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9441.1994(07)

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

March 24, 1994

MEMORANDUM

SUBJECT: Definition of Spent Material

FROM: Michael Shapiro, Director
Office of Solid Waste

TO: Hazardous Waste Management Division Directors
Regions I-X

The purpose of this memorandum is to clarify when a secondary
material meets the definition of "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). A number
of EPA Regions have requested assistance from EPA Headquarters on
making regulatory determinations for secondary materials that may
meet the regulatory definition of spent material. For many
secondary materials this determination is important because spent
materials being reclaimed are solid wastes. 40 CFR 261.2(c)(3).
However, sludges and byproducts that exhibit a characteristic of a
hazardous waste and commercial chemical products (whether listed or
characteristic) are not solid wastes when reclaimed. 40 CFR
261.2(c).

In particular, EPA Headquarters has been asked whether in
order to meet the definition of spent material, a material must: 1)
be spent as a result of contamination, and 2) be nonfunctional in
the sense that it could not continue to be used for its original
purpose. We have consistently interpreted this definition as
applying to "materials that have been used and are no longer fit
for use without being regenerated." 50 FR at 618 (January 4, 1985);
48 FR at 14476 (April 4, 1983). We thus consider "contamination",
as used in the definition of spent material, to be any impurity,
factor or circumstance which causes the material to be taken out of
service for reprocessing. (See also 50 FR at 624, indicating that
the reference to contamination was added to clarify that a material
such as a solvent may continue to be used for its original, though
not identical, purpose and not yet be classified as a solid waste.)

Similarly, we consider the part of the definition stating that
a spent material "can no longer serve the purpose for which it was
produced" as being satisfied when the material is no longer serving
its original purpose and is being reprocessed instead. EPA has
consistently maintained this interpretation since it promulgated
the definition of spent material (see footnote 1).

This is the only interpretation that makes environmental
sense, since once used materials are taken out of service and sent
for reclamation they pose the same potential risks and are handled
in the same manner regardless of the reason they are taken out of
service. Put in terms of a specific example, lead acid batteries
that are taken out of service and sent to a lead reclaimer pose the
same risks and are handled the same way no matter how many or how
few physical and chemical impurities they contain, and no matter
how much or how little the presence of impurities contributes to
the decision to stop using the battery in the first place. See
United States v. Ilco Inc., 996 F. 2d 1126 (11th Cir. 1993), where
the court held that all batteries sent to a secondary lead smelter
for recovery were "spent materials" without regard for the reason
the batteries were taken out of service.

As another example, when a generator removes mercury-bearing
thermostats from buildings as part of an upgrade to the building's
heating system, the thermostats could continue to be used for the
remaining portion of their useful lives. However, assuming the
generator intends to ship these thermostats to a reclamation
facility for mercury recovery, these thermostats would be
considered to be spent materials irrespective of the reason for
their removal and the fact that the thermostats were potentially
capable of being used as thermostats in another building.

Background/Analysis

Under RCRA Subtitle C regulations, a spent material is "any
material that has been used and as a result of contamination can
longer serve the purpose for which it was produced without
processing." 40 CFR 261.1(c)(1). This definition was promulgated
in the 1985 final rule amending the definition of solid waste. 50
FR 614, January 4, 1985.

The preamble to the final rule makes it clear that the "as a
result of contamination" language was added to avoid classifying as
waste a used material that was actually being put to further direct
use. 50 FR at 624. The preamble gives the example of a solvent that
is not clean enough to clean circuit boards but still clean enough
for use as a metal degreaser.

The reason the "as a result of contamination" language was
chosen is because many spent materials such as solvents and spent
activated carbon typically become spent because of impurities. The
Agency did not intend to restrict the definition of spent materials
to only those materials which became spent as a result of this type
of contamination. On the contrary, in the same rule that the Agency
defined spent material, EPA promulgated regulatory requirements
under Subtitle C for spent lead-acid batteries being reclaimed. The
Agency explicitly classified spent lead-acid batteries as spent
materials in the final rule. 50 FR at 625. These batteries become
"spent" for a variety of reasons (e.g., overcharging, frozen
electrolyte, leakage) all of which EPA regards as being
"contamination" for purposes of the definition.

Regarding whether a material must be nonfunctional to meet the
definition of spent material, the fact that a material can continue
to be used for its original purpose is not relevant to the issue of
whether or not it is a spent material when it is clear from the
facts that the material will not be used but instead will be
treated by reclamation. The mere potential for continued original
use does not preclude a material from being defined as spent. As
stated above, the fact that it is actually removed from service
establishes, as to this generator, that it can no longer serve its
original purpose.

If all that were required to avoid RCRA Subtitle C regulation
would be a showing that a secondary material could continue to be
used, then generators would be able to circumvent RCRA simply
through changing their operating practices to remove secondary
materials just prior to that material being unfit for its original
use. Thus, spent solvents that are heavily contaminated but might
still be fit for metal degreasing (even though they were being sent
to be regenerated into new solvents), spent lead-acid batteries
that still had a charge (or were capable of holding a charge), and
mercury-bearing thermostats removed from buildings sent for
reclamation would not be subject to RCRA regulation in spite of the
fact that the generator was no longer using the material but
instead was sending it to be treated by reclamation.

Clearly, this result is not consistent with the
cradle-to-grave purpose of RCRA Subtitle C regulation. Used
materials taken out of service and sent for reclamation also pose
the same risks and are handled in the same manner regardless of the
reason they are taken out of service. For this reason, EPA has
consistently interpreted spent materials as including materials
which could continue to be used for their original purpose but are,
in fact, being taken out of service for reclamation, showing that
for this generator they can no longer serve the purpose for which
they were produced (see footnote 2).

Conclusion

Because spent materials being reclaimed (or to be reclaimed)
are within the definition of solid waste, it is important to be
able to distinguish among spent materials, other categories of
solid wastes such as sludges, and products which are still in use
that have not been discarded. Spent materials are distinguished
from products and other categories of solid wastes in that they
have been used previously and have been taken out of service and
are going to be treated by reclamation. Examples of spent materials
include spent lead-acid batteries, used mercury switches, spent
solvents, spent catalysts and spent etchants.

This memorandum states the Agency's consistent interpretation
of the existing regulations. However, EPA recognizes the issues
regarding the regulatory definition of spent material and we may
consider revising the regulatory definition in the future. If you
have further questions on this issue, please call Mike Petruska of
my staff at (202) 260-8551.

cc: Susan Bromm
Susan O'Keefe
NEIC, Frank Covington
ASTSWMO, Tom Kermedy

1 See 50 FR at 650 (January 4, 1985), indicating that spent
batteries, spent mercury, spent acids and caustics remain
subject to regulation when reclaimed regardless of the
reason these wastes are removed from service, November 6,
1986 letter from Matt Straus to H. Bzura stating that
copper etchants sent for reclamation were defined as
"spent materials (i.e., materials that have been used
[sic] are no longer fit for use without being
regenerated, reclaimed, or otherwise reprocessed)." See
also April 14, 1989 later from Stephan Cochran to Robert
Oleszko indicating that ignitron tubes containing mercury
sent for reclamation were spent materials irrespective of
the reason that the tube was taken out of service.

2 See May 20, 1987 letter from Matthew Straus to Peter
Russell indicating that spent pickle liquor becomes a
spent material/solid waste when it is removed from
pickling line baths for reclamation regardless if it can
continue to be used. See also July 15, 1990 letter from
Sylvia Lowrance to Ralph Eschborn indicating that
photographic fixer bath sent for reclamation is a spent
material even though the solution could continue to be
used as a fixer.