March 15, 2016

Documenting the Legitimacy of Your Recycling

Most of the changes made by EPA’s 2008 and 2015 definition of solid waste (DSW) rules make the regulations less stringent than pre-existing regulations. Thus, the potential recycling benefits will depend on what parts of the rules are adopted by states. There are a few provisions in the 2015 DSW rule, however, that are more stringent than the pre-existing regulations and must be adopted by all states. Ensuring that all recycling conducted under RCRA is legitimate is one of these more-stringent requirements. More specifically, all recycling under RCRA, including both that conducted under the pre-2008 recycling exclusions as well as the three new reclamation exclusions added by the DSW rules, must meet the agency’s four legitimacy criteria found in §260.43.

Do you have to document that your recycling is legitimate? For the DSW rule recycling exclusions, documentation is required only where recycling is conducted under the generator-controlled exclusion and in circumstances where products made from recycled materials have elevated levels of hazardous constituents as compared to products made from raw materials. EPA has not changed the language of the pre-2008 recycling exclusions to require documentation to prove legitimacy. “We have also determined that documentation of legitimacy is not necessary or required for the pre-2008 recycling exclusions and exemptions, except in the rare case where the recycling is legitimate, but does not meet Factor 4.” [80 FR 1720] However, we believe that facilities should review all of their recycling exclusions and exemptions from RCRA so as to be able to prove to a regulatory authority that the recycling meets the four legitimacy factors in §260.43. Documentation of this step would seem to be prudent.

To help people document that their recycling is legitimate, EPA developed a template (no longer available) that can be used for this purpose. This template is broken down into two different sections:

First, the form takes the user through the process of describing how the hazardous secondary material is recycled by the generator.
Next, it prompts the user to answer a number of questions detailing compliance with the four legitimacy criteria listed below:

Does the hazardous secondary material provide a useful contribution to the process?
Does the product or intermediate made from the hazardous secondary material have value?
Is the hazardous secondary material managed as a valuable commodity?
How does the product of the recycling process compare to a product made from all virgin materials?

Completing EPA’s form for all hazardous secondary material recycling conducted at your site should provide a complete, convenient, and consistent approach for documenting compliance with the legitimacy requirements of §260.43.

McCoy and Associates has provided in-depth information to assist environmental professionals with complex compliance issues since 1982. Our seminars and publications are widely trusted by environmental professionals for their consistent quality, clarity, and comprehensiveness.

Disclaimer

Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.