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Faxback 11426



APR 26 1989


SUBJECT: F006 Recycling

FROM: Sylvia K. Lowrance, Director
Office of Solid Waste (OS-300)

TO: Hazardous Waste Management Division Directors
Regions I-X

It has come to the attention of EPA Headquarters that many
of the Regions and authorized States are being requested to make
determinations on the regulatory status of various recycling
schemes for F006 electroplating sludges. In particular,
companies have claimed that F006 waste is being recycled by
being used as: (1) an ingredient in the manufacture of
aggregate, (2) an ingredient in the manufacture of cement, and
(3) feedstock for a metals recovery smelter. The same company
may make such requests of more than one Region and/or State.
Given the complexities of the regulations governing recycling
vs. treatment and the definition of solid waste, and the
possible ramifications of determinations made in one Region
affecting another Region's determination, it is extremely
important that such determinations are consistent and, where
possible, coordinated.

Two issues are presented. The first issue is whether these
activities are legitimate recycling, or rather just some form of
treatment called "recycling" in an attempt to evade regulation.
Second, assuming the activity is not sham recycling, the issue
is whether the activity is a type of recycling that is subject
to regulation under sections 261.2 and 261.6 or is it excluded
from our authority.

With respect to the issue of whether the activity is sham
recycling, this question involves assessing the intent of the
owner or operator by evaluating circumstantial evidence, always


a difficult task. Basically, the determination rests on whether
the secondary material is "commodity-like." The main
environmental considerations are (1) whether the secondary
material truly has value as a raw material-product (i.e., is it
likely to be abandoned or mismanaged prior to reclamation rather
than being reclaimed?) and (2) whether the recycling process
(including ancillary storage) is likely to release hazardous
constituents (or otherwise pose risks to human health and the
environment) that are different from or greater than the
processing of an analogous raw material/product. The attachment
to this memorandum sets out relevant factors in more detail.

If the activity is not a sham, then the question is whether
it is regulated. If F006 waste is used as an ingredient to
produce aggregate, then such aggregate would remain a solid
waste if used in a manner constituting disposal (e.g., road-base
material) under sections 261.2(c)(1) and 261.2(e)(2)(i) or if it
is accumulated speculatively under section 261.2(e)(2)(iii).
Likewise, the F006 "ingredient" is subject to regulation from
the point of generation to the point of recycling. The
aggregate product is, however, entitled to the exemption under
40 CFR 266.20(b), as amended by the August 17, 1988, Land
Disposal Restrictions for First Third Scheduled Wastes final
rule (see 53 FR 31197 for further discussion). However, if the
aggregate is not used on the land, then the materials used to
produce it would not be solid wastes at all, and therefore
neither those materials nor the aggregate would be regulated
(see section 261.2(e)(1)(i)).

Likewise, cement manufacturing using F006 waste as an
ingredient would yield a product that remains a solid waste if
it is used in a manner constituting disposal, also subject to
section 266.20(b). There is an additional question of whether
the cement kiln dust remains subject to the Bevill exclusion.
In order for the cement kiln dust to remain excluded from
regulation, the owner or operator must demonstrate that the use
of F006 waste has not significantly affected the character of
the cement kiln dust (e.g., demonstrate that the use of F006
waste has not significantly increased the levels of Appendix
VIII constituents in the cement kiln dust leachate). [NOTE:
This issue will be addressed more fully in the upcoming
supplemental proposal of the Boiler and Industrial Furnace rule,
which is pending Federal Register publication.]

For F006 waste used as a feedstock in a metals recovery
smelter, the Agency views this as a recovery process rather than
use as an ingredient in an industrial process and, therefore,
considers this to be a form of treatment that is not currently
regulated (see sections 261.2(c) and 261.6(c)(1)). Furthermore,
because this is a recovery process rather than a production
process, the F006 waste remains a hazardous waste (and must be


managed as such prior to introduction to the process), and the
slag from this process would normally be considered a "derived
from" F006 waste. However, for primary smelters, the slag may
be considered subject to the Bevill exclusion provided that the
owner or operator can demonstrate that the use of F006 waste has
not significantly affected the hazardous constituent content of
the slag (i.e., make a demonstration similar to the one
discussed above for the cement kiln dust). [NOTE: In the
supplemental proposal of the Boiler and Industrial Furnace rule
noted above, the Agency will be proposing a definition of
"indigenous waste" based on a comparison of the constituents
found in the waste to the constituents found in an analogous raw
material. Should the F006 waste meet the definition of an
"indigenous waste," the waste would cease to be a waste when
introduced the process and the slag would not be derived from
a hazardous waste.]

Also, you should be aware that OSW is currently reevaluating
the regulations concerning recycling activities, in conjunction
with finalizing the January 8, 1988 proposal to amend the
Definition of Solid Waste. While any major changes may depend
on RCRA authorization, we are considering regulatory
amendments or changes in regulatory interpretations that will
encourage on-site recycling, while ensuring the protection of
human health and the environment.

Headquarters is able to serve as a clearinghouse to help
coordinate determinations on whether a specific case is
"recycling" or "treatment" and will provide additional guidance
and information, as requested. Ultimately, however, these
determinations are made by the Regions and authorized States.
Attached to this memorandum is a list of criteria that should be
considered in evaluating the recycling scheme. Should you
receive a request for such a determination, or should you have
questions regarding the criteria used to evaluate a specific
case, please contact Mitch Kidwell, of my staff, at FTS




The difference between recycling and treatment is sometimes
difficult to distinguish. In some cases, one is trying to
interpret intent from circumstantial evidence showing mixed
motivation, always a difficult proposition. The potential for
abuse is such that great care must be used when making a
determination that a particular recycling activity is to go
unregulated (i.e., it is one of those activities which is beyond
the scope of our jurisdiction). In certain cases, there may be
few clear-cut answers to the question of whether a specific
activity is this type of excluded recycling (and, by extension,
that a secondary material is not a waste, but rather a raw
material or effective substitute); however, the following list of
criteria may be useful in focusing the consideration of a
specific activity. Here too, there may be no clear-cut answers,
but, taken as a whole, the answers to these questions should help
draw the distinction between recycling and sham recycling or

(1) Is the secondary material similar to an analogous raw
material or product?

Does it contain Appendix VIII constituents not found
in the analogous raw material/product (or at higher

Does it exhibit hazardous characteristics that the
analogous raw material/product would not?

Does it contain levels of recoverable material
similar to the analogous raw material/product?

Is much more of the secondary material used as
compared with the analogous raw material/product it
replaces? Is only a nominal amount of it used?

Is the secondary material as effective as the raw
material or product is replaces?

(2) What degree of processing is required to produce a
finished product?

Can the secondary material be fed directly into the
process (i.e., direct use) or is reclamation (or
pretreatment) required?

How much value does final reclamation add?


(3) What is the value of the secondary material?

Is it listed in industry news letters, trade
journals, etc.?

Does the secondary material have economic value
comparable to the raw material that normally enters
the process?

(4) Is there a guaranteed market for the end product?

Is there a contract in place to purchase the
"product" ostensibly produced from the hazardous
secondary materials?

If the type of recycling is reclamation, is the
product used by the reclaimer? The generator? Is
there a batch tolling agreement? (Note that since
reclaimers are normally TSDFs, assuming they store
before reclaiming, reclamation facilities present
fewer possibilities of systemic abuse).

Is the reclaimed product a recognized commodity?
Are there industry-recognized quality specifications
for the product?

(5) Is the secondary material handled in a manner
consistent with the raw material/product it replaces?

Is the secondary material stored on the land?

Is the secondary material stored in a similar manner
as the analogous raw material (i.e., to prevent

Are adequate records regarding the recycling
transactions kept?

Do the companies involved have a history of
mismanagement of hazardous wastes?

(6) Other relevant factors.

What are the economics of the recycling process?
Does most of the revenue come from charging
generators for managing their wastes or from the
sale of the product?

Are the toxic constituents actually necessary (or of
sufficient use) to the product or are they just
"along for the ride."

These criteria are drawn from 53 FR at 522 (January 8, 1988); 52
FR at 17013 (May 6, 1987); and 50 FR at 638 (January 4, 1985).