March 15, 2016

How Speculative Accumulation Is Triggered

EPA created the speculative accumulation provision to mitigate the risk posed by facilities that overaccumulate hazardous secondary materials prior to recycling. The §261.1(c)(8) provision serves as a safety net, preventing recyclable materials that are not otherwise regulated under RCRA from being stored indefinitely and potentially causing environmental damage. EPA subjects facilities that accumulate speculatively (i.e., facilities that fail to demonstrate that a feasible means of recycling exists or fail to recycle at least 75% of a recyclable material during the calendar year) to immediate regulation as hazardous waste generators.

The speculative accumulation rules are as follows:

Although the above is fairly straightforward, questions arise as there are certain exceptions to the rules. The table below gives examples, from EPA, of materials that are or are not subject to speculative accumulation when stored prior to recycling.

Examples of When Speculative Accumulation Applies

Material being recycled

Solid waste?

Subject to spec. accumulation?

Additional references

Characteristically hazardous baghouse dust in storage waiting to be recycled to an offsite metals recovery facility

No per §261.2(c)(3) and the dash in Table 1 at the intersection of “Characteristic sludges” and “Reclamation”

Yes

50 FR 635

A listed by-product in storage waiting to be recycled to an offsite facility to be burned as a fuel

Yes per §261.2(c)(2) and the asterisk in Table 1 at the intersection of “Listed by-products” and “Energy recovery/fuel”

No

50 FR 635

Oil-bearing secondary material in storage at a refinery waiting to be recycled to the coker

No per §261.4(a)(12)(i)

Yes

63 FR 42126

Spent catalyst containing a precious metal in storage waiting to be recycled to an offsite metals recovery facility

Yes per §261.6(a)(2)(iii) and Part 266, Subpart F

Yes1

50 FR 635

A batch of product produced in a chemical plant that is found to be off-spec and is in storage waiting to be reworked into on-spec product

No per §261.2(c)(3) and the dash in Table 1 at the intersection of “Commercial chemical products” and “Reclamation”

No2

RO 13528, 13755, 14837

Spent solvent from a pharmaceutical process in storage before it is reclaimed (in a closed-loop manner) for reuse in the same process

No per §261.4(a)(8)

Yes, or to the very similar requirement in
§261.4(a)(8)(iii)

50 FR 635; 51 FR 25442

Scrap metal generated during a demolition project in storage before being sent to an offsite scrap metal recycler

Yes per §261.2(c)(3) and the asterisk in Table 1 at the intersection of “Scrap metal” and “Reclamation”

No

50 FR 635

Spent sulfuric acid in storage at a refinery waiting to be sent to an offsite facility that will use it to produce virgin sulfuric acid

No per §261.4(a)(7)

Yes

50 FR 635

Used solvent generated in the maintenance shop, which exhibits a characteristic, in storage before being sent to an offsite solvent recycler

Yes per §261.2(c)(3) and the asterisk in Table 1 at the intersection of “Spent materials” and “Reclamation”3

No

50 FR 635

1This is an exception to the general rule that speculative accumulation does not apply to secondary materials that are solid wastes when recycled.

2This is an exception to the general rule that speculative accumulation applies to secondary materials that are not solid wastes when recycled.

3Except as provided in §261.4(a)(23), 261.4(a)(24), or 261.4(a)(27).

Source: McCoy and Associates, Inc.

 


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Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

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.