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Faxback 11791


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

November 1, 1993

Ethan R. Ware
Ogletree, Deakins, Nash, Smoak & Stewart
Palmetto Center
1426 Main Street
P.O. Box 11206
Columbia, South Carolina 29211

Dear Mr. Ware:

Thank you for your letter dated January 4, 1993, concerning
the management of hazardous waste by generators under the Resource
Conservation and Recovery Act (RCRA). In your letter you asked
whether 40 CFR 262.34, which allows generators to store and/or
treat wastes in accumulation containers or tanks without interim
status or a RCRA permit, applies to the situation of your clients.
I regret the delay in responding to your letter.

You specifically asked whether the transfer of hazardous waste
from one container to another for treatment affects the
applicability of the generator 90-day treatment exemption. This
type of waste transfer may occur during the accumulation period for
two reasons. First, 40 CFR 262.34 does not preclude generators
from transferring waste between tanks or containers to facilitate
storage or treatment. Second, the requirements of Subparts I and J
of 40 CFR Part 265, compliance with which is a condition of the
exemption, address the addition and removal of wastes in tanks and
containers and provide procedures to prevent releases to the
environment from such activities. Of course, the requirements of
262.34 would apply to each tank or container holding hazardous
waste (see, e.g., 40 CFR 265.l73 and 40 CFR 265.l93).

However, please be aware that under 3006 of RCRA (42 U.S.C.
6926), individual States may be authorized to administer and
enforce their own hazardous waste programs in lieu of the federal
program. When States are not authorized to administer the program,
the EPA Region in which the State is located administers the
program and is the appropriate contact for any case-specific
determinations. Also note that under 3009 of RCRA (42 U.S.C.
6929), States retain the authority to promulgate regulatory
requirements that are more stringent than federal regulatory
requirements. Some States may not allow generators to treat
hazardous waste under 262.34, while other States may not allow
this type of transfer of hazardous waste for either storage or

You indicated in your letter that the characteristic hazardous
waste treated under 262.34 by generators would no longer be
defined as hazardous waste after treatment. For the waste to become
non-hazardous, a generator must remove the characteristic and
comply with the applicable RCRA Land Disposal Restrictions (LDRs)
requirements, including 40 CFR 268.7(a)(4), for restricted wastes
prior to land disposal. Therefore, if the generator's waste is
restricted from land disposal, he must either meet applicable
treatment standards during the on-site treatment period, or notify
the treatment or storage facility in accordance with 40 CFR 268.7.

Thank you for your interest in the safe management of
hazardous wastes. If you have any additional questions regarding
this matter, please contact Rick Picardi of my staff at (202)

Bruce R. Weddle
Acting Director
Office of Solid Waste

bcc: EPA Regional RCRA Branch Chiefs, Susan Bromm (OWPE), Dawn
Messier (OGC), Catherine Smith (OE), RCRA Hotline