Faxback 11087
9441.1985(25)

July 1, 1985

Mr. John A. Quinlan
Legal Assistant
Evans, Kitchel, and Jenckes, P.C.
2600 North Central Avenue
Phoenix, Arizona 85004-3099

This letter is in response to your letter dated May 1, 1985,
regarding the scope of the term "abandoned" under revised 40 CFR
§261.2. In particular, you indicate that §261.2(a)(2)(i)
provides that a material may be discarded by being abandoned and
§261.2(b)(i) defines abandoned to mean disposed of. You further
state that disposal (as defined in §260.10) includes the "placing
of any solid waste or hazardous waste into or on any land or
water..." Therefore, you are concerned that read together, these
sections would state any material that is placed on the land is a
solid waste, and that if the material is hazardous (i.e., if
listed in Subpart D or Part 261 or exhibits one or more of the
characteristics in Subpart C of Part 261), the regulations
relating to hazardous wastes would apply.

As we discussed previously, the Agency generally does not
intend to regulate those secondary material that are bona fide
products (e.g., secondary materials used as ingredients or
feedstocks in production processes or as a substitute for
commercial chemical products) even though they may be temporarily
stored on the land. Thus, a listed emission control dust that is
stored in piles on the land is used as an ingredient in a
production process would not be defined as a solid waste,
provided that the material is not speculatively accumulated.1/
This position is supported (as you stated in your letter) by the
parenthetical comment in the preamble, "By saying "abandoned," we
do not intend any complicated concept, but simply mean thrown
away." See 50 FR 637, January 4, 1985.


1/ A material is considered speculatively accumulated if it is
being accumulated without having a known recycling market or
disposition, or no feasible means of recycling, and during a
one-year calendar period, 75 percent of the material is not
recycled, or transferred to a different site of recycling.


-2-

On the other hand, if the material were to escape from the
unit (i.e., leach from the waste and contaminate groundwater),
this action would constitute disposal and meet the definition of
abandoned and, thus, would be defined as a solid waste. In
addition, if the material is hazardous, pursuant to §261.3, the
material would be subject to the hazardous waste regulations.
This point is discussed in the preamble to the regulations where
we indicate "In addition, we note that black liquor that is
disposed of and not recycled is a waste, and if hazardous, a
hazardous waste. This includes black liquor that leaks, leaches,
or overflows from an impoundment and is not recycled." See 50 FR
642, 1st column.

I hope this letter adequately responds to your question.
Please feel free to give me a call if I can be of any further
assistance; my telephone number is (202) 475-8551.

Sincerely yours,


Matthew A. Straus, Chief
Waste Identification Branch