June 2010
Version 1
Revisions to the Definition of Solid Waste Final
Rule Compilations: The Legitimate Recycling
Standard
Materials Recovery and Waste Management Division
Office of Resource Conservation and Recovery
U.S. Environmental Protection Agency
EPA530-R-10-007
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Revisions to the Definition of Solid Waste Final Rule Compilations:
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INTRODUCTION
Contents
Click a topic below to go to a section
INTRODUCTION I
THE LEGITIMATE RECYCLING
STANDARD 1
Purpose of Legitimacy 1
Applicability of the Legitimacy Provision in
the Final Rule 1
Factor 1—Useful Contribution 3
Factor 2—Valuable Product or
Intermediate 5
Factor 3—Managed as a Valuable
Commodity 7
Factor 4—Comparison of Toxics in the
Product 9
Economics 14
Demonstration and Enforcement of
Legitimacy 17
CFR LANGUAGE 19
ACRONYMS 23
INDEX 24
About the 2008 DSW Rule
On October 30, 2008, the U.S.
Environmental Protection Agency (EPA)
published a final rule that streamlines
regulation of hazardous secondary
materials to encourage beneficial
recycling and to help conserve resources.
The Revisions to the Definition of Solid
Waste (DSW) Final Rule ("DSW rule")
amends and clarifies the Resource
Conservation and Recovery Act (RCRA)
definition of solid waste (40 CFR 261.2).
In particular, this rule establishes three
self-implementing exclusions to the
definition of solid waste for hazardous
secondary materials that are reclaimed.
One of the exclusions involves
hazardous secondary materials that are
legitimately reclaimed under the control
of the generator (onsite reclamation,
reclamation by the same company, and
reclamation under certain tolling
arrangements). The second exclusion
involves hazardous secondary materials
that are transferred to another company
for reclamation. The last exclusion
involves hazardous secondary materials
that are exported for reclamation. In
addition, the 2008 DSW rule outlines a
procedure for case-by-case non-waste
determinations.
For more information on the DSW rule,
see EPA's DSW Federal Register
Notices web page.
About the "Revisions to the Definition of Solid Waste Final
Rule Compilations"
The Revisions to the Definition of Solid Waste Final Rule Compilations provide easy
access for EPA, the states, the regulated community, and the public to important
information regarding a number of the provisions in the DSW rule: legitimate recycling,
reasonable efforts and the contained standard. This user-friendly reference tool reduces
the need for stakeholders to search through multiple Federal Register notices and will
improve understanding of each of these three subjects. For each compilation, EPA has
Introduction
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Revisions to the Definition of Solid Waste Final Rule Compilations:
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incorporated information from relevant preambles, regulations, and other materials.
Please note that this reference is designed to be web-based; therefore, the usefulness of
the document is maximized when it is viewed on a computer connected to the Internet.
This volume of the Compilations series provides information about the legitimate
recycling standard under the DSW rule. A more in-depth version of this compilation,
covering the history of legitimate recycling, and compilations addressing the contained
standard and the reasonable efforts condition will be available at
http ://www. epa. gov/epawaste/hazard/dsw/impresource.htm#guide.
This document is not a rulemaking and does not change any existing solid or hazardous
waste requirements. Any reformatting of regulatory language for the new exclusions is
only intended to make the language easier to read. Moreover, EPA's intention is to
include only that CFR language that is directly relevant to the legitimate recycling
standard. Note: other relevant language to this standard may exist and may not be
included in this document; users of this document are responsible for examining all CFR
language and other information that may be relevant to the legitimate recycling standard.
Any language in this document, including any reformatted CFR language to assist in ease
of reading, is not a substitute for the CFR itself or the requirements in the CFR. In
addition, we also provide links to the Government Printing Office's Electronic Code of
Federal Regulations Web site (e-CFR), which is updated almost daily.
In addition, this reference document presents matters related only to the legitimate
recycling standard of the federal definition of solid waste and hazardous waste recycling
regulations. Most states are authorized to manage their own solid and hazardous waste
regulatory programs. Therefore, states may have their own regulations that apply in lieu
of the federal regulations. While most state regulations are based on the federal
requirements, some states have developed regulations that are more stringent than the
federal program. We direct you to the following web site to determine if your state
regulatory program is different from the federal program:
http://epa.gov/waste/wyl/stateprograms.htm.
For a collection of written materials about other issues related to the definition of solid
waste, see the Definition of Solid Waste Compendium. For more information regarding
the various regulations applied to facilities generating or managing hazardous waste, see
Hazardous Waste Generators: A User Friendly Reference Document.
The Compilations series is also available in Microsoft Word format from EPA upon
request. For more information on these versions and any other questions or comments
concerning this document, please contact EPA's Office of Resource Conservation and
Recovery:
Mary Beth Sheridan Kathy Lett
sheridan.marybeth@epa.gov lett.kathy@epa.gov
703-308-4941 703-605-0761
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About "The Legitimate Recycling Standard" Compilation
Under the 2008 DSW rule, EPA requires hazardous secondary materials being reclaimed
under the control of the generator (40_CFR26L2(a)(2)(ii) and 40_CFR26L4(a)(23)) or
transferred for the purpose of reclamation (40 CFR261.4(a)(24) and 40 CFR
26L4(a)(25)) to meet the legitimate recycling standard. Materials for which an applicant
applies for a non-waste determinations at 40 CFR 260.34 must also meet the legitimacy
standard. EPA has long articulated the need to distinguish between "legitimate" (i.e., true)
recycling and "sham" recycling and has codified legitimacy provisions in the DSW rule.
This compilation is designed for users who want to read about the legitimate recycling
standard under the 2008 DSW Rule. This compilation discusses the following subjects
(click a topic below to jump to a section):
• Purpose of legitimacy
• Applicability of the legitimacy requirements
• Structure of the legitimacy requirements
• Details of Factors 1-4
• Economics
• Demonstration and enforcement of legitimacy
• Regulatory text
The text in the following sections is taken nearly verbatim from the preamble to the 2008
final rule and from final regulatory language. The excerpts presented in this compilation
do not necessarily appear in the same order as in the original source. In some cases, we
have reformatted passages to improve readability. Where the language in this compilation
does not exactly match preamble or regulatory language, we have indicated this by
bracketing the text (with the exception of headings and bold titles). As noted above, any
changes to the preamble or regulatory text are for the convenience of the reader and are
not to be taken as substitutes for the actual language of the regulations or the preamble.
EPA has also developed a longer version of the legitimacy compilation. The longer
version is useful for those users who want to look at the history of legitimate recycling or
compare other guidance on legitimate recycling to the requirements in the 2008 final rule.
The longer version is available at
www.epa.gov/epawaste/hazard/dsw/impresource.htmtfguide and includes excerpts from
the 2003 and 2007 proposals for the DSW final rule. It also includes topics such as the
rationale for codifying the legitimacy factors and a description of how these factors
compare to earlier guidance such as the "Lowrance Memo."
Introduction iii
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Revisions to the Definition of Solid Waste Final Rule Compilations:
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THE LEGITIMATE RECYCLING
STANDARD
Purpose of Legitimacy
Under the RCRA Subtitle C definition of solid waste, certain hazardous secondary
materials, if recycled, are not solid wastes and, therefore, are not subject to RCRA's
"cradle to grave" management system. The basic idea behind this principle is that
recycling of these materials often closely resembles industrial manufacturing rather than
waste management. However, due to economic incentives for managing hazardous
secondary materials outside the RCRA regulatory system, there is a potential for some
handlers to claim that they are recycling the hazardous secondary materials when, in fact,
they are conducting waste treatment and/or disposal. To guard against this, EPA has long
articulated the need to distinguish between "legitimate" (i.e., true) recycling and "sham"
recycling, beginning with the preamble to the 1985 regulations that discussed the
definition of solid waste (50 FR 638, January 4, 1985) and continuing through [the 2008
DSW] final rule. [73 FR 64670] The legitimacy provision in [the] final exclusions and
non-waste determinations is designed to distinguish between real recycling activities—
legitimate recycling—and "sham" recycling, an activity undertaken by an entity to avoid
the requirements of managing a hazardous secondary material as a hazardous waste. [73
FR 64701]
Applicability of the Legitimacy Provision in the Final Rule
As part of [the DSW Rule], EPA has decided to codify in 40 CFR 260.43 the requirement
that materials be legitimately recycled as a requirement for the exclusion for hazardous
secondary materials that are legitimately reclaimed under the control of the generator (40
CFR26L2(a)(2)(ii) and 40_CFR26L4(a)(23)) and as a condition of the exclusion for
hazardous secondary materials that are transferred for the purpose of legitimate
reclamation (40_CFR26L4(a)(24) and 40_CFR26L4(a)(25)). EPA is also requiring that
hazardous secondary materials must be legitimately recycled under the final non-waste
determinations (40 CFR 260.34) for hazardous secondary materials that are (a) reclaimed
in a continuous industrial process and (b) indistinguishable in all relevant aspects from a
product or intermediate. [73 FR 64700] These requirements can be found in the final
regulatory text at §26O34(b), S261.2(a)(2)(ii). §26L4(a)(23)(v), and §26L4(a)(24)(iv).
Each of these provisions refers to §260.43, where the full requirements for determining
the legitimacy of the reclamation operation can be found. [73 FR 64701]
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EPA [codified] a legitimacy provision in [the] final rule as part of the final exclusions
and non-waste determinations, but stresses that EPA retains its long-standing policy that
all recycling of hazardous secondary materials must be legitimate. If a facility is engaged
in sham recycling, this, by definition, is not real recycling and that material is being
discarded. The legitimacy policy continues to apply to all hazardous secondary materials
that are excluded or exempted from Subtitle C regulation because they are recycled and
to recyclable hazardous wastes that remain subject to the hazardous waste regulations.
This policy is well-understood throughout the regulated community and among the state
implementing agencies. [73 FR 64707-64708]
EPA believes that the four legitimacy factors [... ] codified in 40 CFR 260.43 are
substantively the same as the existing legitimacy policy. These factors are a
simplification and clarification of the policy statements in the 1989 Lowrance Memo and
in various Definition of Solid Waste Federal Register notices. [73 FR 64708]
Nonetheless, to avoid confusion among the regulated community and state and other
implementing regulatory agencies about the status of recycling under the existing
exclusions, the Agency has decided not to codify the legitimacy factors for existing
exclusions and, thus, states and other implementing agencies will continue to apply the
existing legitimacy policy to all recycling as they have in the past in order to ensure that
recycling is real and not a sham. The legitimacy provisions of the final rule are codified
only for the exclusions and non-waste determinations being promulgated [in the final
rule]. In developing the codified legitimacy language, [EPA] did not intend to raise
questions about the status of legitimacy determinations that underlie existing exclusions
from the definition of solid waste, or about case-specific determinations that have been
made by EPA or the states. Current exclusions and other prior solid waste determinations
or variances, including determinations made in letters of interpretation and inspection
reports, remain in effect. [73 FR 64708]
In summary, all hazardous secondary materials recycling and hazardous waste recycling,
whether such recycling remains under hazardous waste regulations or is excluded from
the definition of solid waste, must be legitimate. This has been our long-standing policy
and it is well understood throughout the regulated community and the implementing state
regulatory agencies. In order to be clear that the legitimacy provision codified at 40 CFR
260.43 under [the] final rule would not affect how the current legitimacy policy applies to
recycling under existing exclusions, the legitimacy provision at 40 CFR 260.43 is
explicitly designated as applying only to the exclusions and non-waste determinations
being finalized in [the final] rule. [73 FR 64708]
Final Legitimacy Structure
Under the first paragraph of 40 CFR 260.43, hazardous secondary materials that are not
legitimately recycled are discarded materials and, therefore, are solid wastes. This
paragraph also states that anyone claiming an exclusion at §26L2(a)(2)(ii), §26L4(a)(23),
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Revisions to the Definition of Solid Waste Final Rule Compilations:
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§26L4(a)(24), or §26L4(a)(25) or using a non-waste determination at §26O30(d) or (e)
must be able to demonstrate that its recycling activity is legitimate.[73 FR 64701]
The design of legitimacy in the final rule has two parts. The first is a requirement that
hazardous secondary materials being recycled provide a useful contribution to the
recycling process or to the product of the recycling process and a requirement that the
product of the recycling process is valuable.
These two legitimacy factors make up the The Four Legitimacy Factors
core of legitimacy and, therefore, a process
that does not conform to them cannot be a Core Factors:
legitimate recycling process, but would be • Factor 1—Useful Contribution
considered sham recycling. [73 FR 64701 ] • Factor 2—Valuable Product or
Intermediate
The second part of legitimacy is two factors „ , ,^ „ ^ ,
., . . , -111 1 Factors that Must Be Considered:
that must be considered when a recycler is „ _ .. , ,. , ,,
,. , , A . -,__. A • factor 3—Managed as a Valuable
making a legitimacy determination. EPA ^ ...
, , „ . Commodity
believes that these two factors are important . Factor 4_Companson of Toxlcs m ^
in determining legitimacy, but has not made Product
them factors that must be met because the
Agency knows that there will be some situations in which a legitimate recycling process
does not conform to one or both of these two factors, yet the reclamation activity would
still be considered legitimate. EPA does not believe that this will be a common
occurrence, but in recognition that legitimate recycling may occur in these situations,
EPA has made management of the hazardous secondary materials and the presence of
hazardous constituents in the product of the recycling process to be factors that must be
considered in the overall legitimacy determination, but not factors that must always be
met. [73 FR 64701]
Factor 1—Useful Contribution
' 'Legitimate recycling must involve a hazardous secondary material that provides a
useful contribution to the recycling process or to a product of the recycling process * * *
The hazardous secondary material provides a useful contribution if it (i) contributes
valuable ingredients to a product or intermediate; or (ii) replaces a catalyst or carrier in
the recycling process; or (iii) is the source of a valuable constituent recovered in the
recycling process; or (iv) is recovered or regenerated by the recycling process; or (v) is
used as an effective substitute for a commercial product" (40 CFR 26O43(b)(l)). [73 FR
64701]
This factor, one of the two core legitimacy factors, expresses the principle that hazardous
secondary materials should contribute value to the recycling process. This factor is an
essential element to legitimate recycling because real recycling is not occurring if the
hazardous secondary materials being added or recovered do not add anything to the
process. This factor is intended to prevent the practice of adding to or recovering
hazardous secondary materials from a manufacturing operation simply as a means of
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Revisions to the Definition of Solid Waste Final Rule Compilations:
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disposing of them, or recovering only small amounts of a constituent, which EPA would
consider sham recycling. [73 FR 64701-64702]
In response to comments received on this factor asking for more clarification on what
useful contribution means, the regulatory text includes an explanation of how useful
contribution might be achieved in (i) through (v) of §260.43(b)(l). EPA stresses that the
ways in which hazardous secondary materials can add value and be useful in a recycling
process are (i) contributing valuable ingredients to a product or intermediate; (ii)
replacing a catalyst or carrier in the recycling process; (iii) providing a valuable
constituent to be recovered; (iv) being regenerated; or (v) being used as an effective
substitute for a commercial product. The preamble to the October 2003 proposed rule
gave full descriptions of these five situations (68 FR 61585), but the Agency has also
included them in the regulatory text to clarify this factor for the regulated community. [73
FR 64702]
The Agency also wants to restate for clarification that for hazardous secondary materials
to meet the useful contribution factor, not every constituent or component of the
hazardous secondary material has to make a contribution to the recycling activity. For
example, a legitimate recycling operation involving precious metals might not recover all
of the components of the hazardous secondary material, but would recover precious
metals with sufficient value to consider the recycling process legitimate. In addition, the
recycling activity does not have to involve the hazardous component of the hazardous
secondary materials if the value of the contribution of the non-hazardous component
justifies the recycling activity. One example of this factor from an existing exemption is
where hazardous secondary materials containing large amounts of zinc, a non-hazardous
component, are recycled into zinc micronutrient fertilizers. In cases where the hazardous
component is not being used or recycled, the Agency stresses that the recycler is
responsible for the management of any hazardous residuals of the recycling process. [73
FR 64702]
In a situation where more than one hazardous secondary material is used in a single
recycling process and the hazardous secondary materials are mixed or blended as a part
of the process, each hazardous secondary material would need to satisfy the useful
contribution factor. This requirement prevents situations where a worthless hazardous
secondary material could be mixed with valuable and useful hazardous secondary
materials in an attempt to disguise and dispose of it. In addition, a situation in which
hazardous secondary materials that can be useful to a process are added to that process in
much greater amounts than are needed to make the end-product or to otherwise provide
its useful contribution would also be sham recycling. [73 FR 64702]
Another way the usefulness of the hazardous secondary material's contribution could be
demonstrated is by looking at the efficiency of the material's use in the recycling
process—that is, how much of the constituent in a hazardous secondary material is
actually being used. As an example, if there is a constituent in the hazardous secondary
material that could add value to the recycling process, but, due to process design, most of
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it is not being recovered but is being disposed of in the residuals, this would be a possible
indicator of sham recycling. However, there are certainly recycling scenarios where a low
recovery rate could still be legitimate. For example, under an existing exclusion, if the
concentration in a metal-bearing hazardous secondary material is low (2%-4%) and a
recycling process was able to recover a large percentage of the target metal, this factor
could be met and the recycling may be legitimate (depending on the outcome of the
analysis of the other legitimacy factors). [73 FR 64702]
One way to use the efficiency of the recycling process to evaluate legitimacy is to
compare the process to typical industry recovery rates from raw materials to determine if
the recycling process is reasonably efficient. This method should involve an examination
of the overall process, not just a single step of the process. For example, if one step in the
process recovers a small percentage of the constituent, but the overall process recovers a
much larger percentage, the Agency would consider the overall efficiency of the
recycling process in determining whether hazardous secondary materials are providing a
useful contribution. [73 FR 64702]
There are various ways in which hazardous secondary materials can be useful to a
recycling process and various ways are laid out in this discussion of how a facility might
demonstrate conformity with this factor. In addition, we provided a number of different
ways a material could contribute to the process in the regulatory text describing this
factor. Any one of these would be sufficient to demonstrate that the hazardous secondary
material provides a useful contribution. Overall, the Agency considers this factor to be a
critical element in determining legitimacy and any recycling process that does not meet
this factor cannot be considered legitimate recycling. [73 FR 64702]
Factor 2—Valuable Product or Intermediate
"The recycling process must produce a valuable product or intermediate * * * The
product or intermediate is valuable if it is (i) sold to a third party or (ii) used by the
recycler or the generator as an effective substitute for a commercial product or as an
ingredient or intermediate in an industrial process" (40 CFR 260.43 (b)(2)). [73 FR
64702]
This factor, one of the two core legitimacy factors, expresses the principle that the
product or intermediate of the recycling process should be a material of value, either to a
third party who buys it from the recycler, or to the generator or recycler itself, who can
use it as a substitute for another material that it would otherwise have to buy or obtain for
its industrial process. This factor is also an essential element of the concept of legitimate
recycling because recycling cannot be occurring if the product or intermediate of the
recycling process is not of use to anyone and, therefore, is not a real product. This factor
is intended to prevent the practice of running a hazardous secondary material through an
industrial process to make something just for the purpose of avoiding the costs of
hazardous waste management, rather than for the purpose of using the product or
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intermediate of the recycling activity. Such a practice would be sham recycling. [73 FR
64702]
Most commenters on the proposed rule for this factor stated that this is a useful way of
gauging whether recycling is actually taking place, but requested that the Agency clarify
the meaning of the term valuable, as it is used in the regulatory text. [For] the purpose of
this factor, a recyclable product may be
considered "valuable" if it can be shown to have Definition of "valuable"
.x1 , • . • • , A recyclable product may be
either economic value or a more intrinsic value to -j j« ? ui »-.
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Like the other factors, this factor should be examined and evaluated on a case-by-case
basis looking at the specific facts of a recycling activity. If, for instance, a recycling
activity produces a product or intermediate that is used by the recycler itself, but does not
serve any purpose and is just being used so that the product or intermediate appears
valuable, that would be an indicator of sham recycling. An example of this would be a
recycler that reclaims a hazardous secondary material and then uses that material to make
blocks or building materials for which it has no market and then "uses" those building
materials to make a warehouse in which it stores the remainder of the building materials
that it is unable to sell. [73 FR 64703]
Factor 3—Managed as a Valuable Commodity
"The generator and the recycler should manage the hazardous secondary material as a
valuable commodity. Where there is an analogous raw material, the hazardous secondary
material should be managed, at a minimum, in a manner consistent with the management
of the raw material. Where there is no analogous raw material, the hazardous secondary
material should be contained. Hazardous secondary materials that are released to the
environment and are not recovered immediately are discarded" (40 CFR 260.43 (c)(l)).
[73 FR 64703]
The first of the additional factors that must be considered expresses the principle that
hazardous secondary materials being recycled should be managed in the same manner as
other valuable materials. This factor requires those making a legitimacy determination to
look at how the hazardous secondary material is managed before it enters the recycling
process. In EPA's view, a recycler will value hazardous secondary materials that provide
an important contribution to its process or product and, therefore, will manage those
hazardous secondary materials in a manner consistent with how it manages a valuable
feedstock. If, on the other hand,
the recycler does not manage the Definition of "analogous raw material"
hazardous secondary materials as An "^og™8 raw material"1S a material for whlch
it would a valuable feedstock, that a hazard°us sec°ndary mate"al substftesiand ^
, , . ... , . serves the same function and has similar physical and
behavior may indicate that the chemical propertieg ^ ^ hazardous secondary
hazardous secondary materials material. A raw matenal that has significantly
may not be recycled, but rather different physical or chemical properties would not
released into the environment and be considered analogous even if it serves the same
discarded. [73 FR 64703] function. For example, a metal-bearing ore might
serve the same function as a metal-bearing air
This factor may be particularly pollution control dust, but because the physical
appropriate in the case where a properties of the dust would make it more susceptible
recycler has been paid by a to wm<^ dispersal, the two would not be considered
generator to take its materials as a analogous. Similarly, hazardous secondary materials
,, r-,, • • ,. with high levels of toxic volatile chemicals would not
result or the economic incentives , , , i -11.
... . be considered analogous to a raw matenal that does
in the hazardous secondary ^ haye thege ^^ chemicals or that has omy
materials market. By looking at the mimmal levelg of volatlle cnemicals. [73 FR 64691]
management of the hazardous
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secondary material before it enters the recycler's process, the entity making the
legitimacy determination can tell that a material being managed like an analogous raw
material is, in fact, valued by the recycler. If the hazardous secondary material is not
being managed like a valuable raw material because it is uncontrolled or is being
released, that indicates that the fee the recycler obtains for taking the hazardous
secondary material may be its only value to that recycler. If the fee received were the
only value to the recycler, it would mean that discard was taking place. [73 FR 64703]
This factor addresses the management of hazardous secondary materials in two distinct
situations. The first situation is when a hazardous secondary material is analogous to a
raw material which it is replacing in the process. In this case, the hazardous secondary
material should be managed prior to recycling similarly to the way the analogous raw
materials are managed in the course of normal manufacturing. EPA expects that all
parties handling hazardous secondary materials destined for recycling—generators,
transporters, intermediate facilities and reclamation facilities—will handle them in
generally the same manner in which they would handle the valuable raw materials they
might otherwise be using in their process. [73 FR 64703]
The second situation the factor addresses is the case where there is no analogous raw
material that the hazardous secondary material is replacing. This could be either because
the process is designed around a particular hazardous secondary material—that is, the
hazardous secondary material is not replacing anything—or it could be because of
physical or chemical differences between the hazardous secondary material and the raw
material that are too significant for them to be considered "analogous." [73 FR 64703]
Hazardous secondary materials that have significantly different physical or chemical
properties when compared to the raw material would not be considered analogous even if
they serve the same function because it may not be appropriate to manage them in the
same way. In this situation, the hazardous secondary material would have to be contained
for this factor to be met. A hazardous secondary material is "contained" if it is placed in a
unit that controls the movement of that material out of the unit. This requirement is
consistent with the idea that normal manufacturing processes are designed to use valuable
material inputs efficiently rather to than allow them to be released into the environment.
[73 FR 64703]
For example, if a manufacturer has an ingredient that is a dry raw material managed in
supersacks, the Agency would expect that a hazardous secondary material that is a similar
dry material also would be managed in supersacks or in a manner that would provide
equivalent protection. If, on the other hand, the hazardous secondary material was instead
managed in an outdoor pile without appropriate controls in place to address releases to
the environment, it may indicate that it was not being handled as a valuable commodity.
If, however, the manufacturer decided to replace the dry raw material in its process with a
liquid having the same constituents, it would not be sufficient, nor would it make sense,
for the liquid to be managed in supersacks. Instead, the liquid would have to be
"contained" (for example in a tank or surface impoundment). [73 FR 64703-64704]
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An important part of this factor is the statement in the regulatory text clarifying that
hazardous secondary materials that are released to the environment and not recovered
immediately are discarded. Valuable products should not be allowed to escape into the
environment through poor management and this factor clarifies that those hazardous
secondary materials that do escape (and are not immediately recovered) are clearly
discarded. Either a large release or ongoing releases of smaller amounts could indicate
that, in general, the hazardous secondary material is not being managed as a valuable
product, which could potentially lead to the recycling process being found not to be
legitimate. Hazardous secondary materials that are immediately recovered before they
disperse into the environment—air, soil, or water—and are reintroduced in the recycling
process are not discarded. This determination must be made on a case-by-case basis,
however. [73 FR 64704]
Example where Factor 3 is not met, but recycling may be legitimate
EPA has determined that it is appropriate that this factor is one of the two that must be
considered rather than a factor that must be met because there are situations in which this
factor is not met, but recycling appears to be legitimate. An example of this kind of situation is
described in the March 2007 supplemental proposal (72 FR 14199). In the example, a
hazardous secondary material that is a powder-like material is shipped in a woven super sack
and stored in an indoor containment area, whereas the analogous raw material is shipped and
stored in drums. A strict reading of this factor may determine that the hazardous secondary
material is not being managed in a manner consistent with the raw material even if the
differences in management are not actually impacting the likelihood of a release. By designing
the legitimacy factors so that this one has to be considered, but not necessarily met, the
individual facts of situations like the one described here can be evaluated on a case-by-case
basis to determine if they affect the legitimacy of the recycling activity. [73 FR 64704]
In summary, given the nature of the legitimacy factors and their need to apply to all the
practices covered by the exclusions in this final rule, it is not appropriate or practicable
for EPA to develop a specific management standard. In the absence of such a
management standard, EPA is using this factor: materials must be managed as analogous
raw materials or, if there are no analogous raw materials, the materials must be contained.
EPA's intent with this factor is that hazardous secondary materials are managed in the
same manner as materials that have been purchased or obtained at some cost, just as raw
materials are. Just as it is good business practice to ensure that raw materials enter the
manufacturing process rather than being spilled or released, we would expect hazardous
secondary materials to be managed effectively and efficiently in order that their full value
to the manufacturing process would be realized. [73 FR 64704]
Factor 4—Comparison of Toxics in the Product
"The product of the recycling process does not (i) contain significant concentrations of
any hazardous constituents found in Appendix VIII of part 261 that are not found in
analogous products; or (ii) contain concentrations of any hazardous constituents found in
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Appendix VIII of part 261 at levels that are significantly elevated from those found in
analogous products; or (iii) exhibit a hazardous characteristic (as defined in part 261
subpart C) that analogous products do not exhibit" (40 CFR 260.43 (c)(2)). [73 FR
64704]
The second of the additional factors that must be considered requires those making a
legitimacy determination to look at the concentrations of the hazardous constituents
found in the product made from hazardous secondary materials and compare them to the
concentrations of hazardous constituents in analogous products. Any of the following
three situations could be an indicator of sham recycling: a product that contains
significant levels of hazardous constituents that are not found in the analogous products;
a product with hazardous constituents that were in the analogous products, but contains
them at significantly higher concentrations; or a product that exhibits a hazardous
characteristic that analogous products do not exhibit. Any of these situations could
indicate that sham recycling is occurring because in lieu of proper hazardous waste
disposal, the recycler could have incorporated hazardous constituents into the final
product when they are not needed to make that product effective in its purpose. This
factor, therefore, is designed to determine when toxics that are "along for the ride" are
discarded in a final product and, therefore, the hazardous secondary material is not being
legitimately recycled. [73 FR 64704]
To evaluate this factor, a recycler will ordinarily compare the product of the recycling
process to an analogous product made of raw materials. For example, if a recycling
process produced paint, the levels of hazardous constituents in the paint will be compared
with the levels of the same constituents found in similar paint made from virgin raw
materials. [73 FR 64704]
A recycler is also allowed to perform this evaluation by comparing the hazardous
constituents in the hazardous secondary material feedstock with those in an analogous
raw material feedstock. If the hazardous secondary material feedstock does not contain
significantly higher concentrations of hazardous constituents than the raw material
feedstock, then the end product of the recycling process would not contain excess
hazardous constituents "along for the ride" either. EPA is clarifying here that this method
of showing that the product does not have "toxics along for the ride" is acceptable. There
may be cases in which it is easier to compare feedstocks than it is to compare products
because the recycler knows that the hazardous secondary material is very similar in
profile to the raw material. A comparison of feedstocks may also be easier in cases where
the recycler creates an intermediate which is later processed again and may end up in two
or more products, when there is no analogous product, or when production of the product
of the recycling process has not yet begun. [73 FR 64704]
This factor identifies three ways to evaluate whether or not unacceptable amounts of
hazardous constituents are passed through to the products of the recycling process. (As
explained above, these methods also could be used to compare the hazardous secondary
material feedstock to a raw material feedstock, if the recycler prefers.) The first method
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specifies that when analogous products made from raw materials do not contain
hazardous constituents, the product of the recycling process should not contain significant
amounts of hazardous constituents. For example, if paint made from reclaimed solvent
contains significant amounts of cadmium, but the same type of paint made from virgin
raw materials does not contain cadmium, it could indicate that the cadmium serves no
useful purpose and is being passed though the recycling process and discarded in the
product. [73 FR 64704-64705]
The second method addresses analogous products that do contain hazardous constituents
and asks whether the concentrations of those hazardous constituents are significantly
higher in the product of the recycling process than in the product made from raw
materials. Concentrations of hazardous constituents in the product of the recycling
process that are significantly higher than in the product made from virgin raw materials
could again be an indicator of sham recycling. For example, if a lead-bearing hazardous
secondary material was reclaimed and then that material was used as an ingredient in
making ceramic tiles and the amount of lead in the tiles was significantly higher than the
amount of lead found in similar tiles made from virgin raw materials, the recycler should
look more closely at the factors to determine the overall legitimacy of the process. [73 FR
64705]
The third method under this factor is whether the product of the recycling process
exhibits a hazardous characteristic that analogous products do not exhibit. Requiring an
evaluation of hazardous characteristics ensures that products of the recycling process do
not exhibit the characteristics of toxicity, ignitability, corrosivity, or reactivity when the
analogous products do not. The Agency believes that most issues associated with "toxics
along for the ride" will involve the presence of toxic constituents, which are addressed
under the first two parts of the factor. That is, we believe that it is likely that there are few
instances where hazardous secondary materials are used in the process and hazardous
constituents are not present at significantly higher levels, but the product made from the
hazardous secondary material nevertheless exhibits the hazardous characteristic of
toxicity when the analogous product does not. It is possible, though, that the use of
hazardous secondary materials as an ingredient could cause a product to exhibit a
hazardous characteristic, such as corrosivity, that is not exhibited by analogous products.
[73 FR 64705]
The Agency has determined that it is appropriate for this factor to be considered in
legitimacy determinations under the final exclusions and in the non-waste determinations
in this action, but thinks that there may be situations in which the factor is not met but the
recycling would still be considered legitimate. An example of this kind of situation that
has been addressed by the Agency under the current regulatory scheme would be in the
use and reuse of foundry sands for mold making in a facility's sand loop. Because of
repeated exposure to metals in a foundry's process, the sands used to make the molds
may have significantly higher concentrations of hazardous constituents than virgin sand.
However, because the sand is part of an industrial process where there is little chance of
the hazardous constituents being released into the environment or causing damage to
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human health and the environment when it is kept inside, because there is lead
throughout the foundry's process, and because there is a clear value to reusing the sand,
this would be an example of a situation where this factor is not met, but it does not affect
the legitimacy of the recycling process. [73 FR 64705]
In fact, EPA has concluded as a general matter that foundries engaged in the reuse of
lead-containing foundry sands are recycling those sands legitimately and these sands
would not be regulated under RCRA Subtitle C (under the circumstances described in
EPA's March 2001 memorandum on this subject).1 Thus, while the used sands in the
sand loop arguably have toxics-along-for-the ride, EPA did not raise questions about the
legitimacy of the recycling, given the overall nature of the operations. If the used foundry
sand were being recycled into a different product, such as a material used on the ground
or in children's play sand, the legitimacy determination would be very different and
significant levels of metals would likely render the recycling illegitimate. The same
conclusions would be reached applying the factors codified in 260.43. [73 FR 64705]
Additional examples where Factor 4 is not met, but recycling may be legitimate
Another example of recycling that may be legitimate although this factor has not been met
could be when the material has concentrations of toxics that could be considered "significantly
higher" than the analogous product, but meets industry specifications for the product that
include specific specifications for the hazardous constituent of concern. Meeting accepted
industry standards would be a strong indication that this material is being legitimately
recycled. A third example could be in the mining and mineral processing industry. In many
mineral processing operations, the very nature of an operation results in hazardous
constituents concentrating in the product as it proceeds through the various steps of the
process. In many cases, there is not an analogous product to compare the products of these
processes so this factor may not be relevant because of the nature of the operations. As with
the above example, if a facility considers a factor and decides that it is not applicable to its
process, the Agency suggests that the facility evaluate the presence of hazardous constituents
in its product and be prepared to demonstrate both that it considered this factor and the reasons
it believes the factor is not relevant. [73 FR 64705]
As discussed in more detail in the comments section of [the final rule] (section XVIII)
and in the response to comments document in the docket, commenters on this factor
requested clarification concerning what EPA meant by the terms used in this factor. In
response to some of these comments, EPA has made two clarifications in the regulatory
text by (1) specifying that the hazardous constituents referred to in the regulation are
those that are found in Appendix VIII to 40 CFR part 261 and (2) clarifying that the
hazardous characteristics to which EPA is referring to are those in 40 CFR part 261
subpart C. [73 FR 64705]
1 Letter. Elizabeth Cotsworth, Director Office of Solid Waste, to Amy Blankenbiller, American Foundry
Society, March 28, 2001.
http://vosemite.epa.gov/osw/rcra.nsf/Oc994248c239947e85256d090071175f/4C9A2EEE6E5F859B85256AC5004FClC2/Sfile/14534.pdf
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The Agency also received much comment on the term "significant" and what the Agency
intended by this term. EPA has decided to keep the term in the final rule. The alternative
to using "significant" or a similarly flexible term to determine when there may be
hazardous constituents in the product made from recycled hazardous secondary materials
that are not in the analogous products made from raw materials would be to set an
absolute standard. In its discussion of legitimacy in the October 2003 proposed rule, EPA
discussed possible "bright line" or risk-based approaches as a way to set absolute lines to
define "significant" based on either a numerical limit or a risk level (68 FR 61587-
61588). EPA recognizes that the "bright line" or the risk-based approach may provide
greater clarity and predictability to the regulated community, but that in both cases the
Agency would have to establish a line for what is acceptable and the line may either be
somewhat arbitrary or it may exclude recycling practices that, if carefully considered,
should be considered legitimate. Based on the comments received on those approaches,
we are convinced that they would not be workable. [73 FR 64705]
On the other hand, a case-by-case analysis of a recycling process can take into
consideration the relevant principles and facts for that activity, leading to a determination
of significance based on the facts of the activity. Because this factor must apply to
various different recycling activities, we believe the case-by-case approach is most
appropriate. [73 FR 64705-64706]
EPA, therefore, is finalizing its proposed option of using the term "significant" in 40 CFR
260.43(c)(2)(i) and (ii). Evaluating the significance of levels of hazardous constituents in
products of the recycling process may involve taking into consideration several variables,
such as the type of product, how it is used and by whom, whether or not the elevated
levels of hazardous constituents compromise the efficacy of the product, the availability
of the hazardous constituents to the environment, and others. For example, if a hazardous
secondary material has been reclaimed and made into a product that will be used by
children, and that product contains hazardous constituents that are not in analogous
products, that product will likely need to be closely scrutinized. On the other hand, low
levels of a hazardous constituent in a product from that same reclamation operation that is
used as an ingredient in an industrial process or for another industrial application may not
be significant and must be evaluated in the context of the product's use. [73 FR 64706]
EPA provided several additional examples in implementing this factor in the October
2003 proposed rule which will be repeated here. If zinc galvanizing metal made from
hazardous secondary materials that were reclaimed contains 500 parts per million (ppm)
of lead, while the same zinc product made from raw materials typically contains 475
ppm, this difference in concentration would likely not be considered "significant" in the
evaluation of this factor. If, on the other hand, the lead levels in the zinc product made
from reclaimed hazardous secondary materials were 1,000 ppm, it may indicate that the
product was being used to illegally dispose of lead and that the activity is sham recycling,
unless other factors would demonstrate otherwise. [73 FR 64706]
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In another example, if a "virgin" solvent contains no detectable amounts of barium, while
spent solvent that has been reclaimed contains a minimal amount of barium (e.g., 1 ppm),
this difference might not be considered significant. If, however, the barium in the
reclaimed solvent were at much higher levels (such as 50 ppm), it may indicate discard of
the barium and sham recycling. [73 FR 64706]
Unfortunately, because of the variety of possible recycling scenarios under the exclusions
and in the non-waste determinations covered by this final rule, we cannot provide
examples for how this factor might work for all possible recycling situations. The Agency
stresses that the determination of legitimacy for this factor should consider both the use
and the users of the product in addition to the concentration of the hazardous constituents
or the presence of a hazardous characteristic, as well as other relevant information. In
addition, in some cases, the implementing agency may accept a risk argument from a
recycler to show that the recycling activity meets this factor. If the recycler can show that
despite elevated concentrations of hazardous constituents, such constituents pose little or
no risk to human health or the environment, the implementing agency may consider that
as evidence that the elevated concentrations are not significant. [73 FR 64706]
Economics
Consideration of economics has long been a part of the Agency's concept of legitimacy,
as is evident in the Lowrance Memo and earlier preamble text (50 FR 638 and 53 FR
522; see also American Petroleum Institute v. EPA ("APIII"), 216 F.3d 50, 57-58 (DC
Cir. 2000)). [The] final rule does not codify specific regulatory language on economics as
part of the legitimacy provision, but EPA offers further guidance and clarification on how
economics may be considered in making legitimacy determinations, which is similar to
the preamble discussion in the March 2007 supplemental proposal. [73 FR 64706]
Specifically, EPA believes that consideration of the economics of a recycling activity can
be used to inform and help determine whether the recycling operation is legitimate.
Positive economic factors would be a strong indication of legitimate recycling, whereas
negative economic factors would be an indication that further evaluation of the recycling
operation may be warranted in assessing the legitimacy factors. [73 FR 64706]
Considering the economics of a recycling activity can also inform whether the hazardous
secondary material inputs provide a useful contribution and whether the product of
recycling is of value. Economic information that may be useful could include (1) the
amount paid or revenue generated by the recycler for recycling hazardous secondary
materials; (2) the revenue generated from the sale of recycled products; (3) the future cost
of processing existing inventories of hazardous secondary materials; and (4) other costs
and revenues associated with the recycling operation. The economics of the recycling
transaction may be more of an issue when hazardous secondary materials are sent to a
third-party recycler, but even when the hazardous secondary materials are recycled under
the control of the generator, the generator must still show that the hazardous secondary
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materials are, at a minimum, providing a useful contribution and producing a valuable
product. [73 FR 64706]
Useful economic information:
(1) The amount paid or revenue generated by the recycler for recycling hazardous
secondary materials is one example of how economic information can help support a
legitimacy determination. We have three primary illustrations to exemplify this. First, the
basic economic flows can suggest whether the recycling operation will process inputs,
including hazardous secondary materials, and produce products over a reasonable period
of time, recognizing that there will be lean and slow times. A general accounting of the
major costs, revenues, and economic flows for a recycling operation over a reasonable
period of time can provide information for considering whether recycling is likely to
continue at a reasonable rate, compared to the rate at which inputs are received, or
whether it is likely that significant amounts of hazardous secondary materials would be
accumulated and then abandoned when the facility closes. Any bona fide sources of
revenues would be included in this consideration, such as payments by generators to
recyclers for accepting hazardous secondary materials and subsidies supporting recycling.
However, in order to have some level of confidence that beneficial products are or will be
produced over a reasonable time frame, we believe that at least some portion of the
revenues should be from product sales (or savings due to avoided purchases of products if
the hazardous secondary materials are used directly by the recycler). This is consistent
with the factor requiring that the hazardous secondary material must be recycled to make
a valuable product or intermediate. [73 FR 64706]
Second, when the economics of a recycling operation that uses hazardous secondary
materials to produce and sell final products are similar to a manufacturing operation
using raw materials to produce and sell final products, we believe that such an operation
is likely to be legitimate. For instance, if the recycler pays for hazardous secondary
materials as a manufacturer would pay for raw materials, the recycler sells products from
the recycling process as a manufacturer would sell products from manufacturing, and the
revenues generated equal or exceed costs, then the hazardous secondary materials appear
to be valuable (i.e., the recycler is willing to pay for them) and appear to make a useful
contribution to a valuable recycled product. [73 FR 64707]
However, we also recognize that the economics of many legitimate recycling operations
that utilize hazardous secondary materials differ from the economics of more traditional
manufacturing operations. For example, many recyclers are paid by generators to accept
hazardous secondary materials. Generators may be willing to pay recyclers because
generators can save money if the recycling is less expensive than disposing of the
hazardous secondary materials in landfills or incinerators. Also, some recyclers receive
subsidies that may be designed to develop recycling infrastructure and markets or to
achieve other benefits of recycling. For instance, the recycling of electronic materials can
be legitimate even when the recycler is subsidized for processing the material. [73 FR
64707]
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Third, any analysis of the economics of a recycling operation should recognize that a
recycler may be able to charge generators and still be a legitimate recycling operation.
Because these hazardous secondary materials are hazardous wastes if disposed of,
typically the generators' other alternative management option already carries a cost that is
based on the existing market for hazardous waste transportation, treatment, and disposal.
Hence, unless there is strong competition in recycling markets or the hazardous
secondary materials are extremely valuable, a recycler may be able to charge generators
simply because alternative disposal options cost more. [73 FR 64707]
Recognizing that such a dynamic exists can assist those making legitimacy
determinations in evaluating recycling operations. For example, if a recycler is charging
generators fees (or receiving subsidies from elsewhere) for taking hazardous secondary
materials and receives a far greater proportion of its revenue from acceptance of the fees
than from the sale of its products, both the useful contribution and the valuable product
factors may warrant further review, unless other information would indicate that such
recycling is legitimate. Fees and subsidies may indicate that the economic situation
allows the recycler to charge high fees, regardless of the contribution provided by the
inputs, including hazardous secondary materials. In this situation, recyclers may also
have an increased economic incentive to over-accumulate or overuse hazardous
secondary materials or to manage them less carefully than one might manage more
valuable inputs. Additionally, if there is little competition in the recycling market, and/or
if acceptance fees seem to be set largely to compete with the relative costs of alternative
disposal options rather than to reflect the quality or usefulness of the input to the
recycling operation, this may also suggest a closer look at the useful contribution factor.
[73 FR 64707]
(2) A comparison of revenue from sales of recycled products to payments by
generators is another example of how economic information can help support an
evaluation of "valuable product." It is possible that product sales revenues could be
dwarfed by the acceptance of fees because markets for particular products are highly
competitive or because high alternative disposal costs allow for high acceptance fees.
However, relatively low sales revenues could also require a review of other factors, such
as whether product sales prices are lower than other comparable products, products are
being stockpiled rather than sold, or very little product is being produced relative to the
amount of inputs to the recycling operation. These indicators may suggest that the
product of the recycling process is not valuable and, thus, sham recycling may be
occurring. [73 FR 64707]
(3) A consideration of the future cost of processing or alternatively managing
existing inventories of hazardous secondary material inputs is another example of
how economic information can inform a legitimacy determination. When hazardous
secondary materials make a significant useful contribution to the recycling process, a
recycler will have an economic incentive to process the input materials relatively quickly
and efficiently, rather than to maintain large inventories. While recyclers often need to
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acquire sufficient amounts of hazardous secondary materials to make it economically
feasible to recycle them, there should be little economic incentive to over-accumulate
such materials that make a useful contribution. Overly large accumulations of input
materials may indicate that the hazardous secondary materials are not providing a useful
contribution or that the recycler is increasing its future costs of either processing or
disposing of the material, and may be faced with an unsound recycling operation in the
future. However, it is important to keep in mind that possible explanations for this may
exist. For example, the recycler may have acquired a large stock of hazardous secondary
materials because the price was unusually low or perhaps the hazardous secondary
materials are generated episodically and the recycler has few opportunities to acquire
them. [73 FR 64707]
(4) An analysis of costs and revenues specific to on-site recycling is an additional,
albeit specific, example of economic information to consider. When recycling is
conducted under the control of the generator, the recycler may not account formally for
some of the costs and savings of the operation. Still, when deciding whether to undertake
or continue the recycling operation or to utilize alternative outside recycling or disposal
options, the on-site recycler (under the control of the generator) will evaluate the basic
economic factors as a part of doing business. One such factor could be an accounting of
the costs of virgin materials avoided by using hazardous secondary materials. Similarly,
sales of recycled products under the control of the generator that are sold to an external
market may support the valuable product criterion. [73 FR 64707]
Demonstration and Enforcement of Legitimacy
Under the first paragraph of 40 CFR260.43, hazardous secondary materials that are not
legitimately recycled are discarded materials and, therefore, are solid wastes. This
paragraph also states that anyone claiming an exclusion at §26L2(a)(2)(ii), §261.4(a)(23),
§26L4(a)(24), or §26L4(a)(25) or using a non-waste determination at §26O30(d) or (e)
must be able to demonstrate that its recycling activity is legitimate. The Agency has
included the language "In determining if their recycling is legitimate, persons must
address the requirements of §260.43(b) and must consider the requirements of
§260.43(c)" to make it clear that the factors in paragraph (b) must be met, while the
factors in paragraph (c) must be considered and evaluated in determining whether the
recycling activity overall is legitimate. [73 FR 64701]
Although there is no specific recordkeeping requirement that goes with the ability to
demonstrate legitimacy, EPA would expect that in the event of an inspection or an
enforcement action by an implementing agency, the recycler would be able to show how
it made the overall legitimacy determination per §26L2(f). In the event that the process
does not conform to one of the two factors under §260.43(c), the facility should be able to
show that it considered that factor and why the recycling activity overall remains
legitimate. For example, under existing exclusions from the definition of solid waste,
reuse of lead contaminated foundry sands may or may not be legitimate, depending on
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the use. The use and reuse of foundry sands for mold making in a facility's sand loop
under normal industry practices has been found to be legitimate because the sand is part
of an industrial process where there is little chance of the hazardous constituents being
released into the environment or causing damage to human health and the environment
when it is kept inside, because there is lead throughout the foundry's process, and
because there is a clear value to reusing the sand. However, in the case of lead
contaminated foundry sand used as children's play sand, the same high levels of lead
would disqualify this use from being considered legitimate recycling. The same result
would be reached when applying Factor 4. [73 FR 64701]
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CFR LANGUAGE
260.34 Standards and criteria for non-waste determinations.
[CFR text not included]
§260.34(b): The Administrator may grant a non-waste determination for hazardous
secondary material which is reclaimed in a continuous industrial process if the applicant
demonstrates that the hazardous secondary material is a part of the production process
and is not discarded. The determination will be based on whether the hazardous
secondary material is legitimately recycled as specified in §260.43 and on the following
criteria:
(1) The extent that the management of the hazardous secondary material is part of
the continuous primary production process and is not waste treatment;
(2) Whether the capacity of the production process would use the hazardous
secondary material in a reasonable time frame and ensure that the hazardous
secondary material will not be abandoned (for example, based on past practices,
market factors, the nature of the hazardous secondary material, or any contractual
arrangements);
(3) Whether the hazardous constituents in the hazardous secondary material are
reclaimed rather than released to the air, water or land at significantly higher
levels from either a statistical or from a health and environmental risk perspective
than would otherwise be released by the production process; and
(4) Other relevant factors that demonstrate the hazardous secondary material is
not discarded.
[CFR text not included]
260.43 Legitimate Recycling of Hazardous Secondary Materials Regulated
under §260.34, §261.2(a)(2)(ii), and §261.4(a)(23), (24), or (25).
§260.43(a) Persons regulated under §260.34 or claiming to be excluded from hazardous
waste regulation under §261.2(a)(2)(ii), §261.4(a)(23), (24), or (25) because they are
engaged in reclamation must be able to demonstrate that the recycling is legitimate.
Hazardous secondary material that is not legitimately recycled is discarded material and
is a solid waste. In determining if their recycling is legitimate, persons must address the
requirements of §260.43(b) and must consider the requirements of §260.43(c) below.
(b) Legitimate recycling must involve a hazardous secondary material that provides a
useful contribution to the recycling process or to a product or intermediate of the
CFR Language 19
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recycling process, and the recycling process must produce a valuable product or
intermediate.
(1) The hazardous secondary material provides a useful contribution if it
(i) Contributes valuable ingredients to a product or intermediate; or
(ii) Replaces a catalyst or carrier in the recycling process; or
(iii) Is the source of a valuable constituent recovered in the recycling
process; or
(iv) Is recovered or regenerated by the recycling process; or
(v) Is used as an effective substitute for a commercial product.
(2) The product or intermediate is valuable if it is
(i) Sold to a third party; or
(ii) Used by the recycler or the generator as an effective substitute for a
commercial product or as an ingredient or intermediate in an industrial
process.
(c) The following factors must be considered in making a determination as to the overall
legitimacy of a specific recycling activity.
(1) The generator and the recycler should manage the hazardous secondary
material as a valuable commodity. Where there is an analogous raw material, the
hazardous secondary material should be managed, at a minimum, in a manner
consistent with the management of the raw material. Where there is no analogous
raw material, the hazardous secondary material should be contained. Hazardous
secondary materials that are released to the environment and are not recovered
immediately are discarded.
(2) The product of the recycling process does not
(i) Contain significant concentrations of any hazardous constituents found
in Appendix VIII of part 261 that are not found in analogous products; or
(ii) Contain concentrations of any hazardous constituents found in
Appendix VIII of part 261 at levels that are significantly elevated from
those found in analogous products; or
(iii) Exhibit a hazardous characteristic (as defined in part 261 subpart C)
that analogous products do not exhibit.
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(3) In making a determination that a hazardous secondary material is legitimately
recycled, persons must evaluate all factors and consider legitimacy as a whole. If,
after careful evaluation of these other considerations, one or both of the factors
are not met, then this fact may be an indication that the material is not legitimately
recycled.
However, the factors in this paragraph do not have to be met for the recycling to
be considered legitimate. In evaluating the extent to which these factors are met
and in determining whether a process that does not meet one or both of these
factors is still legitimate, persons can consider the protectiveness of the storage
methods, exposure from toxics in the product, the bioavailability of the toxics in
the product, and other relevant considerations.
261.2(a)(2)(ii) Exclusion for Hazardous Secondary Materials That Are
Legitimately Reclaimed Under the Control of the Generator in Non-Land-
Based Units.
§261.2(a)(2)(ii):A hazardous secondary material is not discarded if it is generated and
reclaimed under the control of the generator as defined in §260.10, it is not speculatively
accumulated as defined in §261.1(c)(8), it is handled only in non-land-based units and is
contained in such units, it is generated and reclaimed within the United States and its
territories, it is not otherwise subject to material-specific management conditions under
§261.4(a) when reclaimed, it is not a spent lead acid battery (see §266.80 and §273.2), it
does not meet the listing description for K171 or K172 in §261.32, and the reclamation of
the material is legitimate, as specified under §260.43. (See also the notification
requirements of §260.42). (For hazardous secondary materials managed in land-based
units, see §261.4(a)(23)).
261.4(a)(23) Exclusion for Hazardous Secondary Materials That Are
Legitimately Reclaimed Under the Control of the Generator in Land-Based
Units.
§26L4(a)(23): Hazardous secondary material generated and reclaimed within the United
States or its territories and managed in land-based units as defined in §260.10 of this
chapter is not a solid waste provided that:
[CFR text not included]
(v) The reclamation of the material is legitimate, as specified under §260.43 of
this chapter; and
[CFR text not included]
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261.4(a)(24) Exclusion for Hazardous Secondary Materials That Are
Transferred for the Purpose of Legitimate Reclamation.
§26L4(a)(24): Hazardous secondary material that is generated and then transferred to
another person for the purpose of reclamation is not a solid waste, provided that:
[CFR text not included]
(iv) The reclamation of the material is legitimate, as specified under §260.43 of
this chapter;
[CFR text not included]
261.4(a)(25) Exclusion for Hazardous Secondary Materials Exported for
Reclamation.
§261.4(a)(25): Hazardous secondary material that is exported from the United States and
reclaimed at a reclamation facility located in a foreign country is not a solid waste,
provided that the hazardous secondary material generator complies with the applicable
requirements of paragraph (a)(24)(i)-(v) of this section (excepting paragraph (a)(v)(B)(2)
of this section for foreign reclaimers and foreign intermediate facilities)[....]
[CFR text not included]
261.2 Definition of Solid Waste.
[CFR text not included]
§261.2(f): Documentation of claims that materials are not solid wastes or are
conditionally exempt from regulation. 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 (such as contracts
showing that a second person uses the material as an ingredient in a production process)
to demonstrate that the material is not a waste, or is exempt from regulation. 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.
CFR Language 22
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Revisions to the Definition of Solid Waste Final Rule Compilations:
The Legitimate Recycling Standard
ACRONYMS
CFR Code of Federal Regulations
DSW definition of solid waste
e-CFR electronic Code of Federal Regulations
EPA U.S. Environmental Protection Agency
FR Federal Register
RCRA Resource Conservation and Recovery Act
Acronyms 23
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Revisions to the Definition of Solid Waste Final Rule Compilations:
The Legitimate Recycling Standard
INDEX
analogous product 10, 11, 13, 20, 21
analogous raw material 8, 9, 10, 20
case-by-case 6, 7, 9, 13
contained i, ii, 8, 9, 20, 21
demonstrate legitimacy 17
discard 8, 14
efficiency 4, 5
enforcement iii, 17
fees 16
hazardous characteristic 10, 11, 12, 14,21
industry standards 6
intrinsic value 6
inventories 14, 16
Lowrance Memo iii, 2, 14
non-waste determination iii, 1,2, 11, 14, 17, 19
product specifications 6
reclaim, reclamation i
recordkeeping 17
release 8, 9
residuals 4, 5
revenues 14, 15, 16, 17
risk-based approach 13
secondary material feedstock 10
sham recycling 1,2,3,4,5,6,7, 10, 11, 13, 14, 16
Toxics Along for the Ride (TARs) 10, 11
transfer i
useful contribution 3, 4, 5, 14, 15, 16, 20
valuable commodity 8, 20
valuable product/intermediate 6, 9, 15, 16, 17, 20
Index 24
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