02/18/2009
15:28 FAX
001/008
OP1ONAL
FO9M
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FAX
TRANSMITTAL
[oPaQ
Fax
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Fxx
7-7358
3
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3NERAL
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ACMINISTRATICN
I
002/008
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15:28
FAX
•
..
f
UNITED
STATES
ENVIRONMENTAL
PqOTECTI0N
AGENCY
WASHINGTON,
D.C.
20460
%
AflD
26
OPICEOF
SOLID
WASTE
AND
EMRGENCV
SPCN5
SUBJECT:
F006
Recycling
FROM:
Sylvia
K.
LOwr
Office
of
Solid
Wasl(e
(05—300)
TO:
Hazardous
Waste
Management
Division
Directors
Regions
I-X
It
has
come
to
the
attention
of
EPA
Headquarters
that
tfta!ly
of
the
Regions
and
authorized
States
are
being
requested
to
maice
determinations
on
the
regulatory
status
of
various
recycling
schemes
for
FOOG
electroplating
sludges.
In
particular,
companies
have
claimed
that
F006
waste
is
being
recycled
by
being
used
as:
U)
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
regulations
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,
coordinated.
Two
issues
are
presented.
The
first
issue
is
whether
these
activitie,
aze
legitimate
recycling,
or
rather
uSt
some
form
of
treatmentg.called
•recycling
in
an
attempt
to
evade
regilation.
Second,
ssuming
the
activity
is
not
sham
recycling,
the
issue
is
whet
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
issua
of
whether
the
activity
is
sham
recycling,
this
question
involves
assessing
the
intent
Of
the
owner
or
operator
by
evaluating
circumstantial
evidence,
always
003/008
02/tS/2009
15:29
FAX
—2—
a
difficult
task.
Dasically,
the
determination
rests
on
whether
the
secondary
material
is
‘commodity’-like.”
The
main
environmental
considerations
are
(1)
whether
the
secondary
material
truly
has
value
as
a
raw
material/product
(i.e.,
is
it
lik:ely
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
1006
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
261.2(c)(l)
and
261.2(e)(2)(i)
or
if
it
is
accumulated
speculatively
under
section
261.2(e)(2)(iii).
tikewiae
the
£006
“ingredient
is
suMect
to
regulation
from
the
point
of
generation
to
the
point
of
recycling..
The
aggregate
product
is,
however,
entitled
to
the
exemption
under
40
CFR
266.20(b),
as
amended
by
the
1iugirnt
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
uSSd
to
produce
it
would
not
be
solid
wastes
at
all,
and
therefore
neither
those
materials
nor
the
aggregate
would
be
regulated
(see
section
261.2(g)(l)(i)).
Likewise,
cement
manufacturing
using
F006
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
266.20(b).
There
is
an
additional
question
of
whether
the
cement
kiln
dust
remains
subject
to
the
Bevill
exclusion.
Zn
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
1006
waste
has
not
significantly
increased
the
levels
of
Appndix
VIII
constituents
in
the
cement
kiln
dust
leachate).
[Y.rE:
This
issue
viii
be
addressed
sore
fully
in
the
upcoming
supp1ental
proposal
of
the
floiler
and
Industrial
Furnace
rule,
which
is
pending
B
jat
publication.
3
For
1006
waste
used
as
a
feedatock
in
a
metals
recovery
smelter,
the
gency
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
261.2(c)
and
261.6(c)(l)).
Furthermore,
because
this
is
a
recovery
process
rather
than
a
production
process,
the
£006
waste
remains
a
hazardous
waste
(end
must
be
02/18/2009
15:29
FAX
004/008
—3—.
managed
a.
such
prior
to
introduction
to
the
process),
and
the
slag
from
this
process
would
normally
be
considered
a
“derived
from”
F006
waste.
However,
for
primary
smelters,
the
slag
may
be
considered
subject
to
the
BevilJ.
exclusion
provided
that
the
owner
or
operator
can
demonstrate
that
the
use
of
F006
waste
has
not
significantly
affected
the
hazardous
constituent
content
of
the
slag
(1
.
e
4
,
make
a
demonstration
similar
to
the
one
discussed
above
for
the
cement
kiln
dust).
[NOTE:
In
the
supplemental
proposal
of
the
Boiler
and
Industrial
Furnace
nile
noted
above,
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
F006
waste
meet
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.]
7lso,
you
should
be
aware
that
OSW
is
currently
reevaluating
the
regulations
concerning
recycling
activities,
in
conjunction
with
finalizing
the
January
8,
1988
proposal
to
amend
the
Definition
of
Sod
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.
ttached
tO
this
memorandwn
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
tfle
criteria
used
to
evaluate
a
specific
case,
please
contact
Mitch
Kidwell,
of
my
staff,
at
FTS
475—8551.
AttaChmEt
02/18/2009 15:29
FAX
l}005/O08
CkflIA
FOR
ZVALtTh!NG
WIIETI
SPE
IS
BEING
RECYCLED
The
difference
between
recycling
and
treatment
is
sometimes
thfficult’to
distinguish.
In
some
cases,
one
is
trying
to
interpret
ntent
from
circumstantial
evidence showing
mixed
motivationj
always
a
difficult
proposition.
The
potential
for
abuse
iS
Such
that
groat
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
wnetner
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
answers
to
these
questions
should
help
draw
the
distinction
between
recycling
and
sham
recycling
or
treatment.
(1)
Is
the
secondary
material
similar
to
an analoqous
raw
material
or
product?
o
Does
it
contain
ppendix
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
effective
as
the
raw
material
or
product
it
replaces?
(2)
- -imat
degree
of
processing is
required
to
produce
a
finiShed
product?
o
can
the
secondary
material
be
fed
directly
into
tr
process
(i.e..
direct
use)
or
is
reclamation
(or
pretreatment)
required?
o
How
much
value
does
final
reclamation
add?
2/18/2OO9
15:29
FAX
OOE/OO8
—2—
F
(3)
Jftat
is
the
value
of
tue
secondary
material?
o
Is
it
listed
in
industry
news
letters,
trade
journals,
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
or
the
end
product?
o
Is
there
a
contract
in
place
to
purchase
the
“product”
ostensibly
produced
from
the
hazardous
secondary
materials?
o
If
the
type
of
recycling
is
reclamation,
is
the
product
used
by
the
reclaimer?
The
generator?
Is
there
a
batch
toiling
agreement?
(Note
that
since
reclaimers
are
normally
‘r5tFs,
assuming
they
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
fliat
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
tne
toxic
constituents
actually necessary
(or
of
sufficient
use)
to te
product
or
are
they
just
“along
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).