Faxback 11565
9441.1990(28)

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE

OCT 18 1990

MEMORANDUM

SUBJECT: Status of Used Refrigerants under 40 CFR 261.2

FROM: Michael Petruska, Acting Chief (OS-332)
Waste Characterization Branch

TO: Docket for F-90-CFIF-FFFFF

This memorandum documents EPA's position on the status of used
refrigerants under 40 CFR 261.2. Several parties have informally
petitioned EPA for a determination on whether used refrigerants can
be classified as commercial chemical products, rather than as spent
materials; if so classified, the used refrigerants would not be
"solid wastes" under 40 CFR 261.2, when reclaimed.

There are two scenarios that are at issue when a refrigeration
equipment servicer decides to remove used refrigerants from
refrigeration equipment. In the first scenario, the equipment
servicer collects the used refrigerant and then elects to reuse the
refrigerant directly (i.e., without any filtration or other
processing) as a refrigerant. (The equipment servicer could elect to
reuse the refrigerant either with or without conducting analyses or
tests - any such analyses may be recommended by the equipment
manufacturer, or possibly required under future Clean Air Act
regulations, but are not relevant to determining whether the used
refrigerant is a solid waste under RCRA.) This type of reuse is
similar to reuse of a solvent that has been used once, but can still
be used for its solvent properties. See the January 4, 1985 Federal
Register, 50 FR 624. In this situation, the equipment servicer is
not managing a waste, but is merely continuing to use a commercial
chemical product.

In the second scenario, the equipment servicer collects the used
refrigerant for reclamation prior to reuse. Such reclamation could
range from simple filtration to reinsertion into a chlorofluorocarbon
manufacturing unit. The used refrigerants meet the definition of a
"spent material" in 40 CFR 261.1(c)(1), and are solid wastes when
reclaimed, according to 40 CFR 261.2. See 54 FR 31336, July 28,
1989, for an explanation of why used refrigerants are classified as
"spent materials" rather than "commercial chemical products."

A more detailed analysis of specific points raised by the
Alliance for Responsible CFC Policy is attached.


Attachment

Definition of Solid Waste Arguments
Made by the Alliance for Responsible CFC Policy

Point #1:

The Alliance states that "in many cases removed refrigerant may
simply be re-inserted in refrigeration and air conditioning equipment
after testing, without any processing."

Under the current regulations, used refrigerant that is re-
inserted into equipment for further use is not a solid waste
(and thus, is not a hazardous waste). Some, but not most, CFC's
would fall into this category.

Point #2:

The Alliance states that "in some cases removed refrigerant must
be processed -- for example, to remove contamination -- before re-
inserting in refrigeration and air conditioning equipment." The
Alliance argues that the removed refrigerant is not a "spent
material" but rather is a commercial chemical product, and thus is
not a solid waste when reclaimed.

Under the current regulations, 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
processing. Spent materials are solid wastes when reclaimed.

We stated clearly in a 1989 Federal Register notice clarifying
the applicability of RCRA to used refrigerants that used
refrigerants that are reclaimed are spent materials and not
"commercial chemical products."

The Alliance argues that the refrigerant has not been "used" the
way we define the term in the regulations, because it has not
been "employed in a particular function or application as an
effective substitute for a commercial product" but rather, is
the commercial product. When we said "used" in the definition
of spent material, we meant the ordinary, plain language
definition of "used." However, because CFC recycling is
analogous to very common hazardous waste recycling operations
(i.e., solvents, used oils, batteries), the interpretation
requested by the Alliance would have far-reaching implications.


Point #3:

The Alliance points out that, if classified as "by-products,"
the used refrigerants would not be solid wastes when reclaimed.
However, in their analysis of the definition of by-product, they
conclude that the term does not apply to used refrigerants.

Point #4:

Finally, the Alliance argues that a variance from the definition
of solid waste should be granted if EPA decides not to suspend the TC
rules and continues to consider the used refrigerant as a solid
waste. They propose a variance under Section 260.31(b).

There are two problems with this approach:

 These variances are case-by-case determinations for the
Regional Administrators to decide, rather than national policy
decisions for entire wastestreams.

 The variance under Section 260.31(b) is for materials that are
reclaimed and then reused as feedstock within the original
primary production process where they were generated, if the
reclamation is an essential part of the production process. The
vast majority of used refrigerants would not fall in this
category. (Any operations that do fall into this category are
of course eligible for the variance.)