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

-------
               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

-------
 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.
                               -2-

-------
     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


                               -3-

-------
                                                      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

-------
     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

-------
                                                      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

-------
                              - 2 -
legitimately being used),  or are they being treated/disposed by
incorporation into a product?  Particular focus should be given
to the fate of hazardous constituents in the waste that are
incorporated into a product (it would be contrary to the intent
of RCRA regulation if regulatory determinations are made solely
on the use/reuse of nonhazardous constituents also contained in
a hazardous waste).

    In evaluating the 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

-------
                               - 3 -
ingredient in the manufacturing of cement, Mr. Wistar stated that
while the mill scale could certainly be used as an ingredient,
substituting for the iron 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

-------
                                                    9441.1990(04.
       ;       UNITED STATES ENVIRONMENTAL.'PROTEC	-.
                         WASHINGTON. D.C. 20460
TV4   »*~

-------
     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

-------
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)

-------
                                                     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

-------
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

-------
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

-------
                                        -2-


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.

-------
                                        -3-


     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

-------
                    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

-------
                                                                   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

-------
                 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

-------
                                                             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.

-------
                                                               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.

-------
                                                     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

-------
             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

-------
                              - 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.

-------
                              - 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

-------

 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.

-------
    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

-------
                                                     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

-------
                                                              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.

-------
                                                              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.

-------
                                                          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

-------
                                                                 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.

-------
                                                             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

-------
                                                 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

-------
     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

-------
             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

-------
                                                  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

-------
                                                      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

-------
                  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

-------
            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

-------
                                                      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

-------
     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

-------
               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

-------
                                                     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

-------
                                                     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.

-------
                              - 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

-------
                        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

-------
                                                                                     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,

-------
                                                                                     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.

-------
                                                                                     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

-------
                                                                                       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.

-------
                                                                                   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.

-------
                                                                                        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

-------
                                                                                    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

-------
                                                     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.)

-------
                                                   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.
                                                          Prinltd on Rtcycltd Paper

-------
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.

-------
                                                             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.
                                                             PriMtd on Rtcycltd Paper

-------
     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.

-------
     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

-------
                                                                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?

-------
            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

-------
                                                   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.
                                                        pTitUtd on Rtcycltd Papt'

-------
     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

-------
              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.

-------
     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

-------
         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

-------
                                                                 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
                                                                         Printtd on Rtcycltd Paper

-------
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

-------
               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

-------
            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.

-------
     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

-------
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.

-------
     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

-------
MICHELIN - SANDY SPRINGS
WASTE TREATMENT PLANT
1. SANITARY SfWAGf (45.000 GP.DJ
if. LATFX AND GLUC WASTE < 3.500 GP.D.)
j R LHfR penrris WASTE: (ti.ina r.p.m

IDDflPf*CC L>Dl
^•NUP *» irrpJ
it** ..LI fl
._ . _ .
b. BDILTk fcLOtJDUWN (J'JOO G^.D1* '
?n H*?A
f. | r,i-.i JNU fiwiKr m nannur, IANW
(HOOD Gp.D/>
/ u. r. Pkocrxs VASff -.rrioo'j V«MM
EQUAL IZA
TANK
Hb.iriLK
lAhk

B. w i. v/vsir ruAi> o.ioc GPU: ^ '^r?!^
1 ' T — !*—»»•« "^ ^ 1 AHK
* VA^ff i:MUi.ANf-'iijkr/».:rANi any i-i'io
''', f I'lll'.f- •'RUH'^j x:L^i.k •'i"i li» |:i

DIAPAC
SANITARY [(PACKAGED
1 UKJTv
L^5)
H,SU.
t
MARY fUYUirrROJ.YrL
iRATQR * tcLl£ ll«.OL'
1 TLOTTAZUR
J ,-. MIXING AIR
/O)- UNli
**S TLDCCULATDR [ ^.->^
ni». — *-ii ;
RiKnr:
ii.i.
i.lMT. r«Ci,
TION i ibrf7 4ld5» >
t
"i il PRIMARY

CIRCULATORS < '^
lhlffi.Nuk
L— ~^'
* (r\

HKfli.DING Cf) 	 *•
TANK



ANDi'lJAH
rtil I'LI IX fkUc < If. , .,
il. Ml
t«.bfVt lii".il i i
1 MKIW: 1 MNAI. II
^ TANK 	 ^Hl'i.ARinr.kp-
1 1 1
RAPID MIXER 1 ^./(
''«. —
4.
TURBO-CiRCULArOR
•^••ii, ri;i -'n i.n
i 1 ii>i'r
1 1
>"• 'IM:I; 1 1 iH.

•>->— J
ATkAlION |
-*• IAGUON 1
> , ! ,
^ 1 O'h.UKINU
Riii \nr
^ h.rso
:' Jit;*,. Ui*f*i'i,
•./-* r,.-.u

-------
            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."

-------
                              - 2 -


     To clarify the applicability of RCRA to mixed waste, EPA
issued a clarification notice on July 3, 1986 (51 FR 24504).  In
that notice, the Agency announced that the hazardous component of
mixed waste is subject to RCRA requirements and that the
radioactive portion of the waste (source, special nuclear, and
by-product material) is subject to AEA.  EPA also required States
which had obtained RCRA-base program authorization prior to the
July 3 notice to revise their programs to clarify the regulatory
status of mixed waste (i.e., to include the hazardous component
of mixed waste in their program definition of solid waste), and
to apply for EPA authorization of their revised program.  The
Department of Energy (DOE) clarified the term "by-product
material" in an interpretative rule on May 1, 1987 (52 FR 15937).
That rule stipulated that, in mixed wastes, only the actual
radionuclides are considered by-product material.  DOE's
interpretative rule is consistent with EPA's earlier
clarification notice.

     EPA's July 3, 1986 clarification notice described three
general regulatory scenarios for mixed waste based on the
authorization status of a State's hazardous waste program:

     o  In a State which is not authorized for the RCRA-base
        program, mixed waste is subject to the Federal hazardous
        waste management requirements, and EPA administers and
        enforces the requirements for mixed waste until the State
        receives mixed waste authorization.

     o  In a State with both RCRA-base program and mixed waste
        authorization, mixed waste is subject to the hazardous
        waste management requirements, and the State administers
        and enforces its requirements for mixed waste (of course,
        if the waste were newly listed or identified pursuant to
        a Hazardous and Solid Waste Amendments (HSWA) provision,
        and the State was not yet authorized for that listing or
        characteristic, EPA would administer the requirements).

     o  In a State which is authorized for the RCRA-base program,
        but not specifically authorized  for mixed waste, this
        waste is not subject to the Federal hazardous waste
        requirements until the State revises its program and
        receives authorization specifically  for mixed waste.   (A
        State may, however, regulate mixed waste under State  law
        under any of these three scenarios).

     The chart in Attachment 1 shows the regulatory  scenarios for
mixed waste in authorized and unauthorized States.   The  section
below describes the applicability of the TC  to mixed waste  in
these regulatory scenarios.

-------
                              - 3 -


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).

-------
                              - 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

-------
                                                        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

-------
              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

-------
                                                        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

-------
                                                         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

-------
                                        -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
-------
                                        -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.

-------
                                        •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*

-------
    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
-------
       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.

-------
          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

-------
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

-------
                                         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-

-------
     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

-------
                                                      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

-------
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

-------
                                                   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

-------
                            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

-------
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.

-------
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

-------
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

-------
             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

-------
            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

-------
             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.

-------
             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

-------
        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

-------
        UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
CFR 261.3; and 3) meet the definition of tank or tank system
(see "wastewater treatment unit," 40 CFR 260.10).

Assuming that the first two criteria are met, an evaluation
needs to be made for the third condition,  if the clarifier
meets the 40 CFR 260.10 definition of tank, then a
determination must be made on the conveyance structure  (in
your letter, you marginally referenced the "means of
conveyance").  The 40 CFR 260.10 term "tank system" includes
the tank and its associated ancillary equipment and
containment system.  In turn, "ancillary equipment" means:
"any device including, but not limited to, such devices as
piping, fittings, flanges, valves, and pumps, that is used
to distribute, meter, or control the flow of hazardous waste
from its point of generation to a storage or treatment
tank(s), between hazardous waste storage and treatment tanks
to a point of disposal on-site, or to a point of shipment
for disposal off-site (see "ancillary equipment," 40 CFR
260.10).

The conveyance structure may or may not meet the definition
of ancillary equipment depending on whether it is designed
to distribute, meter, or control the hazardous waste flow
between the generation point and a storage or treatment tank
(which is designed to contain an accumulation of hazardous
waste).  For example, a conveyance structure which is simply
a ditch constructed of dirt would not meet the definition.
Determining whether a given conveyance structure meets the
definition of ancillary equipment is necessarily a site-
specific judgement, dependent on the circumstances and facts
at the facility in question.  The state or regional
authority reviews the facts in question to determine whether
a specific conveyance structure meets the terms of the
exemption.

Finally, if an exempt WWTU renders the wastewater non-
hazardous, the storage of the wastewater in the surface
impoundments would not be under RCRA Subtitle C regulation,
unless conditions described in the answer to your second
question occur (i.e., the surface impoundment generates a
hazardous wastewater or sludge).

-------
                                                                  9441.1991(13)

              RCRA/SUPERFUND HOTLINE  MONTHLY SUMMARY

                                JULY  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

-------
                                                              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

-------
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

-------
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

-------
                                                     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

-------
     •  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

-------
            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.

-------
             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

-------
            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

-------
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.

-------
     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

-------
                                                       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

-------
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

-------
                                                                         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
-------
                                                                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

-------
                                                          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

-------
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

-------
            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*

-------
                                                                         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.

-------
                                                                        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).

-------
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).

-------
                                                         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--

-------
     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

-------
                                                          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

-------
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

-------
                                                                    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
                                                                     Printed on Recycled Paper

-------
those entities that hold licenses or permits for the storage of mixed waste. Although the
EPA tracks permitted hazardous waste facilities on a national basis, we do not distinctly
track 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

-------
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

-------
                                      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

-------
                                                                           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.
                                                                         Printed on Recvdod Paoer

-------
                                        •2-
      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

-------
                                                 Fill
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
                                                         Printed on Recycled Paper

-------
facilities  outside of  the  jurisdiction  of  the United  States,
however, are not subject to RCRA regulation and, therefore, cannot
be permitted  or be assigned an EPA identification number.   As a
result, it would appear to be impossible for a generator or sample
collector seeking  the exemption  to satisfy either  condition and
thus  qualify  for the exemption  for a 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."

-------
     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

-------
                                                             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

-------
                              -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

-------
                                                                       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

-------
      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

-------
                                                                          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).

-------
                                                                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.

-------
                                                                   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

» >
SURN.'- Y
DATE ^

OS-331
/O5s/v;<
6-'i'9i

6S'ttt
K^A*^'
tfhl^




COHCUMIMC



«















EPA Pom, 1320-1 02-70)
                                •U.S.GPO:1969-62*-<.85/lU18b
                                                                  OFFICIAL

-------
                                                       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?
                                                         Printed on Recycled Paper

-------
On January, 13, 1992 the Utilities Solid Waste Activities Group
 (USWAG) submitted a petition to the Administrator, requesting
regulatory amendments that would reduce the permitting burden for
many commercial generators who store mixed waste.  EPA staff met
with USWAG representatives and other interested parties on May
28, 1992, to discuss the Agency's options in responding to this
petition.

     The RCRA permitting strategy currently differentiates
between the requirements necessary for a hazardous waste storage
permit as opposed to a disposal facility permit.  While all
hazardous waste facilities seeking a permit under RCRA are
required to meet certain general standards for safe treatment,
storage, and/or disposal of hazardous wastes, the specific
requirements currently necessary to operate a storage facility
are quite different (and less technically demanding) than those
required for a disposal facility.  EPA strongly suggests that
facilities seeking a RCRA permit initiate discussions with the
regional EPA office and the authorized State.  This procedure
will help alleviate some of the time delays associated with the
permitting process.

     1. How should a low-level radioactive waste, otherwise
     dischargeable to a sewer, be disposed of if a hazardous
     component is present?  Similarly, how must low-level waste
     be classified and managed when, under hazardous waste rules,
     the generator is a small quantity generator?  Can de minimis
     quantities for both constituents of the waste stream be
     identified?

     In the case of small quantity generators, the requirements
under RCRA are found at 40 CFR 261.5 (conditionally exempt small
quantity generator requirements) and 262.34 (accumulation time
for small generators).  With respect to de minimis quantities of
the hazardous portion of the waste stream, the Agency is
considering alternative ways of addressing the problems posed by
waste mixtures and by the waste streams and residual materials
associated with the treatment of hazardous waste.  One option
would be a rule which would establish concentrations of hazardous
constituents below which a waste, mixture, or residue would no
longer be considered hazardous.  EPA proposed several options
(including concentration-based exemptions) for identifying
concentration based exemption criteria (CBEC)  in the 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.

-------
     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?

-------
     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

-------
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"?

-------
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

-------
                                                         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
                                       '•'• JU1/lV9!!       @ Primed on Recycled Paper
                                       I.'.. --**-€—*-' '

-------
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

-------
                                                                     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

-------
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

-------
                                                          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)).

-------
                   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 ^

0S-33I
LteHM
•••>••••••••••••••
7/'/9Z

CS -J3 /
/W^A/
Til lit.

Jf: fax.
&J&MF1-,
?/*hl
COHCtlMIMC



ts















EPA Form 1320-1 02-70)
                                «U.S.CPO:1989-«*-*8V 10186

-------
     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

-------
                                                                   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

-------
      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

-------
                                                         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

-------
         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.

-------
                                                       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.

-------
            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^
DATE ^
$-333. .
h— *5»*TL....
^^/






EPA Form 132CU1 Oi-/0)


















OFFICIAL FILE COPY

-------
                                                             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

-------
                                                       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
                                                          Printed on Recycled Paper

-------
is using a product formed by the solvent-containing materials to
clear the spray gun nozzle; thus, the waste in the drum is not
considered a listed hazardous waste according to the Federal
interpretation.  Our analysis, however, is based solely on the
description you provided us, and assumes that your client is not,
in clearing the spray gun nozzle, using either toluene or ethyl
acetate for their solvent properties.  We therefore reserve the
right to abandon this assumption, should an inspection or other
fact-specific evaluation of the process present information to
lead us to a different conclusion.

     You should be aware of a few provisions which could affect
this interpretation.  If your client uses either the resin or the
curative mixture individually to clean the spray gun, the waste
in the drum could be considered F003 and/or F005 hazardous waste
since the solvent constituents are greater than 10% before use.
If your client uses the pure solvent (such as toluene or ethyl
acetate), the waste in the drum would be considered a listed
hazardous waste.  Moreover, if the waste in the drum, regardless
of its composition or the process from which it originates,
exhibits any characteristic of hazardous waste identified in
40 CFR 261.20 - 261.24 (i.e., ignitability, reactivity,
corrosivity, and/or the toxicity characteristic), the waste would
be considered hazardous under RCRA.

     We further recommend you advise your client of the
limitations of a Federal interpretation of the Federal RCRA
regulations.  In states which have the final authorization to
operate the RCRA base program, the approved State program becomes
the RCRA program in that State (RCRA § 3006).  Also please be
aware that the State in which you client operates 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

-------
                                                                   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

-------
    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.

-------
                                                         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«

-------
     (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

-------
                                                      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

-------
     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

-------
                                                         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.

-------
                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

-------
      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

-------
                                                                 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

-------
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

-------
                                                        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

-------
Thank you for your interest in this issue.

                              Sincerely yours,
                              )on R" Clay
                              Assistant Administrator

-------
                                                                  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.

-------
                                                                    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- -

-------
                         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

-------
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
• «UCC S. MA1NC3*
niMOH C. wATZA
•OXANMC C JAV«C»
ALAN KLClN
MI/M4AY J. KLCIN*
MlCMACL J. *UWC»
JANCT S KOLt
OUDAM I LABOV1TJ*6
SUSANNA c. LAC MS
     j. me M MAN
     SxtCKMAN^
     H. SOUIAC
     TCRN
     c. SUSSMAN
     t. TUTCUH*
     M. vi sco
                  fto N, WCINCM
                     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
SUSAN C HOFFMAN*
NAOtNC MOLXANDCM*
OAVIO L. HVMAN*
UNOA T.
JOHN r. JUOOC'
SHCVMY A. ICVJDAN
SAMA •CTM KALB^
MICNON O. KL£/N*
STCVWAHT H. CAPA
CU2ASCTM C. UTTCN
LOW A. «HU-«'
AUSC M. PANITCM*
STCVCN M. FtjON*
LAUIIIC •». POUNSKT*
MOU.Y T OlBV-CT-
•omcxr DOSS*
                                              OOIAA wt»C« tTCICK-
                                              JCANNCM STlCrtL't
                                              CHWISTINA WOODWARD S
                                              STC^MCN TAHMOWSK(*
                                              CrTMCMIOS VCLAHOS-t
                                              AHY I. VCNTHY*
                                              MICHAAD A. WCST*At
                                             "      J. YAOIKOUGM
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

-------
                  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

-------
                                                       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

-------
(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.

-------
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

-------
                                                      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*'

-------
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

-------
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?

-------
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

-------
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.

-------
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

-------
                                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.

-------
                                                      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

-------
     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

-------
                                                                      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

-------
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

-------
                                                       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.

-------
     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

-------
                                                       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 <

-------
                   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

-------
                                                                  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

-------
                                                                   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

-------
      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

-------
                                                      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

-------
                                                       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 ..."

-------
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

-------
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.

-------
     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

-------
                                                         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.

-------
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

-------
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)

-------
                                                                      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).

-------
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

-------
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)).

-------
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

-------
                                                      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

-------
     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

-------
                                                       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

-------
     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

-------
                                                        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

-------
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

-------
                                                                     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

-------
       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.

-------
                                                                     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).

-------
       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.

-------
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

-------
                                                     (   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

-------
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

-------
                                                        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.

-------
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

-------
                                                        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

-------
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.

-------
                              - 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.

-------
                                                       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).
                                                          Printed on Recycled Paper

-------
     With respect to the Trona plant extractant (crud) treatment
process, based upon our analysis, we believe that mineral
processing begins at LLX2, at the point where boric acid is
created.  In particular, the basic operation at LLX2 is to
selectively extract boron compounds from the brine and then react
it with sulfuric acid to form boric acid.  The latter part of the
operation—where sulfuric acid reacts with sodium borate to
produce boric acid—results in products and wastes that are
physically and chemically dissimilar to the material that entered
the operation—that is, the naturally occurring mineral has been
destroyed and a new and relatively pure chemical compound has
been created (see 54 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

-------
                  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.
                                                                        Printed on Recycled Paper

-------
       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".

-------
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.

-------
              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

-------
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"

-------
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.

-------
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

-------
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

-------
\
       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*

-------
      \       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.

-------
     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.

-------
       >^          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.

-------
      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

-------
                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«
-------
 /  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

-------
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.

-------
      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

-------
                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

-------
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

-------
                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

-------
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

-------
           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

-------
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

-------
              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—"•-

-------
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 -

-------
              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

-------
     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

-------
               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

-------
     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

-------
                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.

-------
 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

-------
$  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

-------
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

-------
               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

-------
     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

-------
               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\

-------
     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

-------
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)
-------
     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

-------
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

-------
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.

-------
                 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.)

-------
       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.

-------
       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.

-------
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

-------
              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

-------
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

-------
      \       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

-------
     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.

-------
     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

-------
               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.

-------
     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.

-------
     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.

-------
                 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

-------
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

-------
                                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

-------
              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

-------
                                  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. .                           .

-------
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.

-------
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

-------
           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.

-------
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.

-------
           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.

-------
                                          -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.

-------
                                          - 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.

-------
      \      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

-------
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

-------
 _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

-------
                          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

-------
      !        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)

-------
                 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

-------
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

-------
                      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.

-------
       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.

-------
     \       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

-------
                    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

-------
              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

-------
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

-------
                  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

-------
                    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.

-------
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=
K-,5.fel««tffe


*^
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
                          rn
                          z
                          g
                          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.

-------
      \      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

-------
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

-------
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

-------
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

-------
                                                                       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                 <# '''"

-------
       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

-------
 ,
              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
                                                     Ftocycled/R»cyclaljte
                                                     PTimrt «*h SojMCinoU Ink on p«j»r i
                                                     contain* tt Kxnt 50% rrcycfed nbv

-------
                        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

-------
              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

                                                    Recycled/Recyclable
                                                    Printtd with SoyCanol* mk on p*p«r that
                                                    contain* «>t*tt 50% rteydtd t»»r

-------
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

-------
                                    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.

-------
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.

-------
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.

-------
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
                                               Prtnt»d wtth Soy'C»nol» Ink on piper mit
                                               conttfns at lt*M 50% rtcydtd fiber

-------
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

-------
                  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

-------
                          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)

-------
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.

-------
              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

-------
 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.

-------
 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

-------
*  •». ^»
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

-------
                       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.

-------
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

-------
              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


                                                      ftocyctod/ftocyclabi*
                                                      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)

-------
"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,

-------
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 —.—..—:«•«_^

-------
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

-------
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."

-------

                                   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

-------
                                   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

-------
       :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).

-------
 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

-------
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

-------
              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

-------
                                                      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

-------
               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

-------
                        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

-------
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.

-------
Michael H. Shapiro
December 8, 1994
Page 3

the manufacture of rtnrylir plpigtlr ejhafat
-------
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).

-------
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).

-------
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

-------
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.

-------
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.

-------
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

-------
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).

-------
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

-------
                                                      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

-------
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

-------
              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.

-------
              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
                                                      ftocydtd/Rtcyctabto
                                                      MnM •tm Soy«MieU Wk on pipw ihtt
                                                      eomalRt •( MMt 50% r*eycM ftttr

-------
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.

-------
     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

-------
         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

-------
      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

-------
                                                   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.
                                                    Rccyctod/RccycUbto
                                                    PrtraMwraiSoyCuwlilnft
                                                    contain* « IMK S0% itcrdM «Mr

-------
     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

-------
                  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

-------
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

-------
              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?

-------
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

-------
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.)

-------
     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

-------
     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

-------
                                                           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
                                                            MntM wtm Soy/anoU Ink en p«per mjt
                                                            eemafra ttlM*«5«% rtcrewd HMr

-------
HCM .ea&tt .-::•*: 3 * 30CX""               !O1 IE G7'34  : -/ST. !':OS/NC. 5550:5:2:5 ? I


                        MORGAN, LEWIS & BOCKIUS
New TO»«                        isoo n STMCET. N.w.                      Uo« AM«CL

HtAMI                          WASHIN9TOM. O.C. 2OO38                     H*«*l»»U«

PftlMCCTON                        Tet«»«»i.e: U««l ««T.»OOO                      UOMOOM
                                                                   TOKfO

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.