A question I received August 9, 2015 (A Sunday!) from a reader of my monthly newsletter:
Hello – I enjoyed reading your article on the new RCRA DSW rule. In your opinion, would the new labeling requirement in 40 CFR 261.1(c)(8) be applicable to areas accumulating –
1) Recyclable materials with precious metals to be reclaimed managed 261.6 & 266?
or
2) scrap metal that is not excluded under 261.4(a) but managed 261.6?
I appreciate any thoughts you may have.
Thank You
My reply on the following Monday (I don’t work Sundays):
That is a good question. Give me a day or two to research a response and I will get back to you.
And my reply just two days later (August 12, 2015):
Thank for the compliment and your confidence in my ability. I believe I have an answer for you.
The 2015 DSW revised the description of the Speculative Accumulation Provision at 40 CFR 261.1(c)(8) to include a requirement to label the storage area where a material is being accumulated prior to recycling. This, and other new requirements, apply to all persons subject to the Speculative Accumulation provision.
Therefore, it is necessary to determine if the two exclusions you refer to (Scrap Metal & Precious Metals Reclamation) require compliance with the Speculative Accumulation Provision. Answer:
Material using the scrap metal exclusion of 40 CFR 261.6 is not subject to the Speculative Accumulation Provision.
In a Final Rule published January 13, 2015 in the Federal Register, USEPA amended the definition of solid waste it had enacted in 2008 (2008 DSW). The Federal regulations of the 2015 DSW become effective July 13, 2015. States with an authorized hazardous waste program are required to adopt the Federal Rule or create their own more strict regulations; how and when they do this is up to each state.
Certain wastes that are to be recycled are not considered to be solid wastes, and therefore cannot be hazardous waste and are not subject to RCRA regulations, if the wastes meet the requirements of 40 CFR 261.2(c). In brief, this means the recycled waste cannot be…
Used in a manner constituting disposal.
Applied to the land.
Burned for energy recovery.
And in some cases, reclaimed.
But in all cases except Commercial Chemical Products, if the wastes are accumulated too long they become a solid waste pursuant to the speculative accumulation provisions of 40 CFR 261.2(c)(4). Speculative accumulation was created to ensure that recycling methods are legitimate and not an attempt to dodge full regulation under RCRA for wastes stored indefinitely prior to recycling. The regulations describing speculative accumulation can be found at 40 CFR 261.1(c)(8) and summarized as follows:
A material accumulated before recycling is not accumulated speculatively if you can demonstrate…
It is potentially recyclable and there is a feasible means of recycling it, and;
75% by weight or volume of the material present at the beginning of a calendar year (January 1) is either recycled or transferred to another site for recycling by the end of the calendar year (December 31st). If 75% has not been processed in this way by the end of the calendar year, then the remaining amount becomes a solid waste. If it is also a hazardous waste, it is subject to the hazardous waste generator accumulation requirements of 40 CFR 262.34 (RO14199).
Also, note the following
In calculating the percentage threshold, the 75% requirement is to be applied to each distinct type of material that is recycled in the same way.
The determination of speculative accumulation does not apply to materials accumulating in a unit exempt from the hazardous waste determination pursuant to 40 CFR 261.4(c). That is hazardous waste generated in product or raw material tanks, vehicles, pipelines, or manufacturing process unit and stored for ≤90 days.
Once removed from accumulation for recycling, wastes are no longer considered to be accumulated speculatively.
It is interesting to note that the speculative accumulation requirement only applies to solid wastes that are to be recycled and the exclusion from the definition of solid waste. It does not apply to the recycling of hazardous waste and its exclusion from regulation. Therefore the determination of speculative accumulation does not apply to materials that are already defined as a solid waste, except for hazardous waste utilized for precious metal recovery.
My Hazardous Waste Personnel Training will teach you how to make a hazardous waste determination including speculative accumulation and your requirements as a generator of hazardous waste. It will also meet the training requirements of the US EPA. Contact me to meet your training mandate.
