9441.1993(17)
United States Environmental Protection Agency
Washington, D.C. 20460
Office of Solid Waste and Emergency Response
September 20, 1993
Mr. Jeffrey T. Miller, Director
Environmental Health and Government Affairs
Lead Industries Association, Inc.
295 Madison Avenue
New York, New York, 10017
Dear Mr. Miller:
This letter is written as a followup to your meeting with
my staff on April 6, 1993. The Agency has recently completed review
of materials submitted by the Lead Industries Association Inc.
(LIA) on spent solder baths, also known as "pot dumps."
Based on the information provided on pot dumps by LIA, EPA has
determined that these materials, in general, meet the definition
of scrap metal (see footnote 1). Thus, when these materials are
reclaimed, they are currently not subject to regulation under
40 CFR Parts 262 through 266, or Parts 268, 270 or 124 (40 CFR
261.6(a)(3)(iv)). However, you should also note that respondents
to enforcement actions who raise a claim that scrap metal is not
subject regulation because it is being reclaimed must be able
to demonstrate that the material is actually reclaimed:
"Respondents in actions to enforce regulations
implementing Subtitle C of RCRA who raise a claim that a
certain material is not a solid waste, or is conditionally
exempt from regulation must demonstrate that there is a known
market or disposition for the material and that they meet
the terms of the exclusion or exemption. In doing so, they
must provide appropriate documentation ...to demonstrate
that the material is not a waste, or is exempt from regulation
[emphasis added]. In addition, owners or operators of facilities
claiming that they actually are recycling materials must
show that they have the necessary equipment to do so."
(40 CFR 261.2(f).
You should also note that the Agency still considers scrap
metal to be a solid waste, regardless of whether the scrap metal
is being disposed of or recycled (50 FR 624; January 4, 1985).
In addition, when the scrap metal exemption was originally promulgated,
it was stated that the EPA needed to study "...types of scrap
metal and types of management practices further before deciding
on an appropriate regulatory regime (if any)". The effort
currently underway by the Definition of Solid Waste Task Force
may eventually lead to proposed rule changes for solder residues
and other exempt or excluded secondary materials such as scrap
metals, unlisted sludges and by products being reclaimed. In the
meantime, we encourage your membership to manage lead pot dumps
being recycled in a manner that minimizes potential releases to
the environment. We encourage your membership not to store spent
pot dumps or other solder residues on the ground or uncovered
such that lead constituents of the material may leach into soil
or surface water or become airborne if the material is in a dispersable
form. Such a release may be considered abandonment through disposal
and may cause the solder residues to become subject to RCRA Subtitle
C regulation.
Please be aware that under Section 3006 of RCRA (42 U.S.C.
Section 6926) individual States can be authorized to administer
and enforce their own hazardous waste programs in lieu of the
Federal program. When States are not authorized to administer
their own program, the appropriate EPA Regional office administers
the program and is the appropriate contact for any case-specific
determinations. Please also note that under Section 3009 of RCRA
(42 U.S.C. Section 6929) States retain authority to promulgate
regulatory requirements that are more stringent than Federal regulatory
requirements. If you have any additional questions regarding this
matter, please contact Mike Petruska of my staff at (202) 260-8551.
Sincerely, Jeffery D. Denit
Acting Director
Office of Solid Waste
1 "Scrap metal" is bits and pieces of metal parts
(e.g., bars, turnings, rods, sheets, wire) or metal pieces
that may be combined together with bolts or soldering (e.g.,
radiators, scrap automobiles, railroad box cars) which
when worn or superfluous can be recycled. 40 CFR 261.1(c)(6).
Spent solder baths are generally solid pieces of metal that
do not contain a significant liquid component when removed
from the bath. They are also different in both physical form
and content than process residues such as sludges, slags
and drosses. If a material is a scrap metal, it does not
matter whether it is a spent material or by-product. This
letter clarifies the January 7, 1992 letter from Don Clay
to you which indicated pot dumps were spent materials.