UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
Office of Solid Waste and Emergency Response
OCTOBER 7, 1994
Mr. Thomas R. Trafton, President
Recovery Express, Inc.
197 Portland Street
Boston, MA 02114
Dear Mr. Trafton:
Thank you for your letter of February 18, 1994,
in which you requested a regulatory interpretation. You contend that processing
of lead abatement debris at generator's site to meet the hazardous waste
recycler's specification, is not "treatment" as defined in 40 CFR 260.1O.
As discussed below, we believe that processing of
lead-based paint (LBP) waste could be construed as "treatment" as defined in 40 CFR 260.10, but might not be subject to Subtitle C regulations.
Typically, recycling of hazardous wastes meets
the definition of treatment under 40 CFR 260.10. In general, legitimate
recycling processes, however, are not subject to RCRA Subtitle C regulations
under 40 CFR 261.6(c) except as noted in 40 CFR 261.6(d). If processing
(e.g., cutting, chopping, shredding, or grinding) of the
LBP waste exhibiting the toxicity characteristic for lead, is a necessary part of a legitimate recycling process (i.e., necessary to meet the vendor's specification, as in this case), it would not be subject to RCRA Subtitle C requirements except as specified in 40 CFR 261.6(d). The processing activities may occur at the generator's site, or at the recycler's facility. In either case, such processing is considered a first step in the recycling process
and remains exempt under 401 CFR 261.6(d).
Assuming LBP waste processing is done as part of legitimate recycling, a RCRA hazardous waste treatment permit is not necessary. Under 40 CFR 261.6(c), any storage of LBP hazardous waste before or after processing is subject to RCRA Subtitle C regulation (e.g., 40 CFR 262.34 for generator accumulation or 40
CFR Part 264 for other storage) under 40 CFR 261.6(c). In addition, EPA advises that generators/processors should take care to protect workers from paint dust, and any dust generated during the processing should be minimized and contained. Also, please note that any materials that exhibit hazardous waste characteristics and
that are disposed of are subject to full Subtitle C regulation, including treatment under the Land Disposal Restrictions at 40 CFR Part 268. EPA believes that processing shredding or grinding of LBP debris whether hazardous or not, prior to disposal, should not be practiced, since such action may make lead in waste more amenable to leaching.
Under RCRA, most States are authorized to administer and enforce the hazardous waste program in lieu of the Federal program. If you have any questions about how recycling and storage requirements apply to your specific activities, you should consult the appropriate State agencies (or EPA Regional office in an unauthorized state) for a site-specific determination.
The Agency is currently evaluating various
LBP waste disposal alternatives to address concerns of HUD and local housing
authorities, lead abators, advocacy groups, and States. For example, the
RCRA hazardous waste rules may impede and discourage lead paint abatement.
EPA may amend the existing RCRA regulations
and propose different rules under TSCA governing LBP waste disposal.
EPA Region III forwarded your letter to us for interpretation, and we are concurrently sending a similar letter as our response to EPA Region lll. If you have any specific questions, please contact Mr. David Friedman, EPA Region lll at (215) 597-2863.
Michael Shapiro, Director
Office of Solid Waste
February 18, 1994
Director, Office of Solid Waste
US Environmental Protection Agency
401 M Street Southwest
Washington, DC 20460
RE: Proposal for site preparation of hazardous lead paint
Dear Mr. Shapiro:
Recovery Express Inc. proposes to use a Shred
Pax AZ40 machine to grind lead painted wood debris into pieces approximately
three inches across. (See diagram and photos Attachment A.) The purpose
of this process is two fold. First, our preferred TSD Facility requires
wastes to be presented in this fashion. This facility,
Exide Battery, Reading, PA, is a lead smelter and recycles the lead content and will take debris in no other form. Landban of this type of waste makes this kind of disposal the most environmentally sound alternative available. Second, reduction of large pieces will make them easier to package into our thirty cubic yard transportation
containers and thus more cost-effective to transport.
This machine will be used only on the generator
site. No transportation will take place until after processing is completed.
Precautions have been taken to eliminate air emissions. Crushed material
falls directly into a specially prepared, covered transport container because
the machine is positioned on eight-foot legs over the container and intervening
spaces are covered with polyethylene. A HEPA vacuum device is available
if necessary to add
to these precautions. Our air testing shows negligible emissions from this process. (Results available on request.) After processing the container is covered as per US DOT regulations. (See our Operations Manual,
Our workers are OSHA trained, and our manager is a forty-hour OSHA Hazardous Waste supervisor. Transportation is provided by our sister company, Jeffrey Chemical Co., Inc., which is a Licensed Hazardous Waste Transporter in eighteen states.
Before Recovery Express Inc. undertakes to
use this machine in any state, we ask that each State Environmental Agency
settle two questions regarding its use. Firstly, is this process treatment
hazardous waste as defined by state regulations. Secondly, would this process require obtaining any permit for its use. Because the answers we have received so far have varied from state to state, we ask your department to respond to these same questions. Interpretations from Region One and various states which agree with
our own are attached. States which consider this process treatment by definition, such as Maine and New York have presented us with other options, all different. We hope that a definitive response to us from your department will provide these states and others which we have not yet contacted with guidance on their future actions.
Request for Interpretation
We consider this process to be
site preparation of hazardous waste. The volume of hazardous waste remains
unchanged and the hazardous element of the waste is unaffected. The enclosed
approval for its use by the Massachusetts Department of Environmental Protection
presents our case for this belief in the most succinct
terms. We ask that you read and consider their opinions carefully.
( Attachment C )
The definition of treatment consists of two parts, according to the letter of John Skinner of EPA, 11-6-84, (Attachment D):
1.the change in character, and,While it may be argued that our process makes the waste more amenable to transport or recover, under the listed purposes of the definition in 40 CFR 260.10, we do not believe that we will change the physical characteristics of the waste. What is changed is the physical shape of the debris. There is no change in any of the
2. the purpose of the change.
Presently on all sites where lead
paint waste is generated, some preparation of waste for transport and disposal
is now taking place. The physical shape of all wood debris, and other debris
as well, is being altered to conform to disposal requirements of landfills
in the United States. We have enclosed a chart which
gives the size requirements of these hazardous waste landfills. (See Attachment E) As can be seen here, the reality of hazardous debris disposal is such that some form of preparation of the waste is necessary. Material is now routinely broken up, sawn, sorted, and shredded for transport to the disposal sites on our list. (See
the enclosed article from Deleading Magazine, Vol. 2 No. 10, which discusses the handling of lead wastes on-site by an abatement company which operates in the New York/New England area. Attachment F) Other activities, such as planing, sanding, or sand-blasting are also common.
We believe that these activities are not considered
treatment as per 40 CFR 260.10. Environmental agencies are aware of the
requirements of lead debris disposal and do not regulate this site activity.
Leave is given to prepare material to become an acceptable "waste," even
though it is hazardous, and this preparation is not considered treatment
so as not to overburden the procedures for transport and disposal. In a
manner of speaking,
material still on-site is not discarded, therefore not "waste", until it has been packaged and prepared for disposal. Of course, not all such activities in all industries would fit this analysis, but the small danger posed by our process justifies considering it as site preparation. We believe that our process is only a more efficient form of the type of activities described above.
Over the past two to three years changes have
occurred in the way disposal of lead based paint waste was envisioned.
At first, regulators and public officials believed that most lead paint
would be stripped from the wood substrate and disposed of in drums. Disposal
itself was viewed as a simple process of landfilling these
small particles. Predictions of the amount of lead paint that would be found to be hazardous in any case were quite low, usually estimated at about 30% or below.
The reality of today is very different. Our
experience, which is not unusual, is that more material is hazardous than
was predicted, as much as 75 to 90%. Work practice by abaters has shown
that laborious stripping of old wood is very time-consuming and expensive,
as well as not being as efficient as originally hoped. The disposal field
has also changed. As of May, 1994 no hazardous lead debris will be accepted
for landfilling unless it is treated,
as per 40 CFR 268.30, the 'Third third' landfill ban. Treatment, i.e., stabilization, requires that the debris be reduced in size to very small pieces. Even now most hazardous waste landfills require some processing of the debris before they will accept it. Preferred state of any wood debris is in pieces less than 3 feet long or even, in some cases, less than three inches long. And this says nothing of the expense of landfilling the large amounts of material
generated by even a modest sized project (as much as $200-300 per cubic yard).
None of the above difficulties takes into consideration likely future possibilities such as refusal of landfills to take in the huge amounts of material generated by large projects which the Federal government and states may mandate; or the possibility that these wastes may not be acceptable for landfilling under any circumstances should the current regulations change.
We do not feel that this process needs a permit.
However the guidance of your department in this matter will help settle
that question. We ask that you keep in mind certain points. Transportation
is by state-licensed Hazardous Waste Transporter. All preparation workers
are adequately trained. No air or ground
contamination can result from proper use of the equipment. All reduction is strictly on-site.
Our company feels that, with all the safeguards
described, this process is an important and necessary step in the safe
and cost-effective disposal of large amounts of Hazardous Lead Paint Waste
Debris. The TSDF described above is the only one of its kind at the moment
and provides the safest, most permanent solution to
this important and growing disposal problem. Our ability to offer this solution to the large number of Housing Authorities and large housing projects which need it, depends on our use of site preparation equipment.
We hope that all the information we have provided here will adequately address any concerns your department may have. We request that your department send us your written opinion on regulatory concerns raised by our proposed process. If further information is necessary, please do not hesitate to contact this office.
Very truly yours,
Thomas R. Trafton