically
hazardous for benzene. The groundwater exhibited measured levels of benzene,
phenol and acetone as high as 62 mg/l, 6 mg/l and 6 .mg/l, respectively without
any treatment. The air stripping treatment system to be installed has been
designed to treat the groundwater so that the concentrations of benzene, phenol
and acetone are no higher than 0.001 mg/l, 6 mg/l, and 2 mg/l respectively. This
treatment of groundwater to these levels would mean that all three contaminants
would be below the Texas Risk Reduction.Rule Standard 2 Residential levels of
0.005 mg/l benzene, 21.9 mg/l phenol and 2.65 mg/l acetone. The phenol and the
acetone would exceed the technology [incineration] based.UTS wastewater
standards of 0.039 mg/l for phenol and 0.28 mg/l 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
1990s. 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."
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Subsequent memoranda and letters1 expanded on the application 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 based
levels, that EPA would consider that the affected media no longer "contained" 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.
EPA also made it clear that an authorized RCRA state could determine what the
contained in levels could be. EPA guidance to the states in making the contained
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. Reo.
31138, 31142 (August 17, 1988). The contained in rule has been addressed in at
least five other Federal Register 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. Reo. at 982. EPA further explained that trie levels would be that
at which the potential threat to human health and the environment had been
1See e.g.. 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 levels 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 Massachusetts letter cites additional letters).
2See e.g.. 56 Fed. Reo. 24456 (May 11, 1991); 57 Fed. Reo. 958, 961 (January 9.
1992); 57 Fed. Reo. 37194 (August 18, 1992); 58 Fed. Reo. 48092. 48096 (September 14,
1993) and 59 Fed. Reo. 47982. 47986 (September 19, 1994).
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minimized. \sL at 985. In the final rulemaking, EPA explained that treated
contaminated debris would be considered to no longer "contain" 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 "(dlebris 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." 57 Fed.
Rea. 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 determination 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 L Reg, 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.
Very truly yours,
Peter C. Wright
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cc: Barbara Pace, Esquire, EPA Office of .General Counsel
Steven Sitverman, 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
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FILE COPY
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
OCT19WS 9441.1995(33)
OFPCEOF
SOLD WASTE AND EMERGENCY
RESPONSE
James A. Lively
The TDJ Group, Inc.
760-K Industrial Drive
Gary, 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 general,
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.
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Thank you for your interest in making the appropriate
regulatory determinations under RCRA. Should you have any
questions concerning this response, please feel free to contact
me at (202) 260-8551.
Sincerely,
Mitch Kidwell
Environmental Protection
Specialist
Generator and Recycling Branch
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08-04-1995 04:01PM FROM TVE TDJ GROUP,IMC TO 12022609355 P.82
THE TDJ GROUP, INC.
.760-K INDUSTRIAL. DRIVE • GARY, ILLINOIS 60013 • 708-639-1113 • FAX; 708-639-0*99
August 4, 1995
Mitch Kidwell
DS EPA OSW, Regulatory Development Division (5304)
401 M Street Southwest
Washington/ D.C. 20460
Dear Mr. 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
for 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 discussions with state agencies.
Opfront, 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 ie 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 from a baghouse
collector. Your opinion was that state authorities might
consider the addition of chemical reagents immediately proceeding
cooling towers as an action that would not constitute treatment
subject to RCRA permit requirements as long as no vents or exit
holes were present in the system downstream from the cooling
tower.
If we do not receive a response, we will assume that the
information contained herein is correct. If you feel any of the
above was incorrectly interpreted during our conversation, please
contact us for clarification. Thank you.
Sincerely.
> u<
A. Lively
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I
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1995 (34)
NOV 2 7 &95
OFFICE OF
SOLD 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 deterioration (60 FR 7825, February 9, 1995) to waste from
the production of methyl car hamate at your Willow Island, West
Virginia, plant.
In the February 9, 1995 final rule, the EPA listed as
hazardous waste number K156 — organic waste (including heavy ends,
still bottoms, light ends, spent solvents, filtrates, and
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 of 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 Bust 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 nay 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,
will allow listed waste to exit Subtitle C if the waste's
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constituents meet specific concentration-based exemption level?
Promulgation of HWIR is currently scheduled for late in 1996 or
early 1997.
If you have further questions, please contact John Austin at
(202) 260-4789.
Sincerely yours,
Shapiro, Director
f Solid Waste
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HOTLINE QUESTIONS AND ANSWERS
February 1996
9441.1996(01)
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 neutralization unit, must the
generator meet the conditions of§§261.5(f)(3)
A CESQG may treat hazard6us waste in
an on-site elementary neutralization unit
without meeting the requirements in
§§26L5(f)(3) and (g)(3). Elementary
neutralization units, as defined in §260.10, are
exempt from RGRA 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
§§264.1(g)(6), 265.1(c)(10), 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.
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USB,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1996(02)
UAB 2. 1 1996
George E. Dials, Manager
Carlsbad Area Office °f e IC£ OF
_ . SOLID WASTE AND EMERGENCY RESPONSE
Department of Energy
P.O. Box 3090
Carlsbad, New Mexico 88221
Dear Mr. Dials:
This letter provides written response to a request by DOE in our September 19,1995 meeting to use
Fourier Transform Infrared Spectroscopy (FTIRS) for headspace 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 FTIRS 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 Program Plan" (QAPP),
DOE/CAO-94-1010, Revision 0. These requirements include the use of multivariant techniques [e.g., partial
least squares (PLS)], use of blanks, field reference standards, demonstration of compliance with appropriate
QAPP quality assurance objectives and participation in the CAO performance 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 Engineering Laboratory FTIRS principal investigator, to get this
method approved for incorporation into the EPA SW-846 methods manual The draft FUR 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-846 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 Rhyne of my staff
at (703) 308-8658.
Sincerely Yours,
cc: David Neleigh, Region 6
Barry Lesnik, EMRAD
Chris Rhyne
Printed on Recycled Paper
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
HAY 3 0 1996
OFFICE OF
SOLID WASTE AND EMERG£NCY 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. 0'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 (EEI) 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 ether 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 261 Subpart C. The residues from
combustion of fossil fuels are generally exempt from the
hazardous waste regulations under 40 CFR 261.4(b) (4) . If,
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.
Printed on Recycled Paper
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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.gov. if you have
questions on fossil fuel combustion, please contact Mr. Van
Housman at (703)308-8419.
Sincerely,
x \^>- —
Michael H. Shapiro, Director
Offide of Solid Waste
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Carboplus,Inc
101 Federal Street 4 Suite 1900 «• Boston, Massachusetts 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 Environmental Protection Agency
Room 5301
401 M Street, S.W.
Washington, D.C. 20460
Re: Determination of mixing technology
Dear Mr. Shapiro:
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
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1996(04)
JUN I ! 1996
OFFICE OF
SOLID WASTE AND EMEflGENCY
RESPONSE
Donald P. Galla
Michael, Best & Friedrich
100 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-4108
Dear Mr. Gallp:
Thank you for your letter dated October 20,1995, 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 I understand it, your letter requests clarification on the
regulatory status under the Resource Conservation and Recovery Act (RCRA) of the leather
trimmings, 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 hazardous
characteristic for chromium, it is important to determine whether these materials would be
regulated as RCRA solid or hazardous 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 reclaimed first. 40 CFR 261.2(e)(l)(i) and (ii). The EPA
would not view the shredding and grinding of the leather trimmings, in order to attain the
required particle size, as reclamation. However, a secondary material is a solid waste if the
product being produced is burned as a fuel, used in a manner constituting disposal, or used to
produce products that are placed on the 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 cleaning 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.
R«cyc>ed/H«eyclabt«
Prtnnd with Soy/Cwwla Ink on paper t
centum tt MM SO* racydM flaw
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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 hazardous waste
regulation, provided that the hazardous characteristic for chromium is the only factor defining
the waste as hazardous. 40CFR261.4(bX6"XiiXG). 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 hazardous and non-hazardous wastes. I agree with the
statement in your letter that when the adsorbent is used to adsorb listed hazardous waste, the
resultant adsorbent/waste mixture would be defined as listed hazardous 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 hazardous (where the mixture only exhibits the characteristic of the exempted
material). I do not 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 tanning 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-oxidizing 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 hazardous due to the toxicity characteristic for chromium; and the mobility of chromium
under 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)(ii) 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 due to the
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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 familiar 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 management of solid and hazardous waste.
Sincerely yours.
ihapiro, Director
6f Solid Waste
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FILE COPY
\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
? WASHINGTON, D.C. 20460
JUN I 0 I395 9441.1996(05)
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
Mr. Norman H. Nosenchuck, Director
Division of Solid and Hazardous Materials
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 certain 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(cX5XO)
However, based on the facts you have described, h 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.
Racycl«d/R«cyclabl« • Printed win Vegetable Ol Based Inns on 100% Recycled Paper (40% Postconsumer)
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As you are aware, EPA has also undertaken two initiatives which will encourage
environmentally sound recycling. The first is a 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. 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 modify 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
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MONTHLY HOTLINE REPORT
May 1996
9441.1996(06)
r 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 ignitability,
corrosivity, 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 §26L3(a)(2)(iv)(E)). Specifically,
this section notes that mixtures of laboratory
wastes listed for being toxic (T).and large
volumes of other-wastewaters cease to carry
the listing after they pass the headworks of the
wastewater treatment system. Are the
laboratory's wastes thai are listed because
they are acutely hazardous (H) or toxic and
characteristic ((I,T), (C.T), or(R,T)) also
exempt from the mixture rule?
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)(iv)(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 CD only).
If wastes which were listed solely for -
exhibiting a characteristic were mixed with
other solid wastes, such as a wastewater, and
ceased to exhibit any characteristic they would,
however, no longer be considered hazardous
wastes (§261.3(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 (§261.3(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..
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MONTHLY HOTLINE REPORT
August 1996
9441.1996(07)
1. Definition of Commercial Chemical
Product for Solid Waste
Determination vs. Hazardous Waste
Identification
An instrument manufacturer has off-
specification mercury 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 (§26L2(c)(3) and (§261.3)). Under
§261.33,'. the P and U lists of hazardous
wastes, "commercial chemical products"
containing mercury as a sole active ingredient
are characterized as U151, a listed Waste
(§§26L33(d), 26L33(f)). What is the
difference between the definition of
commercial chemical product for the purposes
of the definition of solid waste and the P and
U list of hazardous waste, and given the
relative difference, would the thermometers be
subject to hazardous waste regulation if
reclaimed or discarded?
The phrase "commercial chemical
product'* has different meanings in the
definition of solid waste and the definition of
hazardous waste. As applied to §261.2, the
definition of solid waste, EPA interprets the
category of commercial chemical products to
include all types of unused commercial
products, whether'or 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 FR
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
exclude manufactured articles such as\
.thermometers or fluorescent lamps'/(451FR;.
78541; November 25,1980). Therefore,
manufactured articles that contain a P or U
listed chemical would not be considered a
listed waste 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
(§261.3). If the thermometers are to be
discarded, then they would be a solid waste
and 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 F and 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
'commercial chemical products for the purposes
of hazardous waste, as explained above. As a
result, the thermometers 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.
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MONTHLY HOTLINE REPORT
September 1996
9441.1996(08)
1. PCB Wastes as Hazardous Wastes
' Poly chlorinated biphenyls (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 to PCB
wastes only if they are RCRA hazardous
wastes. Wastes are hazardous under RCRA if
- - y' * *
they are listed on one of fpur hazardous waste
lists or if they exhibk'a characteristic .of • •
hazardous-waste. Discarded, unused PCBs are
not listed as commercial chemical product
hazardous wastes on the P- or'U-lists found in
40 CFR §261.33. PCB wastestreams are
•likewise not specifically among the process^
and industry-specific hazardous wastes found
in theF- 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-sol vents, when spent,
could be F001 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) under §261.24, but any waste containing
PCBs could potentially exhibit the TC for
anothercontaminant, e.g.,.chlorinated
.benzenes. To deal with this possibility and
avoid dual TSCA/RCRA regulation, certain
PCB-cohtaining wastes that .exhibit the
toxicity characteristic are 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-cbntaining 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)).
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\ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
9441.1996(09)
OCT - I ISS5
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 July 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 K062.
In your letter, you asked whether the exemption only applies
'when' the lime -directly contacts the pickle liquor (prior to
dilution in a wastewater 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. I
have attached copies of two previous letters from the
Environmental Protection Agency (EPA) that address your
questions. The. Agency's position haus 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 K062. 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/Recyclabte
Prlnttd with Soy/CtnoU Ink on piper that
contain* «t lent 50% recycled fiber
-------
In your letter you also asked whether a resulting
characteristically- hazardous sludge would retain the K062
hazardous waste listing. The attached June 19, 1990 letter from
Linda Cessar of EPA, explains that "stabilized K062 wastes that
continue 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 bur 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 .opefation.
If you have any questions about this letter, please contact
Stephen Bergman .of my staff at (703) 308-7262..
Sincerely,
Michele Anders,. Chief
Generator and Recycling Branch
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
944 hi 996(10)
NOV 7 1996
OFFICE Of
socio VVASFE 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 regulatory
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. Environmental 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 characteristic (TC) test (or one of the. other characteristics tests), it
would be considered a hazardous 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, hazardous 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.
Recycfed/Recycfable
Prtnltd with Soy/C»noli Ink on piper thil
conttln* it li»t $0% rttycltd flb«f
-------
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.
il Shapirp, Director
'Office of Solid Waste
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
FILE COPY
9441.1996(11)
-'OV I 3 1336
OFFICE OF
SOLID WASTE AND EMERGENCY
RESPONSE
MEMORANDUM
SUBJECT: Definition of Solid Waste Issues Related to Cleanup of
Culpeper Wood Preserving Facility
FROM: Michele Anders, Chief
•Generator and RecycligBranch
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 in Culpeper, Virginia 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 issues. 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:
Racycl*dffl*cyclabl* . Printed wiBi Vegetable Oil Based Inks on 100% Recycled Paper (<0% Postconsumer)
-------
• 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 for a use/reuse exclusion under 40 CFR 261.2 (e) (l)
However, you should know that the Office of Solid Waste is.
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 second 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 Superfund or
Corrective Action. In her conversations 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.
-------
*" \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460.
9441.1996(12)
DEC 2 3 1936
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 characteristic hazardous waste qualifies for the exclusion.
As you and Shen-yi Yang discussed in your recent telephone conversation, the exclusion only
applies to LSWPLS generated 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 FR
19320). The exclusion is restricfed-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 can be commingled with other iron and steel industry wastes prior
to lime treatment and still qualify for the exclusion. However, they cannot be mixed with wastes from
other sources outside the iron and steel industry and qualify 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.
Sincerely yours,
Michael Shapiro, Director
Office of Solid Waste
Recycled/Recyclable
Printed with Soy/Canola Ink on paper that
contslni EI lea«t 50% recycled tltwr
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D,C. 20460
9441.1996(13)
ZT ' . OFrlCECF
r\cr •. . "'--3 SOLID WASTE AND EMERGENCY
'• ''• ' BESPOf.'SE
Mr. Norman H. Nosenchuck, 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 tetter 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 medium.
(See 50 FR 53316, December 31, 1985.) As you have correctly pointed put, chemicals that are
reactants.or ingredients in the formulation of commercial 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 are 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 modify 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.
Rocvcled/Racvclabla • Printed WID-. Vo-jeiaole Oil Based Inks on icc% Roc/o;eo Pacer (aC\ =cs:consuT:»i!
-------
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
state, 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,
. David Bussard, Director
Hazardous Waste Identification Division
-------
New York State Department of Environmental Conservation
Division of Solid & Hazardous Materials
50 Wolf Road, Albany. New York 12233-7250
(518) 457-693* FAX (518) 457-0629
JAA/* Michael D. Zagata
NOV181996 Commissioner
Mr. David Bussard
Director
Hazardous Waste Identification Branch
U.S. Environmental Protection Agency
401 M 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 OSWER: document - number.
9441.1987(09), where Mr. Straus made no distinction'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 December 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.
-------
Mr. David Bussard 2
Please call me at (518) 457-6934 if we may be of assistance
Sincerely,
Norman H. Nosenchuck, P.E.
Director.
Division of Solid & Hazardous Materials
Enclosures
-------
FEB ( 9 067
Mr. Gregory A. Hemker
Vice President, Environmental Engineering
CSource Engineering, Inc.
Suite 300
228 Byers Road
Mianisburg, Ohio 45342
Dear Mr. Hemker:
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 that are
not currently listed in Subpart D of 40 CFR Part' 261, and therefore,
not subject to Subtitle 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 listings. This point is stated
in the.preamble to the solvent 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)(iv) .
In your case, you claim the discarded products fail the
ignit»bility te*t and, therefore, .are listed am DO01 ignitable
hazardous waste. I agree with'your interpretation of the. hazardous
classification of this waste.
Also, I agree with your interpretation of the hazardous
classification of the wastes in the tvo scenarios enclosed in your
letter. If you have further questions regarding the proper
classification of solid wastes, please contact Mr. Ed Abrams of my
staff at (202) 382-4787.
Sincerely,
Matthew A. Straus
Chief, Waste Characterization Branch
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Executive 7S Building GREGOffV A. HEWKEfl. M.S
SutlC 300 ^ler ftwi«it fnuoonifHiuo/f/ijin*,,
22SByenRo«d PHILUPL HAYDEN. PhQ PE ^
Miamafaurg. Ohio 45342
513/866-4211 , . „ ,rtn_
January 8, 1987
Mr- Matthew Strauas
Branch Chief
Waste Characterization Branch
USEPA
401 M Street Southwest
Washington, D.C;. 20460
Dear Mr. Strauaa:
I a* writing to request clarification on the proper
classification of discarded inks, paints, and adhesives that
contain listed chemicals. Much of this has .been-discussed with
• your. Mr. Scarberry in"a telephone conversation on December 16,-
1986'. However/ it is important for-us to receive a written
determination in-this matter.
Several of our industrial clients .use'inks,, paints, and
idhesives that contain solvents that are listed in 40 CFR 261
Subpart D. These .solvents are.put'into the inks, paints and
tdhesives by the original supplier and. fay- the user be.fore their
ute. Waste inks, paints, and adhesives are-a by-product of these
processes. Normally, cleaning solvents are not nixed with their
WAIte inks, paints, and adhesives.
Until recently we have confidently .classified these :waste
Inks,-paints and adhesives: as D001, ignitible hazardous waste.
However, with the final.rule promulgation on February 25, 1986 of
ftvieions to 40 CFR 261 (51 FR 6537), this classification may be
incorrect.
The new language in*40.CFR 261.33 suggests that any "solvent
"ixture/blend" that contains the lifted solvents are "listed" as
to "characteristic" hazardous waste. Since these inks,
and ad^esiveiB contain such solvent -mixtures/blends before
• it appears that are "listed" hazardous wastes.
However, in a review of the 51 PR .6537 background discussion
ars that ^-S^e inks, paints and adheslvtiH yould be
6d "ffia"^facturing process^TTaH'tKs"^—TCB—we understand this
tt>* 11 these wastes are not classified by 261.33 even though
Il»«tif7ed ?°Lver;ts are i-n the mixture. Therefore, the D001
eeens to be the correct determination at this time.
was supported by Mr. Scarberry in our telephone
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#£. Matthew Strauss
January-8, 1987
page Two
To summarise thia .natter I have prepared and
case scenarios with waste classifications Plea
acknowledge. whether our determination on waste clL ^ **** and
correct. If our determination is in^or^ecTpLase 1^,*^™ are"
correct determin lain tne
n
correct determination and why. Your
«
Sincerely,
QSOURCE ENGINEERING , INC .
Gregc'ry^A. He'mker
Vice President
Environmental Engineering
Attachment
GAH/dlh
QSOURCE ENGINEERING, INC
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WASTE DETERMINATIONS
.CASE 1: Paint is purchased from a supplier to coat the parts
produced by our plant. This paint contains 60% solvent
by volume on an .as received basis. 'it is further
reduced in our plant for a final as.applied solvent
content.of,80% by volume. Most of the solvents in this
paint are listed in 40 CFR 261.31. Because of quality
assurance programs unused paint is discarded at-the end
of each shift and at color changes. This waste paint is
accumulated separate from other solvent wastes. The
waste paint has 'a flash point of 100 FJ
Waste Classification: D001
NOTE: If inks or adhesives with.similar solvent
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:. FXXX (Select, the appropriate
code(s) for. the solvent-Is)).
QSOURCE FNCWEERJNG. /JVC
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