### 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 determ inations made in one Region affecting another Region's dete rmination, 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 ra w 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 indu strial 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

### RO 11426 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 Boile r and Industrial Furnace rule noted above, the Agency will be proposing a definition of "indigenous waste" based on a co mparison 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 regula tory 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 dete rmination, 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 WHETHE R 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, ther e 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 ra w 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."

### RO 11426 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).