Addendum: An Assessment of 

Environmental Problems Associated with Recycling of 

Hazardous Secondary Materials

July 14, 2008

 

U.S. Environmental Protection Agency

Office of Solid Waste



DISCLAIMER

Mention of trade names, products or services in this document does not
convey, and should not be interpreted to convey, official EPA approval,
endorsement, or recommendation, or lack thereof.

ACKNOWLEDGEMENTS

This addendum was funded and managed by the U.S. Environmental
Protection Agency. Data collection and presentation were conducted by
ICF Environmental Consulting, Inc. under contract to the Environmental
Protection Agency.

Staff members of the Resource Conservation and Recycling Branch, Office
of Solid Waste, EPA Headquarters were responsible for providing
objectives of the addendum, reviewing the methodology, helping to
identify cases for further investigation, reviewing draft writeups and
drafting portions of the study. The EPA Work Assignment Managers were
David Eberly and Amy Lile. Amy Lile and Tracy Atagi were key
contributors and reviewers.

EPA was responsible for identifying potential cases, including those
submitted through public comment as a part the Definition of Solid Waste
Rulemaking process. Staff of ICF Environmental Consulting, Inc. were
responsible for investigating potential cases, assembling relevant
information, contacting persons with knowledge of selected cases,
drafting descriptions of each case, and compiling summary statistics.
EPA wishes to acknowledge the contributions made by ICF staff members
Stephanie Barrett (Research Manager) and Jennifer Brickett, and the
contributions made by Jenny Phillips while working in EPA’s Office of
Enforcement and Compliance Assurance under the Student Career Experience
Program.



Addendum: An Assessment of Environmental Problems Associated with

Recycling of Hazardous Secondary Materials

I. Introduction

An Assessment of Environmental Problems Associated with Recycling of
Hazardous Secondary Materials (also know as the “environmental
problems study” or “study”) was conducted as part of the U.S.
Environmental Protection Agency’s effort to revise the current
“definition of solid waste” under the Resource Conservation and
Recovery Act (RCRA), as it pertains to recycling of hazardous wastes and
other hazardous secondary materials. The information in this study is
expected to assist the Agency in making decisions as to the scope and
substance of these regulatory revisions.

In an October 28, 2003 Federal Register notice, EPA proposed to revise
the definition of solid waste by excluding from regulation hazardous
secondary materials that are “generated and reclaimed in a continuous
process within the same industry.” See 68 FR 61558, October 28, 2003.
That regulatory proposal resulted in more than two hundred comments
being submitted to the Agency, from a wide range of stakeholders. In
general, the commenters’ reactions to the proposal were less than
favorable, for various reasons, and many commenters suggested
alternative approaches to resolving issues associated with the current
definition of solid waste.

A number of commenters to the 2003 proposal criticized the Agency
specifically for not having conducted a thorough study of the potential
impacts of these regulatory changes. These commenters expressed the
general concern that de-regulating hazardous recyclable materials in the
manner proposed could result in mismanagement of materials, and thus
could create new cases of environmental damage that would require
remedial action under federal or state authorities. Some of the
commenters further cited a number of examples of environmental damage
cases that were attributed to hazardous material recycling, including a
number of sites listed on the Superfund National Priorities List (NPL).

In deliberating as to how to proceed with this rulemaking effort, the
Agency decided that additional data on recycling damage cases, as well
as data on successful, environmentally beneficial recycling practices,
would benefit the regulatory decision process, and would provide
stakeholders with a clearer picture of the hazardous material recycling
industry in this country. Accordingly, EPA chose to conduct these
recycling studies, and consider their findings, before making decisions
as to the appropriate direction for this rulemaking. This study
documents the findings of the Agency’s study of environmental problems
that have been associated with hazardous material recycling. A separate
study entitled "An Assessment of Current Good Practices for Recycling of
Hazardous Secondary Materials" documents current good practices for
recycling of hazardous secondary materials, and is also part of the
administrative record for this rulemaking effort. In addition, a study
of the economics of hazardous material recycling, entitled "Potential
Effects of Market Forces on the Management of Hazardous Recyclable
Materials” is part of the record.

II. Scope of the Study

The general goal of this study was to identify and characterize cases of
environmental damage that have been attributed to some type of hazardous
material recycling activity, and that

are relevant for the purpose of this rulemaking effort. Specifically, we
sought to identify the following types of cases:

Cases where environmental damage can be attributed to some type of
recycling activity. In conducting this study, we wished to identify
damage cases in which environmental damages were caused by some type of
recycling-related activity. In this context, “recycling-related
activities” included accumulation or storage of materials by the
generator, the recycler or an intermediary, illegal disposal or
abandonment of recyclable materials or recycling residuals,
transportation of recyclable materials, “sham” recycling operations
(i.e., illegal disposal or treatment disguised as recycling), production
and/or use of contaminated products from recycled materials, reclamation
and/or production processes, management of residuals from reclamation or
production processes, or other activities associated with the management
of recyclable materials, recycling residuals, or the products of
recycling processes.

This study did identify a number of cleanup sites at which a recycling
process had operated, but where other sources of contamination made it
extremely difficult to determine with any certainty that the recycling
activity contributed to the environmental problems at the site. These
cases were not included in our compilation of damage cases. 

Relatively recent cases. Many of the damage cases that were examined in
the course of this study occurred before RCRA, CERCLA or other
environmental programs were established in the early 1980s. As a number
of commenters on the 2003 proposed rule noted, these environmental
programs – most notably, the liability provisions of CERCLA – have
created strong incentives for proper management of recyclable materials
and recycling residuals. Several commenters further noted that because
of these developments, industrial recycling practices have changed
substantially since the early 1980s, and present day generators and
recyclers are much better environmental stewards than in the
pre-RCRA/CERCLA era. Thus, they argue, “historical”
recycling-related damage cases are not particularly relevant or
instructive with regard to modifying the current RCRA regulations for
hazardous material recycling. The Agency generally agrees with this
viewpoint, in part because our companion study of current good hazardous
material recycling practices has documented that responsible generators
and recyclers do make considerable efforts to ensure that materials are
recycled and otherwise managed in a safe, environmentally protective
manner.

In the course of this study it became apparent that while the CERCLA
statute and the initial RCRA hazardous waste regulations became
effective in 1980, there was an initial “phase in” period during
which industry and other affected entities began to change their
practices with regard to hazardous material recycling, and during which
federal and state agencies were developing guidelines and procedures for
implementing these new authorities. Perhaps not surprisingly, our study
identified a number of recycling damage cases that occurred during the
early 1980s that appeared to have been caused by companies and
individuals who were not cognizant of their new responsibilities and
potential liabilities under RCRA and CERCLA. Because we believe that
recycling damage cases that have occurred within the current
environmental regulatory and liability systems are most relevant to the
definition of solid waste rulemaking effort, our study identified and
described only those cases in which some form of environmental damage
appears to have occurred during or after the year 1982. We did not
however, exclude cases where damages occurred both before and after
1982.

Cases involving recycling of regulated hazardous wastes, or hazardous
secondary materials that are specifically excluded from RCRA regulation.
This study was intended to identify damage cases associated with
recycling of regulated hazardous wastes, as well as cases involving
recycling of hazardous materials that are not regulated because they are
subject to a specific regulatory exemption or exclusion (see, for
example, the exclusions in 40 CFR 261.4). The Agency is interested in
these types of damage cases because they may indicate the extent to
which environmental damages can occur even when recycling is conducted
under a stringent regulatory regime, and whether such damages may be
more or less prevalent for materials that are explicitly exempted or
excluded from RCRA regulatory controls. The study was not designed to
identify cases involving recycling of non-hazardous materials such as
paper, glass, rubber or plastics.

III. Methodology

The initial task of this study was to identify recycling-related
environmental damage cases that were relevant to the scope and purpose
of the study (the preceding section of this study describes the types of
cases that were considered relevant to the study). Potential cases were
identified from a variety of sources, including:

Comments on the October 28, 2003 proposed rule

The Superfund National Priorities List

National EPA data bases maintained for the CERCLA, RCRA and enforcement
programs

Contacts with staff in state environmental agencies

Contacts with staff in EPA Regional Offices

State agency data bases maintained for state superfund programs and
other environmental programs 

Internet searches

News media reports

It should be noted that because of time and resource limitations, the
search for potentially relevant damage cases was not exhaustive. For
example, we did not systematically survey all state environmental
agencies for relevant cases, nor did we search paper files in EPA
Regional Offices. Because of these limitations, we believe that the
cases we have identified and described in the 2007 environmental
problems study in effect represent the cases that were relatively easy
to find, and that there are likely to be a significant number of
additional relevant cases that we did not identify. 

Once a potentially relevant case was identified, EPA’s contractor
personnel assembled relevant information to determine whether or not the
case fit within the scope of the study. If the damage case was
considered a likely candidate for the study, further information was
gathered with the intent of identifying certain key facts about the case
that the Agency believed would be particularly informative for the
purpose of this rulemaking. These key facts included:

Name, location and EPA Identification Number (if available) of the site

Types of materials that were recycled, or intended to be recycled

The government program responsible for overseeing the cleanup of the
site, and whether or not the site is or was listed on the Superfund
National Priorities List (NPL)

Brief description of the site

Basic site history, including when the recycling occurred, and when the
environmental damage occurred

Basic description of the recycling process

The type(s) of environmental damage that occurred

The types of activities or circumstances that caused the environmental
damage

Whether or not human health impacts, including deaths, were associated
with the damage

Whether or not those responsible for the environmental or human health
impacts were prosecuted for criminal violations

Whether the materials were recycled on-site (i.e., at the generating
facility) or at an offsite recycling facility

Whether or not the recycler went bankrupt or otherwise went out of
business

Whether or not the recycling facility had a RCRA Part B permit for
managing hazardous wastes

Cost of cleaning up the site

Other information that could help identify why the environmental damage
occurred

Many of the cases that were investigated were well documented, and we
were able to assemble virtually all of this information. This was the
case, for example, for many of the Superfund NPL sites. However, in many
other cases it was not possible given the limitations of the study to
document all of these facts. Often, there was considerable technical
information as to the nature and extent of the contamination at the
site, but relatively little information regarding the activities and
circumstances that originally caused it. For some of the sites, we were
able to collect only very basic information. 

For each of the 208 cases that fit within the scope of the 2007
environmental problems study, a written description was prepared, and
key data for each site (as available) were entered into a summary table.
The summary table is presented as Appendix I of the study, and is
organized alphabetically by State. Appendix II contains each of the 208
case descriptions, organized in the same way. Appendix III is a listing
of the damage cases that were reviewed but were not investigated in
detail, either because they did not fit within the scope of the study,
or because there was insufficient information to make that
determination.

IV. Summary of Addendum Appendices

	In 2007, EPA published a supplemental proposal for the Definition of
Solid Waste Rulemaking, which included supporting studies and analyses,
such as the environmental problems study. See 72 FR 14172, March 27,
2007 to review the proposal, and EPA-HQ-RCRA-2002-0031-0355 to review
the study. We received many public comments in response to the March
2007 supplemental proposal and some commenters referenced information
from the environmental problems study in order to support their
positions. 

In consideration of comments, we conducted additional analyses and are
publishing the work in this addendum to the study and its three
appendices. Appendix I contains information about additional damage
cases for the environmental problems study, while Appendix II lists
additional sites considered for the study, but not included in it.
Lastly, Appendix III is an analysis of recycling damage case facilities
that are also intermediate facilities. Each of these appendices is
described in more detail below. 

Appendix I: Additional Damage Cases from Recycling of Hazardous
Secondary Materials

A. Background

When publishing the environmental problems study with the March 2007
supplemental proposal, we requested additional information on relevant
examples of environmental problems related to recycling of hazardous
secondary material that we had not previously identified. Also, we
specified the type of information that is most useful to EPA. A few
commenters suggested the review of additional, potential damage cases.

In addition, a few commenters responded that the study does not support
controls on land-based storage of hazardous secondary materials at
mining and mineral processing facilities. They cited that only 1 of the
208 damage cases is associated with a primary mineral processing
facility. Thus, the commenters argued that the small number of
environmental problems stemming from recycling at mining and mineral
processing facilities does not warrant the regulatory oversight of the
industry described in the March 2007 supplemental proposal.

B. Methodology

The additional, potential damage cases that we reviewed were identified
through public comments on the March 2007 supplemental proposal,
publicly available EPA documents, and media reports.

In reviewing the cases, EPA maintained the scope of the original
environmental problems study as described above in section II. Scope
(i.e., environmental damage is attributed to some type of recycling
activity, and cases are relatively recent and involve recycling of
regulated hazardous wastes, or hazardous secondary materials that are
specifically excluded from RCRA regulation). Our contractor personnel
also employed the same methodology for developing key facts about
additional damage cases as was used for the study and is described above
in section III. Methodology. 

C. Summary

Based on our analysis of additional, potential cases, we have added ten
new damage case sites to the study and updated three existing damage
case profiles (from the 2007 study) with more information about
environmental problems. We concluded that the new damage cases and the
supplemental information added to existing cases are consistent with the
damage cases previously cited in the study; therefore, the additional
facts do not substantially change our understanding of hazardous
secondary materials recycling damage cases. 

We believe that the study reflects the risk and problems involved with
recycling hazardous secondary materials and that the environmental
problems highlighted in the study demonstrate the need to promulgate
restrictions and conditions for the exclusions from the RCRA Definition
of Solid Waste (e.g., requirements for financial assurance, reasonable
efforts, shipping documentation, hazardous secondary materials
management, and speculative accumulation). EPA maintains that the
restrictions and conditions finalized with the exclusions will address
the problems identified in the study and will limit the exclusions to
materials that EPA has determined are not discarded. EPA also believes
that generators should assess whether reclamation facilities adequately
manage hazardous secondary materials in order to mitigate the risk of
future environmental problems. Consequently, we are finalizing the
reasonable efforts condition for the transfer-based exclusion.

EPA acknowledges that the 2007 environmental problems study included one
damage case from primary mineral processing and two damage cases from
secondary mineral processing. We note that whether an industry has a
single damage case represented in the study or numerous damage cases,
all industries are treated equally within the final rulemaking for
hazardous secondary materials generated, reclaimed, and managed in
land-based units (40 CFR 261.4(a)(23)). Moreover, four of the ten new
damage case profiles are from primary and secondary mineral processing
facilities, which corroborates EPA's view that the findings from the
environmental problems study apply across industries, including the
mining and mineral processing industries. Of the four additional damage
cases, three are primary mineral processing facilities and one is a
secondary mineral processing facility. 

We have concluded that these additional damage cases do not
substantially change the overall picture of environmental problems
caused by hazardous secondary materials recycling activities at mining
and mineral processing facilities. EPA believes restrictions on
land-based storage units are supported by the environmental problems
study. Cumulative damage causes from the study support the restrictions
imposed by 40 CFR 261.4(a)(23) and the identification of additional
mining and mineral processing damage cases corroborates EPA's finding
that no industry should be exempt from restrictions and/or conditions
due to the limited number of damage case profiles exhibited in the
environmental problems study.

	A summary of additional damage cases and individual profiles are
located in the Addendum’s Appendix I.

Appendix II: Additional Sites Considered But Not Included in the Damage
Case Analysis

A. Background

See section A. Background, Appendix I (above).

B. Methodology

See section B. Methodology, Appendix I (above).

C. Summary

EPA identified and reviewed eleven additional, potential damage cases,
but decided they would not be included in the environmental problems
study for various reasons. For example, we determined that two cases
identified in the public comments are already included in the 2007 study
and additional information was not revealed to supplement the profiles.
We also determined that one case from public comments was considered for
the 2007 study, but not included because the damage was deemed unrelated
to recycling and no additional information was exposed to change this
conclusion. Eight other new sites, including one identified in the
public comments, were determined to have environmental damage unrelated
to recycling or the information was insufficient to determine whether
the case should be included in the study. The Addendum’s Appendix II
contains a summary of sites considered but not included in the study.

This review and determination process is consistent with our work
related to the 2007 study, which excluded many sites because damage was
pre-RCRA or unrelated to recycling, there was no damage identified, and
the information available was insufficient to determine the site met the
scope of the study. See the 2007 study’s Appendix III: Additional
Sites Considered but not Included in the Damage Case Analysis. 

Appendix III: Analysis of Recycling Damage Case Facilities that Are Also
Intermediate Facilities

A. Background

	In the March 2007 supplemental proposal, EPA proposed that the
hazardous secondary material must be transferred directly from the
generator to the reclaimer and not be handled by anyone else other than
a transporter. Thus, as proposed, a generator that wished to maintain
the excluded status of its hazardous secondary materials would not be
able to ship those materials to a middleman, such as a broker. We said
that we believed that a generator who ships materials to a middleman,
such as a broker typically does not know who will ultimately manage and
reclaim them, or how they will be reclaimed (72 FR 14189). However, we
requested comment on allowing middlemen to participate in the exclusion.

	Comments on the supplemental proposal disputed the assumption that a
generator does not know the final destination when shipping to an
intermediate facility, saying that in certain cases the generator works
with an intermediate facility to choose the reclamation facility and the
final destination is arranged by contract before the hazardous secondary
materials are shipped. Commenters also asserted that such arrangements
allow for consolidation of shipments, making recycling economical for
small businesses that generate hazardous secondary materials. 

In consideration of comments, EPA’s contractor personnel analyzed the
profiles from the 2007 environmental problems study to identify whether
any damage cases represented intermediate facilities. An intermediate
facility is defined as any facility that did not generate or recycle the
hazardous secondary material (such as a transfer facility).  

B. Methodology

The analysis relied on two data sources to identify intermediate
facilities. First, a list of RCRA ID numbers from the environmental
problems study was compared to RCRA Biennial Report (BR) Data from
1989-2005 to identify intermediate facilities. For this analysis,
intermediate facilities met one of the following conditions:

Had at least one stream in the generation and management (GM) form with
source code G61. Source Code G61 is described as “Hazardous waste
received from off site for storage/bulking and transfer off site for
treatment or disposal.”

Had at least one stream in the waste received (WR) form with management
method code H141.  Management method code H141 is described as “The
site receiving this waste stored/bulked and transported the waste with
no treatment or recovery (H010-H129), fuel blending (H061), or disposal
(H131-H135) at that receiving site.”

Each intermediate facility identified from the BR data is indicated with
a “Yes” in the Addendum’s Appendix III in the table column titled
“BR Indicates Intermediate Facility.”

Second, additional intermediate facilities were identified by reviewing
the damage case profiles in the 2007 environmental problems study.
Profiles were searched for key words describing intermediate facilities,
such as “transfer”, “offsite” or “off site”,
“consolidate” (or other variations of the word), and
“intermediate.” Then the profiles were reviewed to verify that the
descriptions did in fact describe intermediate facilities.

For each intermediate facility identified from damage case profiles, a
relevant excerpt of the site description was placed in the Addendum’s
Appendix III in the table column titled “Damage Case Text Indicates
Intermediate Facility.”

C. Summary

The analysis identified a total of 45 intermediate facilities out of 208
included in the 2007 environmental problems study. The Addendum’s
Appendix III includes a table of these intermediate facilities. 

In light of this analysis, and conditions and requirements that would
apply to intermediate facilities and generators transferring hazardous
secondary materials using intermediate facilities, EPA agrees with the
comments that some types of intermediate facilities could participate in
the transfer-based exclusion from the RCRA Definition of Solid Waste as
provided by the final rulemaking. However, to limit the transfer-based
exclusion to those intermediate facilities where discard will not occur,
the hazardous secondary material generator must make contractual
arrangements with the intermediate facility to ensure that the hazardous
secondary material is sent on to the reclamation facility or facilities
identified by the generator. The generator also must perform reasonable
efforts on the intermediate facility, as well as on the reclamation
facility. 

In addition, an intermediate facility must meet the same conditions as a
reclamation facility for the same reasons the reclamation facility must
meet them, i.e., hazardous secondary material received at any facility
must not be discarded. Of the 208 damage cases in the 2007 environmental
problems study, 45 (22%) were from intermediate facilities. Therefore,
EPA believes the record for requiring the conditions for the reclamation
facility also supports promulgation of the same conditions for
intermediate facilities (e.g. financial assurance, performance-based
storage standards for managing hazardous secondary materials and
recycling residuals, etc.).

 Note that RCRA Part B permits are not required for hazardous waste
recycling processes or operations themselves; in general, Part B permits
are issued, as applicable, for storage of hazardous wastes prior to
recycling.

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