United States Environmental Protection Agency
Washington, D.C. 20460
Office of Solid Waste and Emergency Response
February 23, 1993

Mr. N.G. Kaul, P.E.
Director, Division of Hazardous Substances Regulation
New York State Department of Environmental Conservation
50 Wolf Road
Albany, New York 12233

Dear Mr. Kaul,

Thank you for your letter dated November 9, 1992, concerning the definition of solid
waste under the Resource Conservation and Recovery Act (RCRA). In your letter,
you raised two specific issues involving certain secondary materials: 1) clarification of
the definition of commercial chemical products that are not found on the U- or P-lists
in 40 CFR 261.33, and 2) the status of these non-listed commercial chemical products
when recycled. I hope that this response will help clarify the federal regulations
regarding these issues.

In addition, you may already be aware that the Director of the Office of Solid Waste
(OSW) has recently formed a Definition of Solid Waste Task Force to re-evaluate the
definition of solid waste. The Task Force is soliciting input from ASTSWMO,
individual states, industry, and others on implementation issues such as the one raised
in your letter. Overall, the Task Force is looking at ways to reduce the complexity of
our current definition of solid waste, reduce disincentives for safe recycling and
innovative technology development, and address concerns regarding the use of
recycled hazardous waste in products. I understand that some of your staff have
already met with the Task Force (prior to your letter being sent). Again, this response
to your questions is based on the current federal regulations.

Definition of Non-Listed Commercial Chemical Products

Presently, the Agency interprets "non-listed commercial chemical products" under
RCRA to include all types of unused commercial products that exhibit a characteristic
of hazardous waste, whether or not these products would commonly be considered
chemicals (e.g., unused circuit boards, batteries, etc). Of course, these determinations
are not always straightforward regarding certain types of commercial products, such as
machinery, electronics, and other items containing various components, only some of
which cause the overall item to exhibit a hazardous waste characteristic. We would
expect these determinations to be site-specific.

Recycling Non-Listed Commercial Chemical Products

You stated that you were uncertain as to what types of "recycling" would qualify a
non-listed commercial chemical product for the solid waste exemption in _261.2(c)(3),
which is further clarified in the April 11, 1985 Federal Register (50 FR 14219). As
you know, EPA defines "recycling" as including use/reuse, and reclamation (see 40
CFR 261.2(c)(4),(5), and (7)). Reclamation is further defined to be either
regeneration, or the recovery of a usable product. With regard to the use/reuse
provisions, any type of secondary material recycled in this manner would not be a solid
waste, provided that the applicable conditions listed in _261.2(e) are met, and that the
recycling is legitimate (see _261.2(f)).

With regard to the reclamation of non-listed commercial chemical products, their status
is the same as that for listed commercial chemical products, as we stated in the April
11, 1985 Federal Register. This has been the Agency's position since publication of
that clarification, and has remained unchanged. However, we do recognize that the
universe of non-listed commercial chemical products could present some recycling
activities which require careful analysis to verify that the recycling is legitimate; the
burden of proof, however, remains with the person claiming that a material is not a
solid waste (_261.2(f)).

You provided an example of off-specification paint, produced by a manufacturer and
never used; we would define this material as a non-listed commercial chemical
product. You then described this paint as being reclaimed to recover the solvent,
resulting in a stillbottom containing the pigments and associated metals. We would
view the off-specification paint, to be reclaimed, as excluded from the definition of
solid waste. Although the reclamation process is recovering a usable product from the
paint (i.e., solvent), and is not regenerating the paint to make new paint, this activity is
nevertheless reclamation and therefore the off-specification paint is not a solid waste.
Of course, the residual stillbottoms generated during reclamation, if characteristically
hazardous, would be subject to Subtitle C requirements at the point of generation (i.e.,
when removed from the distillation unit), assuming they are to be discarded.

Finally, I would like to emphasize that if a person is claiming that a material is excluded
or otherwise exempt because it is going to be recycled, the burden of proof rests with
that person to show that the recycling activity is legitimate. For example, if a
reclamation process recovers only a minimal amount of material, of questionable value,
while the remaining residue is discarded, this would appear to be more like regulated
waste treatment than recycling. If non-listed commercial chemical products, exhibiting
a hazardous waste characteristic, are being processed in order to treat them (and not
to recover a usable product or to regenerate them), then the material is not excluded
from the definition of solid waste under _261.2(c)(3).

If you have any other comments or questions, please call me, or you or your staff
could talk with Ross Elliott of my staff at (202) 260-8551. Thank you very much.


Sylvia K. Lowrance, Director

Office of Solid Waste