Faxback 11848

9441.1994(18)

July 11, 1994

United States Environmental Protection Agency
Washington, D.C. 20460
Office of Solid Waste and Emergency Response

Mr. Dale L. Gable
Environmental Inspector
Office of Waste Management
Department of Commerce, Labor & Environmental Resources
Division of Environment Protection
1356 Hanford Street
Charleston, West Virginia 25301-1401

Dear Mr. Gable:

Thank you for your letter of April 20, 1994, requesting
clarification of how the Resource Conservation and Recovery Act
(RCRA) regulations apply to off-specification fuels that are being
burned for energy recovery.

Your letter cites a July 31, 1989 letter from EPA which states
that the exclusion from RCRA for commercial chemical products that
are used for their originally intended purpose (40 CFR
261.2(c)(2)(ii)), applies not only to commercial chemical products
that are specifically listed in _261.33 but also to commercial
chemical products that exhibit a hazardous characteristic. You ask
whether this document reflects current EPA policy. The answer is
yes. The interpretation of the _261.2(c)(2)(ii) exclusion provided
in the letter you cite is merely a reiteration of the Agency's
position as initially clarified in the preamble to the April 11,
1986 technical correction notice to the January 4, 1985 Definition
of Solid Waste final rule. In the preamble to the technical
correction notice, EPA clarified that "Although we do not directly
address non-listed commercial chemical products in the rules, their
status would be the same as those that are listed in _261.33 --
That is, they are not considered solid wastes when recycled except
when they are recycled in ways that differ from their normal manner
of use." (50 FR at 14219)

You also ask whether, under this interpretation of the
_261.2(c)(2)(ii) exclusion, off-specification fuels, including
gasoline, jet fuel, kerosene, diesel, etc., that exhibit a
hazardous characteristic and are burned for energy recovery would
considered as commercial chemical products. Again, the answer is
yes. Again, the answer is yes. First, as discussed above, these
materials would be considered non-listed commercial chemical
products. Second, commercial chemical products are not solid
wastes when used as fuels (i.e., burned for energy recovery) if
that is their intended purpose. Thus, for example, off-
specification jet fuel is not a solid waste if used as a fuel.

Finally, you express concern about the effect that this policy
may have on the clean-up of spills of gasoline and other fuels.
According to your letter, under West Virginia State requirements,
clean-up standards for commercial chemical product spills are more
stringent than those for characteristic hazardous wastes. EPA does
not make a similar distinction in its approach to spill
remediation. EPA's overall approach to the clean-up of
environmental contamination is set forth in the July 27, 1990
Proposed Rule on Corrective Action for Solid Waste Management Units
at Hazardous Waste Management Facilities. In essence, EPA believes
that different clean-up levels will be appropriate in different
situations and are best established on a site-specific basis. In
response to your concern, then, spills of commercial chemical
product fuels may have to be cleaned-up to lower levels than do
spills of characteristic hazardous waste as a result of State
requirements, but not as a matter of Federal policy.

I hope this letter addresses your concerns. If you have
additional questions pertaining to the definition of solid waste,
please call Becky Daiss at (202) 260-8718 or Mitch Kidwell at (202)
260-8551. Questions regarding EPA's approach to
corrective action under RCRA should be directed to Dave Fagan
at (703) 308-8620.

Sincerely,

David Bussard
Director
Characterization and Assessment Division

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Attachment
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DEPARTMENT OF COMMERCE, LABOR & ENVIRONMENTAL RESOURCES
DIVISION OF ENVIRONMENTAL PROTECTION
1356 Hansford Street
Charleston, WV 25301-1401

April 20, 1994

Sylvia K. Lowrance, Director
Office of Solid Waste 05300
U.S. Environmental Protection Agency
Waterside Mall
401 M Street, S.W.
Washington, D.C. 20460

Dear Ms. Lowrance:

This letter is to request a clarification of an earlier United
States Environmental Protection Agency (EPA) policy document from
Mr. Devereaux Barnes, Director of the U.S. EPA Characterization and
Assessment Division in Washington, D.C. concerning
off-specification jet fuel. See the document as an attachment to
this letter.

For the sake of discussion, I am assuming that Mr. Barnes intended
his decision to include any off-specification fuels including
gasoline, jet fuel, kerosene, diesel, etc. that may exhibit a
characteristic of hazardous waste and are destined to be burned for
energy recovery.

The principle argument that Mr. Barnes uses as a basis for his
decision is that fuels are commercial chemical products and are,
therefore, not solid wastes when burned for energy recovery, as
excluded under 40 CFR 261.2(c)(2) (ii), which states specifically:
"commercial chemical products listed in 40 CFR 261.33 are not solid
wastes if they are themselves fuels". Mr. Barnes states that
"Although the regulatory language found at 261.2(c)(2)(ii), which
states that in such cases a commercial chemical product is not a
solid waste if it itself is a fuel, only addresses commercial
chemical products listed in Section 261.33, it is implicit in the
rules that the same reasoning applies to commercial chemical
products that are not listed". He goes on to cite an April 11, 1986
Federal Register notice
(50 FR at 14219) as a clarifying discussion of this matter.

It would appear, as set forth in 40 CFR, Part 261, that in order to
meet the exclusion of 261.2(c)(2)(ii), the materials must first be
listed in 261.33. The phrase commercial chemical product or
manufacturing chemical intermediate having the generic name listed
in..." refers to a chemical substance which is manufactured or
formulated for commercial or manufacturing use which consists of
the commercially pure grade of the chemical, any technical grades
of the chemical that are produced or marketed, and all formulations
in which the chemical is the sole active ingredient. The
commercial chemical products, manufacturing chemical
intermediates and off-specification commercial chemical referred
to in 261.33 are listed specifically as U or P wastes under that
Part.

Let us use gasoline or off-specification gasoline as the example
for this discussion, since the State of West Virginia has been
experiencing significant difficulties in regulating the proper use
and management of gasoline wastes. Gasoline is a mixture of
volatile hydrocarbons suitable for use in a spark ignited internal
combustion engine and having an octane rating of at least 60. The
major components of gasoline are branched-chain paraffins,
cycloparaffins and aromatics. Since gasoline is not listed
specifically as a commercial chemical product or a manufacturing
chemical intermediate under 261.33, it does not appear to be
subject to the regulatory exclusion of 261.2(c)(2)(ii). Gasoline
does contain various concentrations of chemicals which are listed
in 261.33, specifically benzene, toluene and xylene. However,
these chemicals are not in commercially pure grades or technical
grades and none of these chemicals are the sole active ingredients
of gasoline.

Off specification gasoline, contaminated gasoline and gasoline
contaminated water destined to be burned for energy recovery are
all currently being handled as exempted materials by industry in
West Virginia, due to the existence of the aforementioned EPA
guidance document. Mishandling of these materials is an ever
increasing problem due to the lack of regulatory authority under
the exclusion. The storage, transportation, record keeping and
other requirements of RCRA normally prevent such problems from
occurring.

Would not the exclusion for commercial chemical products listed in
261.33 apply only to the actual listed materials that are used as
fuels? Chemicals such as methanol, toluene, xylene, hydrazine,
methyl hydrazine and 1,1 dimethylhydrazine are specific examples
of chemical substances which are frequently used as fuels. These
commercially pure or technical grade chemicals would appear to meet
the exclusion if they are to be burned for energy recovery and have
not been "used or spent".

Is there any case law which would support the Devereaux Barnes
document? Does this document reflect current U.S. EPA policy?
Since cleanup standards for commercial chemical products are
generally more stringent than the cleanup standards for
characteristic hazardous wastes, would spills of gasoline or other
fuels which meet the Barnes document definition of a commercial
chemical product have to be cleaned up to those more stringent
background conditions? The designation of any compounds which are
fuels as commercial chemical products presents the State with many
problems for the current and the future use and disposal of those
materials."

Please feel free to contact at the West Virginia Division of
Environmental Protection field office in Parkersburg, West Virginia
at (304) 420-4635 if you require any further information.

Sincerely,

Dale L. Gable
Environmental Inspector
Compliance Monitoring and Enforcement
Office of Waste Management