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From:

<Atagi.Tracyepamail.epa.gov>

To:

‘Mike

McCambridge”

<MCCAMBMipcb.state.il.us>

CC:

<goode.marilyn©epamail.epa.gov>,

<Mooney.Charlotteepamail.epa.gov>

Date:

12/18/2009

12:29 PM

Subject:

Re: Regulatory

Status

of Reclaimed

Materials Prior to the

2008

Amendments

Attachments:

pic31717.jpg

Mike -

Thank

you for

your email.

Here

are

some clarifications:

(1) You write:

“The recyclable materials

that

are now

designated HSM

by virtue

of the 2008 DSWR

amendments, however,

would not fall within

any of the lists

in subsections (a)(2) or

(a)(3). They are therefore

subject

to the requirements

of subsections (b) and

(C),

which

appear to

impose much

less

than the entire body of the

generally applicable

hazardous

waste

standards.”

No, the

HSM that

falls under the 2008

DSWR exclusions

does

not

meet

the

regulatory definition

of “recyclable

material”

in 40

CFR 261 .6(a)(1)

because

the

DSW HSM

is not

solid

waste,

and therefore not

hazardous

waste. Thus the

requirements of subsections

(b) and

the DSW

HSM..

(2) “What

confuses me is that I had

assumed that reclamation

“treatment,”

as that term

is defined in 40 C.F.R.

260.10,

since it is

using

a “method,

technique, or process

... to change the physical

character

composition

of any hazardous waste . .

. so as to recover

energy or material

resources from the waste

Treatment is

governed

under the T/S/D facility

standards,

and

40 C.F.R. 270.1(b)

requires application for

a RCRA permit to

continue after

facility

becomes

subject to regulation. Further,

while stating

the subset of

regulations

that

apply

to facilities recycling recyclable

materials, 40

C.F.R. 261.6

does

not

expressly

state

outside of the cited

parenthetical

that

the recycling is not

“treatment” that

subject to regulation.”

Yes,

reclamation

does

fall under

the

260.10 definition

of “treatment”

but

facilities

managing recyclable materials

as defined in 40

CFR 261.6

are generally

excluded from

TSD facility standards

(see

CFR 264.1

(g)(2) and 40 CFR

265.1(c)(6)).

(3) “In many regards, it would

appear that

some segments of the

2008

DSWR amendments

actually impose

a greater burden

of compliance on

recycling

facilities than did the

prior rules

based

on the 1985 DSWR

amendments. This

especially

true for third-party

reclamation

outside

the control

of the HSM generator.”

Yes,

the

2008

DSW rule can impose more

requirements

than

the 40 CFR

261.6

regulations, particularly for facilities

with no storage

prior to

recycling.

For example,

facilities

that are regulated

under 261 .6(c)(2)

would not be

required to have financial

assurance, while third

party DSW

reclamation

facilities

would

need to have financial

assurance as a

condition of the DSW

exclusion..

hope this helps - please

let us know if

you

have any further

questions.

Tracy Atagi

Materials Recovery and

Waste Management Division

(5304-P)

Office

Resource

Conservation

and

Recovery

U.S

Environmental Protection

Agency

Washington

D.C.

20460

703-308-8672

From:

Mike McCambridge <MCCAMBM©ipcb.state.il.us>

To:

Marilyn

Goode/DC/USEPAIUS@EPA

Cc:

Tracy Atagi/DC/USEPA/US©EPA

Date:

12/17/2009 07:35

Subject: Regulatory Status of Reclaimed

Materials Prior to the 2008

Amendments

Examining

the 2008 amendments to the

Definition of Solid Waste Rule

(2008 DSWR),

I am trying to examine the regulatory

status of reclaimed

materials

that are now designated ‘hazardous

secondary materials” (1-ISM).

I would like

you

to either confirm

or deny my interpretation

of the

hazardous

waste standards as they stood prior to

the 2008 DSWR

amendments.

I had always assumed that the

full RCRA generator; transporter;

and

treatment, storage,

disposal (T/S/D) facility standards

of 40 C.F.R.

262, 263, 264, and 265 applied,

as appropriate, since the material

was

hazardous

waste. My examination, however, disclosed

that 40 C.F.R.

261.6 would allow only selective

application of the T/S/D facility

standards.

Reading the pertinent segment

the

1985 DSWR amendments

(at 50 Fed.

Reg. 614, 650 (Jan. 4, 1985)) does not fully clarify

exactly

what applies to reclaimed hazardous waste

that was not formerly excluded

from

the

definition of solid waste.

Section 261 .6(a)(1) designates recycled

hazardous waste

“recyclable

material.” It provides that the requirements

subsections

(b) and (c)

apply to recyclable materials

not specifically listed in either

subsections (a)(2) or

(a)(3).

Subsection

(a)(2) lists the wastes that

are recycled under the provisions of 40 C.F.R. 266.

Subsection (a)(3)

lists the special-case wastes

of industrial ethyl alcohol, scrap metal

that is not excluded scrap metal, three specified

fuels produced from

oil-bearing petroleum

refinery

wastes,

used oil that is not listed

hazardous waste, and exported hazardous waste.

Subsections (a)(2) and

(a)(3)

also list alternative

management standards that apply to

each

specified type of waste.

The recyclable materials that are now designated HSM

by virtue of the

2008 DSWR amendments, however, would not

fall within any of the lists in

subsections

(a)(2) or (a)(3). They are therefore subject to the

requirements of subsections

(b)

and

(C),

which

appear to impose much

less

than the entire

body of

the

generally applicable hazardous waste

standards.

Subsection (b) imposes the RCRA notification requirement

and the full

body of

the hazardous waste

generator and transporter requirements

generators and transporters of recyclable materials.

That is as I would

have

expected.

It is the body of requirements that applies to

persons

engaging in recycling the recyclable materials

that surprises me.

Subsection

the

universe of recycling facilities into

(1)

those facilities that store recyclable materials

before recycling and

(2) those facilities that recycle the recyclable materials without

storing them. There is

great

difference between the requirements that

apply to each respective type of facility.

The facilities that store recyclable materials before recycling

are

subject to all of the T/S/D facility

standards except those relating to

land treatment (40 C.F.R. 264, subpart M and 265, subpart

M), landfills

(40

C.F.R. 264, subpart N and 265,

subpart N),

incinerators

(40

C.F.R.

264,

subpart

0 and 265, subpart 0), thermal treatment units

(40 C.F.R.

265,

subpart P), chemical,

physical,

and

biological

treatment units (40

C.F.R. 265,

subpart

Q),

corrective

action management

units and temporary

units (40 C.F.R. 264,

subpart S and 265, subpart

S), drip

pads (40

C.F.R.

264,

subpart W and 265,

subpart W), miscellaneous

units (40

C.F.R.

264, subpart X and

265, subpart

X),

containment

units (40 C.F.R.

264, subpart DD

and 265, subpart

DD), and munitions

and explosives (40

C.F.R. 264, subpart

EE and

265,

subpart EE).

With only

few possible

exceptions,

nearly all of the pertinent

T/S/D facility standards

apply

to facilities

storing recyclable

materials.

The

facilities that recycle the

recyclable materials

without prior

storage

bear

a much-reduced regulatory

burden. They must

comply with

the RCRA

notification

requirement

and TIS/D facility

use-of-manifest

requirements (40

C.F.R. 265.71 and

265.72). Such

facility is

also

subject to the

air emissions requirements

for equipment

leaks and tanks,

containers, and vessels

(40 C.F.R. 264, subparts

AA and BB

and

265,

subparts

AA and BB) if it is subject

to the RCRA

permit

requirements.

Reinforcing

the fact that the RCRA TIS/D

facility

standards

do not apply

recyclable

materials recycling

(but only to the storage

of these

materials)

the

parenthetical

statement in subsection

(c)(1) which

states:

“The

recycling process itself

is exempt from regulation

except

as provided

261.6(d).”

Thus, recycling operations

appear to be

largely

exempt from

the RCRA TISID facility

standards except where

they

store recyclable

materials

before

recycling or where they

are subject to

the

RCRA permit requirements.

Where the recycling

facility is subject

to the RCRA permit

requirements,

the

air emissions standards

would

apply.

What

confuses me is that

had assumed

that reclamation

is “treatment,”

that

term is defined

in 40 C.F.R. 260.10, since

it is using a

“method, technique,

or process

... to change the physical

character

composition of any hazardous

waste . .

so as to recover energy or

material

resources from the waste

Treatment

governed under

the T/S/D facility standards,

and 40 C.F.R. 270.1(b)

requires

application for

RCRA permit to continue

after a facility becomes

subject to regulation. Further,

while stating the

subset of regulations

that apply to facilities

recycling recyclable

materials, 40 C.F.R. 261.6

does not expressly state outside

of the cited

parenthetical

that the

recycling is

not

“treatment”

that is subject

to regulation.

In many regards,

it would appear that some segments

of the 2008

DSWR

amendments

actually impose a greater

burden of compliance

recycling

facilities than did the prior

rules based on the 1985 DSWR

amendments.

This is especially

true for third-party reclamation

outside the control

the HSM

generator.

Please

explain,

and

tell me if I

missing

something here.

Michael

McCambridge

Attorney

Illinois Pollution Control Board

312-814-6924

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