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RCRA Beneficial Use

2012 Missouri Hazardous Waste Seminar

November 13, 2012

Kathy Flippin, MDNR Haz. Waste Program

Dale Guariglia, Partner, Bryan Cave LLP

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Key beneficial use concepts

• EPA’s Resource Conservation and

Recovery Act (RCRA) regulations

distinguish between materials:

– that are directly used or reused as products

or as ingredients in the manufacture of

products, and

– those that must be reclaimed before they can

be used or reused

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Key beneficial use concepts, cont. • Materials used or reused without first being

reclaimed are not considered either solid or

hazardous waste

• Materials that must be reclaimed/recycled prior

to use or reuse, are considered solid waste and

may also meet the definition of hazardous waste

and

• May require hazardous waste permits for

treatment or a Missouri Resource Recovery

certification (unless exempt)

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Beneficial Use Example A – Treatment?

• Company A uses

solvents to clean

electronic parts

• Sends used solvents

offsite to permitted TSD

as D001 (ignitable) and

F005 hazardous waste

• Manager wants to

redistill/ recycle and

reuse the solvents onsite

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Recycle and reuse on site • May the company do it?

– Yes, it would not be hazardous waste treatment

requiring a permit if it obtains a Missouri Resource

Recovery certification for the distillation unit and

follows its certification, applicable regulations and

guidance

• Why?

– Because the solvent is hazardous waste and must be

reclaimed before use (i.e., solid and hazardous waste

otherwise requiring a permit to treat)

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Resource recovery regulations • What regulations allow

hazardous waste solvent

reclamation without a

hazardous waste permit?

– Missouri Resource

Recovery regulations -

Title 10 Code of State

Regulations, Division

25, Chapter 9

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Resource recovery

Applicable to:

• spent materials

• owner/operator of a

facility reclaiming or

reusing hazardous waste

for materials, or

transforming hazardous

waste into new products

that aren’t hazardous

waste

• Examples:

• Solvent distillation

• Lead value

reclamation

• Spent nitrating acid

distillation

• Ballistic sand

recovery

• Waste paint recovery

• Fluorescent lamp

recycling

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Recycle and reuse onsite, cont. • Is this treatment of hazardous waste?

– No - if company follows applicable Missouri Resource

Recovery regulations and

– follows guidance on legitimate reclamation and

recycling. See legitimacy criteria and info:

http://www.epa.gov/osw/hazard/dsw/downloads/histor

y-legit-recycling.pdf

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Resource recovery exemption conditions

• Facility is exempt from RR regulations if it:

– uses, reuses, legitimately reclaims or recycles

less than 1,000 kilograms of hazardous waste

from onsite in a calendar month

– Notifies the MDNR of the name, location,

identity of wastes recovered, recovery

method(s) and approximate annual quantity

recovered

– Maintains records of the amount and type of

waste recovered

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Types of certified RR facilities

• U = use, reuse, or legitimately reclaim or

recycle more than 1,000 kg onsite in

calendar month [19]

• R1 = Mobile recyclers that recycle

hazardous waste for reuse at the

generator’s site [1]

• R2 = accept hazardous waste from offsite

for RR [4]

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RR application process

• Submit application 90 days prior to

operation

• Reviewed by engineer

• Resource Recovery Certification issued

with or without conditions

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Beneficial Use Example B – “As-is?”

• VP of Company A doesn’t

want to buy a distillation

unit and tells his manager

to find someone who can

use the solvent.

• Manager finds Company

B who agrees to take the

solvents “as-is” to clean

metal parts, but won’t buy

the solvents and will take

them only if Company A

pays to transport the

solvents to Company B.

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Solvents Used As-Is By Company B

Are the solvents sent to Company B regulated as hazardous waste under RCRA?

Not necessarily

Why?

• Because the solvents are: – Not spent; and

– Not solid waste and therefore not hazardous waste when they are recycled by being used or reused as effective substitutes for commercial products.

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Solid Waste Exclusions Under RCRA

Under 40 CFR 261.2(e) materials that otherwise would be considered hazardous wastes may be excluded from being a solid waste when recycled by being:

• used or reused in an industrial process to make a product, provided the materials are not being reclaimed;

• used or reused as an effective substitute for commercial products; or

• returned to the original process from which they are generated, without first being reclaimed.

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Under 40 CFR 261.1(c)(5), a material is “used or reused” if it is either:

• Employed as an ingredient in an industrial process to make a product (e.g. distillation bottoms used as feedstock in another process); or

• Employed in a particular function or application as an effective substitute for a commercial product (e.g. spent pickle liquor used in wastewater treatment plants).

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Concept of Spent under RCRA Spent Material – “any material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing.” 40 CFR 261.1(c)(1).

“Spent” does not include materials that are reused for their original purpose

EPA letter of interpretation (1994):

The reuse of a solvent (first used to clean circuit boards) as a metal degreaser constitutes a legitimate use of a product for its original purpose. The fact that the solvent is "spent" in terms of its use as a circuit boards cleaner does not make it a spent material. As long as the solvent does not undergo reclamation prior to its reuse as a metal degreaser, it is product excluded from jurisdiction under RCRA. Determining factor is not whether a used chemical is marketable, but rather whether it is reused in a manner consistent with its original use without prior reclamation.

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Considerations for Companies A and B

• Company A – assure compliance with 40

CFR 261.2(f) documentation requirements

– Obtain and maintain a contract or written

agreement that specifies use

– Assure Company B has equipment/processes

and they use the material as claimed

– For Company A and B – assure there is no

speculative accumulation – maintain records

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Recycling legitimacy tips

• April 26, 1989, EPA Office of Solid Waste

memorandum consolidated preamble

statements on legitimate recycling into a list of

criteria to be considered in evaluating legitimacy

[OSWER directive 9441.1989(19)]

• Primary source of guidance for the regulated

community and for overseeing agencies in

distinguishing between legitimate and sham

recycling

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More on legitimacy evaluation

• Case-specific information needed to make

legitimacy determination

• If material being recycled is being used as

a commodity, rather than as a waste

• Six criteria for consideration

• Some criteria may weigh more heavily

than others in making legitimacy

determinations

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The 6 legitimacy criteria 1. Is the secondary material similar to an analogous raw material or

product?

2. What degree of processing is required to produce a finished

product?

3. What is the value of the secondary material?

4. Is there a guaranteed market for the end product?

5. Is the secondary material handled in a manner consistent with the

raw material/product it replaces?

6. Other relevant factors (e.g., economics of the recycling process,

toxic constituents “along for the ride”)?

Source: 68 FR 61582(1)–(2), October 28, 2003

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Good onsite

management

matters

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Inventory and records of use

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Beneficial Use Example C – Treatment?

• Company B is having

some operational issues-

tells Company A it will

only take the reclaimed

solvent IF:

• Company A filters and…

• “neutralizes” it first

• Company A manager

asks “is this treatment?”

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Is scenario C “treatment?” • Yes, at first look

• Appears to be

treatment (requiring a

permit or RR

certification) if the

material cannot be

used without

reclamation

• Questions for A to ask

B

• Why is the filtering

needed?

• What type of

“neutralization” is

needed and why?

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Filtration • Might be OK and would

not void the recycling

exemption if it is

“incidental processing”

(IP)

• See RCRAOnline 14748

• IP changes material’s

physical form with no or

only minor changes in

mass or chemical

composition

Examples:

•Screening or filtering to

protect the integrity of

downstream pumps or

equipment from foreign

material (e.g., screws, nuts,

bolts)

•Ensuring purity by

separating minor amounts

of foreign material

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Treatment considerations • “Neutralization” is

unclear

• Why for F005/D001

waste?

• Is Company B asking

Company A to render

the waste non-

hazardous so it may

avoid hazardous

waste disposal costs?

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Beneficial Use Example D – Fertilizer? • Company B will no longer

use Company A’s

solvents – went “green”

with citrus-based solvents

• Company A finds

Company C who will use

solvents as is (without

reclamation) on same

terms as Company B,

BUT will use the solvent

to make fertilizer

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Beneficial Use Example D - Treatment?

• Are the solvents sent to Company C regulated as solid or hazardous waste under RCRA?

Possibly, but less likely if they are used to produce zinc fertilizers

• Why?

Recycled materials used to produce products that are applied to the land are considered solid waste under RCRA.

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Hazardous waste solvent in fertilizer?

• Few fertilizers are made from recycled hazardous

wastes

• Most made from a variety of zinc-bearing industrial

wastes

• Fertilizer manufacturers must use a series of processing

steps to remove contaminants (lead, cadmium, arsenic,

chromium, mercury, dioxins, etc.) in order to meet EPA

standards

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Recycled Materials Used in Fertilizers

• Under 40 CFR 261.2(e)(2), even if recycling involves use, reuse, or return to the original process, secondary materials used in a manner constituting disposal or used to produce a product that is applied to the land are solid wastes subject to RCRA.

• Adding hazardous wastes to fertilizers as a way of simply disposing of them is illegal under the RCRA, appears as “sham recycling” and is punishable as a civil and/or criminal offense.

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Exclusion for Recycled Materials used

in Zinc Fertilizers and Products • 40 CFR 261.4(a)(20) specifically excludes

from the definition of “solid waste”, zinc fertilizers made from recycled hazardous secondary materials.

• This exclusion applies to hazardous secondary materials that are recycled to make zinc fertilizers or zinc fertilizer ingredients.

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Conditions to Satisfy the Zinc Fertilizer

Ingredient Exclusion • may not speculatively accumulatively

• must submit one-time notification to Regional

Administrator or State Director

• properly store hazardous secondary materials in

containers that prevent the release

• provide written notice to receiving facility that

materials are subject to these conditions

• maintain all records of shipments for 3 years

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Advice to Company A Ask Company C if it has evaluated this using the legitimacy

criteria and how it fits as there are several areas of concern:

1. What is the analogous raw material or product the secondary

material is replacing?

2. What degree of processing is required to produce a finished

product?

3. What is the value of the secondary material?

4. Is there a guaranteed market for the end product?

5. Is the secondary material handled in a manner consistent with the

raw material/product it replaces?

6. Other relevant factors (e.g., economics of the recycling process,

toxic constituents “along for the ride”)?

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Questions?

Kathy Flippin

MDNR Hazardous Waste Program

kathy.flippin@dnr.mo.gov

(573) 751-1718

Dale Guariglia Bryan Cave, LLP

daguariglia@bryancave.com

(314) 259-2606