Dear Mr.

Anderson:

TAPE is likely to be successful in convincing a court that the NPB, covered by TAPE’s tolling
agreement with MAGIC, is not subject to regulation under RCRA because it is not solid waste.
However, a non-waste determination is probably unlikely.

Background

According to RCRA, solid waste is “discarded material.”1 However, under the EPA regulations,
some discarded material is not solid waste when it is recycled.2 Whether a material is considered
a solid waste when it is recycled depends on the material’s status and how it is recycled. A
discarded material that exhibits the toxicity characteristic as the NPB does is hazardous waste.3
As discussed more fully below, the NPB is probably a hazardous waste that is legitimately
recycled, so it is possibly excepted from the definition of solid waste.

I. The NPB is not Solid Waste

The NPB is probably not a solid waste because it is legitimately recycled, under a valid tolling
agreement, and contained according to the EPA’s requirements. Generally, the regulations define
solid waste as discarded material that is not excluded.6 Discarded material is material that is
recycled.7 Recycled material is material that is “used, reused, or reclaimed.”8 Depending on
whether the material is used, reused, or reclaimed the regulations explain when the recycled
material is solid waste and when it is excluded.

Materials are not solid wastes when they can be shown to be recycled by being used or reused as
ingredients in an industrial process to make a product, provided the materials are not being
reclaimed.”9 A material is “used or reused” if it is employed as an ingredient in an industrial
process to make a product.10 After it goes through the treatment process at MAGIC, the NPB is
returned to TAPE to be used as feedstock in TAPE’s industrial process. Thus, TAPE is
employing the NPB as an ingredient in the industrial process. However,The NPB is probably
reclaimed because it is processed by MAGIC before it is reused in the TAPE process. Also,
MAGIC probably “regenerates” it through the treatment process that reduces the NPB’s
hazardous constituents to a level consistent with the levels that are typically found in newly
manufactured “virgin” NPB. Thus, this definition is not TAPE’s strongest argument.

Also, materials are not solid wastes when they can be shown to be recycled by being used or
reused as effective substitutes for commercial products.12 Because TAPE does reuse the NPB as
a replacement for commercial NPB, this may convince a court the NPB is not a solid waste when

1
42 U.S.C. § 6903(27).
2
40 C.F.R. § 261.2(e).
3
40 C.F.R. § 261.24.
6
40 C.F.R. § 261.2(a)(1).
7
40 C.F.R. § 261.2(a)(2)(i)(B).
8
40 C.F.R. § 261.1(c)(7).
9
40 C.F.R. § 261.2(e)(1)(i).
10
40 C.F.R. § 261.1(c)(5)(i).
12
40 C.F.R. § 261.2(e)(1)(ii).

1
recycled. However, a court may find the NPB does not meet the definition of “commercial
product” because it does not exhibit the same characteristics of commercial NPB until it is sent
to and treated by MAGIC.

Another argument in TAPE’s favor is that under the EPA regulations, byproducts exhibiting a
characteristic of hazardous waste are solid wastes when reclaimed unless they meet the
requirements of a valid tolling agreement.14 Because TAPE probably can show it meets the
requirements of a valid tolling agreement, this regulation also works in TAPE’s favor.

A by-product is “a material that is not one of the primary products of a production process and is
not solely or separately produced by the production process.”15 The NPB is generated by TAPE’s
manufacturing process but the primary products of TAPE’s production processes are adhesives,
paint removers, and typewriter collection fluids, so the NPB is not a primary product or the sole
product of these processes. Further, the NPB would be considered hazardous waste if it was
discarded because it exhibits the toxicity characteristic. Therefore, the NPB will be classified as a
hazardous secondary material and a by-product exhibiting a characteristic of hazardous waste.

Materials, like the NPB, are not solid wastes when they are “generated and legitimately
reclaimed within the United States . . . and under the control of the generator”17 if the material is
generated under a written contract between a tolling contractor and a toll manufacturer and
contained according to the regulations.18 The reclamation takes place in the United States and
there is an agreement, so I will proceed as if it is valid. However, without examining the written
contract between TAPE and MAGIC, I cannot determine whether the required certifications are
sufficient. You mentioned concerns that might implicate containment requirements, so I will
focus there.

The EPA regulations define contained as held in a unit.19 The unit must be in good condition,
with no leaks or other continuing or intermittent unpermitted releases; designed, as appropriate
for the material, to prevent any unpermitted release to the environment; compatible with the
materials used to construct the unit; and address any potential risks of fires or explosions.20 If a
unit does permit the release of a material like the NPB, it would be considered discarded and a
solid waste unless it was immediately recovered for reclamation.21 This does mean that if TAPE
meets the definition of containment, should something like a hurricane release the NPB, TAPE
would have the chance to immediately recover the material if immediate recovery is possible.
However, TAPE may have a hard time making the initial showing that containers are sufficient.

14
40 C.F.R. § 261.2(a)(3).
15
40 C.F.R. § 261.1(c)(3).
17
40 C.F.R. § 261.4(a)(23).
18
40 C.F.R. § 261.4(a)(23)(i)(C), (ii)(A).
19
40 C.F.R. § 260.10.
20
40 C.F.R. § 260.10(1), (3).
21
40 C.F.R. § 261.4(a)(23)(ii)(A).

2
Whether TAPE meets the requirements for containment may be the hardest burden in convincing
a court that the NPB is excluded from the definition of solid waste. TAPE will need to present
evidence that shows the barrels are in good condition and designed, for materials like NPB that
exhibit the toxicity characteristic. This could include a showing that the barrels are designed to
withstand the elements and other factors like movement during transport. TAPE will also need to
show that the barrels are designed to address any potential risks of fires or explosions. If TAPE
can make these showings it will satisfy the containment requirement.

TAPE can likely show it meets the requirements that exclude reclaimed material, like the NPB,
from the definition of solid waste. However, to qualify for the exclusion the recycling process
must also be legitimate.

The way TAPE recycles the NPB is probably legitimate recycling. Under the regulations, four
requirements must be met for the recycling process to be legitimate.22

First, the recycling must involve a hazardous secondary material, like NPB, that provides a
useful contribution.23 The material provides a useful contribution if it is regenerated by the
recycling process.24 As previously discussed, the NPB TAPE produces is regenerated through the
agreement with MAGIC because MAGIC’s process reduces the levels of hazardous constituents
to levels consistent with newly manufactured “virgin” NPB. Because the recycled NPB is
regenerated, it provides a useful contribution.

Second, the recycling process must produce a valuable product or intermediate.25 “The product
or intermediate is valuable if it is used . . . as an ingredient or intermediate in an industrial
process.”26 As previously discussed, TAPE uses the recycled NPB as a feedstock in its industrial
process. Because the recycled NPB is reused in the industrial process, it is a valuable product or
intermediate.

Third, “[w]here there is an analogous raw material, the hazardous secondary material must be
managed, at a minimum, in a manner consistent with the management of the raw material or an
equally protective manner.”27 This means the NPB TAPE produces must be managed at least as
protectively as “virgin” NPB by both TAPE and MAGIC. This may be a problem if the barrels
TAPE uses would not be considered satisfactory for “virgin” NPB. However, this would require
some analysis of how “virgin” NPB is managed and protected.

Finally, “[t]he product of the recycling process must be comparable to a legitimate

product or intermediate.”28 Here, the NPB produced by TAPE has an analogous product or
intermediate because “virgin” NPB exists. Under the regulations, the NPB being recycled is
comparable to “virgin” NPB if 1) the recycled NPB does not exhibit a hazardous characteristic
that “virgin” NPB does not exhibit and 2) the concentrations of any hazardous constituents in the

22
40 C.F.R. § 261.2(g)
23
40 C.F.R. § 260.43(a)(1).
24
40 C.F.R. § 260.43(a)(1)(iv).
25
40 C.F.R. § 260.43(a)(2).
26
40 C.F.R. § 260.43(a)(2)(ii).
27
40 C.F.R. § 260.43(a)(3).
28
40 C.F.R. § 260.43(a)(4).

3
recycled NPB are at levels that are comparable to or lower than those found in “virgin” NPB.29
The recycled NPB is comparable to “virgin” NPB because both forms exhibit the same toxicity
characteristics. Also, once the recycled NPB is reclaimed, the concentrations of any hazardous
constituents in the recycled NPB are consistent with the levels that are typically found in
“virgin” NPB. Thus, the recycled NPB satisfies this requirement.

Because all four requirements of legitimate recycling are met and the NPB is probably reclaimed
under a valid tolling agreement and contained according to the regulations, TAPE could probably
convince a court that the NPB is excluded from the definition of solid waste. TAPE could have
some difficulty convincing a court that the barrels satisfy the definition of containment. Also,
TAPE could face some difficulty concerning the timing of the recycling. Courts have held the
term “solid waste” does not include materials that can be reused.30 The NPB is being reclaimed
and reused. However, courts have also held that only materials destined for immediate reuse are
not solid waste.31 Because TAPE stores the barrels of NPB on the loading dock for weeks, a
court could find the materials are not immediately recycled. TAPE could likely counter this
argument by showing that the NPB is part of the ongoing industrial process, but it is an argument
that may affect the likelihood of success.

29
40 C.F.R. § 260.43(a)(4)(i)(A)-(B).
30
Am. Mining Cong. v. Unites States Env’t Prot. Agency, 824 F.2d 1177 (D.C. Cir. 1987).
31
Am. Mining Cong. v. United States Env’t Prot. Agency, 907 F.2d 1179 (D.C. Cir. 1990).

4
II. Non-Waste Determination

Considering the standards and criteria for non-waste determinations, TAPE is probably not likely
to convince the EPA Administrator to issue a non-waste determination. Convincing a court that
the NPB is not “solid waste” is a better strategy anyway because by the time TAPE can get a
non-waste determination TAPE may already be facing litigation on the issue.

According to the EPA regulations, the Administrator may determine on a case-by-case that
certain recycled materials and not solid wastes.32 The NPB probably could meet the definition of
some of these materials. For example, the NPB is probably reclaimed and then reused within the
original production process in which it was generated.33 As previously discussed, the NPB is
reclaimed by MAGIC and then reused in the TAPE process. The NPB could also meet the
definition of materials that have been reclaimed but must be reclaimed further before the
materials are completely recovered because the NPB might be reclaimed by TAPE and then
reclaimed again by MAGIC before it is recovered.34 The NPB is also probably [h]azardous
secondary material that is indistinguishable in all relevant aspects from a product or
intermediate.35 This definition might be more difficult to meet because the NPB is not
indistinguishable from a product or intermediate until it is treated, but the Administrator might
be convinced this qualifies. Because the NPB arguably meets at least one of these definitions, the
Administrator could have the discretion to issue a non-waste determination for the NPB.

The Administrator may grant the determination if the “applicant demonstrates that the hazardous
secondary material is comparable to a product or intermediate and is not discarded.”36 In making
the determination the Administrator will consider whether the recycling is legitimate and other
criteria outlined in the regulations. Whether recycling is legitimate is discussed above. TAPE
likely meets all the requirements of legitimate recycling. However, TAPE will be unlikely to
meet a few of the other listed criteria.

First, the market probably does not treat the NPB TAPE produces meaning the “contaminated
NPB” as a product or intermediate rather than a waste.37 The market more likely treats the
“contaminated NPB” as waste because it does not have any market value. TAPE does have a
contractual agreement for the “contaminated NPB.” However, this agreement is not for the value
of the material but rather for the service of making it usable. Also, the “contaminated NPB” has
higher concentrations of hazardous constituents than those found in commercially available
NPB, so it is not comparable to commercial products or intermediates.38 Further, our
conversation suggested that the “contaminated NPB” might be releasing hazardous constituents
to the air, at higher levels from a health risk perspective than would otherwise be released by the
production process.39 There is no evidence about this risk, but this might need to be addressed in
the application. Finally, the main reason the “contaminated NPB” could probably not qualify for

32
40 C.F.R. § 260.30.
33
40 C.F.R. § 260.30(b).
34
40 C.F.R. § 260.30(c).
35
40 C.F.R. § 260.30(e).
36
40 C.F.R. § 260.34(c).
37
40 C.F.R. § 260.34(c)(1).
38
40 C.F.R. § 260.34(c)(2).
39
40 C.F.R. § 260.34(c)(4).

5
an exception is that the barrels might not be sufficient to meet the definition of containment.40
The Administrator is probably unlikely to grant a non-waste determination when the NPB is not
properly contained.

Conclusion

TAPE is likely to convince a court that the NPB is not solid waste. However, convincing the
Administrator to grant a non-waste determination is unlikely.

If you have any questions, I would be happy to discuss further.

40
40 C.F.R. § 260.34(c)(5).