In a prior post I provided guidance and reference information from EPA on the beneficial reuse of NON-hazardous secondary materials. Despite the lengthy reference document, beneficial reuse of non-hazardous secondary material (that would otherwise be non-hazardous waste) is relatively easy when you have a legitimate use for the material. While the process and details for the beneficial reuse of hazardous secondary materials (materials that would otherwise be hazardous wastes) are more involved, the process does not have to be overly complicated. The process encompasses the the whole of the process for non-hazardous materials, but necessarily adds to the process. Unfortunately, EPA does not provide a similar document for guidance on hazardous secondary materials. Nevertheless, with hazardous materials EPA is still primarily concerned about i) the legitimacy of the beneficial reuse AND ii) about the safety and environmental impact of such use. In order to assist generators in their assessment, I have developed 6 key questions that cover most of the regulatory considerations, which generators should address when considering beneficial reuse of hazardous secondary materials. Those 6 questions follow with additional detail provided after each question.
- Can the material be used “as-is” for the intended purpose or does something have to be done to it first in order to make it usable (40 CFR 261.2(e))? Use “as-is” is the key to Altiras Chemicals and Altiras Fuels distribution businesses. Materials that can be used as they are produced are generally exempt from regulation as a waste. Materials that are filtered, treated, neutralized, distilled, etc. must generally be treated as wastes and therefore use is not permitted unless some other exemption or exclusion allows it. Acceptable uses include, but are not limited to, use in a blend that is then directly used, use as a reagent in a reaction, or use in a direct application such as a solvent.
- Is the use legitimate (40 CFR 260.43)? If the material can be used in a manner that meets the requirements above, then the use must be legitimate. One good test of this requirement is whether the value of the material that is being used actually improves the economics of the process using it. For example, if a material is being used in a solvent blend and such use improves the net economic value of the blend, then use is likely legitimate. However, if such use in this example reduces the net economic value of the blend, then it may not be legitimate. Some users have historically tried to circumvent this concept by getting paid by generators to take materials. While such payment does not necessarily mean the use is illegitimate, it is certainly cause for scrutiny.
- Does the use constitute disposal, involve burning the material, involve reclamation, or is it speculative (40 CFR 261.2(c)(1)-(4) and (e)(2))? If the material is applied to the land or used as an ingredient for a product that is applied to the land, then such use MAY be prohibited. However, such use may also be perfectly acceptable if material that it is a substitute for is normally used to make products applied to the land. Examples are sulfuric and nitric acid. So long as the used acid does not contain toxic materials not normally in prime acid, and does not have some other characteristic or listed hazardous designation, then use for a product that is applied to the land can be perfectly legitimate and acceptable. Separately, if the material is burned and it is not fuel itself, then such use could be prohibited, with a few exemptions. If the material is reclaimed it is generally regarded as a hazardous waste (with few exclusions). Finally, materials that are accumulated without a clear use or with excessive time before use are generally also considered wastes. There are always some special circumstances that can allow for legitimacy, but unless the use is clear and the timing reasonably short, the use will likely be considered speculative by EPA.
- Does the material contain hazardous constituents or characteristics that are not normally present in materials that are normally used for the intended purpose (40 CFR 261.2(d)(3)(i)(B) and 260.43(a)(4))? This question, along with the next two questions, is really a matter of good product stewardship. The specific chemicals species that are listed by EPA are not all that should be evaluated. Good product stewardship means every chemical constituent that is not normally present in the alternative prime product should be evaluated. The material should be analyzed over multiple batches to ensure statistically significant data to understand what other species must be evaluated. Once identified, they must be compared with the listed species from EPA and the characteristics must also be evaluated to make sure the material is not ignitable, corrosive, or reactive when the alternative prime product is not. Once this step is take, the material must be further evaluated as described below.
- Will the product be handled with the same or greater precautions as other materials used for the same purpose 40 CFR 260.43(a)(3)? Similar methods of handling and management are good indicators that the material is consistently similar to the alternative prime material. However, materials should NOT be handled in the same way if they have characteristics or constituents that warrant a greater level of care. Conversely, hazardous secondary materials that are legitimately being used as raw materials should not be managed as if they were hazardous wastes, for example, by being put into RCRA tanks.
- Does the use of the material create any risks to human health or the environment that the normal alternative products do not have (40 CFR 261.2 (d)(3)(ii))? Again, this question relates to good product stewardship. The focus here should be on differences between the hazardous secondary material and the normal raw material. For example, sulfuric acid that is being beneficially reused is going to be characteristically corrosive, just like prime sulfuric acid. However, a used sulfuric acid that contains lead, arsenic, or another heavy metal at levels greater than prime acid should be managed in such a way that those metals do not pose a risk to human health or the environment. Presence of those metals at higher levels than prime does not necessarily preclude beneficial reuse, but it is often best to seek concurrence from EPA and the state agency prior to beneficial reuse.
The above discussion is by no means comprehensive, and really just scratches the surface of things that should be addressed when considering the beneficial reuse of hazardous secondary materials (that would otherwise be hazardous wastes). In all cases, the generator should be thorough in this evaluation and carefully and clearly document all aspects of the use since the burden of proof of appropriate beneficial reuse always lies with the generator of the material.