### EPA Positions on Contained Gas

II. EPA has had a consistentposition onthe meaning of"containedgaseous material" since 1982. The RCRA definition ofsolid wastes states: The tenn 'solid waste' means any garbage, refuse, sludge from a waste treatment plant, water supplytreatmentplant, or airpollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities

...." 42 U.S.C. 6904(27). Underthis definition, a gas mustbe contained before it can be considered a solid waste. EPA has never considered gas in a pipelineto be "contained"under this definition. 

### This position was established 1982, in EPA'sregulations for hazardous waste incineration facilities. 47 Fed. Reg. 27520 (June 24, 1982). In this final rule, EPA was presented with the question whether RCRA regulations apply to fume incinerators installed as air pollution control devices. EPA stated: EPA agrees with commenters that fume incinerators are subject onlyto regulation underthe CleanAirAct and does not intend that Parts 264 and 265 regulations apply to these facilities. Fume incinerators which are used to destroy gaseous emissions from various industrial processes, for example, are not subject to regulation under RCRA. In general the RCRA standards do not apply to fume incinerators since the input is not identifiable as solid waste, according to the definition set forth in 

### § 261.2. 47 Fed. Reg. at 27530. 

### EPAreaffirmed this interpretation ofRCRA in 1986. In response to a questionposed to the RCRA Hotline, EPA stated "afume incineratorused onlyto destroy gaseous emissions from an industrial process is not subject to RCRAregulation since the fume input, being anuncontained gas, is not a solid waste (perthe June 24, 1982, Federal Register (47 FR 27530))." RCRAISuperfund Hotline Monthly Summary, 9488.1986(03), available at RCRA Online. 

### EPAreaffirmed this interpretation again in 1987. In response to a questionregarding a methanol recoveryprocess, EPA distinguished between gases and condensate. 1. Stream A, the methanol-laden air from the drying and granulation step ofthe process, does notmeet the definition ofsolid wasteunder RCRA because it is invapor form and not confined in a container.2. The carbon beds that both condense and adsorb the methanol from the air contains an F003 waste when the condensation ofthe methanol occurs. Therefore, stream B, the carbon/methanol mixture is to behandled as a listed hazardous waste. Memorandum from Matthew Straus, Chief: Waste Characterization Branch, to Clifford Ng, Engineer, EPA Region II, dated June 17, 1987, available at RCRA Online. EPA reaffirmed this interpretation again in 1989, in a final rule listing certain waste generated from the manufacture ofchlorinated aliphatic hydrocarbons. In the proposed rule, EPA had proposed regulating gases that wcre capable ofbeing condensed as solid waste (and therefore hazardous wastes) even 

### ifthey were not in a condensed fonn. In the final rule, EPA changed its mind: Upon reconsideration ofthis issue (with the benefit ofcomments received on theproposed rulemaking). EPA now believes our authority to identify or list a waste as hazardous under RCRA is limited to containerizedor condensedgases (i.e., section 

### 1004(27) of 

### ReRA excludes allother gases from the definition of solidwastes and thus cannot be considered hazardous wastes}. 54 Fed. Reg. 50968, 50973; see also id. at note 5 ("EPA's previouslyissued guidance concerned fume incinerators (contained in the preambleto the incinerationregulations) remains in effect. See 47 FR27530, June 24, 1982. Fume incinerators are installed as air pollution control devices pursuantto regulations underthe Clean AirAct; theyre used to destroy gaseous emissions fonn various industrial processes. EPA concluded that, in general, RCRA standards do not apply to fume incinerators because the input (an uncontainerized gas) is not a solid waste according to the definition set forth in §261.2."). EPA reaffirmed this interpretation again in 1990. In the Hazardous Waste TSDF

­ Technical Guidance RCRA AirEmission Standards for Process Vents and Equipment Leaks, EPA-450/3-89-021 (July 1990) at page 2-3 EPA states: "Air standards havebeen promulgated for the control ofair emissions from pennitted hazardous waste incinerators. 40 CFR Part 264, Subpart 

### o. These standards require that incinerators burning hazardous waste be operated to achieve a destruction and removal efficiency (DRE) ofat least 99.99 percent for those primary organichazardous constituents listed in the facility pennit However, the process vent stream (i.e. gases and vapors) from a hazardous waste managementunit would notbe classified as a hazardous wastes. Noncontainerized gases emitted from hazardous wastes are not themselves hazardous wastes becausethe RCRA statute implicitlyexcludes them. Therefore combustion ofprocess vent streams in an incineratoris not subject to the 99.99 DRE requirement." EPA reaffirmed this interpretation again in 1991, in a rule addressing theburning of hazardous wastes inboilers and industrial furnaces. In response to comments requesting that EPA revise the definition ofcarbonregeneration unit so that units used for air

2emissions control, wet oxidation, and general recycling would notberegulated, EPA stated: Activated carbon units used as air emissions control devices ofgaseous industrial process emissions will not necessarilyberegulatedbecause trapped organics in such columns are nothazardous wastes because the gas originallybeing treated is not a solid waste (it is an uncontained gas), and therefore any condensed organics do not derive from thetreatment of a hazardous waste. 56 Fed. Reg. 7134, 7200 (Feb. 21, 1991) (citations omitted). EPA reaffirmed this interpretation again in 1994. See the Hazardous Waste Treatment, Storage, and Disposal Facilities (TSDF): Background Infonnation for Promulgated Organic Air Organic Air Emission Standards for Tanks, Surface Impoundments, and Containers, EPAl453/R-94/076b (November 1994) (since organic vapors emitted from hazardous waste are not solid orhazardous waste, control devices installed to complywith Subpart CC organic vapor control requirements are not hazardous wastemanagement units and do not require RCRA pennits). EPA reaffirmed this interpretationin the 2000 CISWI Rule. EPA included the following language on airpollution control devices in its response to comments: Control Devices Comment: Three commenters (IV-D-09, IV-D-25, IV-D-49) stated that air pollution control equipment should be categorically exempt from the CISWI standards and guidelines. Onecommenter (IV-D-35) stated that any combustion device whose function is pollution control

as mandated by another Federal orState requirement should be exempt from the CISWI standards and guidelines. One commenter(IV-D-73) stated that the CISWI standards and guidelines are not clear as to whether they apply to flares burning surplus, by-product, blast furnace gas. Onecommenter(IV-D-94) stated that it is unclear whether incinerators used for air pollution control are covered by the CISWI standards and guidelines. Response: Incinerators used as air pollution control devices and flares would not be covered by the CISWI standards and guidelines because they are not burningcontained gases. The definition ofsolid waste includes only "

...solid. liquid, semisolid, orcontained gaseous 

### materials

..." Adefinition of "containedgaseous material" has been added to the CISWI standards and guidelines to clarify that only gases that are in a container when that container is combusted are covered by the CISWI standards and guidelines. 2000 CISWIRule Response to Comments, at 15.

3Finally, EPA's long-standinginterpretation has been upheld by the Administrator and the Environmental Appeals Board. See, e.g. In re BP ChemicalsAmerica, Inc., RCRAAppeal No. 89-4, 1991 EPA App. LEXIS 27; 3 E.A.D. 667 (Admin., Aug. 20, 1991) (TheAdministrator specifically rejected Region V's argument that gaseous emissions were "contained" bythe process units they passed through, associated piping orthe facility itself, holding that the Agency's definition ofthe term "contained" has consistentlybeen confined "in the narrower sense ofbeingin an individual container such that the gas is amenable to shipment"). See also EnvironmentalAppealsBoardIn re: Chemical Waste Management a/Indiana, Inc., RCRA Appeal No. 95-4, 

### 1995EPAApp. LEXIS

### 31 (EAB, Aug. 23, 1995) (emissions from microencapsulation ofhazardous debris) (The EAB concludes the air emissions are excludable from Subtitle C regulation "because the air emissions that theRegion seeks to regulate are not containerized.")

II. Consequences ifEPA changes its interpretation. IfEPA changes its interpretation ofthe term "contained gaseous material," flares and other airpollution control equipment could nowbe considered solid waste incinerators subject to CISWI standards. The same wouldbe true ofunits that combust gaseous fuels derived from secondarymaterial. Virtually every sector ofU.S. manufacturing, as well as the waste and wastewater management sectors, will be thrown into disarray.

4