May 10, 2019

Inherently Waste-Like Materials Precluded from DSW Exclusions

A plastics manufacturer asked EPA if the definition of solid waste (DSW) “reclamation under the control of the generator” exclusion [§261.4(a)(23)] would apply to secondary materials burned in a halogen acid furnace (HAF). Specifically, the manufacturer asked if burning chlorinated residues from vinyl chloride production to generate hydrochloric acid, a reactant used in making vinyl chloride, would enjoy that exclusion.

To help answer this question, EPA reviewed the information that it had developed when evaluating secondary materials burned in HAFs back in the early 1990s. The concern with these materials is that they “contain dozens of [Part 261] Appendix VIII constituents not ordinarily found in the raw materials that are normally used to produce chlorine” and “these organic toxicants do not contribute to the hydrochloric acid production....” Instead, they “are discarded by thermal combustion.” Furthermore, “inefficient combustion of the halogenated organic compounds in wastes fed to a HAF can pose the same risks to human health and the environment as combustion of those wastes in an incinerator, boiler, or other industrial furnace.” [55 FR 17892] Therefore, “in all cases, hazardous waste fed to HAFs, and the HAFs themselves, will be subject to hazardous waste regulations....” [56 FR 7141] As a result of this evaluation, EPA promulgated §261.2(d)(2), which identifies secondary materials fed into a HAF as inherently waste-like materials that are “solid wastes when they are recycled in any manner.”

The agency’s response to the manufacturer in RO 14900 confirms that the materials proposed for combustion in the HAF are “inherently waste-like materials” and are precluded from enjoying the §261.4(a)(23) DSW exclusion for two reasons: 1) the threat to human health and environment necessitates that the reclamation of these highly toxic materials be conducted under RCRA Subtitle C controls, and 2) the RCRA statute requires EPA to regulate under Subtitle C all hazardous secondary materials burned for energy recovery.


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