RO 11426 

9441.1989(19) 

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE 

APR 26 1989 

MEMORANDUM 

SUBJECT: F006 Recycling 

FROM: Sylvia K. Lowrance, Director 

 Office of Solid Waste (OS-300) 

TO: Hazardous Waste Management Division Directors 

 Regions I-X 

It has come to the attention of EPA Headquarters that many 

of the Regions and authorized States are being requested to make 

determinations on the regulatory status of various recycling 

schemes for F006 electroplating sludges. In particular, 

companies have claimed that F006 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 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 

activities are legitimate recycling, or rather just some form of 

treatment called "recycling" in an attempt to evade regulation. 

Second, assuming the activity is not sham recycling, the issue 

is whether 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 
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a difficult task. Basically, 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 

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. The attachment 

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 F006 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)(1) and 261.2(e)(2)(i) or if it 

is accumulated speculatively under section 261.2(e)(2)(iii). 

Likewise, the F006 "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 CFR 266.20(b), as amended by 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 261.2(e)(1)(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. 

In order for the cement kiln dust to remain excluded from 

regulation, the owner or operator must demonstrate that the use 

of F006 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). [NOTE: 

This issue will be addressed more fully in the upcoming 

supplemental proposal of the Boiler and Industrial Furnace rule, 

which is pending Federal Register publication.] 

For F006 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 261.2(c) and 261.6(c)(1)). Furthermore, 

because this is a recovery process rather than a production 
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process, the F006 waste remains a hazardous waste (and must be 

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managed as 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 Bevill 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 (i.e., 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 rule 

noted above, the Agency will 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 the process and the slag would not be derived from 

a hazardous waste.] 

Also, 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 Solid Waste. While any major changes may depend 

on RCRA authorization, 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 the criteria used to evaluate a specific 

case, please contact Mitch Kidwell, of my staff, at FTS 

475-8551. 

Attachment 
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CRITERIA FOR EVALUATING WHETHER A WASTE IS BEING RECYCLED 

The difference between recycling and treatment is sometimes 

difficult to distinguish. In some cases, one is trying to 

interpret intent from circumstantial evidence showing mixed 

motivation, always a difficult proposition. The 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 answers 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? 

 Does it contain Appendix VIII constituents not found 

 in the analogous raw material/product (or at higher 

 levels)? 

 Does it exhibit hazardous characteristics that the 

 analogous raw material/product would not? 

 Does it contain levels of recoverable material 

 similar to the analogous raw material/product? 

 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? 

 Is the secondary material as effective as the raw 

 material or product is replaces? 

(2) What degree of processing is required to produce a 

 finished product? 

 Can the secondary material be fed directly into the 

 process (i.e., direct use) or is reclamation (or 

 pretreatment) required? 

 How much value does final reclamation add? 
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(3) What is the value of the secondary material? 

 Is it listed in industry news letters, trade journals, etc.? 

 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? 

 Is there a contract in place to purchase the 

 "product" ostensibly produced from the hazardous 

 secondary materials? 

 If the type of recycling is reclamation, is the 

 product used by the reclaimer? The generator? Is 

 there a batch tolling agreement? (Note that since 

 reclaimers are normally TSDFs, assuming they store 

 before reclaiming, reclamation facilities present 

 fewer possibilities of systemic abuse). 

 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? 

 Is the secondary material stored on the land? 

 Is the secondary material stored in a similar manner 

 as the analogous raw material (i.e., to prevent loss?) 

 Are adequate records regarding the recycling 

 transactions kept? 

 Do the companies involved have a history of 

 mismanagement of hazardous wastes? 

(6) Other relevant factors. 

 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? 

 Are the toxic constituents actually necessary (or of 

 sufficient use) to the product or are they just 

 "along for the ride." 
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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).