July 18, 2022

Thermal Desorption Units and the Transfer-Based Exclusion

In recently issued guidance [RO 14944], EPA clarified the regulatory status of thermal desorption units (TDUs) used to recycle hazardous secondary materials managed under the transfer-based exclusion in §261.4(a)(24). Thermal desorption technology may be used to recover organics from hazardous secondary materials. When managed under the transfer-based exclusion, hazardous secondary materials are not considered solid wastes. Thus, the TDUs recycling these materials are not RCRA-regulated.

In order to claim the transfer-based exclusion for a hazardous secondary material, EPA emphasizes the following key requirements must be met:

The hazardous secondary material is not speculatively accumulated. [§261.1(c)(8)]
The reclamation of the hazardous secondary material is legitimate. [§260.43]
Records of all shipments of hazardous secondary material received at the facility are maintained for at least three years.
Confirmations of receipt are sent to the hazardous secondary material generator for all off-site shipments of hazardous secondary materials.
The hazardous secondary material is managed in a manner as protective as an analogous raw material and is contained, as defined in §260.10.
Residuals generated from the reclamation processes are managed in a manner protective of human health and the environment.
Financial assurance requirements are met. [Part 261, Subpart H]
Notification is provided. [§260.42]
Generators sending hazardous secondary material to unpermitted reclamation facilities must periodically perform a “reasonable efforts” audit of the reclamation facility. [§261.4(a)(24)(v)(B)]

The guidance also clarifies that facilities managing hazardous secondary materials under the transfer-based exclusion do not need a RCRA Part B permit to qualify for the exclusion. In fact, because these materials are not solid wastes under the exclusion, RCRA does not apply to their management, beyond compliance with the conditions for the exclusion above.

EPA defers to states on specific determinations and recommends generators consult their authorized state if they plan to employ the transfer-based exclusion. Remember that authorized state RCRA programs may be more stringent than the federal program.

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This document addresses issues of a general nature related to the federal environmental regulations. Persons evaluating specific circumstances dealing with the environmental regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.