Faxback 11297

9444.1987(44)

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

OCT 16 1987

Phillip G. Retallick, Director
Division of Air and Waste Management
Department of Natural Resources and
Environmental Control
State of Delaware
89 Kings Highway
P.O. Box 1401
Dover, Delaware 19903

Dear Mr. Retallick:

This is in response to your October 1, 1987 letter requesting
EPA's interpretation of the RCRA Definition of Solid Waste as it
applies to Standard Chlorine's proposed thermal oxidizer and
hydrodechlorination processes. As you know, a panel of the
District of Columbia U.S. Court of Appeals held (in a 2-1 deci-
sion) in American Mining Congress vs EPA, No. 85-1206 (D.C.
Cir.), that EPA had exceeded its statutory authority in certain
respects by including within its definition of solid waste
certain types of materials not intended by Congress to be "dis-
carded materials" under RCRA Section 1004(27). We are still
studying the court's opinion and we plan to issue an interpreta-
tion as to how the EPA regulations are affected by the ruling by
about mid or late November. We cannot comment on how EPA
regulations affecting Standard Chlorine's processes are affected
by the court's ruling at this time.

Since Delaware has adopted under State law rules equivalent
to EPA's, you have asked for an interpretation as to how Standard
Chlorine would be regulated under EPA's January 4, 1985, rules,
if the court's opinion did not exist. Based on the materials
that you sent to Mike Petruska in August and September, we have
reached the following conclusions:

(1) Standard Chlorine's "polychlor material" is the
distillation bottoms from the production of chlorinated
benzenes, and therefore, is a by-product that meets the
listing description of hazardous waste No. K085. (We do
not agree that theses bottoms are a co-product, as
Standard Chlorine claims.)


-2-

(2) The Agency considers both the thermal oxidizer and
hydrodechlorination processes to be forms of reclama-
tion. These processes are designed to recover materials/
products (Muriatic Acid, chlorobenzenes, or benzenes)
from a listed by-product; and under Section 261.2(c)(4),
this constitutes reclamation.

(3) Pursuant to Section 261.2(c)(3), listed by-products that
are reclaimed are solid wastes.

In summary, our interpretation under the January 4, 1985
rules would be that polychlor material is a solid waste
when reclaimed using either the thermal oxidizer or the hydrode-
chlorination process, and thus is a hazardous waste subject to
regulation under Subtitle C of RCRA.

If you have further questions in this area, please feel free
to continue to deal with Mike Petruska of my staff, at (202)
382-7729.

Sincerely,

Original Document signed

Marcia E. Williams
Director
Office of Solid Waste