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9441.1989(39)

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE

JUL 31 1989

Joe Haake
Hazardous Waste Coordinator
Dept. 441C, Mail Code 0801800
McDonnell Douglas
P.O. Box 516
Saint Louis, Missouri 63166-0516

Dear Mr. Haake:

This responds to your May 9, 1989 request for a regulatory
interpretation regarding the "recycling" of unused
off-specification jet fuels into new jet fuel. You state in
your letter that waste fuel is not spent material because
it has never been used, resulting instead from the overflow
during fueling and from fuel drained from tanks/lines following
testing. However, because of the stringent military fuel
specifications, it cannot be used as jet fuel without
reclamation or reprocessing.

Although you currently manage the off-spec fuel as a
hazardous waste (D001), you intend to sell the fuel to a
refining company as a feedstock to produce jet fuel. You
therefore believe that as an ingredient in an industrial
process, the off-spec fuel would not be solid waste. However,
as I understand from your letter, the Missouri Department of
Natural Resources (MDNR) believes that as a material used to
produce a fuel, the off-spec fuel would remain a solid waste.

EPA Headquarters does not agree with either interpretation.
In particular, we believe that the "recycling" activity
described in your letter is not "use as an ingredient in an
industrial process." Although the off-spec fuel may go through
a manufacturing process, the activity is hear characterized as
reclamation (i.e., the jet fuel that does not meet the purity
specifications is reprocessed into jet fuel meeting the required
purity specifications).

Also, MDNR's regulatory interpretation, as stated in your
letter, differs from the Federal interpretation. While MDNR
states that because the material being used to produce a fuel
(i.e., burning for energy recovery) it remains a solid waste,
the Agency considers the material's original intended purpose
when commercial chemical products are involved. Under the
existing regulations, commercial chemical products (or off-spec
commercial chemical products) that are reclaimed are not solid
waste even if the material is used to produce fuel if that is
the materials intended purpose. Thus, this off-spec jet fuel,
if used to produce jet fuel, is not a solid waste (i.e., an
off-spec fuel is being reclaimed to be used as a fuel -- its
intended purpose). Although the regulatory language found at

-2-

40 CFR 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. A clarifying discussion of this is found in the
April 11, 1986 Federal Register notice (50 FR at 14219), the
technical correction notice to the January 4, 1985 Definition of
Solid Waste final rule (50 FR 614).

The Agency's interpretation is that you are reclaiming an
off-specification commercial chemical product (which would
otherwise be a hazardous waste because it exhibits a
characteristic of a hazardous waste) for its intended purpose
and, therefore, is not a solid waste. Although the reclaimed
commercial chemical product is burned for energy recovery, it is
not a solid waste because this was its intended purpose.

The State of Missouri is authorized to implement the
hazardous waste program under RCRA and may promulgate State
regulations or make regulatory interpretations. You must
also comply with MDNR's regulations.

Should you have further questions of a more general nature,
you may contact the RCRA Hotline at 1-800-424-9346, or
Mitch Kidwell, of my staff, at (202) 475-8551. For questions of
a more site-specific nature, you should contact the Missouri
Department of Natural Resources and the EPA Region VII office.

Sincerely,

Original Document signed

Devereaux Barnes
Director
Characterization and
Assessment Division

cc: Kenneth J. Davis
Missouri Department of Natural Resources
Lynn Harrington, Chief
Permits Branch
Region VII