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9441.1988(11)

OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE

APR 21 1988

Anthony R. Sinibaldi
Senior Vice President
Standard Chlorine of Delaware, Inc.
Governor Lea Road
P.O. Box 319
Delaware City, Delaware 19706

Dear Mr. Sinibaldi:

This is in response to your December 21, 1987, letter to
Marcia Williams, the subsequent meeting here at EPA on
January 13, 1988, and your March 16, 1988 letter to Michael
Petruska concerning the regulatory status of your distillation
or fractionation column bottoms from the production of
chlorobenzene. This letter is also to correct certain errors
that were made in an October 16, 1987, letter from Marcia
Williams to Phil Retallick, Director of Delaware's Division of
Air and Waste Management, on the same subject.

K085 Listing Description

First, let me reiterate that we view the bottom stream from
chlorobenzene production as a secondary material, i.e., a
by-product, not a co-product. The bottoms, although they may
have some economic value, must be processed before use. See the
discussion in the Federal Register of January 4, 1985, in which
EPA stated that:

"...by-products are materials, generally of a residual
character, that are not produced intentionally or
separately, and that are unfit for end use without
substantial processing. Examples are still bottoms..." (50
FR 625.)

The determination that the bottoms are a by-product,
however, does not automatically mean that they are the EPA
listed waste K085. To meet the listing description, the bottoms
must first be a solid waste, defined by 40 CFR Section 261.2.


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As explained below, the determination of a material being a
solid waste depends on the disposition, or intended disposition,
of the material. Any material that is abandoned by being
disposed of, burned, or incinerated (or accumulated, stored, or
treated in lieu of being abandoned) is a solid waste. (See
Section 261.2(b).) Additionally, secondary materials are also
solid wastes if they are recycled, or accumulated or treated
before recycling, as specified in Section 261.2(c). Further,
materials may be designated as "inherently waste-like" by EPA
under Section 261.2(d).

The remainder of this letter provides EPA's determinations
regarding the processes you have described to us. Please not,
however, that these determinations are only accurate to the
extent we have all relevant facts. If the State needs further
information or documentation on these processes, you are
required to provide the information under 40 CFR Section
261.2(f), even for processes that we say here are exempt from
regulation.

Thermal Oxidation Process

The first question to be answered is whether the gas-fired
thermal oxidizer, which we understand uses controlled flame
combustion, is an incinerator, a boiler, or an industrial
furnace. (See the discussions at 50 FR 625-627, January 4,
1985, for the Agency's basic approach to classifying combustion
devices.)

The classification of your oxidizer unit into one of these
three categories is central to determining its regulatory
status. If your unit is an incinerator, Table 1 in 40 CFR
Section 261.2(c) is not relevant, and the unit is not eligible
for any exclusions in Section 261.2(e)(1). This is because any
burning in an incinerator is waste destruction, subject to 40
CFR Parts 264 and 265, Subpart O, even if material or energy
recovery also occurs. (See the discussion at 48 FR 14484, April
1983. "If material or energy recovery occurs, it is ancilliary
to the purpose of the unit - to destroy wastes by means of
thermal treatment - and so does not alter the regulatory status
of the device or activity." An example involving recovery of
hydrochloric acid is then presented. Id.)


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Our determinations regarding your thermal oxidation unit are
as follows:

The unit does not meet the definition of a boiler cited
in Section 260.10 (e.g., it does not export thermal
energy);

Based on the information that has been provided to EPA,
we believe the unit is not an industrial furnace. To
be an industrial furnace, the unit must be specifically
listed in Section 260.10 [cement kilns; lime kilns;
aggregate kilns; phosphate kilns; coke ovens; blast
furnaces; smelting, melting, and refining furnaces;
TiO2 chloride process oxidation reactors; methane
reforming furnaces; and combustion devices used in the
recovery of sulfur values from spent H2SO4];

Therefore, since the gas-fired thermal oxidixer is
neither a boiler nor an industrial furnace, the unit is
classified as an incinerator. Thus, it would be
subject to 40 CFR Parts 264 and 265, Subpart O.

EPA considers adding units to the Section 260.10 definition
of industrial furnace on a case-by-case basis. Persons may
petition the Agency under Section 260.20 to add units to the
definition. Dow Chemical, Inc., submitted such a petition in
July 1986 for their halogen acid furnaces (HAFs), and EPA
proposed to grant the petition on May 6,, 1987. (See 52 FR
17018-17019.) Under the May 6 proposal, an HAF would be
considered an industrial furnace provided that the unit is used
for:

" ...production of acid from halogenated secondary materials
generated at chemical production facilities where the
furnace is located on-site and the acid product has a
halogen acid content of at least 6%." (See proposed Section
260.10, id., at 17033.)

Your thermal oxidation unit appears to meet these conditions.
Therefore, at such time as EPA finalizes this proposal, the
classification of your unit would change from an incinerator to
industrial furnace. The result of this change would be that the
unit would be subject to the Part 266, Subpart D, standards for
boilers and industrial furnaces, in lieu of the Part 264 and


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265, Subpart O, incinerator standards. (See id., at 17019.) In
either case, the chlorinated by-product introduced to the unit
is the EPA listed waste K085.

Hydrodechlorination Process

Based on the information you provided, your hydrodechlo-
rination process does not appear to involve controlled flame
combustion; therefore, the above discussion concerning boilers,
furnaces, and incinerators is not relevant. Since you are using
the chlorinated by-product as an ingredient in production of
lower chlorinated feedstocks and muriatic acid, and since no
burning, reclamation, or use constituting disposal is involved,
the by-product appears to meet the terms of the exclusion in 40
CFR Section 261.2(e)(1)(i), and therefore it is not a solid
waste (i.e., it is not K085.) Please note, however, that if the
by-product is accumulated speculatively as defined in Section
261.1(c)(8), it would then become solid waste (see Section
261.2(e)(2)(iii)) and would be K085. Further, your unit may be
affected by changed EPA is considering to the definition of
industrial furnace, discussed in the last section of this
letter.

Use in Titanium Dioxide Production

Your December 21, 1987, and March 16, 1988, letters state
that Standard Chlorine plans to sell a blend of the two higher
chlorinated benzene process streams to another company for use
in titanium dioxide manufacture. The process streams will be
introduced to an oxidation reactor where titanium tetrachloride
is converted to titanium dioxide, and will, your letters state,
substitute for toluene in the production process.

The oxidation reactor would appear to meet the definition of
an industrial furnace in 40 CFR Section 260.10, i.e., see
paragraph (8) in the definition. From the information you
provided, the chlorinated benzene stream will provide not only
chlorinated material but also energy value. The regulatory
status of material sent for this use currently depends on its
energy value. If the chlorinated benzene stream has significant
energy value, e.g., equal to or greater than materials used
commercially as fuel--generally around 5000 btu per pound--and
the energy is used in the production process, then the material


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is considered to be burned at least partially for energy
recovery. Thus, the material is considered to be the listed
waste K085 and the standards of 40 CFR Part 266, Subpart D, for
hazardous waste burned for energy recovery would apply to the
furnace and the material sent to the furnace. The oxidation
reactor would also be subject to the standards for industrial
furnaces proposed on May 6, 1987. (See 52 FR 16982.) If the
chlorinated material is burned without significant energy
recovery, however, then the material may not be solid waste
because it is used as an ingredient to make a product. (See 40
CFR Section 261.2(e)(2)(i) and (e)(2)(ii).)

Changes Being Considered for Certain Units

As the above discussion indicates, EPA's current rules
defining solid waste and the applicability of standards depend
on, first, the classification of the unit, and then whether the
material is burned (partially) for energy recovery. EPA is
considering modifications to this approach in the near future
that could affect your processes. First, we are concerned about
secondary materials that could be hazardous waste if burned for
energy recovery or destruction but that are excluded from
regulation when burned as an ingredient in a production
process. To deal with the potential health risk from burning
such materials as an ingredient, we are considering proposing to
designate materials introduced to HAFs, and perhaps other
furnaces (possibly including oxidation reactors used in titanium
dioxide production ) as "inherently waste-like materials" under
40 CFR Section 261.2(d). This would mean that, if your proposed
thermal oxidation unit meets EPA's definition of an industrial
furnace, the standards proposed on May 6, 1987 would apply to
the unit whether or not any energy is recovered from the K085
chlorinated stream. The material sent for titanium dioxide
production could also be brought under regulation as K085 if we
promulgate such a designation.

Second, EPA is considering proposing to amend the definition
of industrial furnace to remove the condition that furnaces must
use "controlled flame devices" to accomplish recovery of
materials or energy. The impact of this change could be that
your non-flame hydrodechlorination unit could be designated as
an industrial furnace, and then would be subject to the
standards proposed on May 6, 1987.


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If you have general questions about this letter, please
contact Michael Petruska at (202) 475-9888. If you have
questions about the classification scheme for combustion
devices, please contact Robert Holloway at (202) 382-7917.
Finally, as stated above, your primary contact on RCRA matters
should continue to be Delaware Department of Natural Resources
and Environmental Control (DNREC). We will be providing copies
of this letter to Delaware DNREC as well as EPA Region III.

Sincerely,

Original Document signed

Sylvia K. Lowrance, Director
Office of Solid Waste