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9441.1995(29)

Hotline Questions and Answers

August 1995

1. Purpose and Applicability of Speculative Accumulation
Provision

RCRA regulates secondary materials that are defined as solid
wastes when recycled. Whether or not a given material meets the
definition of solid waste when recycled depends primarily on how
the material is categorized (e.g., spent material, sludge,
commercial chemical product) and the means of recycling (e.g.,
burning for energy recovery, reclamation, use or reuse). The RCRA
Subtitle C regulations also indicate that materials which are
"accumulated speculatively" prior to recycling are solid wastes
(261.2(c)(4)). What is the purpose of this speculative
accumulation provision? To which materials does the provision
apply?

EPA created the speculative accumulation provision to mitigate the
risk posed by facilities that overacccumulate hazardous secondary
materials prior to recycling. The provision serves as a safety
net, preventing recyclable materials that are not otherwise
regulated under RCRA from being stored indefinitely and
potentially causing environmental damage. EPA subjects persons
who "accumulate speculatively" (i.e., persons who fail to recycle
a sufficient percentage of a recyclable material during the
calendar year or fail to demonstrate that a feasible means of
recycling exists) to immediate regulation as hazardous waste
generators or storage facilities. (50 FR 614, 650; January 4,
1985).

The speculative accumulation provision generally applies to
secondary materials that are not solid wastes when recycled
(261.1(c)(8), 261.2(c)(4), and 261.2(e)(2)(iii)). In other
words, certain secondary materials that are otherwise excluded
from the definition of solid waste become regulated as solid and
hazardous waste if accumulated speculatively. Among materials
subject to this provision are:

Materials that are not solid wastes when recycled according
to 261.2(e), including materials used or reused in an
industrial process to make a product; used or reused as
effective substitutes for commercial products; or returned
to the original process from which they are generated,
without first being reclaimed

Materials that are not solid wastes when reclaimed according
to 261.2, Table 1, such as by-products and sludges which
exhibit a characteristic of hazardous waste

Materials identified under 261.4(a) as exempt from the
definition of solid waste when reclaimed, including pulping
liquors that are reclaimed in a pulping liquor recovery
furnace and then reused in the pulping process
(261.4(a)(6)) and spent sulfuric acid used to produce
virgin sulfuric acid (261.4(a)(7)).

The speculative accumulation provision generally does not apply to
materials that are defined as solid waste when recycled.
Speculative accumulation is thus not a factor in determining the
regulatory status of spent materials that are being reclaimed,
secondary materials burned for energy recovery, materials used in
a manner constituting disposal, or scrap metal (50 FR 614, 635).
Since EPA already exerts the appropriate level of regulatory
control over these solid wastes, as provided under 261.6 and Part
266, the safety net provided by the speculative accumulation
provision is not needed.

There are two exceptions to the rule that speculative accumulation
applies to all materials that are not solid wastes when recycled
and does not apply to materials that are solid wastes when
recycled. Commercial chemical products are not solid wastes when
reclaimed (261.2, Table 1), or when they are burned for energy
recovery or used in a manner constituting disposal if that is
their normal manner of use (261.2(c)(1)(ii) and
261.2(c)(2)(ii)). Commercial chemical products are not, however,
subject to the speculative accumulation provision. EPA has not
placed any time constraint on the accumulation of commercial
chemical products prior to reclamation (50 FR 614, 636). In
addition, precious metal-containing materials are defined as solid
wastes when recycled but are also subject to accumulation
restrictions. If accumulated speculatively prior to reclamation,
precious metals become subject to full RCRA regulation, rather
than the reduced standards of Part 266, Subpart F (266.70(d)).