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9574.00-02

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

July 22, 1992

MEMORANDUM

SUBJECT: RCRA Subtitle C Requirements Applicable to
Household Hazardous Waste Collection Programs
Collecting Conditionally Exempt Small Quantity
Generator Waste

FROM: Sylvia K. Lowrance, Director
Office of Solid Waste

TO: Waste Management Division Directors
Regions I - X

The purpose of this memorandum is to clarify that
state-approved Household Hazardous Waste (HHW) Collection Programs
(HHWCPs) that manage both Conditionally Exempt Small Quantity
Generator (CESQG) waste and HHW are not subject to the full RCRA
Subtitle C requirements merely because they mix these two types of
wastes together. Based on the numerous questions we are receiving,
it is apparent that there is a great deal of uncertainty among
members of the regulated community and implementing agencies about
this issue.

Background

This clarification is necessary for several reasons. First,
many communities are addressing the issue of CESQG waste management
because they want to assure that these hazardous wastes are
appropriately managed. As with HHW, some communities are interested
in separating and collecting CESQG waste from the municipal solid
waste stream to minimize the input of hazardous constituents to
their landfills and combustors. In addition, many CESQ generators
(the majority of which are small businesses) are addressing the
issue of how to best manage their waste to reduce potential future
liability for cleanup of facilities where wastes have been
mismanaged. CESQ generators are interested in participating in
HHWCPs even though they, unlike HHW generators, typically must pay
a fee. Often CESQ generators do not have alternative options other
than disposal in the solid waste stream for their wastes. Their
quantities are too small to economically manage using hazardous
waste disposal firms and these generators usually lack the
expertise and resources to manage their wastes under Subtitle C.

The regulations governing the management of CESQG waste are
found at 261.5 of Title 40 of the Code of Federal Regulations
(CFR). This provision describes a conditional exemption from the
full hazardous waste regulations for CESQG waste as long as certain
requirements are met (see footnote 1). The issue raised to the
Agency concerns state-approved programs that collect both HHW and
CESQG waste. Household waste, including HHW, is excluded from
regulation as a hazardous waste under 40 CFR 261.4(b)(1).

Problem

Uncertainty about RCRA regulatory requirements prevents
communities and businesses from making cost-effective decisions
about management of HHW and CESQG waste. The question raised to the
Agency by communities and companies considering developing or
participating in collection programs that collect both HHW and
CESQG waste is:

If a collection program accepts and manages both HHW 2nd
CESQG waste and mixes these two types of wastes together
(e.g., pours spent solvents from households and small
businesses into the same drum), how is the resultant
mixture regulated?

This question is prompted specifically by 40 CFR 261.5(h), which
states that CESQG waste may be mixed with non-hazardous waste
(e.g., HHW) and remain subject to the reduced requirements for CESQ
generators, even though the mixture exceeds CESQG quantity
limitations, only so long as the mixture does not meet any of the
characteristics of hazardous waste in 40 CFR Part 261.

If 261.5(h) were to apply to collection programs where CESQG
waste and HHW are mixed, these programs would be faced with the
substantial burdens and costs associated with full Subtitle C
requirements. The only way to reduce these burdens would be to
manage CESQG waste and HHW separately (i.e., not mix them in the
same container). Even this approach would have significant
downsides. For example, managing the wastes separately greatly
increases paperwork requirements, increases the space required to
store the wastes, increases packaging costs, and increases both
shipping and disposal costs. This increased burden comes with no
increase in environmental protection. To avoid either of the above
scenarios -- full Subtitle C regulation or increased costs
associated with separate management of CESQG waste and HHW -- many
collection programs are refusing to accept CESQG waste. This
represents an unnecessary barrier to communities and companies who
are seeking environmentally sound methods of managing CESQG waste.

Clarification

The CESQ generator regulations were not intended to impose
barriers to collection of CESQG waste and, thus, to the removal of
these wastes from the municipal solid waste stream. In fact, the
discussion in the preamble when 261.5(h) was promulgated (45 FR
33102 - 33104) indicates that collection of CESQG waste was not
envisioned at that time and, thus, was not addressed by the
regulations. The Agency's intent behind the Subtitle C regulations
concerning HHW and CESQG waste was, as with municipal solid waste,
to allow States to determine what controls are necessary for
management of CESQG waste and HHW within the state. See 45 FR
33104. Therefore, to apply 261.5(h) to collection programs that
mix CESQG waste and HHW would create an unintended barrier to
programs whose intent is to dispose of these wastes economically
and in an environmentally sound manner.

Based on the above discussion, and the fact that 261.5
generally provides direction to the CESQ generator rather than to
others managing CESQG waste, it is our interpretation that
261.5(h) applies to the CESQ generator and not to the subsequent
managers of the CESQG waste described in 261.5(f)(3) and (g)(3).
Programs and facilities receiving and mixing CESQG waste and HHW
are subject to requirements imposed by States through the States'
municipal or industrial waste permit, license, or registration
programs, but are not subject to the full hazardous waste Subtitle
C regulations, even if the mixed CESQG and household hazardous
wastes were to exhibit a characteristic of a hazardous waste. The
collection facility does not become the generator of the mixture
merely by mixing CESQG waste with nonhazardous waste, and
regardless of the quantity of the mixture of wastes, is not subject
to the 40 CFR Part 262 generator regulations. By contrast, CESQ
generators that mix hazardous and nonhazardous waste and whose
resultant mixtures exceed the 261.5 quantity limitations and
exhibit a characteristic, are no longer conditionally exempt and
are subject to the applicable Part 262 hazardous waste generator
regulations.

cc: Bruce Weddle, David Bussard, Regional Implementation Team

1 Under 40 CFR 261.5(f)(3) and (g)(3), CESQGs must send
their wastes to either a federally permitted or interim
status hazardous waste management facility, a state
authorized hazardous waste management facility, a
recycling facility, or a facility permitted, licensed, or
registered by a state to manage municipal or industrial
solid waste. (For further detail concerning state
approval, see attached letter dated October 9, 1986 from
Mark A. Greenwood, Assistant General Counsel, U.S. EPA,
to Joan H. Peck, Chief, Waste Evaluation Unit, State of
Michigan Department of Natural Resources.)

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Attachment
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PD#:9574.00-0

United States Environmental Protection Agency
Washington, D.C. 20460
Office of General Counsel

Ms. Joan H. Peck, Chief
Waste Evaluation Unit
Hazardous Waste Division
State of Michigan Department of Natural Resources
Stevens T. Mason Building, Box 30028
Lansing, Michigan 48909

Dear Ms. Peck:

I am responding to your September 15, 1986 request for
clarification on how 40 CFR 261.5(g)(3)(iv) applies to facilities
that temporarily store hazardous wastes produced by generators of
less than 100 kg/mo.

The condition under which the hazardous waste produced by
these generators would be exempt from full regulation under
261.5(g)(3)(iv) is that the generator must either treat or dispose
of his hazardous waste in an onsite facility or ensure delivery to
an offsite storage, treatment or disposal facility, either of which
is permitted, licensed, or registered by a State to manage
municipal or industrial solid waste. The purpose behind imposing
this condition was to ensure that the facilities managing the waste
are approved by the State to handle the particular waste. This
would allow the States more flexibility in dealing with small
quantity generators, since the State could deal directly with
situations such as where it determines that certain types of waste
should not be managed in a particular non-hazardous facility. See
45 Fed. Reg. 33104 (May 19, 1980).

The requirement that the facility be permitted, licensed or
registered by a State was not intended to impose upon the States
any particular procedure for approval of the facility. All that is
required is that the State have some mechanism for approving
facilities that propose to manage the exempt waste. Since the
underlying intent of the requirement is that the State assess the
risks associated with particular facilities handling the exempt
waste, any mechanisms that the State chooses to accomplish this is,
in our view, acceptable under the regulations. Thus, we would not
judge an exchange of letters to be an inappropriate way to achieve
"registration" of a facility (see note below).

If you have any further questions, feel free to contact me or
Maureen Smith of my staff at (202) 382-7703.

Sincerely,
Mark A. Greenwood
Assistant General Counsel
Solid Waste & Emergency Response Division

Note: The regulations do not define the term "registration."