02/18/2008 15:28 FAX

Ij 00

1/006

OPtIONAL

FOHM

së (7-90)

FAX

TRANSMITTAL

-

Faxt

FnxP

3

SaGS—I

01

GENERAL

SERVICES

APMINISTPIfIöI

3i

---

02/18/2009

15:29

FAX

tj002/008

•

;..

•

-

UNITED

STATES

ENVIRONMENTAL

PROTECTION

AGENCY

WASHINGTON.

D.C.

20460

•%

mod’

*

NR

28

m89

OFFICE

OF

SOLID

WASTE

AND

MEROENCY

RESPONS

StJBJECT:F006

Recycling

FROM:

Sylvia

K.

Lowranc

,

0

Office

of

Solid

Was

e

(08—300)

TO:

Hazardous

Waste

Management

Division

Directors

Regions

t-X

It

has

come

to

the

attention

of

Efl

Headquarters

that

many

of

the

Regions

an

authorized

States

are

being

requested

to

maZe

determinations

on

the

regulatory

status

of

various

recycling

schemes

for

F006

electroplating

sludges.

In

particular,

companies

have

claimed

that

flOG

waste

is

being

recycled

by

being

used

as:

(1)

an

ingredient

in

the

manufacture

of

aggregate,

(2)

an

ingredient

in

the

manufacture

of

cement,

and

(3)

feedstock

for

a

metals

recovery

smelter.

The

same

company

may

make

such

requests

of

more

than

one

Region

and/or

State..

Given

the

complexities

of

the

requlations

governing

recycling

vs.

treatment

and

the

definition

of

solid

waste,

and

the

possible

ramifications

of

determinations

made

in

one

Region

affecting

another

Region’s

determination,

it

is

extremely

important

that

such

determinations

are

consistent

and,

where

possible

0

coordinated.

Two

issues

are

presented.

The

first

issue

is

whether

these

activities

are

legitimate

recycling,

or

rather

just

some

form

of

treatnnt.called

•recycling

in

an

attempt

to

evade

regulation.

Second,

assuming

the

activity

is

not

sham

recycling,

the

issue

is

whetbeç

the

activity

is

a

type

of

recycling

that

is

subject

to

regulation

under

sections

261.2

and

261.6

or

is

it

excluded

from

our

authority.

With

respect

to

the

issue

of

whether

the

activity

is

sham

recycling,

this

question

involves

assessing

the

intent

of

the

owner

or

operator

by

evaluating

circumstantial

evidence,

always

---

I

003/008

02/18/2009

15:29

FAX

S

—2—

a

difficult

task.

Basically,

the

determination

rests

on

whether

the

secondary

material

is

Wconjodjty...ljke,R

The

ptjjfl

environmental

considerations

are

(1)

whether

the

secondary

material

truly

has

value

as

a

raw

material/product

(i.e.,

is

it

likely

to

be

abandoned

or

mismanaged

prior

to

reclamation

rather

than

being

reclaimed?)

and

(2)

whether

the

recycling

process

(including

ancillary

storage)

is

likely

to

release

hazardous

constituents

(or

otherwise

pose

risks

to

human

health

and

the

environment)

that

are

different

from

or

greater

than

the

processing

of

an

analogous

raw

material/product.

ac

ent

to

this

memorandum

sets

out

relevant

factors

in

more

detail,

If

the

activity

is

not

a

sham,

then

the

question

is

whether

it

is

regulated.

If

£006

waste

is

used

as

an

ingredient

to

produce

aggregate,

then

such

aggregate

would

remain

a

solid

waste

if

used

in

a

manner

constituting

disposal

(e.g.,

road-base

material)

under

sections

26l.2(c)(l)

and

26l.2(e)(2)(i)

or

if

it

is

accumulated

speculatively

under

section

261.2(e)(2)(iii).

Likewise,

the

£006

“ingredient”

is

subject

to

regulation

from

the

point

of

generation

to

the

point

of

recycling.

The

aggregate

product

is,

however,

entitled

to

the

exemption

under

40

CTR

266.20(b),

as

amended

b7

the

August

17,

1988,

Land

Disposal

Restrictions

for

First

Third

Scheduled

Wastes

final

rule

(see

53

FR

31197

for

further

discussion).

However,

if

the

aggregate

is

not

used

on

the

land,

then

the

materials

used

to

produce

it

Would

not

be

solid

wastes

at

all,

and

therefore

neither

those

materials

nor

the

aggregate

would

be

regulated

(see

section

26l.2(e)(lHi)).

Likewise,

Cement

manufacturing

using

£006

waste

as

an

ingredient

would

yield

a

product

that

remains

a

solid

waste

if

it

is

used

in

a

manner

constituting

disposal,

also

subject

to

section

268.20(b).

There

is

an

additional

question

Of

whether

the

cement

kiln

dust

remains

subject

to,

the

Bevill

exclusion.

In

order

for

the

cement

kiln

dust

to

remain

excluded

from

regulation,

the

owner

or

operator

must

demonstrate

that

the

use

Of

£006

waste

has

not

significantly

affected

the

character

of

the

cement

kiln

dust

(e.g.,

demonstrate

that

the

use

of

F006

waste

has

not

significantly

increased

the

levels

of

Appendix

VIII

constituents

in

the

cement

kiln

dust

leachate).

[MYrE:

This

issue

will

be

aødressed

more

fully

in

the

upccaing

sulaental

proposal

of

the

Boiler

and

Industrial

Furnace

rule,

which

is

pending

fMflni.

Raisin

publication

I

For

£006

waste

used

as

a

feedstock

in

a

metals

recovery

smelter,

the

Agency

views

this

as

a

recovery

process

rather

than

use

as

an

ingredient

in

an

industrial

process

and,

therefore,

considers

this

to

be

a

form

of

treatment

that

is

not

currently

regulated

(see

sections

281.2(c)

and

26l.6(cHl)).

Furthermore,

because

this

is

a

recovery

process

rather

than

a

production

process,

the

£006

waste

remains

a

hazardous

waste

(and

must

be

---

02/18/2009

15:29

FAX

I004/008

—3—.

managed

as

such

prior

to

introduction

to

the

process),

and

the

slag

from

this

process

would

normally

be

considered

a

“derived

from”

1006

waste.

However,

for

primary

smelters,

the

slag

may

be

considered

subject

to

the

Bevili

exclusion

provided

that

the

owner

or

operator

can

demonstrate

that

the

use

of

£006

waste

has

not

significantly

affected

the

hazardous

constituent

content

of

the

slag

(i.e.,

make

a

demonstration

similar

to

the

one

discussed

above

for

the

cement

kiln

dust).

[fkfl’E:

In

the

supplemental

proposal

of

the

Boiler

arid

Industrial

Furnace

rule

noted

aye,

the

Agency

viii

be

proposing

a

definition

of

“indigenous

waste”

based

on

a

comparison

of

the

Constituents

found

in

the

waste

to

the

constituents

found

in

an

analogous

raw

material.

Should

the

1006

waste

ant

the

definition

of

an

“indigenous

waste,”

the

waste

would

cease

to

be

a

waste

when

introduced

to

the

process

and

the

slag

would

not

be

derived

from

a

hazardous

waste,]

Also,

you

should

be

aware

that

05W

is

currently

reevaluating

the

regulations

concerning

recycling

activities,

in

conjunction

with

finalizing

the

January

8,

1988

proposal

to

amend

the

Definition

Of

Solid

Waste.

While

any

major

changes

may

depend

on

RCRA

reauthorization,

we

are

considering

regulatory

amendments

or

changes

in

regulatory

interpretations

that

will

encourage

on-site

recycling,

while

ensuring

the

protection

of

human

health

and

the

environment.

Headquarters

is

able

to

serve

as

a

clearinghouse

to

help

coordinate

determinations

on

whether

a

specific

case

is

“recycling”

or

“treatment”

and

will

provide

additional

guidance

and

information,

as

requested.

Ultimately,

however,

these

determinations

are

made

by

the

Regions

and

authorized

States.

Attached

to

this

memorandum

is

a

list

of

criteria

that

should

be

considered

in

evaluating

the

recycling

scheme,

Should

you

receive

a

request

for

such

a

determination,

or

should

you

have

questions

regarding

tne

criteria

used

to

evaluate

a

specific

case,

please

contact

Mitch

Kidwell,

of

my

staff,

at

FTS

475—8551.

Attactimot

---

02/18/2009

15:29

FAX

(005/008

•

CRITZMIA

ita

EVflIThflNCL

WKETE

A WASTE

IS

BEING

RECYCLED

The

thffernce

between

recycling

and

treatment

is

sometimes

diEt

icult’to

distinguish.

In

some

cases,

one

is

trying

to

interpret

Intent

from

circumstantial

evidence

showing

mixed

motivation,-

always

a

difficult

proposition.

me

potential

for

abuse

is

such

that

great

care

must

be

used

when

making

a

determination

that

a

particular

recycling

activity

is

to

go

unregulated

(i.e.,

it

is

one

of those

activities

which

is

beyond

the

scope

of our

jurisdiction).

In

certain

cases,

there

may

be

few

clear—cut

answers

to

the

question

of

whether

a

specific

activity

is

this

type

of

excluded

recycling

(and,

by

extension,

that

a

secondary

material

is

not

a waste,

but

rather

a

raw

material

or

effective

substitute);

however,

the

following

list

of

criteria

may be

useful

in

focusing

the

consideration

of

a

specific

activity.

Here

tOO,

there

may

be

no

clear-cut

answers

but,

taken

as

a

whole,

the ans”ers

to

these

questions

should

help

draw

the

distinction

between

recycling

and

sham

recycling

or

treatment.

(1)

Is

the

secondary

material

similar

to

an analogous

raw

material

or

product?

o

Does

it

contain

Appendix

VIII

constituents

not

found

in

the

analogous

raw material/product

(or

at

higher

levels)?

o

Does

it

exhibit

hazardous

characteristics

that

the

analogous

raw

material/product

would

not?

o Does

it

contain

levels

of

recoverable

material

similar

to the

analogous raw

material/product?

o

Is

much

more

of

the

secondary material

used

as

compared

with

the

analogous raw

material/product

it

replaces?

Is

only

a

nominal amOunt

of

it

used?

o

is

the

seondary

material

as

affective

as

the

raw

material

or

product

it

replaces?

(2)

- -Imat

Geqrn

of

processing

is

required

to

produce

a

tini5tied

product?

- 0

can

the

secondary

material

be

fed

directly

into

tt

process

(i.e..

direct

use)

or

is

reclamation

(or

pretreatment)

required?

o

How

much

value

does

final

reclamation

add?

---

02/18/2009

15:29

FAX

IJ008/008

—2—

(3)

Wiat

is

the value

of

the

SeCondary

material?

o

Is

it

listed

in

industry

news

letters,

trade

journais,

etc.?

o

Does

the

secondary

material

have

economic

value

comparable

to

the

raw

material

that

normally

enters

the

process?

(4)

Is

there

a guaranteed

market

for

the

end

product?

o

Is

there

a

contract

in

place

to

purchase

the

NproductN

ostensibly

produced

from

the

hazardous

secondary

materials?

o

If

the

type

of recycling

is

reclamation,

is

the

product

usea

by

the

reclaimer?

The

generator?

Is

there

a

batch tolling

agreement?

(Note

that since

reclaimers

are

normally

tsDFs,

assuming

thcy

store

before

reclaiming,

reclamation

facilities

present

fewer

possibilities

of

systemic

abuse).

o

Is

the

reclaimed

product

a recognized

commodity?

Are

there

industry—recognized

quality

specifications

for

the

product?

(5)

Is the

secondary

material

handled

in

a

manner

consistent

with the

raw

material/product

it

replaces?

o

Is

the

secondary

material

stored

on the

land?

o

Is the

secondary

material

stored

in

a

similar

manner

as

the

analogous

raw

material

(i.e.,

to

prevent

loss)?

o

Are adequate

records

regarding

the

recycling

transactions

kept?

o

Do the

companies

involved

have

a

history

of

mismanagement

of

hazardous

wastes?

(6)

Other

relevant

factors.

o

What

are

the

economics

of the

recycling

process?

Does

most

of the

revenue

come

from

charging

generators

for

managing

their

wastes

or

from

the

sale

of the

product?

o

re

the toxic

constituents

actually

necessary

(or

of

sufficient

use)

to

tne

product

or are

they

just

tialong

for the

ride.

These

criteria

are

drawn

from

53

FR at 522

(January

8,

1988);

52

FR

at

17013

(May

6,

1987);

and

50

FR

at

638 (January

4,

1985).