December 18, 2020

Speculative Accumulation Applicability for Commercial Chemical Products

There is a dash at the intersection of “Commercial chemical products” and “Speculative accumulation” in Table 1 of §261.2. What does that mean? If a material is not subject to speculative accumulation, personnel need not document they use, sell, or recycle at least 75% of the raw material or product per calendar year. EPA views off-spec products the same as any other commercial chemical products (CCPs). [RO 11726] Therefore, there is no requirement that facility personnel document that they recycle (e.g., reformulate, reprocess) at least 75% of an off-spec product per calendar year.

However, this regulatory language (i.e., CCPs, including off-spec products, are not subject to speculative accumulation) can result in indefinite storage of unwanted raw material or products at a facility. This situation is often encountered during regulatory inspections, with inspectors questioning whether a material is a product being stored before use/sale, or a waste being stored in lieu of proper treatment and disposal. RO 14837 notes that a CCP is not a solid waste if it is appropriately stored or managed for use, legitimately recycled, or appropriately stored or managed for legitimate reclamation. Conversely, a CCP is a solid and possibly hazardous waste if it is abandoned by being accumulated or stored in lieu of being disposed, burned, or incinerated, which is consistent with other guidance on this topic. [50 FR 636; RO 13431, 13528, 13755]

RO14837 also provides a checklist designed to assist regulators and the regulated community in applying this regulatory structure to specific situations. The checklist is divided into three sections: Section 1 focuses on whether the material is being managed as a valuable commodity; Section 2 focuses on whether the material is being used in the production of products or in support of production operations; and Section 3 focuses on whether the material is a product and if there is a market or potential market for it.

Do CCPs automatically become solid wastes when their shelf life expires? EPA addressed this in RO 11606, 12996, 13431, and 14163. The agency’s position is expired CCPs do not become solid wastes until a determination is made that the material will be discarded. “[T]he question of when a chemical becomes a waste is not addressed directly in the regulations; EPA views commercial chemical products as non-wastes until a decision is made to discard them. Surplus chemicals that are intact and unused are classified as commercial chemical products.” [RO 13431]

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA 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.