Faxback 11876


9441.1994(25)

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Washington, D.C. 20460
September 28, 1994

Ms. Deborah S. Green, CIH
Sr. Industrial Hygienist
Applied Environmental Sciences, Inc.
511 11th Avenue South
Mail Slot 220
Minneapolis, Minnesota 55415

Dear Ms. Green:

In your letter to Mike Petruska of August 30, 1994 you ask
when do used mercury relays/switches become spent. In particular,
you want to know whether or not mercury relays/switches need to be
determined to be hazardous waste in the field location or whether
they can be determined to be a hazardous waste after being
transported to a central warehouse for removal from equipment and
evaluation for potential reuse.

Under the Resource Conservation and Recovery Act (RCRA)
hazardous waste regulations, it is the responsibility of the
generator to make the determination of whether or not a secondary
material is a hazardous waste. 40 CFR 262.11. In order to
determine whether or not a secondary material is a solid and
hazardous waste, it is necessary to determine both what type of
material the secondary material is and how it is managed. See 40
CFR 261.2.

If a mercury switch is sent for further use as a relay or
switch, it never becomes a solid waste. Rather, it continues to be
used for its original purpose. If the switch is taken out of
service and shipped for reclamation, it is considered to be a spent
material. A spent material is "any material that has been used and
as a result of contamination can no longer serve the purpose for
which it was produced without further processing." 40 CFR
261.1(c)(1). It is therefore a hazardous waste since spent
materials being reclaimed are solid and also hazardous wastes. 40
CFR 261.2(c)(3). In your letter, you mention that there could be
similarities between mercury switches/relays and out-of-date drugs
which are returned to pharmaceutical manufacturers for reclamation,
the later being allowed by EPA based on the presumption that
out-of-date drugs are not solid wastes until they are discarded.
Although there are similarities between this situation and
out-of-date drugs returned to pharmaceutical manufacturers, spent
mercury switches/relays and out-of-date drugs are different in that
the switches are spent materials whereas out-of-date drugs would be
considered to be commercial chemical products. Commercial chemical
products that are reclaimed are not solid wastes, unless discarded.
40 CFR 261.2(c)(3).

Mercury switches, conversely, have been used. In this case,
presumption shifts so that once the mercury relay/switch has been
used, we would consider it spent as soon as it is taken out of
service. The fact that it is undetermined whether or not the
switch is usable does not affect this definition or relieve the
generator of the obligation to make this determination. If the
generator has a realistic expectation that the switch is destined
for further use as a switch, such arrangements have been made for
further use, then the materials are not spent. It is important to
note that it is the actual management of the material rather than
the potential of the material for a particular end use that
determines whether or not it is a waste. See enclosed March 24,
1994 memo from Michael Shapiro to Regional Division Director on the
Definition of Spent Material. Those switches that are in fact
reused as switches are not solid waste. However, persons claiming
to be managing materials excluded or exempted from the definition
of solid waste must be able to document these claims. 40 CFR
261.2(f).

In summary, the determination of whether or not mercury
switches are spent applies when they are taken out of service as
switches and cannot be deferred until they are shipped to a central
location. This means that if the switches are determined to be
spent, i.e., no longer to be used as a switch, they would be
subject to the applicable RCRA Subtitle C regulatory requirements
from the point at which they are no longer used as switches or
relays. Prospectively, you may wish to consider petitioning the
Agency to include these switches/relays as part of the proposed
Part 273 Special Collection System regulations (enclosed) when
these regulations become final. If included in the Part 273
regulations, these switches/relays could be shipped under reduced
Subtitle C regulatory requirements (e.g., a manifest would not be
required). EPA requested comment on the potential usefulness of
Part 273 regulations to mercury-containing thermostats in the
proposed rule. 58 FR 8102, 8110 (February 11, 1993).

Please be aware that under Section 3006 of RCRA (42 U.S.C.
Section 6926) individual States can be authorized to administer and
enforce their own hazardous waste programs in lieu of the Federal
program. When States are not authorized to administer their own
program, the appropriate EPA regional office administers the
program and is the appropriate contact for any case-specific
determinations. Please also note that under Section 3009 of RCRA
(42 U.S.C. Section 6929) States retain authority to promulgate
regulatory requirements that are more stringent than Federal
regulatory requirements. If you have any further questions, please
contact Paul Borst of my staff at (202) 260-6713

Sincerely,

David Bussard, Director
Characterization and Assessment Division

Enclosure(s)