Hazardous Secondary Material (HSM) Recycling Checklist
United State Environmental Protection Agency
Office of Resource Conservation and Recovery
July 2024
EPA 530-R-24-004
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Hazardous Secondary Material Checklist Introduction
This document is a series of checklists that is designed to assist EPA and state implementing
agencies with monitoring compliance at facilities that are generating and recycling hazardous
secondary materials under the Resource Conservation and Recovery Act hazardous waste
regulations. This document describes and summarizes statutory provisions, regulatory
requirements, and policies. It is not a substitute for these provisions, regulations, or policies,
nor is it a regulation itself.
What is Hazardous Secondary Material?
Hazardous Secondary Material (HSM) is defined in 40 CFR 260.10 as "a secondary
material (e.g., spent material, by-product, or sludge) that, when discarded, would be
identified as hazardous waste."
"HSM" is often used as shorthand for a recyclable material that is excluded from
hazardous waste regulation.
However, it is important to note that the term hazardous secondary material can also
refer to a material that is hazardous waste, even when recycled, as sometimes
recycling is considered discard under the definition of solid waste in 40 CFR 261.2.
In summary, HSM is the "material" that is evaluated in the 40 CFR 261.2 definition of
solid waste to determine how it is regulated.
What Activities Does This Checklist ApplyTo?
This checklist can be used to evaluate any RCRA-related hazardous secondary material
recycling activity.
This includes:
o HSM that is not regulated as solid waste due to a recycling exclusion but must
meet the conditions of that exclusion (e.g., material recycled under the transfer-
based exclusion at 40 CFR 261.4(a)(24) and (25)).
o HSM that is a solid waste but is subject to different standards due to a recycling
exemption or alternative recycling standards (e.g., material used in a manner
constituting disposal per 40 CFR part 266 subpart C).
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o HSM that is regulated as a hazardous waste, for which the recycling process itself
is exempt from a hazardous waste permit (e.g., material subject to 40 CFR
261.6(c) and (d) recyclable material standards).
For all three categories, the recycling must be legitimate, as explained in this checklist.
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Hazardous Secondary Material (HSM) Recycling Checklist
Table of Contents
HSM Recycling Checklist 5
Appendix A: Legitimate Recycling 9
Appendix B: Speculative Accumulation 14
Appendix C: Recycling Exclusions and Exemptions 19
Appendix D: Use Constituting Disposal 34
Appendix E: Burning for Energy Recovery 39
Appendix F: Inherently Waste-like Materials 43
Appendix G: Use-Reuse 46
Appendix H: Reclamation 51
Appendix I: Processed or Unprocessed Scrap Metal 57
Appendix J: Hazardous Waste Recycling Process 62
Appendix K: Documentation of Claims 66
Appendix L: Generator Controlled Exclusion 68
Appendix M: Transfer-Based Exclusion including Exports 73
Appendix N: Remanufacturing Exclusion 87
Note: This document describes and summarizes statutory provisions, regulatory requirements, and
policies. It is not a substitute for these provisions, regulations, or policies, nor is it a regulation itself.
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Hazardous Secondary Material (HSM) Recycling Checklist
Note: For any question where the answer is unknown, make a note in the checklist below, list the information
needed to answer that question in the attached form, and then continue to the next question.
1. Description of the HSM, including what waste code(s) would apply if it is discarded.
2. Description of the recycling process, including how the HSM is managed during storage prior to recycling.
3. Accumulation start date:
4. If accumulation start date is > 1 year ago
a. The quantity of HSM stored
onsite on January 1 of the
previous calendar year.
b. The quantity of HSM stored onsite on
January 1 of the current calendar year.
5. Description of the recycled product(s) and where they are sold and/or used by the generator. (Note: If the HSM is
used directly without processing, the HSM would be considered the product in this analysis.) Authority to request
information to document that a material is not a solid waste is found in 40 CFR 261.2(f). See also Appendix K.
6. Based on the above information, does the recycling meet the definition of legitimate recycling in 40 CFR 260.43?
(See Appendix A) YES/NO
If NO, then the HSM is a solid and hazardous waste per 40 CFR 261.2(g). Because the recycling is not legitimate,
processing of the hazardous waste is not considered an exempt recycling process under 40 CFR 261.6(c) and (d) and
requires a RCRA treatment permit.
If YES, continue to 7.
7. Based on the above information, is the HSM subject to speculative accumulation limits, and is it being
speculatively accumulated as defined in 40 CFR 261.1(c)(8)? (See Appendix B) YES/NO
If YES, then the HSM is a solid and hazardous waste per 40 CFR 261.2(c)(4). If NO, continue to 8.
8. Regulatory citation given for the specific HSM recycling solid waste exclusion, variance or non-waste
determination being used (See Appendix C):
If NOT APPLICABLE, skip to #10
9. Does the HSM recycling comply with all the conditions of the exclusion? (See Appendix C) YES/NO
If YES, then the HSM is not regulated as a hazardous waste per the specific exclusion.
If NO, then the HSM is regulated as a hazardous waste.
10. Does recycling involve use constituting disposal? (See Appendix D) YES/NO
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If YES, then the HSM is a solid and hazardous waste per 40 CFR 261.2(c)(1) and regulated under 40 CFR part 266
Subpart C.
If NO, continue to 11.
11. Does recycling involve burning for energy recovery? (See Appendix E) YES/NO
If YES, then the HSM is a solid and hazardous waste per 40 CFR 261.2(c)(2) and may be regulated under 40 CFR part
266 Subpart H.
If NO, continue to 12.
12. Is the HSM an inherently waste-like material? (See Appendix F) YES/NO
If YES, then the HSM is a solid and hazardous waste per 40 CFR 261.2(d).
If NO, continue to 13.
13. Is the HSM used directly as an ingredient in an industrial process or as an effective substitute for a commercial
product (i.e., use/reuse)? (See Appendix G) YES/NO
If YES, then the HSM is not a solid waste per 40 CFR 261.2(e).
If NO, continue to 14.
14. Is the HSM processed to reclaim a useful product, and is the HSM either a commercial chemical product, a
characteristic byproduct, or a characteristic sludge? (See Appendix H) YES/NO
If YES, then the HSM is not a solid waste per 40 CFR 261.2(c)(3).
If NO, continue to 15.
15. Is the HSM processed to reclaim a useful product, and is the HSM either a spent material, a listed byproduct, or
a listed sludge? (See Appendix H) YES/NO
If YES, then the HSM is a hazardous waste being reclaimed per 40 CFR 261.2(c)(3). Note, the reclamation process
itself may be exempt from RCRA requirements per 40 CFR 261.6(c) and (d). (See Appendix J)
If NO, continue to 16.
16. Is the HSM scrap metal? (See Appendix I) YES/NO
If the HSM is an excluded scrap metal (processed scrap metal, unprocessed home scrap metal, and unprocessed
prompt scrap metal), then it is not a solid waste when recycled per 40 CFR 261.4(a)(13).
If the HSM is any other type of scrap metal, then it is a solid waste, but exempt from regulation when recycled per
40 CFR 261.6(a)(3)(ii).
If NO, continue to 17.
17. The HSM is a regulated hazardous waste being legitimately recycled. The recycling process itself may be exempt
from RCRA requirements per 40 CFR 261.6(c) and (d). (See Appendix J)
Note: At this point, all possible categories of HSM recycling should have been covered. If you have any questions,
contact Tracy Atagi at atagi.tracy@epa.gov or MaryBeth Sheridan at sheridan.marybeth@epa.gov
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Additional Notes and Information Needed to Answer Questions With "Unknown" Responses
Question Topic
(Corresponds to the question
number in main checklist above)
Notes
1. HSM description, including
waste codes
2. Recycling Process Description
3. Accumulation start date
4. Quantity stored on Jan 1
(current & previous year)
5. Description of recycled products
6. Legitimacy determination
7. Speculative accumulation
determination
8. Regulatory citation for
exemption
9. Compliance with conditions
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10. Use constituting disposal?
11. Burning for energy recovery?
12. Inherently waste-like?
13. Use/re-use?
14. CCP, or characteristic by-
product or sludge being
reclaimed?
15. Spent material, or listed by-
product or sludge being
reclaimed?
16. Scrap metal?
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Appendix A: Legitimate Recycling
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Appendix A - Legitimate Recycling
40 CFR 260.43
The regulatory language from the 2018 revisions to the definition of legitimate recycling
follows. The legitimate recycling regulations apply to all hazardous secondary materials
regulated under the recycling exclusions and exemptions of RCRA, including recycling exclusions
from the definition of solid waste in 40 CFR 261.2 and exemptions from permitting for
recyclable materials in 40 < I U V4.1(g)(2), In addition, hazardous secondary materials that are
sham recycled because the recycling is not legitimate are solid waste and are not exempt per 40
CFR 261.2(g).
There are four factors to the legitimate recycling definition, as outlined in the regulations
below.
§260.43 Legitimate recycling of hazardous secondary materials
(a) Recycling of hazardous secondary materials for the purpose of the exclusions or exemptions
from the hazardous waste regulations must be 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 all the requirements of this paragraph and must
consider the requirements of paragraph (b) of this section.
[Factor 1]
(1) 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
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.
[Factor 2]
(2) The recycling process must produce a valuable product or intermediate. The product
or intermediate is valuable if it is:
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(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.
[Factor 3]
(3) The generator and the recycler must manage the hazardous secondary material as a
valuable commodity when it is under their control. Where 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 in an equally protective
manner. Where there is no analogous raw material, the hazardous secondary material
must be contained. Hazardous secondary materials that are released to the
environment and are not recovered immediately are discarded.
(b) The following factor must be considered in making a determination as to the overall
legitimacy of a specific recycling activity.
[Factor 4]
(1) 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.
(2) 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 considerations, the factor in this paragraph is not met, then
this fact may be an indication that the material is not legitimately recycled. However,
the factor in this paragraph does not have to be met for the recycling to be considered
legitimate. In evaluating the extent to which this factor is met and in determining
whether a process that does not meet this factor is still legitimate, persons can consider
exposure from toxics in the product, the bioavailability of the toxics in the product, and
other relevant considerations.
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40 CFR 261.2(g)
§261.2(e) Sham recycling. A hazardous secondary material found to be sham recycled is
considered discarded and a solid waste. Sham recycling is recycling that is not legitimate
recycling as defined in §260.43.
Additional Resources
A memo released by former Office Director Sylvia Lowrance, commonly known as the
"Lowrance Memo," (RO 11426. 4/26/1989) discusses six main questions that help draw the
distinction between legitimate recycling and sham recycling or treatment and provides further
examination of those questions with sub-questions. EPA used this memo, as well as various
preambles, to develop the regulatory language for legitimate recycling (shown above).
Example of a legitimate recycling determination: foundry sands being reused on site in the
primary production process on a continuous basis in the sand loop are not solid wastes (RO
W 'I, 3/28/2001).
Example of a legitimate recycling determination: cathode ray tube (CRT) funnel glass
legitimately used as an effective substitute in the production of ceramic tiles is excluded from
the solid and hazardous waste regulations under 40 CFR 261.2(e) ("use/reuse exclusion") (RO
14845: 9/10/2014).
Guidance on legitimate energy recovery/legitimate fuel determination (RO 13680, 6/7/1994).
Guidance on legitimate recycling of commercial chemical product spill residues (RO 13743,
5/1995).
Federal Register Preambles to Relevant EPA Rules: General Discussion
73 FR 64667: Definition of Solid Waste final rule that first codified the definition of legitimate
recycling. Complete discussion of legitimate recycling [73 FR 64700-647101 10/30/2008
80 FR 1694: Definition of Solid Waste final rule that includes a discussion of revisions to the
definition of legitimate recycling [80 FR 1719-17321 1/13/2015
83 FR 24664: Definition of Solid Waste final rule that includes a discussion of the D.C. Circuit
Court vacatur of July 7, 2017 as amended on March 6, 2018, including revisions to Factor 4 [83
FR 24665-246661 5/30/2018
Federal Register Preambles to Relevant EPA Rules: Specific Topics
73 FR 64701-64702: Discussion of Factor 1 (useful contribution): Explains how this factor must
be met, i.e., what it means for the hazardous secondary material to provide a useful
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contribution to the recycling process or to a product or intermediate of the recycling process.
10/30/2008
73 FR 64702-64703: Discussion of Factor 2 (valuable product): Explains how this factor must be
met, i.e., what it means for the recycling process to produce a valuable product or
intermediate. Discusses both monetary value and intrinsic value. 10/30/2008
73 FR 64703-64704 and 80 FR 1724-1725: Discussion of Factor 3 (managed as a valuable
commodity: Explains how this factor must be met, i.e., what it means for the hazardous
secondary material to be managed as a valuable commodity. 10/30/2008 and 01/13/2015
73 FR 64704-64706 and 83 FR 24665-24666: Discussion of Factor 4 (analogous to a legitimate
product): Explains how this factor must be taken into consideration in making an overall
legitimacy determination. Discusses how to compare the product from a recycling process to a
product made of virgin or raw materials, including determining if the recycled product contains
significant concentrations of hazardous constituents and/or exhibits a hazardous characteristic
that the analogous product does not. 10/30/2008 and 5/30/2018
73 FR 64706-64707: Discussion of how to take economics into account in terms of legitimate
recycling. Discusses the decision by EPA not to make a specific determinative legitimacy factor
on the economics of recycling. Discusses how economics can be considered in reviewing the
other factors and in making an overall legitimacy determination. 10/30/2008
73 FR 64708 Crosswalk of legitimate recycling regulatory language and concepts in the
April 26,1989, Lowrance Memo. Provides an analysis that describes how the legitimate
recycling regulatory language compares to the previous primary guidance on legitimate
recycling. 10/30/2008
73 FR 64701: Demonstration and enforcement of legitimate recycling. Explains how a person
claiming a recycling exclusion should be able to demonstrate that the recycling is legitimate per
§261.2(f). 10/30/2008
80 FR 1720-1722: Legitimate recycling factors apply to all recycling exemptions and exclusions.
Explains how all recycling of hazardous secondary materials under RCRA must be legitimate,
regardless of whether the hazardous secondary materials are excluded or exempted from
Subtitle C regulation when recycled or they are recyclable hazardous wastes that remain
subject to the hazardous waste regulations. EPA determined that the codified legitimacy factors
are a simplification and clarification of well-understood, long-standing policy. 1/13/2015
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Appendix B: Speculative Accumulation
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Appendix B - Speculative Accumulation
FR 261.1(c)(8)
A material is "accumulated speculatively" if it is accumulated before being recycled.
A material is not accumulated speculatively, however, if the person accumulating it can
show that the material is potentially recyclable and has a feasible means of being
recycled; and thatduring the calendar year (commencing on January 1)the amount
of material that is recycled, or transferred to a different site for recycling, equals at least
75 percent by weight or volume of the amount of that material accumulated at the
beginning of the period.
Materials must be placed in a storage unit with a label indicating the first date that the
material began to be accumulated. If placing a label on the storage unit is not
practicable, the accumulation period must be documented through an inventory log or
other appropriate method.
In calculating the percentage of turnover, the 75 percent requirement is to be applied to
each material of the same type (e.g., slags from a single smelting process) that is
recycled in the same way (i.e., from which the same material is recovered or that is used
in the same way).
Materials accumulating in units that would be exempt from regulation under 40 CFR
261.4(c) are not to be included in making the calculation.
Materials that are already defined as solid wastes also are not to be included in making
the calculation.
Materials are no longer in this category once they are removed from accumulation for
recycling, however.
Additional Guidance
A material is not accumulated speculatively if, by December 31, the owner/operator can show
he has recycled 75% of the amount in storage on January 1. The 75% requirement applies to
materials of the same class being recycled in the same way. (RO 13528. 2/1/1992)
A person accumulating potentially exempt recyclable materials becomes a hazardous waste
generator when the materials become solid and hazardous wastes at the end of the speculative
accumulation period. The generator can then hold the waste for 90 additional days (or 180/270
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for small quantity generators) in compliance with Section 262 without a permit. (RO 14199.
4/6/1998)
Additional Resources
48 FR 14472 - Amendments to Definition of Solid Waste (Proposed rule) [pp. 14489-14491]
4/4/1983
50 FR 614 - Amendments to Definition of Solid Waste (Final rule) [pp. 634-637] 1/4/1985
Frequently Asked Questions
1. How do the speculative accumulation limits apply to different types of hazardous
secondary materials?
The following hazardous secondary materials are solid waste and are regulated as hazardous
waste when speculatively accumulated (40 CFR 261.2(c) Table 1):
Spent materials
By-products
Sludges
The following hazardous secondary materials are not subject to speculative accumulation limits,
but must still have a reasonable expectation of being legitimately reused or recycled to be
considered exempt from hazardous waste regulation:
Commercial chemical products (40 CFR 261.2(c) (Table 1)
Excluded scrap metal (40 CFR 261.4(a)(13))
Exempted scrap metal (40 CFR 261.6(a)(3)(iii))
Note: Unlike commercial chemical products and excluded scrap metal, non-excluded scrap
metal is a solid waste when speculatively accumulated, per Table 1 in 40 CFR 261.2(c).
However, per the scrap metal exclusion found at 40 CFR 261.6(a)(3)(iii), it would still be exempt
from hazardous waste regulations if it is legitimately recycled.
2. How are hazardous secondary materials shown to not be speculatively accumulated?
Hazardous secondary materials are not speculatively accumulated if the person accumulating
the hazardous secondary materials can show: (1) that the material is potentially recyclable and
has a feasible means of being recycled; and (2) that during the calendar year the amount of
material that is recycled, or transferred to a different site for recycling, equals at least 75
percent by weight or volume of the amount of that material accumulated at the beginning of
the period (40 CFR section 261.1(c)(8)).
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3. In the speculative accumulation regulation, what does it mean for a person to "show
that the material is potentially recyclable and has a feasible means of being recycled"?
In general, hazardous secondary material is "potentially recyclable and has a feasible means of
being recycled" if there is a known market for legitimately recycling the material - that is, a
person who is managing the material has identified a recycler who will accept and legitimately
recycle the material, or the person can legitimately recycle the material themselves.
On the other hand, all hazardous secondary materials stored with an expectation of eventually
being legitimately recycled but for which there is no known current recycling market (i.e., no
feasible means of recycling) are considered wastes.
A person accumulating hazardous secondary materials would have the burden of proving that
the material is potentially recyclable and there is a feasible means of recycling. This ordinarily
will require identification of actual recyclers and recycling technology, location of the recycler,
and relative costs associated with recycling. (See 50 FR 634; January 4, 1985).
In addition, EPA believes that materials for which generators could demonstrate that on-going
developmental work will lead to recycling at a future date should be considered to be
accumulated speculatively. EPA believes that materials that are not known to be recyclable (or
not feasibly recyclable in the hands of a particular generator) are wastes immediately. (See 50
FR 635; January 4, 1985).
Additionally, EPA notes that in order to demonstrate that materials are not being speculatively
accumulated, both parts of the provision must be met - that is, (1) the person accumulating the
materials can show that the material is potentially recyclable and has a feasible means of being
recycled and (2) that during the calendar year the amount of material that is recycled, or
transferred to a different site for recycling, equals at least 75 percent by weight or volume of
the amount of that material accumulated at the beginning of the period.
4. How is the minimum requirement of 75 percent material recycled in one year
calculated?
The minimum requirement of 75 percent material recycled applies to each material of the same
type. It can be calculated either by weight or by volume and is based on the total inventory of
that material accumulated for recycling as of January 1 of any given year. For example, a
company with a total of 100 tons of material stockpiled for recycling on January 1 must recycle,
or transfer for recycling, at least 75 tons of material before the end of the calendar year.
5. What about the remaining 25 percent?
Hazardous secondary materials that are not recycled during the calendar year count towards
the total inventory for the purpose of speculative accumulation calculations for the following
calendar year.
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6. How does the January 1 date work? If a shipment is received on February 1, when does
it need to be recycled by?
According to the speculative accumulation provision, a facility must recycle, or transfer to a
different site for recycling, at least 75 percent of the weight or volume of the amount of
material accumulated at the beginning of the period (commencing on January 1). Thus, a facility
that has 0 tons on site on January 1 would not have to recycle any hazardous secondary
material by the end of the calendar year (since 75 percent of 0 is 0). However, hazardous
secondary materials that the company receives during the year count towards the total
inventory for the purpose of speculative accumulation calculations for the following calendar
year.
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Appendix C: Recycling Exclusions and Exemptions
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Appendix C - Recycling Exclusions and Exemptions
Citation(s) Name(s) Compliance Notes
40 CFR 260.30;
260.31; 260.33, and
260.34
Solid waste variances
and non-waste
determinations
Variances and non-waste determinations can only be granted by EPA or the authorized state following the
procedures in 40 CFR 260.33 and according to the standards and criteria in 40 CFR 260.31 or 40 CFR
260.34. See regulations for more details.
Partial reclamation variances granted after July 13, 2015, must meet the more stringent federal criteria in
40 CFR 260.31(c) promulgated as part of the 2015 Definition of Solid Waste final rule (80 FR 1771, Jan. 13,
2015).
Variances granted after July 13, 2015, must be renewed every ten years per 40 CFR 260.33(d).
Facilities granted a variance or non-waste determination after July 13, 2015, must notify every two years
following the procedures in 40 CFR 260.42 per 40 CFR 260.33(e).
Facilities with variances granted prior to July 13, 2015, are grandfathered under the previous rules.
States are not required to recognize variances and non-waste determinations granted by other states,
(e.g.. RO 14737)
40 CFR 261.2(c):
Table 1 column 3
Reclamation
All hazardous secondary materials undergoing reclamation are solid wastes except: (1) characteristic
sludges and by-products, and commercial chemical products (See Appendix H); (2) mining and mineral
processing wastes meeting the exclusion at 40 CFR 261.4(a)(17) (see entry below); and (3) materials that
meet the 2015 and 2018 DSW exclusions in 40 CFR 261.4(a)(23) (See Appendix L), in 40 CFR 261.4(a)(24) &
(25) (See Appendix M), and 40 CFR 261.4(a)(27) (See Appendix N).
40 CFR 261.2(e)
Use/Reuse
See Appendix G.
40 CFR 261.4(a)(6)
Pulping liquors
Pulping liquors (i.e., black liquor) that are reclaimed in a pulping liquor recovery furnace and then reused in
the pulping process are not solid waste, unless accumulated speculatively (See Appendix B).
40 CFR 261.4(a)(7)
Spent sulfuric acid
Spent sulfuric acid used to produce virgin sulfuric acid is not a solid waste provided it is not accumulated
speculatively (See Appendix B).
Spent sulfuric acid used to produce virgin sulfuric acid per 261.4(a)(7) is not a solid waste, regardless of
how the facility subsequently utilizes the virgin sulfuric acid. Virgin sulfuric acid incorporated into a
fertilizer is not waste-derived and is not regulated when applied to the land. (RO 14713) (RO 14348)
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A secondary material with high sulfur content burned in a sulfuric acid regeneration furnace is not eligible
for the 261.4(a)(7) exclusion because the secondary material in question is not spent sulfuric acid. (RO
11856)(RO 14086)
Spent pickle liquor (K062) that is reclaimed is not eligible for the 261.4(a)(7) exclusion because this activity
does not involve the production of virgin sulfuric acid. (RO 11468)
Section 261.4(a)(7) exclusion applies only to spent sulfuric acid used as a feedstock in an industrial furnace
for the production of virgin sulfuric acid. Spent sulfuric acid recycled by another method, such as filtration,
is not excluded under Section 261.4(a)(7). Used sulfuric acid produced by sulfonation, alkylation, and
dehvdration reactions mav be regulated as a bv-product or co-product. (RO 14570) (RO 12,551) (RO 11351)
(RO 11352)
40 CFR 261.4(a)(8)
Closed-loop recycling
Secondary materials that are reclaimed and returned to the original process or processes in which they
were generated where they are reused in the production process are not solid wastes provided:
(i) Only tank storage is involved, and the entire process through completion of reclamation is closed by
being entirely connected with pipes or other comparable enclosed means of conveyance;
(ii) Reclamation does not involve controlled flame combustion (such as occurs in boilers, industrial
furnaces, or incinerators);
(iii) The secondary materials are never accumulated in such tanks for over twelve months without being
reclaimed; and
(iv) The reclaimed material is not used to produce a fuel, or used to produce products that are used in a
manner constituting disposal.
Only the portion of the secondary material that is returned to the production process to be used as a raw
material is not exempted from the definition of a solid waste per Section 261.4(a)(8). Any remaining
portion that is discarded is a solid waste. (RO 13239)
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Still bottoms and other residues formed during the reclamation process are a solid waste and count
towards a facility's generator status when removed from the process. (RO 11285) (RO 12732) (RO 13017)
(RO 13220)
The closed-loop exemption does not apply to oil being returned to a refinery where it will be used as a fuel.
(RO 11732)
Secondary materials stored in open-top tanks may qualify for closed-loop recycling exclusion as long as the
system meets requirements in Section 261.4(a)(8). Owners or operators of open-top tanks should ensure
secondary materials are managed as valuable materials prior to reclamation in order for the tank to be
considered a part of a closed-loop recycling system and excluded under §261.4(a)(8). (RO 13591)
All secondary materials must be returned to the production process to qualify for the closed-loop recycling
exclusion. A process which returns 80% of xylene and sends 20% of recovered xylene off as product does
not qualify as closed-loop recycling. (RO 14089)
40 CFR 261.4(a)(9)
Spend wood preserving
solutions and
wastewater
Spent wood preserving solutions and wastewater that have been reclaimed and are reused to treat wood
are not solid wastes, provided all conditions are met. See regulation for full description of conditions.
Spent wood preserving solutions that are reclaimed are no longer solid wastes and so are not derived from
listed wastes F032, F034, or F035 (SEE ALSO: 63 FR 28556; May 26, 1998). (RO 13516)
40 CFR 261.4(a)( 10)
Coke by-products
Coke by-products (K060, K087, K141, K142, K143, K144, K145, K147, and K148, and any wastes from the
coke by-products processes that exhibit the toxicity characteristic) are not solid waste when recycled to
coke ovens or to the tar recovery process as a feedstock to produce coal tar, or mixed with coal tar prior to
the tar's sale or refining.
261.4(a)(10) exclusion for recycling coke by-products does not apply to coal gasifier units. (RO 14507)
The use of open pits, or flat or low-walled concrete pads to store coke by-product residues is land disposal.
Therefore, management of wastes in these units is not exempt under 261.4(a)(10). (RO 11705)
40 CFR 261.4(a)( 11)
Nonwastewater splash
condenser dross
residue from the
treatment of electric
arc furnace dust
Nonwastewater splash condenser dross residue from the treatment of electric arc furnace dust (K061) in
high temperature metals recovery unit is not a solid waste provided it is shipped in drums (if shipped) and
not land disposed before recovery.
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40 CFR 261.4(a)(12)
Oil-bearing hazardous
secondary material
Oil-bearing hazardous secondary materials that are generated at a petroleum refinery and recovered oil
are not solid wastes when inserted into the petroleum refining process. See regulation for full description
of conditions.
This exclusion applies to oil-bearing secondary materials generated by wastewater treatment system
owned and operated by third party as long as third party accepts and manages only wastewaters
generated at petroleum refinery facilities and returns the oil-bearing secondary materials to a petroleum
refinerv (SIC 2911) for insertion in the refining process. (RO 14444)
From RO 14677:
There is no minimum amount of oil required for the exclusion, but there must be recoverable
amounts of hydrocarbons for legitimate recycling to occur.
This exclusion applies to oil-bearing hazardous secondary materials, irrespective of whether they
are listed or characteristic.
Spent petroleum catalysts (K171-K172) may qualify for the exclusion.
The exclusion only extends to materials actually inserted into the refinery process.
The exclusion applies at the point of generation, even if preprocessing occurs, provided the
conditions of the exclusion are met.
The point of insertion into the refining process must be consistent with the material being
recycled, and the material must be suitable for insertion.
Materials may be inserted into the same refinery where they were generated or sent to another
refinery. The materials cannot be sent to an intermediate non-refinery facility for processing.
There is no limit on the number of transfers of the materials if recycling is legitimate and no
speculative accumulation occurs.
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Processing equipment handling the materials is generally exempt from the Resource Conservation
and Recovery Act (RCRA), since the material is excluded, and the equipment is considered a
process unit in 261.4(c).
The processing equipment may be subject to RCRA if it contains reclamation residuals and no
longer meets the process unit exclusion.
The refinery does not need to own the equipment used to process and reclaim residuals to meet
the exclusion.
40 CFR 261.4(a)(13)
40 CFR 261.6(aM3)(ii)
Excluded scrap metal
Exempt scrap metal
Excluded scrap metal (processed scrap metal, unprocessed home scrap metal, and unprocessed prompt
scrap metal) being recycled is not a solid waste.
Exempt scrap metal (scrap metal that is not excluded under §261.4(a)(13)) is a solid waste, but is not
subject to regulation under 40 CFR parts 262 through parts 268, 270 or 124, and is not subject to the
notification requirements of section 3010 of RCRA when recycled.
Scrap metal destined for reclamation is exempt from Subtitle C regulation at the point of generation.
(RO 14277)
Agglomerated drosses (from any source, not just scrap metal processing) can be classified as processed
scrap metal and, if recycled, are excluded from the definition of solid waste. Agglomerated drosses are
solid chunks of metal in a physical state that does not allow them to be easily crushed, split, or crumbled.
Dross, which has not been agglomerated is by-product, not scrap metal. Agglomerated drosses used in a
manner constituting disposal are excluded scrap metal being recycled and thus not solid waste. Drosses
that have not been agglomerated are solid wastes when used in a manner constituting disposal.
(RO 14195)(RO 14888)
Unprocessed, spent printed circuit boards qualify for the scrap metal exclusion as generated. Residuals
from the processing of spent circuit boards (e.g., shredded pieces, sweeps, ash, fluff, or baghouse dust)
may not qualify as scrap metal, but instead may be spent materials, by-products, or sludges (See also
261.4(a)(14) exclusion for shredded circuit boards). (RO 11689)
Lead shot may be considered scrap metal, not spent material, and exempt from regulation when recycled.
The exemption extends only to the lead shot portion of the waste. (RO 14070)
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Lead foil from dental x-ray packages qualifies for the scrap metal exemption when it is recycled.
(RO 11742)
Properly drained, processed (crushed) used oil filters that are being recycled meet the processed scrap
metal exclusion. (RO 11643) (RO 14202) (RO 14183) (RO 14184)
Used batteries are spent materials, not scrap metal. Battery cases and lead plates with acid and lead
removed are scrap metal. Mixtures of scrap metal (battery cases) and other regulated recyclable materials
(lead oxides) must be managed as hazardous waste when sent for reclamation. (RO 11100) (RO 11184) (RO
11383)(RO 13376)
Solder that becomes contaminated through use is a spent material when reclaimed, it is not scrap metal.
(RO 12929) (RO 13534) Solder skimmings are by-products, not scrap metal. (RO 11446) (RO 11572) (RO
11617)
Spent solder baths, or "pot dumps," meet the definition of scrap metal and are exempt when recycled.
(RO 11771) Solder drippings that are generated during radiator repair operations qualify for the scrap
metal exclusion when they are recycled. (RO 11740)
Steel aerosol cans are scrap metal when they are recycled if they do not contain significant liquids.
(RO 11780)(RO 11806)
Natural gas regulators that contain mercury are spent materials. Any quantity of liquid mercury, other than
trace amounts attached to a material, precludes a waste's designation as scrap metal. The waste may
qualify as scrap metal once the mercury has been removed. (RO 11860)
Used airbag modules installed in cars and remaining in the car when it is recycled as scrap metal are
considered part of vehicle and exempt scrap metal when legitimately recycled. Deployment of airbag in
vehicle does not need a RCRA treatment permit because scrap metal is not subject to regulation under
parts 262 through parts 268, 270 or 124 of this chapter, and are not subject to the notification
requirements of section 3010 of RCRA. Used airbag modules removed from vehicle that can safely undergo
electronic deployment are exempt scrap metal when electronically deployed and legitimately recycled for
metal value. (RO 14920)
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40 CFR 261.4(a)(14)
Shredded circuit
boards
Shredded circuit boards being recycled are not solid wastes provided that they are (1) stored in containers
sufficient to prevent a release to the environment prior to recovery; and (2) free of mercury switches,
mercury relays and nickel-cadmium batteries and lithium batteries.
Shredded circuit boards must be free of mercury switches, mercury relays, nickel-cadmium batteries and
lithium batteries to qualify for the exclusion from the definition of solid waste in Section 261.4(a)(14).
Whole circuit boards containing minimal quantities of mercury and batteries that are protectively
packaged to minimize dispersion of metal constituents would qualify for the scrap metal exemption in
Section 261.6(a)(3). (RO 14155)
The exclusion is limited to circuit boards free of these items to prevent environmental releases of mercury,
cadmium, and lithium. "Free of" does not mean that the whole circuit boards never contained these items,
but that these items are not part of the circuit boards when they are shredded (SEE ALSO: 62 FR 26013;
May 12, 1997). If the items are removed from whole circuit boards prior to shredding, the boards remain
covered by the exclusion. Shredded circuit boards that are not free of these items are solid wastes and may
be hazardous wastes when recycled. (RO 14692)
40 CFR 261.4(a)( 15)
Kraft mill steam
stripper condensates
Condensates derived from the overhead gases from kraft mill steam strippers that are used to comply with
40 CFR 63.446(e) are not solid wastes. The exemption applies only to combustion at the mill generating the
condensates.
40 CFR 261.4(a)(17)
Mineral processing
spent materials
Spent materials other than hazardous wastes listed in Subpart D of this part (i.e., F-, K-. P- and U-listed
wastes) that are generated within the primary mineral processing industry from which minerals, acids,
cyanide, water, or other values are recovered by mineral processing or by beneficiation are not solid
wastes, provided that all conditions are met. See regulation for full description of conditions.
40 CFR 261.4(a)(18)
Recovered oil from
associated chemical
manufacturing facility
inserted into
petroleum refinery
process
Petrochemical recovered oil from an associated organic chemical manufacturing facility (SIC code 2869),
where the oil is to be inserted into the petroleum refining process (SIC code 2911) along with normal
petroleum refinerv process streams is not a solid waste, provided all conditions are met. See regulation for
full description of conditions.
40 CFR 261.4(a)(19)
Spent caustic solutions
from petroleum
refining
Spent caustic solutions from petroleum refining liquid treating processes used as a feedstock to produce
cresylic or naphthenic acid are not solid waste unless the material is placed on the land, or accumulated
speculatively (See Appendix B for more information on speculative accumulation and Appendix D for more
information on use constituting disposal).
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40 CFR 261.4(a)(20)
and (a)(21)
Zinc fertilizer
exclusions
Hazardous secondary materials used to make zinc fertilizers, and zinc fertilizers made from hazardous
wastes or excluded hazardous secondary materials, are not solid waste, provided that all conditions are
met. See regulation for full description of conditions.
Adding hazardous wastes to fertilizers as a way of disposing of them is illegal. Fertilizer products may be
made with ingredients extracted from certain hazardous waste materials such as zinc "micro-nutrient"
fertilizers. Fertilizers made from zinc-bearing waste are of the same purity and quality as fertilizers made
from virgin sources of zinc. (RO 14652) (RO 14658) (RO 14671) (RO 14676)
40 CFR 261.4(a)(22):
261.39: 261.40. and
261.41
Cathode Ray Tube
(CRT) and CRT glass
Used, intact CRTs are not solid wastes within the United States unless they are disposed, or unless they are
speculatively accumulated by CRT collectors or glass processors (See Appendix B). CRT exporters who
export used, intact CRTs for reuse must send a notification to EPA per 40 CFR 261.41. See regulation for
full description of notification requirements.
Used, intact CRTs are not solid wastes when exported for recycling provided that they meet the conditions
of 40 CFR 261.40. See regulation for full description of conditions.
Used, broken CRTs as defined in 40 CFR 260.10 of this chapter are not solid wastes provided that they
meet the conditions of 40 CFR 261.39. See regulation for full description of conditions.
Processed CRT glass from used CRTs that is destined for recycling at a CRT glass manufacturer or a lead
smelter after processing is not a solid waste unless it is speculatively accumulated (See Appendix B).
Processed CRT glass is glass that has been broken, separated, and sorted or otherwise managed after it has
been removed from CRT monitors. The glass does not have be cleaned. The coatings do not have to be
removed. If it is sent to a CRT glass manufacturer or a lead smelter it is not subject to any export
requirements, and it need not be packaged or labeled. If glass has been removed from used CRT monitors
and has not been sorted, or otherwise managed, it would be considered used broken CRTs. (RO 14805) (RO
14757)
The exclusion at §261.39(c) only applies to processed CRT glass sent for recycling to a CRT glass
manufacturer or a lead smelter; the provision does not apply to a mechanical process used to recycle CRT
glass into lead and silica sand. If the lead or silica from CRT glass were applied to or placed on the land or
used in foundations or other land placement activities, EPA would consider it to be a recycled material
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used in a manner constituting disposal and subject to the regulations in Part 266, Subpart C, including the
applicable land disposal restrictions (LDR). (RO 14839)
CRT glass that has been treated in accordance with land disposal restrictions (LDRs) and that no longer
exhibits hazardous characteristics may be disposed in a municipal or Subtitle D non-hazardous waste
landfill, including use of treated CRT glass as alternative dailv cover. (RO 14844)
Processed CRT glass may be legitimately used/reused under 40 CFR 261.2(e) when used as a fluxing agent
in a copper smelter (RO 14835) or as a substitute for lead oxide in the manufacturing of ceramic tiles. (RO
14845)
See also Freauent Questions about the Regulation of Used Cathode Rav Tubes (CRTs) and CRT Glass.
40 CFR 261.4(aH23).
(24). (25). and (27)
Hazardous Secondary
Material (HSM)
reclamation exclusions
HSM that is (1) reclaimed under the control of the generator (40 CFR 261.4(a)(23)) (See Appendix L); (2)
transferred to a third party for reclamation (40 CFR 261.4(a)(24)) (See Appendix M); (3) exported for
reclamation (40 CFR 261.4(a)(25)) (See Appendix M); or (4) reclaimed under a remanufacturing agreement
(40 CFR 261.4 (a)(27)) (See Appendix N) is not a solid waste, provided all conditions are met. See
regulations for full description of conditions.
From RO 14812 , RO 14813, and RO 14818.
Excluded HSM cannot be commingled with regulated hazardous waste and still maintain the
exclusion from the definition of solid waste.
Excluded HSM may be mixed with hazardous waste, but the resulting mixture is a hazardous waste.
HSM may not be managed in stationary tanks at transfer facilities. Materials at transfer facilities
may be consolidated from smaller to larger containers, but may not be managed in stationary
tanks because such tanks are not portable and thus are not part of the 'normal course of
transportation'.
A state that has not adopted the Definition of Solid Waste Rule may impose state requirements on
HSM while the material is being transported through that state.
Facilities who collect HSM from other generators do not meet the definition of a hazardous
secondary material generator. These facilities, however, could act as an intermediate facility for
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hazardous secondary materials managed under the transfer-based exclusion if they meet the
terms and conditions for an intermediate facility.
Materials being processed in a halogen acid furnace (HAF) are not eligible for the "generator-controlled
exclusion" in 40 CFR 261.4(a)(23) and instead are considered to be inherently waste-like materials per 40
CFR 261.2(d)(2). (RO 14900)
Solvent-contaminated wipes that are centrifuged and subsequently reused or recycled may be eligible for
the generator-controlled exclusion at 40 CFR 261.4(a)(23) if the generator meets the conditions of the
exclusion, including a legitimate recycling determination. (RO 14912)
40 CFR 261.4(aH26)
40 CFR 261.4(bHl8)
Solvent-contaminated
wipes
Reusable solvent-contaminated wipes sent to cleaning and reuse are not solid waste, and disposable wipes
sent for disposal (except for disposable wipes that are hazardous due to trichloroethylene) are not
hazardous waste, provided all conditions are met. See regulations for full description of conditions.
See also Summary Chart of the 2013 Wipes Final Rule and Freauent Questions about Implementing the
Regulations for Solvent-Contaminated Wipes.
The RCRA solvent-contaminated wipes exclusions do not preclude RCRA generators from using other RCRA
recycling provisions. Solvent-contaminated wipes that are centrifuged and subsequently reused or recycled
may be eligible for the generator-controlled exclusion at 40 CFR 261.4(a)(23) if the generator meets the
conditions of the exclusion, including a legitimate recycling determination. (RO 14912)
40 CFR 261.4(b)( 12)
Used
chlorofluorocarbon
(CFC) refrigerants
Used chlorofluorocarbon refrigerants from totally enclosed heat transfer equipment, including mobile air
conditioning systems, mobile refrigeration, and commercial and industrial air conditioning and
refrigeration systems that use chlorofluorocarbons as the heat transfer fluid in a refrigeration cycle are not
hazardous waste provided the refrigerant is reclaimed for further use.
Filters from the CFC refrigerant reclamation process do not qualify for Section 261.4(b)(12) exclusion. (RO
13560)
40 CFR 261.4(b)(14)
Used oil re-refining
distillation bottoms
Used oil re-refining distillation bottoms that are used as feedstock to manufacture asphalt products are not
hazardous wastes.
40 CFR 261.4(b)(18)
Solvent-contaminated
wipes
See entry under 40 CFR 261.4(a)(26) above.
40 CFR 261.6(a)(3)(i)
Industrial ethyl alcohol
Industrial ethyl alcohol that is reclaimed is not subject to regulation under parts 262 through parts 268,
270 or 124, and is not subject to the notification requirements of section 3010 of RCRA except that exports
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and imports of such recyclable materials must comply with the requirements of 40 CFR part 262, Subpart
H. See regulation for full description of export and import requirements for this waste.
40 CFR 261.6(a)(3)(H)
Exempt scrap metal
See entry for 40 CFR 261.4(a)(13) above.
40 CFR 261.6(a)(3)(iii)
Oil-bearing hazardous
waste processed into
fuel at a refinery
Fuels produced from the refining of oil-bearing hazardous waste along with normal process streams at a
petroleum refining facility are not subject to regulation under parts 262 through parts 268, 270 or 124, and
are not subject to the notification requirements of section 3010 of RCRA if such wastes result from normal
petroleum refining, production, and transportation practices.
40 CFR 261.6(a)(3)(iv)
Hazardous waste fuel
and recovered oil
meeting used oil specs
Hazardous waste fuel and oil recovered from hazardous waste that mee that meet used oil specifications
are not subject to regulation under parts 262 through parts 268, 270 or 124, and are not subject to the
notification requirements of section 3010 of RCRA provided all requirements of the exemption are met.
See regulation for full description of requirements.
Fuel produced (and oil reclaimed and used as fuel) from petroleum refining, production, and
transportation by processes other than normal refining operations, is eligible for the 261.6(a)(3)
exemptions. (RO 11574)
40 CFR 261.6(a)(4)
Used oil
Used oil that is recycled and is also a hazardous waste solely because it exhibits a hazardous characteristic
is not subject to the requirements of 40 CFR parts 260 through 268, but is regulated under 40 CFR part 279.
Used oil that is recycled includes any used oil which is reused, following its original use, for any purpose
(including the purpose for which the oil was originally used). Such term includes, but is not limited to, oil
which is re-refined, reclaimed, burned for energy recovery, or reprocessed. See 40 CFR 279 for full
description of used oil requirements.
See also Managing Used Oil: Answers to Frequent Questions for Businesses.
40 CFR 261.6(c) and
(d)
Requirements for
hazardous waste
recycling facilities
See Appendix J.
40 CFR part 266
Subpart C
(40 CFR 266.20-
266.23)
Use Constituting
Disposal
See Appendix D.
40 CFR part 266
Subpart F
Precious metals
recycling
Persons who generate, transport, or store hazardous wastes that are reclaimed to recover economically
significant amounts of gold, silver, platinum, palladium, iridium, osmium, rhodium, ruthenium, or any
combination of these, are subject to alternative hazardous waste requirements of 40 CFR part 266 Subpart
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F instead of 40 CFR parts 262 through 265, 267, 270, and 124, unless the wastes are speculatively
accumulated (See Appendix B). See regulations for full description of requirements.
The presence of economically significant amounts of precious metals, efficient recovery operations, no
land disposal of wastes, and payment by the reclaimer to the waste generator are indicators of legitimate
precious metal recovery. True precious metal recovery is characterized by net financial return to the
generator (i.e., sufficient to cover all costs). Persons engaged in recovery operations bear the burden of
proving legitimacy. (RO 14267)
Precious metals reclaimed from hazardous waste and suitable for direct reuse or only need refining before
reuse are products, not wastes (e.g., silver flake that is 98% pure refined to 99.99% pure). (RO 11117) (RO
11879)
Generators accumulating recyclable materials for precious metal recovery are not required to store the
materials in RCRA-regulated accumulation units (i.e., tanks, containers, and containment buildings).
Precious metals being reclaimed must be counted towards generator monthly determination. (RO 14092)
Primary exporters of recyclable materials that are used for precious metals recovery are subject to the
hazardous waste export regulations. (RO 12755) (RO 11580)
Recyclable materials such as precious metals that are subject to Part 266 are also subject to the 268.7 land
disposal restrictions (LDR) notification, certification and demonstrations unless specifically exempted from
Part 268 in Part 261 or Part 268. (RO 11482)
Spent photographic fixer solution is a spent material, and subject to regulation as a precious metal when it
is reclaimed. Silver-bearing sludge precipitated from spent fixer is not a solid waste when it is reclaimed,
and therefore it is not subject to Part 266, Subpart F. The precipitation process is exempt recycling. (RO
11814)(RO 11744)(RO 11879)
Furnaces legitimately recovering precious metals fall within the Part 266, Subpart F exemption, and are not
subject to the Subpart O incinerator regulations and most BIF rules, except for one-time notification and
certification, sampling, and analysis (see 40 CFR §266.100(f)). (RO 11804) (RO 13703)
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40 CFR part 266
Subpart G
Spent lead-acid
batteries (SLABs)
Persons who generate, collect, transport, store, or regenerate spent lead-acid batteries for reclamation
purposes mav be exempt from certain hazardous waste management requirements. See table in 40 CFR
266.80(a) for full description of exemptions.
Persons who store spent lead-acid batteries before reclaiming them in a manner other than regeneration
are subject to applicable hazardous waste permitting requirements. See language in 40 CFR 266.80(b) for
full description of requirements.
Alternatively, spent lead-acid batteries may be managed under the "Universal Waste" rule in 40 CFR part
273.
Generators that send spend lead-acid batteries offsite for reclamation do not have to: 1) count these
batteries when making a hazardous waste generator category determination, 2) manifest them/use
hazardous waste transporters (DOT requirements still apply), or 3) store them onsite per 262.16-17
(RO 13746) (RO 14147).
Spent lead acid batteries are prohibited from export under RCRA unless the exporter has submitted a
notice to EPA requesting approval to export, obtained written consent from the receiving country via EPA,
complied with the appropriate export requirements in either 40 Code of Federal Regulations (CFR) Part 262
Subpart E or 40 CFR Part 262 Subpart H, and ensured that the shipments comply with the terms of the
receiving country's written consent. (RO 14825)
40 CFR 266.100
Metals Recovery
Exemptions from Boiler
and Industrial Furnace
((BlF) requirements
40 CFR 266.100(d): Smelting, melting, and refining furnaces (including pyrometallurgical devices such as
cupolas, sintering machines, roasters, and foundry furnaces, but not including cement kilns, aggregate
kilns, or halogen acid furnaces burning hazardous waste) that process hazardous waste solely for metal
recovery are conditionally exempt from regulation, except for §§266.101 (management standards prior to
burning) and 266.112 (regulation of residues), provided all conditions are met. See regulation for full
description of conditions.
40 CFR 266.100(g): Smelting, melting, and refining furnaces (including pyrometallurgical devices such as
cupolas, sintering machines, roasters, and foundry furnaces) that process hazardous waste for recovery of
economically significant amounts of the precious metals gold, silver, platinum, palladium, iridium, osmium,
rhodium, or ruthenium, or any combination of these are conditionally exempt, except for §266.112
(regulation of residues), provided all conditions are met. See regulation for full description of conditions.
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40 CFR 266.100(h): Lead recovery furnaces that process hazardous waste for recovery of lead and that are
subject to regulation under the Secondary Lead Smelting National Emission Standards for Hazardous Air
Pollutants (NESHAP), are conditionally exempt from regulation under this Subpart, except for §266.101
(management standards prior to burning). See regulation for full description of conditions.
Note: Industrial furnaces that do not meet the conditions of exemptions are regulated under 40 CFR part
266 Subpart H.
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Appendix D: Use Constituting Disposal
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Back to Checklist
Appendix D - Use Constituting Disposal (UCD)
40 CFR 261.2fcMll is the subparagraph in the definition of solid waste that applies to "use
constituting disposal," as explained below:
Materials (including spent materials, sludges, by-products, commercial chemical
products and scrap metal) are solid wastes if they are recycledor accumulated, stored,
or treated before recyclingby being used in a manner constituting disposal.
Materials are used in a manner constituting disposal if they are:
(A) Applied to or placed on the land in a manner that constitutes disposal; or
(B) Used to produce products that are applied to or placed on the land or are otherwise
contained in products that are applied to or placed on the land (in which cases the
product itself remains a solid waste).
However, commercial chemical products listed in 40 CFR 261.33 are not solid wastes if
they are applied to the land and that is their ordinary manner of use.
40 CFR part 266 Subpart C is the subpart that explains the hazardous waste requirements that
apply to recyclable materials used in a manner constituting disposal, as summarized below:
Generators and transporters of materials that are used in a manner that constitutes
disposal are subject to the applicable hazardous waste generator and transporter
requirements of 40 CFR parts 262 and 263, and the notification requirement under
section 3010 of RCRA. (40 CFR 266.21)
Owners or operators of facilities that store materials that are to be used in a manner
that constitutes disposal, but who are not the ultimate users of the materials, are
regulated under all applicable hazardous waste permitting provisions of subparts A
through L of parts 264, 265, and 267, and parts 270 and 124 of this chapter and the
notification requirement under section 3010 of RCRA. (40 CFR 266.22)
Owners or operators of facilities that use recyclable materials in a manner that
constitutes disposal are regulated under all applicable provisions of subparts A through
N of parts 124, 264, 265, 268, and 270 of this chapter and the notification requirement
under section 3010 of RCRA. (40 CFR 266.23 (a))
These requirements do not apply to products which contain recyclable materials, and
are used in or on the land, and meet the requirements of 40 CFR 266.20(b). which says:
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o Products produced for the general public's use that are used in a manner that
constitutes disposal and that contain recyclable materials are not subject to
regulation if:
¦ The recyclable materials have undergone a chemical reaction in the
course of producing the products so as to become inseparable by physical
means; and
¦ Such products meet the applicable land disposal treatment standards in
40 CFR part 268 subpart D (or applicable prohibition levels in 40 CFR
268.32 of this chapter or RCRA section 3004(d), where no treatment
standards have been established) for each recyclable material (i.e.,
hazardous waste) that they contain; and
¦ The recycler complies with I 268.7(b)(6) (One-time certification and
notification requirements under the land disposal restrictions
requirements).
Anti-skid/deicing uses of slags, which are generated from high temperature metals
recovery (HTMR) processing of hazardous waste K061, K062, and F006, in a manner
constituting disposal are not covered by the exemption in 266.20(b) and remain
subject to regulation per 40 CFR 266.20(c).
Fertilizers that contain recyclable materials are not subject to regulation (per 40 CFR
266.20(d)) provided that:
o They are zinc fertilizers excluded from the definition of solid waste according to
40 CFR 261.4(a)(21): or
o They meet the applicable treatment standards in 40 CFR part 268 Subpart D for
each hazardous waste that they contain.
The use of waste or used oil or other material, which is contaminated with dioxin or any
other hazardous waste (other than a waste identified solely on the basis of ignitability),
for dust suppression or road treatment is prohibited. (40 CFR 266.23(b))
Additional Guidance on UCD
Hazardous secondary material used as an ingredient in a fertilizer or used to make an ingredient
in a fertilizer is use constituting disposal, and is a solid waste and hazardous waste, except as
described in 40 CFR 266.20(d). (RO 11112) (RO 11113) (RO 11124) (ROJJJJ4) (F.O III ^)
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Acid used to produce a fertilizer is not a solid waste if it is purer in acid content and no more
contaminated than virgin acid that is typically used. Excluded sulfuric acid incorporated into a
fertilizer is not waste-derived and is not regulated when applied to the land. (RO 11185) (RO
14348)
Hazardous secondary material reclaimed for both metal and fertilizer ingredients is subject to
used in a manner constituting disposal rules. The solid waste determination for a recycled
material is made at the point of generation and must account for the entire recycling process.
(RO 11276) (RO 11644) (RO 11645) (RO 13507)
Hazardous secondary material used as an ingredient in cement or aggregate that is placed on
the land or is used in a product that is placed on the land is a solid and hazardous waste subject
to Part 266, subpart C, and must meet land disposal restrictions treatment standards. For the
purposes of 266.20(b), EPA may test clinker, rather than product (i.e., cement). If the
owner/operator of a cement kiln documents that none of the cement is applied to the land,
then the material may not be a solid waste. Cement produced from treated soil that no longer
contains hazardous waste is not a waste-derived product. (RO 11395) (RO 11426) (J O I I h I)
(RO 11573) (RO 11618) (RO 11684) (F 31)
Soil contaminated with a hazardous secondary material used in asphalt batching is a solid waste
because it is used in a manner constituting disposal, unless the material is a normal ingredient
in asphalt batching, or until it meets the terms of 266.20(b). (RO 11616)
Chemically solidified de-characterized wastes are subject to the used in a manner constituting
disposal standards. RCRA jurisdiction extends to all secondary materials applied to the land or
used in water as a fill or support material. (RO 12513)
Drip gas from natural gas pipelines that is used as a solvent to remove paraffin buildup may be
a hazardous waste used in a manner constituting disposal if it is a by-product rather than a
legitimate product. (RO 11767)
Material used as a water conditioner is not used in a manner that constitutes disposal. (RO
11081) (RO 11185)
Incorporating hazardous waste into animal feeds is generally not considered used in a manner
constituting disposal. (RO 119 ) ( )
The act of spraying virgin fuel on the ground for firefighting training is not used in a manner
constituting disposal, because fuel is a primary material, not a waste. (RO 12488)
Iron and steel slag is exempt from RCRA regulation under the Bevill mining and mineral
processing exclusion even when used in a manner constituting disposal (SEE ALSO: Section
266.20(c); 59 FR 67256; December 29, 1994). (RO 13382)
Wood treated with wood preservative reclaimed under the spent wood preservative exclusion
in 40 CFR 261.4(a)(9) is not a hazardous waste when the wood is placed on land. (RO 13516)
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Compliance with the land disposal restrictions treatment standards applies to the product that
will be used in a manner constituting disposal, not the waste before it becomes a manufactured
product. (RO 14566)
Additional Resources
48 FR 14472 - Amendments to Definition of Solid Waste (Proposed rule) [pp. 14484-14485,
14499]4/4/1983
50 FR 614 - Amendments to Definition of Solid Waste (Final rule) [pp. 627-628, 646-647]
1/4/1985
53 FR 31138 - Land Disposal Restrictions for First Third Scheduled Wastes (Final rule) [pp.31197-
31198] 8/17/1988
i - Amendment to Subpart C - Recyclable Materials Used in a Manner Constituting
Disposal (Final rule) [All pages] 8/24/1994
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Appendix E: Burning for Energy Recovery
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Appendix E - Burning for Energy Recovery
40 CFR 261.2(c)(2) is the regulatory citation for the part of the RCRA definition of solid waste
that affects materials burned for energy recovery, as summarized below:
Materials are solid wastes when they are:
(A) Burned to recover energy. (40 CFR 261.2(c)(2)(i)(A))
(B) Used to produce a fuel or are otherwise contained in fuels (in which cases the fuel
itself remains a solid waste). (40 CFR 261.2(c)(2)(i)(B))
However, commercial chemical products listed in 40 CFR 261.33 are not solid wastes if
they are themselves fuels. (40 CFR 261.2(c)(2)(ii))
Combustion units that burn hazardous waste to recover energy are generally regulated under
the boiler and industrial furnace rules, found at 40 CFR part 266 subpart H.
Additional Resources
Commercial Chemical Products (CCPs):
Characteristic off-specification fuels (e.g., gasoline, kerosene, jet fuel, and diesel),
including fuels recovered from clean-ups, are commercial chemical products and are not
solid waste when burned for energy recovery because they themselves are fuels. (RO
11138)(RO 11449)(RO 11713)(RO 11848)(RO 11938)(RO 12825)(RO 14503)
Section 261.2(c)(2)(ii) applies to both listed and characteristic CCPs. (RO 11848)
CCP refers to a chemical substance which is manufactured or formulated for commercial
or manufacturing use. This consists of the commercially pure grade of the chemical, any
technical grades of the chemical that are produced or marketed, and all formulations in
which the chemical is the sole active ingredient. It does not refer to a material such as a
manufacturing process waste. (RO 14814)
The manner in which fuels become off-specification generally is not relevant, unless the
fuels are mixed with or contaminated by a non-fuel hazardous waste. (RO 11938)
Unused propellant mixture (butane and propane) from aerosol cans is not a solid waste
when it is burned for energy recovery because butane and propane are commercial
chemical products normally used as fuels. (RO .1.17.17)
Crude sulfate turpentine (CST) is not a solid waste when it is burned for energy recovery
because it is a CCP that is itself a fuel. CST contains hydrogen sulfide that can pose
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health risks, thus, it should be managed in accordance with applicable OSHA standards.
(F B)
Solvents
Reclaimed solvent burned as a fuel is a solid waste. Off-specification solvent products
burned for energy recovery in lieu of the intended purpose could be excluded under
261.2(c)(2)(ii) if they are themselves fuels. Used toluene is a spent material and not a
CCP, therefore the solid waste exemption for fuels burned for energy recovery does not
apply- (RO 13208) ( )
By-Product vs Co-Products
Light hydrocarbon wastestreams generated in the production of a primary product may
be either by-products or co-products, depending on site-specific factors. By-products
burned for energy recovery are solid wastes, while co-products are not. (RO 11793)
Sham Energy Recovery
Although ignitable off-specification fuels, such as natural gas condensate, are usually
not solid wastes when burned for energy recovery, sale or use of low energy value
condensate as motor fuel or a fuel additive may constitute sham burning for energy
recovery. Additional legitimacy factors besides the energy value can apply to a sham
recycling determination. (RO 11831) (RO 13049)
Boilers and Industrial Furnaces
The boiler and industrial furnace rules found at 40 CFR part 266 subpart H apply to
hazardous waste burned or processed in a boiler or industrial furnace irrespective of the
purpose of burning or processing (with certain exceptions described in the regulations).
The term "burn" means burning for energy recovery or destruction, or processing for
materials recovery or as an ingredient. (40 CFR 266.100(a))
Waste-derived products (e.g., cement or aggregate) from industrial furnaces burning
hazardous waste may be subject to use constituting disposal regulations in 40 CFR part
266 Subpart C unless the hazardous waste is burned for energy recovery, rather than for
destruction, for materials recovery, or as an ingredient. Hazardous waste with a heating
value of less than 5000 Btu/lb is generally considered burned for destruction, not for
energy recovery. Heating value is based on an as-generated basis, not as-fired basis, and
blending cannot be used to meet the fuel value test. However, the as-generated heating
value of a hazardous waste may be increased to meet the "legitimate fuel" test by bona
fide treatment (e.g., decanting). (RO 11883) (RO 13672) (RO 13680)
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Hazardous waste burned in a boiler or industrial furnace for metals recovery is exempt
from the boiler and industrial furnace rules under the smelting, melting, and refining
furnace exemption in 40 CFR 266.100(c) only if the device burns the waste exclusively
for metals recovery and not partially for destruction or energy recovery. Generally,
waste with a heating value at or above 5000 Btu/lb is considered burned as fuel. (RO
11856) (RO 11885)
Hazardous Waste Fuel Blending
Blending hazardous waste fuels to meet a specification is treatment and requires a
permit and is not an exempt recycling process. Most fuel blending units are permitted as
tanks or miscellaneous units. Fuel blenders are subject to the air emissions standards.
Unit processes used to raise Btu value of a hazardous waste (e.g., phase separation,
centrifugation) also require a permit. Fuel blenders are subject to 268.7(b) LDR
notification and certification. (RO 11881) (RO 13577) (RO 11411) (RO 13512) (RO 13764)
Additional Resources
50 FR 614-Amendments to Definition of Solid Waste (Final) [pp. 625-627, 629-632] 1/4/1985
50 FR 33541 - Amendments to Definition of Solid Waste (Technical Corrections) [pp. 33541-
33543] 8/20/1985
50 FR 49164 - Hazardous Waste Management System; Burning of Waste Fuel and Used Oil in
Boilers and Industrial Furnaces (Final) [pp 49166, 49167, 49171-4] 11/29/1985
- Burning of Hazardous Waste in Boilers and Industrial Furnaces (Final) [pp. 7138-
7142] 2/21/1991
80 FR 18777 - Response to Vacaturs of the Comparable Fuels Rule and the Gasification Rule
(Final) [All pages] 04/08/2015
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Appendix F: Inherently Waste-like Materials
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Appendix F - Inherently Waste-like Materials
40 CFR 261.2(d) is the subparagraph in the definition of solid waste that applies to "inherently
waste-like materials," which are solid wastes that are so hazardous that they pose a substantial
threat to human health and the environment even when recycled. These materials are
described below:
Dioxin hazardous wastes with listed waste codes F020, F022, F023, F026, and F028, and
F021 (unless used as an ingredient to make a product at the site of generation).
Secondary halogen-containing materials that are fed to halogen acid furnaces (HAFs)
that exhibit a characteristic of a hazardous waste or are listed as a hazardous waste
defined in subparts C or D,
o This does not include brominated material that meets the following criteria:
¦ The material must contain a bromine concentration of at least 45%; and
¦ The material must contain less than a total of 1% of toxic organic
compounds listed in Appendix VIII; and
¦ The material is processed continually on-site in the halogen acid furnace
via direct conveyance (hard piping).
To add a waste to the list above, EPA would use the following criteria:
o The materials are ordinarily disposed of, burned, or incinerated; or
o The materials contain toxic constituents listed in Appendix VIII of part 261 and
these constituents are not ordinarily found in raw materials or products for
which the materials substitute (or are found in raw materials or products in
smaller concentrations) and are not used or reused during the recycling process;
and
o The material may pose a substantial hazard to human health and the
environment when recycled.
Additional Guidance on Inherently Waste-like Materials
HAFs
Materials being processed in a halogen acid furnace (HAF) are not eligible for the "generator-
controlled exclusion" in 40 CFR 261.4(a)(23) and instead are considered to be inherently waste-
like materials per 40 CFR 261. .( )) (RO 11751)
Acid generation that occurs in a closed, controlled chemical manufacturing process is not
considered the "production of acid" for purposes of the HAF definition. Secondary materials
going to such units are not solid wastes pursuant to the use/reuse exclusion if the process is
legitimate recycling. State regulations can be more stringent than the federal regulations. (RO
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Dioxins
Wastes and contaminated equipment from the use of dioxins as lab standards (and most other
lab wastes) do not meet the listing description for dioxin-bearing F020, F021, F022, F023, F026,
F028 as they do not result from any of the manufacturing processes specified in the listings. (RO
11055)
Includes a clarification of the federal policy on the disposal of dioxin and dioxin-contaminated
material, a summary of EPA efforts to regulate dioxin, and a description of F-listed dioxin
wastes (F020, F021, F022, F023, F027, F028). (RO 12970)
Wastes from the production of chlorophenoxy acids, or their ester, ether, amine, or other salt
derivatives are F020 (including 2,4,5-T). F023 processes are the same as F020. F020-F023, F026
do not cover wastewaters but cover sludges from their treatment. Packaging is not part of the
formulating process. (RO 11065)
Discussion of the applicability of F020 and F023 listings to wastes from the production of 2,4,5-
trichlorophenol (TCP) and hexachlorophene. Wastewaters from 2,4,5-TCP process are not F020
or F023, but sludges from their treatment meet the listings. Clarification of highly purified 2,4,5-
trichlorophenol. F020 and F023 wastes are regulated as acutely hazardous. (RO 11186)
Additional Resources
50 FR 614-Amendments to Definition of Solid Waste (Final) [pp. 637, 640-641] 1/4/1985.
40 CFR 261.2(d) - Definition of solid waste: Inherently waste-like materials.
Guidance Manual on the RCRA Regulation of Recycled Hazardous Materials [pp. 30]. Document
may be downloaded by clicking on "Get This Item."
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Appendix G: Use-Reuse
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Appendix G - Use/Reuse
40 CFR 261.2(e) is the section of the regulations that explains when a hazardous secondary
material that is used, reused, or returned to the original process is a solid waste, as summarized
below.
With certain exceptions listed below, a material is not a solid waste if it is:
Used or reused as an ingredient in an industrial process to make a product, provided the
material is not being reclaimed; (40 CFR 261.2(e)(l)(i);
Used or reused as an effective substitute for a commercial product; (40 CFR
261.2(e)(l)(ii); or
Returned to the original process from which it is generated, without first being
reclaimed or land disposed. The material must be returned as a substitute for feedstock
materials.
o In cases where the original process to which the material is returned is a
secondary process, the materials must be managed such that there is no
placement on the land.
o In cases where the material is generated and reclaimed within the primary
mineral processing industry, the conditions of the exclusion found at §
261.4(a)(17) apply rather than this paragraph. (40 CFR 261.2(e)(l)(iii)
Exceptions - The following materials are solid wastes, even if the recycling involves use, reuse,
or return to the original process:
Materials used in a manner constituting disposal, or used to produce products that are
applied to the land; (40 CFR 261.2(e)(2)(i));
Materials burned for energy recovery, used to produce a fuel, or contained in fuels (40
CFR 261.2(e)(2)(ii));
Materials accumulated speculatively (40 CFR 261.2(e)(2)(iii)); or
Inherently waste-like materials (40 CFR 261.2(e)(2)(iv)).
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Additional Resources
General Use/Reuse Guidance
Wastes which undergo some reclamation, including filtration, are not eligible for the use/reuse
exclusion. Filtration occurring near the end of the process when it is already in essence a
completed product may not constitute reclamation. For example, if the filter removes only
minute quantities of particulate matter to guarantee the physical quality of the product, not to
reclaim the secondary material in any meaningful sense, then that may not be considered
reclamation. (RO 14099) (J 36)
Metals suitable for direct use or that only have to be refined rather than reclaimed to be usable
are products, not wastes (e.g., free flowing mercury which is distilled and sold as an ingredient
in an industrial process). (RO 11823)
Materials which undergo only "incidental processing" are not reclaimed and thus can be
excluded under the use/reuse provisions. Incidental processing includes only those processing
steps that are not necessary to material recovery, and which do not themselves regenerate the
material or recover material. Incidental processing activities may take place at any step during
the use/reuse process. A process may involve more than one incidental processing step as long
as the cumulative effect is incidental. Another indicator of incidental processing is whether an
analogous process using raw materials includes the same or similar activities at the same point
in the process. ( )
Materials must be legitimately recycled to satisfy the section 261.2(e) provisions. (F )
Material requiring reclamation prior to use or reuse as an effective substitute for a commercial
product is not being directly used or reused and would not qualify for the section 261.2(e)(l)(ii)
exclusion from the definition of solid waste. (RO 13539)
Specific Examples of Use/Reuse
Spent pickle liquor directly used or reused as a wastewater conditioner (ferric chloride
substitute) is not a solid waste or K062, provided the material is not speculatively accumulated.
(RO 11081)
Corrosive materials (deionization acid) that are beneficially reused as effective substitutes for a
virgin material, meet relevant specifications for contamination levels, and used under
controlled conditions are not solid waste. (RO 11154)
Phosphoric acid used as a wastewater conditioner is not a solid waste. Phosphoric acid used to
produce a fertilizer is not a solid waste if it is purer in acid content and no more contaminated
than virgin phosphoric acid that is typically used. (RO 11185)
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Copper chloride and copper ammonium chloride by-products directly used (i.e., without prior
reclamation) in the production of copper sulfate and copper hydroxide are not solid waste. (RO
11334)
Sulfuric acid from chlorine dehydration that is too dilute for reuse without further processing
may meet the definition of spent material. If the secondary use of sulfuric acid has the same
purpose as the primary use (e.g., once-used sulfuric acid can be directly reused in the same or
another alkylation reaction), then the once-used sulfuric acid may be exempt from the
definition of solid waste under 261.2(e). (RO 11361)
The reuse of etchants to produce a basic copper sulfate is not solid waste management (See
also 50 FR 614; 1/4/85). Spent copper etchants used as ingredients in the production of tri-
basic copper chloride are not solid wastes under the use/reuse exemption unless the etchants
are being reclaimed. (RO 12779) (RO 14102)
Waste sodium hydroxide (NaOH) that is used as a substitute for a commercial product in a tank
clean-out is not a solid waste if it would function as a product in normal commercial use, unless
it is speculatively accumulated. A generator may increase the effectiveness of a 'product' by
adding additional NaOH. (RO 12918)
Foundry sand reused on-site within the sand loop for mold-making, including the separation
(shakeout) step, is part of a continuous industrial production process, and would not be a solid
waste. Sand handled carelessly prior to its reuse may raise questions regarding the legitimacy of
the continuous production process. ( )
Hazardous secondary materials that are processed in gasification systems to produce synthesis
gas exclusively used or reused in industrial processes to manufacture legitimate products are
not subject to RCRA, since such materials are excluded from the definition of solid waste,
provided they are not reclaimed, used in a manner constituting disposal, burned for energy
recovery, or speculatively accumulated (See also 67 FR 13864; 3/25/02). (RO 14643)
A business sending electronics to a reseller for reuse is not a RCRA generator. Electronics
reused in the same manner without reclamation are still considered commercial products.
Repairing electronics before resale is neither reclamation nor waste management. (RO 14668)
CRT funnel glass may be excluded from RCRA hazardous waste regulations under the
'use/reuse' exclusion (40 CFR 261.2(e)) for hazardous secondary materials used as an ingredient
to make a product or used as an effective substitute for a commercial product, as long as that
use is legitimate. CRT funnel glass legitimately used as an effective substitute in the production
of ceramic tiles can be excluded from the solid and hazardous waste regulations under 40 CFR
261.2(e). Processed CRT glass used as an effective substitute for virgin fluxing agent at copper
smelters would be excluded from solid and hazardous waste regulation under 261.2(e)(l)(ii).
(See also 71 FR 42928, 42937; July 28, 2006) (Memorandum, Shapiro to Richter; March 8, 1995
(RO 11900)) (RO 14835) (RO 14845) (RO J4F.55)
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Specific Examples of Reclamation Not Eligible for Use/Reuse Exclusion
Recycling red water (K047) is not an exempt use or reuse because sodium sulfite is recovered
from K047 before reuse. Using K047 as a fuel makes it ineligible for the use or reuse exclusion.
(RO 11253)
The production of copper sulfate solution from etchants is reclamation and is solid waste
management. Mixing residue from tri-basic copper chloride (TBCC) manufacturing with
additional chemicals to produce fresh etchant is not exempt use/reuse if the activity involves
reclamation. If both activities are steps in one industrial process, then reclamation in the
second step (fresh etchant production) would disqualify the whole process from the use/reuse
exemption. (RO 12779) (RO 14102)
Wastewater treatment sludge (F006) sent to primary smelters for copper extraction is not
eligible for the Section 261.2(e) use/reuse exemption because the sludge is being reclaimed.
(! 26)
Treatment of spent, crushed hexavalent chrome bricks essentially regenerates the chromium
back into trivalent chromium, and this treated material then becomes the feedstock to produce
new trivalent chromium refractory bricks. Per 40 CFR 261.2(c)(3), regeneration of a secondary
material is a form of reclamation, and the reclamation of particular types of secondary
materials, such as spent materials, is subject to RCRA regulation. Furthermore, the RCRA
regulations at 261.2(e) involving the direct use/reuse of a secondary material as an ingredient
or as an effective substitute in a manufacturing process do not apply when the material is being
reclaimed and therefore are not applicable in this situation. (RO 14852)
Specific Examples of Use Constituting Disposal Not Eligible for Use/Reuse Exclusion
Spent sulfuric acid reused as fertilizer ingredient is considered a solid waste and a hazardous
waste used in a manner constituting disposal subject to Part 266, Subpart C. (RO 11 )
Baghouse dust used as a product or reclaimed as an ingredient in a product (e.g., aggregate)
placed on the land is a solid waste and is not exempt per 40 CFR 261.2(e)(2)(i). (RO 11618)
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Appendix H: Reclamation
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Appendix H - Reclamation
According to 40 CFR 261.1(c)(4). a material is "reclaimed" if it is processed to recover a usable
product, or if it is regenerated. Examples are recovery of lead values from spent batteries and
regeneration of spent solvents.
In addition, for purposes of the solid waste exclusions found at 40 CFR 261,4(a)(23) and
(24). smelting, melting, and refining furnaces are considered to be solely engaged in
metals reclamation if the metal recovery from the hazardous secondary materials meets
the same requirements as those specified for metals recovery from hazardous waste
found in § 266.100(d)(1) through (3) of this chapter, and if the residuals meet the
requirements specified in § 266.112 of this chapter.
40 CFR 261.2(c)(3) Table 1 identifies which materials a solid waste, and which are not, when
reclaimed.
The following materials are solid waste when reclaimed, unless they meet the solid
waste exclusion requirements of ! ! 261.4(a)iJ7). or 40 CFR 261.4(a)(23). 40 CFR
261,4(a)(24). or 40 CFR 261.4(a)(27):
o Spent materials
o Sludges listed as hazardous waste in 40 CFR Part 261.31 or 261.32
o By-products listed as hazardous waste in 40 CFR 261.31 or 261.32
o Scrap metal that is not excluded under 40 CFR 261,4(a)(13) (however, non-
excluded scrap metal is exempt from regulation per 40 CFR 261.6(a)(3) when
recycled)
The following materials are not solid waste when reclaimed:
o Sludges exhibiting a characteristic of hazardous waste
o By-products exhibiting a characteristic of hazardous waste
o Commercial chemical products listed in 261.33
The terms "spent materials," "sludges," "by-products," and "scrap metal" are defined in 40 CFR
261.1.
Additional Resources
General Guidance on Reclamation
Materials which undergo only "incidental processing" are not reclaimed and thus can be
excluded under the direct use/reuse provisions. Incidental processing includes only those
processing steps that are not necessary to material recovery, and which do not themselves
regenerate the material or recover material. Incidental processing activities may take place at
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any step during the use/reuse process. A process may involve more than one incidental
processing step as long as the cumulative effect is incidental. Another indicator of incidental
processing is whether an analogous process using raw materials includes the same or similar
activities at the same point in the process. (] )
Wastes which undergo some reclamation, including filtration, are not eligible for the use/reuse
exclusion. Filtration occurring near the end of the process when it is already in essence a
completed product may not constitute reclamation. The filter removes only minute quantities
of particulate matter to guarantee the physical quality of the product, not to reclaim the
secondary material in any meaningful sense. (RO 14099) (f 36)
Hazardous waste sent to smelters remains hazardous waste until reclamation is complete.
Materials that have been reclaimed are not wastes. Metal-bearing material that is 92-99% pure
and only needs refining prior to use is considered fully reclaimed. Wastewater treatment
sludge (F006) sent to primary smelters for copper extraction is not eligible for the Section
261.2(e) use/reuse exemption because the sludge is being reclaimed. (RO 11929) (F 25)
If zinc oxide produced from the recycling of K061 is completely reclaimed, it is a product and is
no longer subject to RCRA provided it is not burned for energy recovery or used in a manner
constituting disposal. In cases where the zinc oxide will be further refined to make zinc metal, it
is a partially reclaimed listed sludge and is still a hazardous waste subject to regulation. (RO
11932)
Materials that are not solid wastes when they are reclaimed are exempt from the point of
generation forward. The term "when" as used in 40 CFR 261.2 applies to the point that a
material's ultimate disposition has been determined. The recycling activity is viewed
prospectively; that is, the status of certain secondary materials is determined by knowing how
the material is going to be recycled. The term "when" as it is used in 40 CFR 261.2(c) for
recycling activities (e.g., "when reclaimed", "when burned", "when placed on the land") is not
meant to refer only to the moment in time when that activity occurs, in order to determine the
regulatory status of a material, with the exception of speculative accumulation. For secondary
materials that are excluded or exempt based on a claim of recycling, the material is no longer
excluded or exempt if it is accumulated speculatively prior to recycling; also, respondents in
enforcement actions who make such a claim (e.g., generator, recycler) must be able to
document a claim of legitimate recycling (see 40 CFR 261.2(f)). (RO 11747)
For purposes of 40 CFR 261.2, EPA interprets non-listed commercial chemical products (CCPs)
to include all types of unused commercial products that exhibit hazardous waste
characteristics, even if these products are not commonly considered chemicals (e.g., circuit
boards, batteries, thermometers, fluorescent lamps, etc.). Unlisted CCPs that are sent for
reclamation are not solid waste. (RO 11726) (RO 14012)
The heating value of sulfur-containing material inserted in a sulfuric acid regeneration furnace
determines if the activity is burning for energy recovery or reclamation. Materials with a
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heating value greater than 5000 Btu/lb are generally considered to be burned as a fuel rather
than for metals recovery or as an ingredient. 5000 Btu/lb is not a regulatory threshold for the
purposes of the definition of solid waste, but there is a strong presumption that secondary
materials above 5000 Btu are burned for energy recovery and therefore are solid wastes (e.g.,
as in the case of characteristic by-products recycled by being burned). (RO 14086)
Characteristic by-products being reclaimed may be placed or stored in a land based unit (e.g.,
waste pile) without affecting their exclusion from the definition of solid waste. Characteristic
by-products being reclaimed are not subject to the RCRA hazardous waste regulations,
including the prohibition on land placement. (RO 14268)
The definition of solid waste is limited to listed sludges to avoid including sludges that are
routinely processed to recover useable products as part of ongoing production operations. The
October 2, 1985, Federal Register (50 FR 40297) states that: "Nevertheless, sludges can be
listed and thus be solid wastes if they are more waste-like than product-like." (RO 12656)
Federal RCRA hazardous waste regulations, per 40 CFR 261.2(c)(3) and Table 1 of 261.2, do not
regulate the reclamation of off-spec commercial chemical products and characteristic
byproducts provided these materials are reclaimed legitimately. Therefore, EPA's hazardous
waste import/export requirements would not apply to a shipment of intact unused off-spec
dental x-ray packs and trimmings from unused dental x-ray packs generated in Mexico, with
transit across the United States, that is destined for reclamation in Canada. ( )
Examples of Processes that are Reclamation
Smelting wastewater treatment sludge to recover metal is reclamation. A listed sludge to be
smelted is a hazardous waste. A characteristic sludge to be smelted is not a solid waste.
Partially reclaimed listed sludge is a solid waste, unless granted a variance. (RO 11338)
The dewatering process of an accumulated by-product is defined as reclamation (see 40 CFR
261.1(c)(4)). (RO 11415)
The Agency considers both thermal oxidization and hydrodechlorination processes to be forms
of reclamation. These processes are designed to recover materials/ products (muriatic acid,
chlorobenzenes, and/or benzenes) from a listed by-product (K085); and under Section
261.2(c)(4), this constitutes reclamation. Pursuant to Section 261.2(c)(3), listed by-products that
are reclaimed are solid wastes. (RO 11297)
Treatment of spent, crushed hexavalent chrome bricks essentially regenerates the chromium
back into trivalent chromium, and this treated material then becomes the feedstock to produce
new trivalent chromium refractory bricks. Per 40 CFR 261.2(c)(4), regeneration of a secondary
material is a form of reclamation, and the reclamation of particular types of secondary
materials, such as spent materials, is subject to RCRA regulation. (RO 14852)
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The production of copper sulfate solution from used etchants is reclamation and is waste
management. (RO 12779)
Examples of Processes that are not Reclamation
Wastewater treatment is not generally considered to be reclamation and wastewaters are not
considered products after treatment (see 50 FR 634, January 4,1985). Wastewaters are not
ordinarily considered to be commercial products and are often discharged, and the Agency did
not intend to allow facilities to exempt their wastewater treatment surface impoundments
from regulation by being classified as "recycling" facilities. In certain cases, treated wastewater
that is legitimately reused is considered reclaimed and is not a solid waste. (RO 11546) (RO
11374)
Briquetting is not reclamation. Flue dust K061 that is mixed with sodium silicate binder and
pressed into briquettes is not solid waste if it is directly reused in steel production and is not
reclaimed. (RO 11271)
Shredding and grinding leather trimmings in order to attain a required particle size is not
reclamation. (RO 14025)
Examples of Materials that are Solid Waste When Reclaimed
Spent pickle liquor (K062) is a spent material and a solid waste when reclaimed. Beneficial reuse
of waste after reclamation does not affect the solid waste status before and during
reclamation. (RO 11093)
Dried metal hydroxide solids in pellet powder from dewatering electroplating wastewater are
F006. The listing applies even if the sludge is reclaimed further. Dried metal hydroxide solids in
pellet form sent to a smelter to recover metals are reclaimed, not directly used or reused,
because distinct components are recovered as separate end products. (RO 11910)
Dust collected in an air filtration system is a spent material, not a sludge, since filtration is
intended to recover dust, not control pollution, and is a solid waste when reclaimed. Heating
and distillation are considered reclamation processes. (RO 11937)
Used silver-bearing photo fixer that is to be reclaimed is a spent material and a solid waste.
Sludges from silver recovery units to be reclaimed are characteristic sludges and not a solid
waste (SEE ALSO: RPC# 8/4/95-01). (I ) ( . 11914) (RO 11912)
Chopline (i.e., residues generated from the processing of scrap wire that consist primarily of
plastics, some paper, and up to five percent copper) residues are spent materials and therefore
solid wastes when reclaimed or recycled. A material is considered spent when it can no longer
be used for the original purpose without reprocessing or reclamation. Hazardous waste
management requirements apply up to the point of resale as product. (RO 14098)
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Used airbag inflators that are not legitimately reused are spent material and solid waste when
reclaimed (40 CFR 261.2(c)(3)). (RO 14920)
Examples of Materials that are not Solid Waste When Reclaimed
Commercial Chemical Products (CCPs) or mixtures of CCPs (e.g., methyl isocyanate and
methylene chloride) reclaimed or used for their intended purpose (e.g., in a manufacturing
process) are not solid waste. (RO .1.1.147)
A mixture of fuel and water going to reclamation is considered a commercial chemical product
being reclaimed. Reclamation must meet the definition of legitimate recycling found at 40 CFR
260.43, including the first factor which says the materials must provide a "useful contribution."
In the case of fuel/water mixtures, such mixtures would be considered as providing a useful
contribution if the fuel product is recovered by the recycling process. (RO 14883)
Reclaimed methanol (99.5% purity) sent off-site for further reclamation before use in a
manufacturing process is more product-like than waste-like, is not a solid waste, and need not
be manifested. It is analogous to reclaimed metals that only have to be refined (See also 50 FR
634; 1/4/85). (RO 11109)
Flue dust generated by an air pollution control device in a brass mill is a characteristic sludge.
Metal hydroxide sludge generated in a wastewater treatment unit at a brass mill is a
characteristic sludge. Characteristic sludges from air and water pollution control devices are not
solid wastes from the point of generation if the sludges are destined for reclamation in a
manner not involving placement on land. A generator must be prepared to document the claim
that a sludge is excluded from the solid waste definition. (RO 11412)
Brass dross skimmings are by-products, not scrap metal, and are not solid waste if reclaimed.
(RO 11083)
If sludge from a silver recovery unit that is used to treat wastewater qualifies as a characteristic
sludge, it is not a solid waste when destined for reclamation. Materials generated from
wastewater treatment are sludges, even if the treatment is not undertaken to meet any
discharge requirements. (RO 11879)
Unused batteries sent for reclamation are CCPs being reclaimed and are not solid wastes. (RO
11891)
Bubbler canisters containing unused phosphorous oxychloride is a commercial chemical
product (CCP) when reclaimed and not solid waste. (RO 13722)
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Appendix I: Processed or Unprocessed Scrap Metal
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Appendix I - Processed or Unprocessed Scrap Metal
40 CFR 261.1(c)(6) defines scrap metal as "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 261.4(a)(13) applies to "excluded scrap metal (processed scrap metal, unprocessed
home scrap metal, and unprocessed prompt scrap metal) being recycled." If a hazardous
secondary material (HSM) is an excluded scrap metal, then it is not a solid waste per 40 CFR
261.4(a)(13).
Processed scrap metal is scrap metal that has been baled, shredded, sheared, chopped,
crushed, flattened, cut, melted or separated by metal type (i.e., sorted), and fines,
drosses, and related materials which have been agglomerated. Processed scrap metal
means the scrap metal has undergone manual or mechanical processing regardless of
who has done the processing. (62 FR 26011)
Unprocessed home and prompt scrap metal is scrap metal such as turnings, cuttings,
punchings, and borings which can be generated by steel mills, foundries, and metal
refineries or the metal-working/fabrication industries. These are excluded when
recycled because they are more product-like than waste-like. (62 FR 26011)
40 CFR 261,6faM3Miil is a recyclable materials exemption that applies to scrap metal that is not
excluded under 40 CFR 261.4(a)(13). If the HSM is a non-excluded scrap metal, then it is a solid
waste, but exempt from regulation when recycled per 40 CFR 261.6(a)(3)(ii).
Additional Guidance
General Scrap Metal
Precious metal containing scrap metal is exempt from regulations. (RO 11117)
Metal pieces that are generated from machining operations are also considered scrap metal.
(RO 13356)
Zinc bar, nickel and cadmium plate, and steel scrap from batteries are scrap metal. Scrap metal
is exempt when it is recycled whether it is characteristic or not. Metal that contains only an oily
film is still scrap metal. (RO 11184)
Once separated out from nickel-cadmium batteries, metal plates may be exempt scrap metal if
recycled. If metal plates are removed and mixed with non-scrap metal, then the plates lose
their scrap metal designation. (RO 13376)
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Because the scrap metal definition is based on physical form, the determination of whether
nickel-plated steel wool generated during nickel recovery is scrap metal should be made by the
State or Regional office. (RO 11930)
The Agency has consistently held that metal scrap is neither an ore nor a mineral. Therefore, if
the predominant input to the process is steel scrap, the waste from the ferroalloy facility would
not qualify for the mining waste exclusion. (RO 12664)
Scrap metal that fails the toxicity characteristic for lead is excluded from RCRA Subtitle C
regulation when it is recycled. (RO 11769)
Scrap tantalum anodes, wire, pellets, and pins meet the definition of scrap metal found at 40
CFR 261.1(c)(6) and would not be subject to RCRA hazardous waste regulation when recycled
under the solid waste exclusion found at 40 CFR 261.4(a)(13) (if processed) or under the
hazardous waste exemption found at 40 CFR 261.6(a)(3)(ii) (for all other materials). Tantalum
powders would only meet the definition of scrap metal if they have been "agglomerated" in
such a way that the agglomerated powders physically resemble other types of scrap metal (i.e.,
bits and pieces of metal parts). Non-agglomerated tantalum powders would not meet the
definition of scrap metal. ( O I h>33)
Emptying a steel oxygen breathing apparatus (OBA) canister could be an exempt scrap steel
recycling process if the canisters are to be recycled. (RO 11835)
Automotive airbag modules can be exempt scrap metal when legitimately recycled for metal
value. The scrap metal exemption only applies to material that would otherwise be regulated as
hazardous waste; non-hazardous scrap metal is not subject to RCRA Subtitle C hazardous waste
requirements in the first place. (RO 14920)
Emptying a steel aerosol can by puncturing and draining it may be exempt as a step in recycling
the can as scrap metal. A steel aerosol can qualify as scrap metal if it does not contain
significant liquids (i.e., is fully drained) and is therefore exempt from regulation when sent for
recycling. There is no need to determine if a steel aerosol can is "RCRA empty" per 40 CFR 261.7
once it qualifies as scrap metal (i.e., once it no longer contains significant liquids) that is
destined for recycling. (RO 11806) (RO 11782) (RO 11780) (84 FR 67210)
Solder skimmings are by-products, not scrap metal and solder that becomes contaminated
through use is a spent material when reclaimed, not scrap metal. Solder skimmings are more
closely identified with the drosses than the turnings. (RO 11572) (RO 12929)
Spent solder baths, or "pot dumps," meet the definition of scrap metal and are exempt when
recycled. The 261.2(f) documentation requirement applies to scrap metal that is conditionally
exempt based on recycling. (RO JJ771) (RO JJ775) (RO 13628)
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Lead foil from dental x-ray packages qualifies for the scrap metal exemption when it is recycled.
(RO 11742)
Lead shot may be considered scrap metal, not spent material, and exempt from regulation
when recycled. The exemption extends only to the lead shot portion of the waste. |
Spent photoconductor drums taken from photocopying machines meet the definitions of spent
material and scrap metal. Spent drums that are recycled qualify for the scrap metal recycling
exclusion.
Discarded automotive parts and electronic devices that meet the definition of scrap metal are
exempt from RCRA Subtitle C regulation when sent for reclamation. (RO 11432)
Industrial steel battery cases and lead plates with acid and lead removed are scrap metal.
Mixtures of scrap metal (battery cases) and other regulated recyclable materials (lead oxides)
must be managed as hazardous waste when sent for reclamation. (RO 11100)
Natural gas regulators that contain mercury are best classified as spent materials. Any quantity
of liquid mercury, other than trace amounts attached to a material, precludes a waste's
designation as scrap metal. The waste may qualify as scrap metal once the mercury has been
removed. (RO 11860)
Excluded Scrap Metal (40 CFR 261.4(a)(13)):
Drained used oil filters may qualify as processed scrap metal if they are processed prior to
recycling. They are potentially eligible for the scrap metal exemption if they do not contain a
significant amount of liquid, but the exclusion only applies to processed scrap metal being
recycled. Draining a used oil filter is not processing, physical alteration of the filter is required.
Materials removed from processed scrap metal are newly generated wastes and are subject to
waste determination. No toxicity characteristic determination is necessary for drained oil filters
destined for recycling. (RO 14183) (RO 14184) (i O I I !02) (RO 13498)
Agglomerated drosses (from any source, not just scrap metal processing) can be classified as
processed scrap metal and, if recycled, are excluded from the definition of solid waste. EPA
maintains that the definition of scrap metal does not include residues generated from smelting
and refining operations such as drosses, slags, and sludges. Dross which has not been
agglomerated is a by-product, not scrap metal. Agglomerated drosses used in a manner
constituting disposal are excluded scrap metal being recycled and thus not solid waste. Drosses
that have not been agglomerated are solid wastes when used in a manner constituting disposal.
Solder drippings that are generated during radiator repair operations qualify for the scrap metal
exclusion when they are recycled. (RO 11740)
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Non-Excluded Scrap Metal (Exempt under 40 CFR 261.6(a)(3)):
Non-excluded scrap metal is both a solid waste and a hazardous waste (if characteristically
hazardous) but is exempt if recycled. Scrap metal that is intended to be reclaimed is exempt
from hazardous waste regulation at the point of generation. The recycling activity is viewed
prospectively; provided that the generator intends to recycle his/her scrap metal at some point
in the future, stored scrap metal is exempt from the hazardous waste regulations. Also, any
entity that claims the recycling exemption must be able to document that legitimate recycling
occurs. (RO 11057) (RO 11063) (F
Under the § 261.6(a)(3)(ii) exemption, any hazardous scrap metal sent for recycling/reclamation
is exempt from the hazardous waste management requirements, including storage prior to
reclamation, manifesting, and the land disposal restrictions (LDR) program. (RO j j JS4) [RO
11383) (RO .1.1482) (RO 11600) (RO 14277)
Unprocessed, spent printed circuit boards qualify for the scrap metal exemption as generated.
Residuals from the processing of spent circuit boards (e.g., shredded pieces, sweeps, ash, fluff,
or baghouse dust) may not qualify as scrap metal, but instead may be spent materials, by-
products, or sludges (See also: 261.4(a)(14) exclusion for shredded circuit boards). (RO 11689)
Whole circuit boards containing minimal quantities of mercury and batteries that are
protectively packaged to minimize dispersion of metal constituents would qualify for the scrap
metal exemption in Section 261.6(a)(3). Shredded circuit boards must be free of mercury
switches, mercury relays, nickel-cadmium batteries and lithium batteries to qualify for the
exclusion from the definition of solid waste in Section 261.4(a)(14). [I
Additional Resources
62 FR 26011 - Final rule which excluded processed circuit boards and scrap metal from RCRA
regulation which is intended to promote the goal of safe recycling. [62 FR 26011-26014]
5/12/1997
50 FR 635 - The original Definition of Solid Waste final rule that included the general category
of scrap metal and noted the speculative accumulation provision does not apply to secondary
materials that already are wastes when they are recycled, for example, scrap metal. 1/4/1985
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Appendix J: Hazardous Waste Recycling Process
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Appendix J - Hazardous Waste Recyclable Material Process Requirements
The requirements for generators, transporters and treatment, storage and disposal facilities
that manage hazardous wastes that are recycled ("recyclable materials") are found in 40 CFR
261.6(b), (c), and (d).
Exceptions to these requirements are explained in detail in 40 CFR 261.6(a). These
exceptions include:
o Recyclable materials subject to the requirements of 40 CFR part 266 Subparts C
through N (including use constituting disposal, burning for energy, precious metal
recycling, spent lead acid battery recycling). (40 CFR 261.6(a)(2))
o Recyclable materials exempted from most hazardous waste regulations when
recycled (industrial ethyl alcohol, exempted scrap metal, certain fuels produced
from oil-bearing hazardous waste). (40 CFR 261.6(a)(3))
o Used oil regulated under 40 CFR part 279. (40 CFR 261.6(a)(4))
In addition, hazardous waste that is exported or imported for purpose of recovery is subject
to the requirements of 40 CFR part 262, subpart H. (40 CFR 261.6(a)(5))
Generators and transporters of recyclable materials are subject to the applicable requirements
of 40 CFR parts 262 and 263 and the notification requirements under section 3010 of RCRA. (40
CFR 261.6(b))
Owners and operators of facilities that store recyclable materials before they are recycled are
regulated under all applicable provisions of subparts A though L, AA, BB, and CC of parts 264
and 265, and under 40 CFR parts 124, 266, 267, 268, and 270 and the notification requirements
under section 3010 of RCRA. (40 CFR 261.6(c)(1))
Owners or operators of facilities that recycle recyclable materials without storing them before
they are recycled are subject to the following requirements: (40 CFR 261.6(c)(2))
Notification requirements under section 3010 of RCRA
40 CFR 265.71 and 265.72 (dealing with the use of the manifest and manifest
discrepancies)
40 CFR 265.75 (biennial reporting requirements)
40 CFR 261.6(d) (see below)
The recycling process itself is exempt from regulation except as provided in 40 CFR
261.6(d). (40 CFR 261.6(c)(1))
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Owners or operators of facilities subject to RCRA permitting requirements with hazardous
waste management units that recycle hazardous wastes are subject to the RCRA air emission
requirements of subparts AA and BB of 40 CFR part 264, 265 or 267. (40 CFR 261.6(d))
Additional Resources
General Guidance
A recycling facility where waste is directly off-loaded from vehicles into recycling equipment
does not need a storage permit. The EPA allows time for off-loading waste into the recycling
process without obtaining a storage permit. The specific timeframe is determined by the
appropriate Region or state implementing agency. (RO 11365) (RO 11388)
The recycling unit itself is exempt from permitting/management standards with one exception.
(RO 11383) (RO 11814)
At permitted and interim status facilities, the recycling unit may be subject to 40 CFR part
264/265, Subparts AA and BB (SEE ALSO: 62 FR 64635, 64638; 12/8/97). (RO 11881)
40 CFR part 264/265, Subpart CC does not apply to recycling units (See also 61 FR 59931,
59935; 11/25/96). ( )
Burning hazardous waste in an incinerator is not exempt recycling, but rather is considered
incineration regulated under Parts 264 or 265, even if some energy or material recovery occurs.
(RO 11873) (RO 11385) (RO 14893)
Fuel blending is not exempt from permitting, unless it is done at a generator site in a generator
accumulation unit (tank and/or container). Fuel blending is treatment and requires a permit
and cannot be done at a transfer facility. Most fuel blending units are permitted as tanks or
miscellaneous units. (RO 11881) (RO 11411)
Examples of Exempt Recycling Processes
Since the process of emptying the aerosol cans is part of a recycling process (i.e., scrap steel
recycling), this activity would be exempt from RCRA regulation under 40 CFR 261.6(c) (except as
specified in 40 CFR 261.6(d)). (RO 11780) However, aerosol cans recycled at universal waste
handlers must meet the puncturing and draining requirements found in 273.13(e)(4) or
40 CFR 273.33(e)(4).
Reclamation of spent solvents to make new product solvent through distillation and other
recycling technologies would be exempt recycling. The residues (i.e., stillbottoms) would be
newly generated waste and subject to the hazardous waste generator accumulation
requirements. (RO 11200) (RO 12865) (RO 13280)
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The desulfurization process to remove sulfur and chloride from slurried baghouse dust is an
exempt recycling process. Desulfurization units are either exempt recycling units or wastewater
treatment units (WWTUs). (RO 13566)
Nonthermal reclamation of foundry sands (screening sand to remove metal residuals) is an
exempt recycling process. (RO 11900)
Examples of Processes that are not Exempt Recycling
Thermal reclamation using a controlled flame to destroy organics in foundry sand is not an
exempt recycling process and is incineration subject to 40 CFR part 264/265, Subpart 0. (RO
11900)
Carbon regeneration units are regulated as thermal treatment units under the interim status
standards of 40 CFR part 265, subpart P, and the permit standards of 40 CFR part 264, subpart
X, and are not exempt recycling units. (RO 13491) (56 FR 7200, February 21, 1991)
Demilitarization and munitions popping furnaces are regulated as incinerators, not exempt
recycling units. (RO 11873)
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Appendix K: Documentation of Claims
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Appendix K - Documentation of Claims that HSM are not Solid Wastes
HVFR 261.2(f)
The regulatory language explaining that documentation of claims that a hazardous secondary
material is not a solid waste or is conditionally exempt from regulation is required in the event
of an enforcement action is below. This documentation requirement can be triggered by any
enforcement action including an informational request letter and applies to all hazardous
secondary materials regulated under the recycling exclusions and exemptions of RCRA.
§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.
Additional Resources:
Examples of recycling hazardous secondary materials where it is mentioned that the generator
has the burden of proof to show they meet the recycling exclusion they are claiming: (RO
11185)( ) ( . 271)
Relevant Federal Registers:
50 FR 642-643: Original Definition of Solid Waste final rule where § 261.2(f) was first
promulgated. 1/4/1985
73 FR 67: Example of a recycling exclusion that explains that under 40 CFR 261.2(f),
documentation is necessary to demonstrate that the conditions of an exclusion have been met.
1/2/2008
73 FR 64700-64701: Definition of Solid Waste final rule where EPA affirmed in preamble that §
261.2(f) applies to all claims that hazardous secondary materials are not solid waste because
they are being legitimately recycled and noted that respondents in enforcement cases should
be prepared to demonstrate that they meet the terms of the exclusion or exemption, which
includes demonstrating that the recycling is legitimate. 10/30/2008
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Appendix L: Generator Controlled Exclusion
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Appendix L- Under the Control of the Generator Exclusion
Generator Controlled Exclusion (40 CFR
261.4(a)(23)) - Short Form Checklist
1
Is the hazardous secondary material (HSM)
being reclaimed "under the control of the
generator?"
That is, is the HSM being reclaimed at the
generated facility, at a different facility that is
under the control of the generator, or under a
specific tolling agreement?
Note: "reclaimed" does not include recycling
that involves use constituting disposal (see
Appendix D) or burning for energy recovery
(see Appendix E).
If yes, then continue to Question 2.
If no, this exclusion does not apply.
2
Is the HSM contained?
If yes, then continue to Question 3.
If no, this exclusion does not apply and the
uncontained HSM is a solid and hazardous
waste subject to all applicable RCRA
regulations.
3
Is the HSM being reclaimed in a timely manner
(i.e., not speculatively accumulated)?
If yes, continue to Question 4.
If no, the HSM is a solid and hazardous waste
subject to all applicable RCRA regulations.
4
Did the HSM generator provide notice using
the Site ID form (EPA form 8700-12)?
If yes, continue to Question 5.
If no, the generator needs to submit
notification to use this exclusion.
5
Is the HSM subject to material-specific
management standards?
If yes, then the HSM must be managed under
the material-specific exclusion and not under
the generator-controlled exclusion.
If no, continue to Question 6.
6
Does the HSM generator have documentation
that the HSM is being legitimately reclaimed?
If yes, then continue to Question 7.
If no, then the generator needs to document its
legitimacy determination to use this exclusion.
If the HSM is not being legitimately recycled,
the HSM is a solid and hazardous waste subject
to all applicable RCRA regulations.
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Has the HSM generator complied with the
requirements in 40 CFR261, subpart M?
If yes, the HSM generator meets the conditions
of this exclusion.
If no, then the generator is not meeting all the
conditions of this exclusion and the HSM is a
solid and hazardous waste subject to all
applicable RCRA regulations.
40 CFR 261.4(a)(23) HSM Generated and Legitimately Reclaimed Under the Control of the
Generator
Hazardous secondary material generated and legitimately reclaimed within the United States
or its territories and under the control of the generator, provided that the material complies
with 40 CFR 261.4(a)(23)(i) and (ii):
(i)(A) The hazardous secondary material is generated and reclaimed at the generating facility
(for purposes of this definition, generating facility means all contiguous property owned,
leased, or otherwise controlled by the hazardous secondary material generator]!; or
(B) The hazardous secondary material is generated and reclaimed at different facilities, if the
reclaiming facility is controlled by the generator or if both the generating facility and the
reclaiming facility are controlled by a person as defined in 40 CFR 260.10 of this chapter, and
if the generator provides one of the following certifications: "on behalf of [insert generator
facility name], I certify that this facility will send the indicated hazardous secondary material to
[insert reclaimer facility name], which is controlled by [insert generator facility name] and that
[insert name of either facility] has acknowledged full responsibility for the safe management of
the hazardous secondary material," or "on behalf of [insert generator facility name], I certify
that this facility will send the indicated hazardous secondary material to [insert reclaimer
facility name], that both facilities are under common control, and that [insert name of either
facility] has acknowledged full responsibility for the safe management of the hazardous
secondary material." For purposes of this paragraph, "control" means the power to direct the
policies of the facility, whether by the ownership of stock, voting rights, or otherwise, except
that contractors who operate facilities on behalf of a different person as defined in 40
CFR260.10 shall not be deemed to "control" such facilities. The generating and receiving
facilities must both maintain at their facilities for no less than three years records of hazardous
secondary materials sent or received under this exclusion. In both cases, the records must
contain the name of the transporter, the date of the shipment, and the type and quantity of the
hazardous secondary material shipped or received under the exclusion. These requirements
may be satisfied by routine business records (e.g., financial records, bills of lading, copies of
DOT shipping papers, or electronic confirmations); or
(C) The hazardous secondary material is generated pursuant to a written contract between a
tolling contractor and a toll manufacturer and is reclaimed by the tolling contractor, if the
tolling contractor certifies the following: "On behalf of [insert tolling contractor name], I certify
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that [insert tolling contractor name] has a written contract with [insert toll manufacturer name]
to manufacture [insert name of product or intermediate] which is made from specified unused
materials, and that [insert tolling contractor name] will reclaim the hazardous secondary
materials generated during this manufacture. On behalf of [insert tolling contractor name], I
also certify that [insert tolling contractor name] retains ownership of, and responsibility for, the
hazardous secondary materials that are generated during the course of the manufacture,
including any releases of hazardous secondary materials that occur during the manufacturing
process". The tolling contractor must maintain at its facility for no less than three years records
of hazardous secondary materials received pursuant to its written contract with the tolling
manufacturer, and the tolling manufacturer must maintain at its facility for no less than three
years records of hazardous secondary materials shipped pursuant to its written contract with
the tolling contractor. In both cases, the records must contain the name of the transporter, the
date of the shipment, and the type and quantity of the hazardous secondary material shipped
or received pursuant to the written contract. These requirements may be satisfied by routine
business records (e.g., financial records, bills of lading, copies of DOT shipping papers, or
electronic confirmations). For purposes of this paragraph, tolling contractor means a person
who arranges for the production of a product or intermediate made from specified unused
materials through a written contract with a toll manufacturer. Toll manufacturer means a
person who produces a product or intermediate made from specified unused materials
pursuant to a written contract with a tolling contractor.
(ii) (A) The hazardous secondary material is contained as defined in 40 CFR 260.10 of this
chapter. A hazardous secondary material released to the environment is discarded and a solid
waste unless it is immediately recovered for the purpose of reclamation. Hazardous secondary
material managed in a unit with leaks or other continuing or intermittent unpermitted releases
is discarded and a solid waste.
(B) The hazardous secondary material is not speculatively accumulated, as defined in 40 CFR
261.1(c)(8).
(C) Notice is provided as required by 40 CFR 260.42 of this chapter.
(D) The material is not otherwise subject to material-specific management conditions under
paragraph (a) of this section when reclaimed, and it is not a spent lead-acid battery (see 40 CFR
266.80 and 40 CFR 273.2 of this chapter).
(E) Persons performing the recycling of hazardous secondary materials under this exclusion
must maintain documentation of their legitimacy determination on-site. Documentation must
be a written description of how the recycling meets all three factors in 40 CFR 260.43(a) and
how the factor in 40 CFR 260.43(b) was considered. Documentation must be maintained for
three years after the recycling operation has ceased.
(F) The emergency preparedness and response requirements found in subpart M of this part
are met.
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Additional Resources
Materials being processed in a halogen acid furnace (HAF) are not eligible for the "generator-
controlled exclusion" in 40 CFR 261.4(a)(23) and instead are considered to be inherently waste-
like materials per 40 CFR 261.2(d)(2). (RO 14900)
Solvent-contaminated wipes that are centrifuged and subsequently reused or recycled may be
eligible for the generator-controlled exclusion at 40 CFR 261.4(a)(23) if the generator meets the
conditions of the exclusion, including a legitimate recycling determination. (RO 14912)
Relevant Federal Registers:
73 FR 64667: Definition of Solid Waste final rule that first promulgated the exclusion for
hazardous secondary material reclaimed under the control of the generator. General discussion
of generator-controlled exclusion. [73 FR 64680-64683] 10/30/2008
80 FR 1694: Revisions to the generator-controlled exclusion. [80 FR 1703-1706] 1/13/2015
83 FR 24664: Definition of Solid Waste final rule that implemented the D.C. Circuit court's
vacatur included minor revisions to the generator-controlled exclusion. [83 FR 24665-24666]
5/30/2018
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Appendix M: Transfer-Based Exclusion Including Exports
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Appendix M - Transfer-Based HSM Exclusion including Exports
Transfer-Based HSM Exclusion (40 CFR 261.4(a)(24)) - Short Form Checklist
1
Is the hazardous secondary material (HSM) being
transferred to another facility for reclamation by
If yes, then continue to Question 2.
If no, this exclusion does not apply.
the HSM generator?
Note: "Reclamation" does not include recycling
that involves use constituting disposal (see
Appendix D) or burning for energy recovery (see
Appendix E).
2
Is the HSM being exported to another country for
reclamation?
If yes, go to HSM Exported and Reclaimed Short Form
Checklist.
If no, go to Question 3.
3
Is the HSM being reclaimed in a timely manner
(i.e., not speculatively accumulated)?
If yes, continue to Question 4.
If no, the HSM is a solid and hazardous waste subject
to all applicable RCRA regulations.
4
Is the HSM only handled by the HSM generator,
the transporter, an intermediate facility and/or
If yes, continue to Question 5. If no, the HSM is not
eligible for this exclusion.
the reclaimer, and, while in transport, not stored
for more than 10 days at a transfer facility?
5
Is the HSM subject to material-specific
management standards? Some examples of HSM
subject to material specific standards are oil-
bearing hazardous secondary materials (
261.4(a)(12)); hazardous secondary materials used
to make zinc fertilizers (40 CFR 261.4(a)(20)) or
cathode rav tubes (40 CFR 261.4(a)(22))
If yes, then the HSM must be managed under the
material-specific exclusion and not under the transfer-
based exclusion.
If no, continue to Question 6.
6
Is the HSM being legitimately reclaimed?
If yes, then continue to Question 7.
If the HSM is not being legitimately recycled, the HSM
is a solid and hazardous waste subject to all applicable
RCRA regulations.
7
Has the HSM generator met the following
conditions:
a) Does the HSM generator ensure the HSM is
contained while managed at its facility?
b) Has the HSM generator made reasonable
efforts to ensure the HSM will be safelv
managed by any intermediate facility and the
reclamation facility and legitimately recycled by
If the answers to all of the sub-questions under
question 7 are yes, then the HSM generator is meeting
their obligations under this exclusion.
If the answer to any of these sub-questions is no, then
the HSM generator is not meeting all the conditions of
this exclusion and the HSM is a solid and hazardous
waste subject to all applicable RCRA regulations.
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any reclamation facility, if such facilities do not
have a RCRA permit?
c) If sending their HSM to a facility that does not
have a RCRA permit, does the HSM generator
keep documentation and certification of anv
reasonable efforts made for at least 3 years?
d) Does the HSM generator keep records of all
off-site shipments of HSM for at least 3 vears?
e) Does the HSM generator keep confirmation of
receipts from all reclaimers and anv
intermediate facilities for at least 3 years?
f) Has the HSM generator complied with the
emergency preparedness and response
requirements in 40 CFR 261, subpart M?
8
Has the HSM reclaimer and all intermediate
facilities met the following conditions:
a) Does the reclaimer and any intermediate
facilitv keep records of all HSM received from
off-site for at least 3 years?
b) If applicable, does the intermediate facility
send the HSM to the reclaimer designated bv
the HSM generator?
c) Does the reclaimer and any intermediate
facilities send confirmations of receipt to the
HSM generator?
d) Does the reclaimer and any intermediate
facilities manage the HSM at least as
protectively as the analogous raw material and
is the HSM contained?
e) Are the residuals from the reclamation process
If the answers to all of the sub-questions under
question 8 are yes, then the HSM reclaimer and
intermediate facility are meeting their obligations
under this exclusion.
If the answer to any of these sub-questions is no, then
the HSM reclaimer and/or intermediate facility are not
meeting all the conditions of this exclusion and the
HSM is a solid and hazardous waste subject to all
applicable RCRA regulations.
managed in a wav that protects human health
and the environment?
f) Does the reclaimer and any intermediate
facilities have financial assurance?
9
Did the HSM generator, the HSM reclaimer, and
anv intermediate facilities provide notice using the
Site ID form (EPA form 3700-12)?
If yes, they are eligible to use the transfer-based
exclusion.
If no, these facilities need to submit notification to use
this exclusion.
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40 CFR 261.4(a)(24) - HSM Generated and Transferred for Legitimate Reclamation
Hazardous secondary material that is generated and then transferred to another person for
the purpose of reclamation is not a solid waste, provided that:
(i) The material is not speculatively accumulated, as defined in 40 CFR 261.1(c)(8);
(ii) The material is not handled by any person or facility other than the hazardous secondary
material generator, the transporter, an intermediate facility or a reclaimer, and, while in
transport, is not stored for more than 10 days at a transfer facility, as defined in 40 CFR
, and is packaged according to applicable Department of Transportation regulations at 49
CFR parts , . and 179 while in transport;
(iii) The material is not otherwise subject to material-specific management conditions under
paragraph (a) of this section when reclaimed, and it is not a spent lead-acid battery (see 40 CFR
266.80 and );
(iv) The reclamation of the material is legitimate, as specified under 3.43;
(v) The hazardous secondary material generator satisfies all of the following conditions;
(A) The material must be contained as defined in 40 CFR 260.10. A hazardous secondary
material released to the environment is discarded and a solid waste unless it is immediately
recovered for the purpose of recycling. Hazardous secondary material managed in a unit with
leaks or other continuing releases is discarded and a solid waste.
(B) Prior to arranging for transport of hazardous secondary materials to a reclamation facility
(or facilities) where the management of the hazardous secondary materials is not addressed
under a RCRA part B permit or interim status standards, the hazardous secondary material
generator must make reasonable efforts to ensure that each reclaimer intends to properly
and legitimately reclaim the hazardous secondary material and not discard it, and that each
reclaimer will manage the hazardous secondary material in a manner that is protective of
human health and the environment. If the hazardous secondary material will be passing
through an intermediate facility where the management of the hazardous secondary materials
is not addressed under a RCRA part B permit or interim status standards, the hazardous
secondary material generator must make contractual arrangements with the intermediate
facility to ensure that the hazardous secondary material is sent to the reclamation facility
identified by the hazardous secondary material generator, and the hazardous secondary
material generator must perform reasonable efforts to ensure that the intermediate facility will
manage the hazardous secondary material in a manner that is protective of human health and
the environment. Reasonable efforts must be repeated at a minimum of every three years for
the hazardous secondary material generator to claim the exclusion and to send the hazardous
secondary materials to each reclaimer and any intermediate facility. In making these
reasonable efforts, the generator may use any credible evidence available, including
information gathered by the hazardous secondary material generator, provided by the
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reclaimer or intermediate facility, and/or provided by a third party. The hazardous secondary
material generator must affirmatively answer all of the following questions for each
reclamation facility and any intermediate facility:
(1) Does the available information indicate that the reclamation process is legitimate
pursuant to 40 CFR 260.43? In answering this question, the hazardous secondary material
generator can rely on their existing knowledge of the physical and chemical properties of the
hazardous secondary material, as well as information from other sources (e.g., the reclamation
facility, audit reports, etc.) about the reclamation process.
(2) Does the publicly available information indicate that the reclamation facility and any
intermediate facility that is used by the hazardous secondary material generator notified the
appropriate authorities of hazardous secondary materials reclamation activities pursuant to
40 CFR 260.42 and have they notified the appropriate authorities that the financial assurance
condition is satisfied per 40 CFR 261.4(a)(24)(vi)(F) In answering these questions, the
hazardous secondary material generator can rely on the available information documenting the
reclamation facility's and any intermediate facility's compliance with the notification
requirements per 40 CFR 260.42, including the requirement in § 260.42(a)(5) to notify EPA
whether the reclaimer or intermediate facility has financial assurance.
(3) Does publicly available information indicate that the reclamation facility or any
intermediate facility that is used by the hazardous secondary material generator has not had
any formal enforcement actions taken against the facility in the previous three years for
violations of the RCRA hazardous waste regulations and has not been classified as a
significant non-complier with RCRA Subtitle C? In answering this question, the hazardous
secondary material generator can rely on the publicly available information from EPA or the
state. If the reclamation facility or any intermediate facility that is used by the hazardous
secondary material generator has had a formal enforcement action taken against the facility in
the previous three years for violations of the RCRA hazardous waste regulations and has been
classified as a significant non-complier with RCRA Subtitle C, does the hazardous secondary
material generator have credible evidence that the facilities will manage the hazardous
secondary materials properly? In answering this question, the hazardous secondary material
generator can obtain additional information from EPA, the state, or the facility itself that the
facility has addressed the violations, taken remedial steps to address the violations and prevent
future violations, or that the violations are not relevant to the proper management of the
hazardous secondary materials.
(4) Does the available information indicate that the reclamation facility and any intermediate
facility that is used by the hazardous secondary material generator have the equipment and
trained personnel to safely recycle the hazardous secondary material? In answering this
question, the generator may rely on a description by the reclamation facility or by an
independent third party of the equipment and trained personnel to be used to recycle the
generator's hazardous secondary material.
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(5) If residuals are generated from the reclamation of the excluded hazardous secondary
materials, does the reclamation facility have the permits required (if any) to manage the
residuals? If not, does the reclamation facility have a contract with an appropriately
permitted facility to dispose of the residuals? If not, does the hazardous secondary material
generator have credible evidence that the residuals will be managed in a manner that is
protective of human health and the environment? In answering these questions, the
hazardous secondary material generator can rely on publicly available information from EPA or
the state, or information provided by the facility itself.
(C) The hazardous secondary material generator must maintain for a minimum of three years
documentation and certification that reasonable efforts were made for each reclamation
facility and, if applicable, intermediate facility where the management of the hazardous
secondary materials is not addressed under a RCRA part B permit or interim status standards
prior to transferring hazardous secondary material. Documentation and certification must be
made available upon request by a regulatory authority within 72 hours, or within a longer
period of time as specified by the regulatory authority. The certification statement must:
(1) Include the printed name and official title of an authorized representative of the hazardous
secondary material generator company, the authorized representative's signature, and the date
signed;
(2) Incorporate the following language: "I hereby certify in good faith and to the best of my
knowledge that, prior to arranging for transport of excluded hazardous secondary materials to
[insert name(s) of reclamation facility and any intermediate facility], reasonable efforts were
made in accordance with 40 CFR 261.4(a)(24)(v)(B) to ensure that the hazardous secondary
materials would be recycled legitimately, and otherwise managed in a manner that is protective
of human health and the environment, and that such efforts were based on current and
accurate information."
(D) The hazardous secondary material generator must maintain at the generating facility for
no less than three (3) years records of all off-site shipments of hazardous secondary
materials. For each shipment, these records must, at a minimum, contain the following
information:
(1) Name of the transporter and date of the shipment;
(2) Name and address of each reclaimer and, if applicable, the name and address of each
intermediate facility to which the hazardous secondary material was sent;
(3) The type and quantity of hazardous secondary material in the shipment.
(E) The hazardous secondary material generator must maintain at the generating facility for
no less than three (3) years confirmations of receipt from each reclaimer and, if applicable,
each intermediate facility for all off-site shipments of hazardous secondary materials.
Confirmations of receipt must include the name and address of the reclaimer (or intermediate
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facility), the type and quantity of the hazardous secondary materials received and the date
which the hazardous secondary materials were received. This requirement may be satisfied by
routine business records (e.g., financial records, bills of lading, copies of DOT shipping papers,
or electronic confirmations of receipt);
(F) The hazardous secondary material generator must comply with the emergency
preparedness and response conditions in subpart M of this part.
(vi) Reclaimers of hazardous secondary material excluded from regulation under this
exclusion and intermediate facilities as defined in 40 CFR 260.10 satisfy all of the following
conditions:
(A) The reclaimer and intermediate facility must maintain at its facility for no less than three
(3) years records of all shipments of hazardous secondary material that were received at the
facility and, if applicable, for all shipments of hazardous secondary materials that were received
and subsequently sent off-site from the facility for further reclamation. For each shipment,
these records must at a minimum contain the following information:
(1) Name of the transporter and date of the shipment;
(2) Name and address of the hazardous secondary material generator and, if applicable, the
name and address of the reclaimer or intermediate facility which the hazardous secondary
materials were received from;
(3) The type and quantity of hazardous secondary material in the shipment; and
(4) For hazardous secondary materials that, after being received by the reclaimer or
intermediate facility, were subsequently transferred off-site for further reclamation, the name
and address of the (subsequent) reclaimer and, if applicable, the name and address of each
intermediate facility to which the hazardous secondary material was sent.
(B) The intermediate facility must send the hazardous secondary material to the reclaimer(s)
designated by the hazardous secondary materials generator.
(C) The reclaimer and intermediate facility must send to the hazardous secondary material
generator confirmations of receipt for all off-site shipments of hazardous secondary
materials. Confirmations of receipt must include the name and address of the reclaimer (or
intermediate facility), the type and quantity of the hazardous secondary materials received and
the date which the hazardous secondary materials were received. This requirement may be
satisfied by routine business records (e.g., financial records, bills of lading, copies of DOT
shipping papers, or electronic confirmations of receipt).
(D) The reclaimer and intermediate facility must manage the hazardous secondary material in
a manner that is at least as protective as that employed for analogous raw material and must
be contained. An "analogous raw material" is a raw material for which a hazardous secondary
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material is a substitute and serves the same function and has similar physical and chemical
properties as the hazardous secondary material.
(E) Any residuals that are generated from reclamation processes will be managed in a manner
that is protective of human health and the environment. If any residuals exhibit a hazardous
characteristic according to subpart C of 40 CFR part 261. or if they themselves are specifically
listed in subpart D of 40 CFR part 261, such residuals are hazardous wastes and must be
managed in accordance with the applicable requirements of 40 CFR parts 260 through 272.
(F) The reclaimer and intermediate facility have financial assurance as required under subpart
30 CFR part 261.
(vii) In addition, all persons claiming the exclusion under this paragraph (a)(24) of this section
must provide notification as required under 40 CFR 260.42.
HSM Exported and Reclaimed (40 CFR 261.4
a)(24) and (a)(25)) - Short Form Checklist
1
Is the HSM being exported and reclaimed
outside of the U.S.?
If yes, then continue to Question 2.
If no, then only the conditions of 261.4(a)(24)
above would apply.
2
Does the HSM generator comply with the
following conditions:
a) Is the HSM being reclaimed in a timely
manner (i.e., not speculatively
accumulated)?
b) Is the HSM only handled bv the HSM
generator, the transporter, an intermediate
If the answers to all of the sub-questions under
question 2 are yes, then the HSM generator is
meeting their obligations under this exclusion.
If the answer to any of these sub-questions is
no, then the HSM generator is not meeting all
the conditions of this exclusion and the HSM is a
solid and hazardous waste subject to all
applicable RCRA regulations.
facility and/or the reclaimer, and, while in
transport, not stored for more than 10 days
at a transfer facility?
c) Is the HSM subject to material-specific
management standards?
i. If yes, then the HSM must be
managed under the material-
specific exclusion and not under this
exclusion. If no, continue to sub-
question d.
d) Is the HSM being legitimately reclaimed?
e) Does the HSM generator ensure the HSM is
contained at its facility?
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f) Has the HSM generator made reasonable
efforts to ensure the HSM will be
legitimately recycled by any intermediate
facility and the reclamation facility (except
reclaimers outside the U.S. would not have
to provide notice and have financial
assurance)?
g) Does the HSM generator keep
documentation and certification of the
reasonable efforts made for at least 3
years?
h) Does the HSM generator keep records of all
off-site shipments of HSM for at least 3
years?
i) Does the HSM generator keep confirmation
of receipts from all reclaimers and any
intermediate facilities for at least 3 years?
j) Has the HSM generator complied with the
emergency preparedness and response
requirements in 40 CFR 261, subpart M?
k) Has the HSM generator notified EPA of the
intended HSM export at least 60 days
before the initial shipment?
I) Did the HSM generator submit the
notification electronically through EPA's
Waste Import Export Tracking System
(WIETS)?
m) Has EPA provided a complete notification
to the country of import and any countries
of transit?
n) Has the country of import consented to the
intended export in writing and does the
HSM generator have the EPA
Acknowledgment of Consent or if the
country of import is an OECD country, is
the shipment being sent under tacit
consent?
o) Does the EPA Acknowledgment of Consent
accompany the shipment?
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p) If a shipment cannot be delivered, has the
HSM generator re-notified EPA and
obtained a new EPA Acknowledgment of
Consent for the new reclaimer?
q) Does the HSM generator keep copies of
each notification of intent to export and
each EPA Acknowledgment of Consent for a
period of three years following receipt of
the EPA Acknowledgment of Consent?
r) Has the HSM generator filed an annual
report on its HSM exports for the preceding
year by March 1st?
3
Did the HSM generator and any intermediate
facilities provide notice using the Site ID form
(EPA form 8700-12)?
If yes, they are eligible to use the transfer-based
exclusion for exports.
If no, these facilities need to submit notification
to use this exclusion.
40 CFR 261.4(a)(25) HSM Exported and Reclaimed Outside the U.S.
(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 40 CFR
261.4(a)(24)(i)~(v)(excepting paragraph (a)(24)(v)(B)(2) for foreign reclaimers and foreign
intermediate facilities), and that the hazardous secondary material generator also complies
with the following requirements:
(i) Notify EPA of an intended export before the hazardous secondary material is scheduled to
leave the United States. A complete notification must be submitted at least sixty (60) days
before the initial shipment is intended to be shipped off-site. This notification may cover
export activities extending over a twelve (12) month or lesser period. The notification must
be in writing, signed by the hazardous secondary material generator, and include the
following information:
(A) Name, mailing address, telephone number and EPA ID number (if applicable) of the
hazardous secondary material generator;
(B) A description of the hazardous secondary material and the EPA hazardous waste number
that would apply if the hazardous secondary material was managed as hazardous waste and the
U.S. DOT proper shipping name, hazard class and ID number (UN/NA) for each hazardous
secondary material as identified in 49 CFR parts 171 throut U I ;
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(C) The estimated frequency or rate at which the hazardous secondary material is to be
exported and the period of time over which the hazardous secondary material is to be
exported;
(D) The estimated total quantity of hazardous secondary material;
(E) All points of entry to and departure from each foreign country through which the hazardous
secondary material will pass;
(F) A description of the means by which each shipment of the hazardous secondary material will
be transported (e.g., mode of transportation vehicle (air, highway, rail, water, etc.), type(s) of
container (drums, boxes, tanks, etc.));
(G) A description of the manner in which the hazardous secondary material will be reclaimed in
the country of import;
(H) The name and address of the reclaimer, any intermediate facility and any alternate
reclaimer and intermediate facilities; and
(I) The name of any countries of transit through which the hazardous secondary material will be
sent and a description of the approximate length of time it will remain in such countries and the
nature of its handling while there (for purposes of this section, the terms "EPA
Acknowledgement of Consent", "country of import" and "country of transit" are used as
defined in 40 CFR 262.81 with the exception that the terms in this section refer to hazardous
secondary materials, rather than hazardous waste):
(ii) Notifications must be submitted electronically using EPA's Waste Import Export Tracking
System fWIETSl. or its successor system.
(iii) Except for changes to the telephone number in L4(a)(25)(i)(A) and decreases in
the quantity of hazardous secondary material indicated pursuant to 40 CFR 261.4(a)(25)(i)(D).
when the conditions specified on the original notification change (including any exceedance of
the estimate of the quantity of hazardous secondary material specified in the original
notification), the hazardous secondary material generator must provide EPA with a written
renotification of the change. The shipment cannot take place until consent of the country of
import to the changes (except for changes to 40 CFR 261.4(a)(25)(i)(l) and in the ports of entry
to and departure from countries of transit pursuant to4Q CFR 261,4(a)(25)(i)(E) has been
obtained and the hazardous secondary material generator receives from EPA an EPA
Acknowledgment of Consent reflecting the country of import's consent to the changes.
(iv) Upon request by EPA, the hazardous secondary material generator shall furnish to EPA any
additional information which a country of import requests in order to respond to a notification.
(v) EPA will provide a complete notification to the country of import and any countries of
transit. A notification is complete when EPA receives a notification which EPA determines
satisfies the requirements of 40 CFR 261.4(a)(25)(i). Where a claim of confidentiality is asserted
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with respect to any notification information required by 40 CFR 261.4(a)(25)(i). EPA may find
the notification not complete until any such claim is resolved in accordance with 40 CFR 260.2.
(vi) The export of hazardous secondary material under this paragraph (a)(25) is prohibited
unless the country of import consents to the intended export. When the country of import
consents in writing to the receipt of the hazardous secondary material, EPA will send an EPA
Acknowledgment of Consent to the hazardous secondary material generator. Where the
country of import objects to receipt of the hazardous secondary material or withdraws a prior
consent, EPA will notify the hazardous secondary material generator in writing. EPA will also
notify the hazardous secondary material generator of any responses from countries of transit.
(vii) For exports to OECD Member countries, the receiving country may respond to the
notification using tacit consent. If no objection has been lodged by any country of import or
countries of transit to a notification provided pursuant to 40 CFR 261.4(a)(25)(i) within thirty
(30) days after the date of issuance of the acknowledgement of receipt of notification by the
competent authority of the country of import, the transboundary movement may commence.
In such cases, EPA will send an EPA Acknowledgment of Consent to inform the hazardous
secondary material generator that the country of import and any relevant countries of transit
have not objected to the shipment, and are thus presumed to have consented tacitly. Tacit
consent expires one (1) calendar year after the close of the thirty (30) day period; renotification
and renewal of all consents is required for exports after that date.
(viii) A copy of the EPA Acknowledgment of Consent must accompany the shipment. The
shipment must conform to the terms of the EPA Acknowledgment of Consent.
(ix) If a shipment cannot be delivered for any reason to the reclaimer, intermediate facility or
the alternate reclaimer or alternate intermediate facility, the hazardous secondary material
generator must re-notify EPA of a change in the conditions of the original notification to allow
shipment to a new reclaimer in accordance with paragraph (iii) of this section and obtain
another EPA Acknowledgment of Consent.
(x) Hazardous secondary material generators must keep a copy of each notification of intent
to export and each EPA Acknowledgment of Consent for a period of three years following
receipt of the EPA Acknowledgment of Consent. They may satisfy this recordkeeping
requirement by retaining electronically submitted notifications or electronically generated
Acknowledgements in their account on EPA's Waste Import Export Tracking System (WIETS), or
its successor system, provided that such copies are readily available for viewing and production
if requested by any EPA or authorized state inspector. No hazardous secondary material
generator may be held liable for the inability to produce a notification or Acknowledgement for
inspection under this section if they can demonstrate that the inability to produce such copies
are due exclusively to technical difficulty with EPA's Waste Import Export Tracking System
(WIETS), or its successor system for which the hazardous secondary material generator bears
no responsibility.
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(xi) Hazardous secondary material generators must file with the Administrator no later than
March 1 of each year, a report summarizing the types, quantities, frequency and ultimate
destination of all hazardous secondary materials exported during the previous calendar year.
Annual reports must be submitted electronically using EPA's Waste Import Export Tracking
System (WIETS), or its successor system. Such reports must include the following information:
(A) Name, mailing and site address, and EPA ID number (if applicable) of the hazardous
secondary material generator;
(B) The calendar year covered by the report;
(C) The name and site address of each reclaimer and intermediate facility;
(D) By reclaimer and intermediate facility, for each hazardous secondary material exported, a
description of the hazardous secondary material and the EPA hazardous waste number that
would apply if the hazardous secondary material was managed as hazardous waste, the DOT
hazard class, the name and U.S. EPA ID number (where applicable) for each transporter used,
the total amount of hazardous secondary material shipped and the number of shipments
pursuant to each notification;
(E) A certification signed by the hazardous secondary material generator which states: "I certify
under penalty of law that I have personally examined and am familiar with the information
submitted in this and all attached documents, and that based on my inquiry of those individuals
immediately responsible for obtaining the information, I believe that the submitted information
is true, accurate, and complete. I am aware that there are significant penalties for submitting
false information including the possibility of fine and imprisonment."
(xii) All persons claiming an exclusion under this paragraph (a)(25) must provide notification
as required by 40 CFR 260.42.
Additional Resources:
Implementation Guide for the DSW Exclusion Found in 40 CFR Section 261.4(a)(24). August
2022. The litigation history related to DSW, coupled with a state's ability to be more stringent
than the federal requirements, has resulted in a complex national landscape for this exclusion,
with different states adopting different versions of the rules. This guide provides a plain-
language explanation of how the different versions of this exclusion interact, particularly
focusing on interstate transport and import/export issues.
From RO 14812 . RO 14813. and F
Excluded HSM cannot be commingled with regulated hazardous waste and still maintain
the exclusion from the definition of solid waste.
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Excluded HSM may be mixed with hazardous waste, but the resulting mixture is a
hazardous waste.
HSM may not be managed in stationary tanks at transfer facilities. Materials at transfer
facilities may be consolidated from smaller to larger containers, but may not be
managed in stationary tanks because such tanks are not portable and thus are not part
of the 'normal course of transportation'.
A state that has not adopted the Definition of Solid Waste Rule may impose state
requirements on HSM while the material is being transported through that state.
Facilities who collect HSM from other generators do not meet the definition of a
hazardous secondary material generator. These facilities, however, could act as an
intermediate facility for hazardous secondary materials managed under the transfer-
based exclusion if they meet the terms and conditions for an intermediate facility.
Relevant Federal Registers
73 FR 64667: Definition of Solid Waste final rule that first promulgated the exclusion for
hazardous secondary material generated and transferred for reclamation (called the Transfer-
Based exclusion). Discussion of the Transfer-Based exclusion [73 FR 64683-64700]. Discussion of
reasonable efforts that a HSM generator must make before transferring HSM off-site to be
reclaimed. [73 FR 64685-64690] 10/30/2008
80 FR 1694: Definition of Solid Waste final rule that replaced the Transfer-Based exclusion with
the Verified Recycler exclusion. Parts of this rule related to the Verified Recycler exclusion were
vacated by the United States Court of Appeals for the District of Columbia Circuit on July 7,
2017, as amended on March 6, 2018. Discussion of the Verified Recycler exclusion. [80 FR 1706-
1715] 1/13/2015
83 FR 24664: Definition of Solid Waste final rule that implemented the D.C. Circuit court's
vacatur, replacing the 2015 verified recycler exclusion with the 2008 transfer-based exclusion,
except for certain provisions. The court upheld the containment and emergency preparedness
provisions of the 2015 rule, thus including them in the reinstated transfer-based exclusion.
Discussion of the reinstated transfer-based exclusion. [83 FR 24665] 5/30/2018
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Appendix N: Remanufacturing Exclusion
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Back to Checklist
Appendix N - Remanufacturing HSM Exclusion
Remanufacturing HSM Exclusion (40 CFR 261.4(a)(27)) - Short Form Checklist
No. Question Answer
1
Is the hazardous secondary material (HSM)
being transferred for remanufacturing bv the
HSM generator?
If yes, then continue to Question 2.
If no, this exclusion does not apply.
2
Is the HSM one of the specifically listed spent
solvents?
If yes, continue to Question 3.
If no, this exclusion does not apply.
3
Was the HSM used in a commercial grade for
reacting, extracting, purifying, blending
If yes, continue to Question 4.
If no, this exclusion does not apply.
chemicals, or rinsing out associated process
lines in one of the 4 specifically listed sectors?
4
Does the HSM generator send the HSM
solvents to a remanufacturer in one of the
same 4 sectors?
If yes, continue to Question 5.
If no, this exclusion does not apply.
5
After remanufacturing, is the remanufactured
solvent used in reacting, extracting, purifying,
blending chemicals, or rinsing out associated
If yes, continue to Question 6.
If no, this exclusion does not apply.
process lines in one of the 4 specifically listed
sectors or used to make a new product and not
used for cleaning or degreasing?
6
Have both the HSM generator and
remanufacturer met the following conditions:
a) Have both the HSM generator and
remanufacturer notified?
b) Did the HSM generator and remanufacturer
develop a joint remanufacturing plan? Does
the plan contain the required certification
statement signed by the remanufacturer?
c) Do both the HSM generator and
remanufacturer have records of shipments
and confirmations of receipts for 3 years?
d) Prior to remanufacturing, do both the HSM
generator and remanufacturer store the
hazardous spent solvents in tanks or
containers that meet the RCRA technical
If the answers to all of the sub-questions under
question 6 are yes, then the HSM generator and
remanufacturer are meeting their obligations
under this exclusion. Continue to Question 7.
If the answer to any of these sub-questions is
no, then the HSM generator and/or
remanufacturer are not meeting all the
conditions of this exclusion and the HSM is a
solid and hazardous waste subject to all
applicable RCRA regulations.
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standards and are the tanks and containers
labeled?
7
During remanufacturing, and during storage of
the HSM prior to remanufacturing, does the
remanufacturer certify that the
remanufacturing equipment, vents, and tanks
If yes, continue to Question 8.
If no, the HSM is a solid and hazardous waste
subject to all applicable RCRA regulations.
are operating in compliance with CAA or RCRA
air emission standards?
8
Is the HSM being reclaimed in a timely manner
(i.e., not speculatively accumulated)?
If yes, the HSM is not a solid waste under this
exclusion.
If no, the HSM is a solid and hazardous waste
subject to all applicable RCRA regulations.
40 CFR 261.4(a)(27) HSM Generated and Transferred for Remanufacturing
Hazardous secondary material that is generated and then transferred to another person for
the purpose of remanufacturing is not a solid waste, provided that:
(i) The hazardous secondary material consists of one or more of the following spent solvents:
Toluene, xylenes, ethylbenzene, 1,2,4-trimethylbenzene, chlorobenzene, n-hexane,
cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform, chloromethane,
dichloromethane, methyl isobutyl ketone, NN-dimethylformamide, tetrahydrofuran, n-butyl
alcohol, ethanol, and/or methanol;
(ii) The hazardous secondary material originated from using one or more of the solvents listed
in paragraph (a)(27)(i) of this section in a commercial grade for reacting, extracting, purifying,
or blending chemicals (or for rinsing out the process lines associated with these functions) in
the pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing
(NAICS 325199), plastics and resins manufacturing (NAICS 325211), and/or the paints and
coatings manufacturing sectors (NAICS 325510).
(iii) The hazardous secondary material generator sends the hazardous secondary material
spent solvents listed in paragraph (a)(27)(i) of this section to a remanufacturer in the
pharmaceutical manufacturing (NAICS 325412), basic organic chemical manufacturing (NAICS
325199), plastics and resins manufacturing (NAICS 325211), and/or the paints and coatings
manufacturing sectors (NAICS 325510).
(iv) After remanufacturing one or more of the solvents listed in paragraph (a)(27)(i) of this
section, the use of the remanufactured solvent shall be limited to reacting, extracting,
purifying, or blending chemicals (or for rinsing out the process lines associated with these
functions) in the pharmaceutical manufacturing (NAICS 325412), basic organic chemical
manufacturing (NAICS 325199), plastics and resins manufacturing (NAICS 325211), and the
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paints and coatings manufacturing sectors (NAICS 325510) or to using them as ingredients in
a product. These allowed uses correspond to chemical functional uses enumerated under the
Chemical Data Reporting Rule of the Toxic Substances Control Act (40 CFR parts 704, 710-711),
including Industrial Function Codes U015 (solvents consumed in a reaction to produce other
chemicals) and U030 (solvents become part of the mixture);
(v) After remanufacturing one or more of the solvents listed in paragraph (a)(27)(i) of this
section, the use of the remanufactured solvent does not involve cleaning or degreasing oil,
grease, or similar material from textiles, glassware, metal surfaces, or other articles. (These
disallowed continuing uses correspond to chemical functional uses in Industrial Function Code
U029 under the Chemical Data Reporting Rule of the Toxics Substances Control Act.); and
(vi) Both the hazardous secondary material generator and the remanufacturer must:
(A) Notify EPA or the State Director, if the state is authorized for the program, and update the
notification every two years per 40 CFR 260.42;
(B) Develop and maintain an up-to-date remanufacturing plan which identifies:
(1) The name, address and EPA ID number of the generator(s) and the remanufacturer(s),
(2) The types and estimated annual volumes of spent solvents to be remanufactured,
(3) The processes and industry sectors that generate the spent solvents,
(4) The specific uses and industry sectors for the remanufactured solvents, and
(5) A certification from the remanufacturer stating "on behalf of [insert remanufacturer facility
name], I certify that this facility is a remanufacturer under pharmaceutical manufacturing
(NAICS 325412), basic organic chemical manufacturing (NAICS 325199), plastics and resins
manufacturing (NAICS 325211), and/or the paints and coatings manufacturing sectors (NAICS
325510), and will accept the spent solvent(s) for the sole purpose of remanufacturing into
commercial-grade solvent(s) that will be used for reacting, extracting, purifying, or blending
chemicals (or for rinsing out the process lines associated with these functions) or for use as
product ingredient(s). I also certify that the remanufacturing equipment, vents, and tanks are
equipped with and are operating air emission controls in compliance with the appropriate
Clean Air Act regulations under 40 CFR part 60. part 61 or part 63. or, absent such Clean Air Act
standards for the particular operation or piece of equipment covered by the remanufacturing
exclusion, are in compliance with the appropriate standards in 40 CFR part 261, subparts AA
(vents). BB (equipment) and CC (tank storage),";
(C) Maintain records of shipments and confirmations of receipts for a period of three years
from the dates of the shipments;
(D) Prior to remanufacturing, store the hazardous spent solvents in tanks or containers that
meet technical standards found in subp >1 \ om! < >n 40 CFR part 261. with the tanks and
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containers being labeled or otherwise having an immediately available record of the material
being stored;
(E) During remanufacturing, and during storage of the hazardous secondary materials prior to
remanufacturing, the remanufacturer certifies that the remanufacturing equipment, vents,
and tanks are equipped with and are operating air emission controls in compliance with the
appropriate Clean Air Act regulations under 40 CFR part 60, part 61 or part 63; or, absent such
Clean Air Act standards for the particular operation or piece of equipment covered by the
remanufacturing exclusion, are in compliance with the appropriate standards in 40 CFR part
261 subparts AA (vents), BB (equipment) and CC (tank storage); and
(F) Meet the requirements prohibiting speculative accumulation per 40 CFR 261.1(c)(8),
Relevant Federal Registers
80 FR 1694: Definition of Solid Waste final rule that established the remanufacturing exclusion
for high-value solvents. Specific discussion of the remanufacturing exclusion. [80 FR 1715-1719]
1/13/2015
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