Generators of spent solvents, catalysts, metal-bearing sludges, production scrap, and similar byproducts frequently face the question: If I send this material off-site for recycling, rather than disposal, is it required to be managed as hazardous waste?
Under the Resource Conservation and Recovery Act (RCRA), certain circumstances allow for materials being reclaimed to be excluded from the Definition of Solid Waste (DSW), and therefore from being regulated as a hazardous waste. These exclusions provided in the DSW for hazardous secondary material (HSM) are subject to specific conditions, a complex regulatory history, and are further challenged by the inconsistent adoption of the regulations across states. Therefore, it is important to clearly understand the scope of the exclusions, including what they allow and what they do not.
Regulatory Background
A material can only be regulated as a hazardous waste if it first meets the DSW, which includes materials that are “discarded”. Industry has long argued that materials sent for recycling and reclamation are not truly “discarded” and should not be required to carry the full weight of the RCRA hazardous waste regulations. In response, the U.S. Environmental Protection Agency (U.S. EPA) revised the DSW rule in 2008, which created exclusions for HSM that is reclaimed given that specific criteria are met.
The DSW rule was revised in 2015 to strengthen the conditions of the exclusions, extend the legitimacy criteria (first codified in 2008) to all hazardous waste recycling, make each factor mandatory, and replace the 2008 transfer-based exclusion (TBE) with the verified recycler exclusions (VRE). In 2017, the VRE was vacated and the TBE was reinstated. U.S. EPA then revised the regulations to conform to the ruling in 2018.
Generator-Controlled Exclusion
Of the DSW’s HSM exclusions, the generator-controlled exclusion (GCE) at 40 CFR §261.4(a)(23) is the simplest to apply because the material never leaves the generator’s control. It covers on-site reclamation, reclamation within the same company, and reclamation through certain tolling arrangements. The conditions that must be met for the GCE include legitimate recycling (as defined in 40 CFR §260.43), containment of the material, U.S. EPA notification, and avoidance of speculative accumulation.
Transfer-Based Exclusion
The TBE at 40 CFR §261.4(a)(24), as reinstated in 2018, is often applicable to small and mid-size manufacturing facilities that do not have the space or volume to provide for inhouse reclamation. A parallel exclusion at 40 CFR §261.4(a)(25) applies to HSM exported to reclaimers outside the U.S. These citations are applicable to a generator who may transfer HSM to an unaffiliated reclaimer, and places substantial oversight responsibility on the generator even though the material is excluded from the DSW. Under the TBE, the generator must:
- Ensure “reasonable efforts” to confirm the material will be legitimately recycled and managed safely; and
- Maintain shipment records, obtain confirmation of receipt, and submit notifications to U.S. EPA.
Reclaimers have their own set of requirements including financial assurance, containment, emergency preparedness, and the safe and environmentally responsible management of the material.
Verified Recycler Exclusion
The 2015 VRE required reclaimers to hold a RCRA permit or interim status, or to obtain a verified recycler variance under 40 CFR §260.31(d) [which is no longer codified], before generators could rely on the exclusion. Many of the same VRE exclusion requirements remain relevant to the 2018 DSW in the TBE (Refer to Section III of the preamble to Docket ID No. EPA-HQ-OLEM-2018-0185).
State-by-State Adoption of the DSW
The HSM exclusions in the DSW are less stringent than the otherwise applicable hazardous waste requirements, therefore states were not required to adopt them. Generators must confirm whether their state — and the state in which the reclaimer is located — has adopted or authorized these exclusions and determine which version. Adopted states have incorporated the DSW rule by reference or through equivalent state rules, making it enforceable under state law. Authorized states have also had their adopted DSW provisions reviewed and approved by U.S. EPA, making the provisions part of the federally authorized state program. U.S. EPA maintains a map of state adoption and authorization status for the 2015 and 2018 DSW rules. The table below provides general guidelines for the HSM based on the status of both the generator and the reclaimer.
| Generating State | Receiving State | Result |
| Has adopted either the TBE or VRE | Has not adopted either exclusion | The material may travel as HSM but must be managed as hazardous waste when it enters the receiving state or any non-adopting transit states along the way. |
| Has not adopted either exclusion | Has adopted either the TBE or VRE | Generator may not claim any exclusions. Whether the reclaimer can treat it as excluded after receipt is a separate question under the receiving state’s rule. |
| VRE (2015 DSW) | TBE (2018 DSW) | The exclusion only applies if the recycler is a RCRA permitted facility, or has been granted a variance by the receiving state (if available). |
| TBE (2018 DSW) | VRE (2015 DSW) | The generator must make and document reasonable efforts under the TBE. The reclaimer must hold a RCRA permit or interim status, or a verified recycler variance and meet the receiving state’s VRE conditions. |
| TBE (2018 DSW) | TBE (2018 DSW) | The exclusion may be applied given all conditions are met. |
| VRE (2015 DSW) | VRE (2015 DSW) | The exclusion may be applied given all conditions are met. |
The states through which the material travels from the generator to the reclaimer must be evaluated for their HSM exclusion status and applicable requirements. Generators can contact state programs to confirm how they have implemented these exclusions and what variances are available.
Benefits and Next Steps
Generators of HSM can lower disposal costs, reduce the administrative burden, and improve sustainability and resource recovery using the HSM exclusions outlined above. A review and understanding of all waste streams, applicable state regulations, and recycling partners is the appropriate first step.
ALL4 can help you evaluate your waste streams and determine the applicability of the HSM exclusions. Reach out to Molly Palmer at mpalmer@all4inc.com or Paul Johnson at pjohnson@all4inc.com with any questions.
