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In the United States, hazardous wastes are subject to regulations mandated by the Resource Conservation and Recovery Act (RCRA). Every month, we provide clear, in-depth guidance on a different aspect of the RCRA regulations. The information presented here is an excerpt from McCoy’s RCRA Unraveled, 2018 Edition.

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©2018 McCoy and Associates, Inc. All rights reserved.

The Table With the Asterisks—The First Step in Recycling Determinations

The first step in determining the status of a hazardous secondary material that will be recycled is to check Table 1 in §261.2(c), which we have reproduced here as Table 1. This table is always the place to start when you’re trying to figure out if a material is a solid waste when recycled. In this step, you determine if there are categories in Table 1 that fit the specific recycling situation at your facility. In effect, this step involves two separate questions: 1) Can the material in question be classified into one of the material categories in the seven rows of the table and can the recycling process of interest be categorized as one of the four activities listed in the table column headings? and 2) If the answer to the first question is “Yes,” is there a “—” at the intersection of the appropriate row and column? If the answer to either of these questions is “No,” a frequent occurrence, you must look to other possible exclusions to potentially escape RCRA regulation.

Table 1

If a material classification and recycling activity in Table 1 do apply, you check the intersection of the proper row and column. If there is an “*” at the intersection, the hazardous secondary material is a solid waste (and potentially a hazardous waste) when recycled in that manner. Since the table with the asterisks didn’t help you get out of RCRA, you move on to check for other possible recycling exclusions. If there is a “—” at the intersection of the appropriate row and column, then the hazardous secondary material is not a solid waste if you can show the recycling is legitimate and can meet prescribed documentation requirements.

Classifying hazardous secondary materials

In the section above, we make reference to seven categories (rows) of materials and four categories (columns) of recycling processes. We briefly review these materials and activities below.

The regulations that govern whether recycled hazardous secondary materials are solid wastes are based on classifying those materials into one of the following categories:

  • A spent material is “any material that has been used and as a result of contamination can no longer serve the purpose for which it was produced without processing.” [§261.1(c)(1)] Examples include spent solvents, depleted catalysts, clogged filters, and burned-out light bulbs.
  • Simply put, a sludge is any residue from a water or air pollution control device (a more formal definition is codified in §260.10). This category includes materials not normally thought of as sludge, such as baghouse dust, oil from an oil-water separator, and spent resin from an ion-exchange column. Note that in terms of Table 1, EPA actually splits sludges into two categories: 1) sludges that are listed in §261.31 or 261.32, and 2) sludges that exhibit a characteristic of hazardous waste.
  • A by-product is “a material that is not one of the primary products of a production process and is not solely or separately produced by the production process. Examples are process residues such as slags or distillation-column bottoms.” [§261.1(c)(3)] “By-product” does not include a co-product (e.g., gasoline, kerosene) that is intentionally produced and has a ready market without additional processing. As with sludges, EPA splits by-products into separate listed and characteristic categories in Table 1.
  • Commercial chemical products are 1) unused, essentially pure chemicals listed in §261.33 (i.e., the P- and U-lists); and 2) for purposes of determining whether a recycled material is a solid waste, all types of unused products such as circuit boards, batteries, gasoline, etc., whether or not they are actually chemicals and regardless of whether they are listed in §261.33. [April 11, 1985; 50 FR 14219, RO 11713, 11726, 13356, 13490, 14883]
  • Scrap metal is “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.” [§261.1(c)(6)]

Categorizing recycling activities

Usually it isn’t too hard to classify the hazardous secondary material we want to recycle into one of the seven material categories noted above. What is difficult at times, however, is trying to figure out which (if any) of the four recycling activities in Table 1 matches the recycling scenario at our facility. Four types of recycling activities are included in this table:

  • Use constituting disposal—Materials are placed directly on the land (e.g., road oiling) or are used to produce products that are applied to the land (e.g., fertilizer or asphalt).
  • Burning for energy recovery—Materials are burned directly in boilers or industrial furnaces (BIFs) or are blended into fuels burned in BIFs. Note that materials burned in incinerators and other waste destruction units are considered to be discarded, not burned for energy recovery.
  • Reclamation—Materials are either 1) processed to recover something of value, or 2) regenerated. Examples include recovery of lead from dead batteries and regeneration of spent catalyst.
  • Speculative accumulation—EPA introduced the concept of speculative accumulation to prevent facilities from avoiding RCRA regulation by merely claiming that they were going to recycle the wastes they were collecting. The definition of this term, codified in §261.1(c)(8), allows persons to accumulate secondary materials for limited periods of time and requires them to demonstrate that 1) a material has a feasible means of being recycled, and 2) at least 75% of the accumulated material is being recycled each calendar year. 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 practical, the accumulation period must be documented through an inventory log or other appropriate method. Failure to meet these provisions automatically makes the accumulated material solid waste potentially subject to full RCRA regulation.

Exceptions to the asterisks

Note that there are numerous exceptions to the asterisks in Table 1. First, commercial chemical products are normally solid wastes when applied to the land or used to produce a product that is applied to the land (use constituting disposal)—that is, there is an asterisk at the intersection of “Commercial chemical products” and “Use constituting disposal.” However, per §261.2(c)(1)(ii), commercial chemical products that are applied to the land are not solid wastes if that is their ordinary manner of use. An example would be an unused P- or U-listed herbicide that is recycled into a product that is applied to the land to kill weeds. Since that is an intended use for herbicides, such recycling would be outside of RCRA.

Second, commercial chemical products that are burned for energy recovery or used to produce fuels are solid waste per the asterisk at the intersection of “Commercial chemical products” and “Energy recovery/fuel.” Per §261.2(c)(2)(ii), however, commercial chemical products are not solid wastes when burned for energy recovery or used to produce a fuel if they are themselves fuels. Thus, unused commercial chemicals that are normal components of fuel (e.g., benzene, toluene, and xylene) are not solid wastes when burned for energy recovery. [RO 12505] Similarly, off-spec fuels (e.g., gasoline, jet fuel, kerosene, diesel) are not solid wastes when burned for energy recovery or used to produce fuels. [RO 11138, 11449, 11713, 11848, 12825, 14503]

Third, there are exceptions in five regulatory sections noted in the column heading under “Reclamation” in Table 1. The five sections are:

  1. §261.4(a)(17)—Reclamation of spent materials generated in the primary mineral processing industry;
  2. §261.4(a)(23)—Reclamation “under the control of the generator” within the United States or its territories;
  3. §261.4(a)(24–25)—Materials are transferred to another person or company (domestic or foreign and that may not have a RCRA permit or interim status) for reclamation and certain conditions are met (transfer-based exclusion); and
  4. §261.4(a)(27)—Materials are sent for remanufacturing within the United States or its territories and certain conditions are met.

Items 2–4 above implement three self-implementing exclusions from the definition of solid waste (DSW) that EPA finalized on October 30, 2008 [73 FR 64668], January 13, 2015 [80 FR 1694], and May 30, 2018 [83 FR 24664]. If one of these three exclusions applies to a specific recycling situation, the hazardous secondary materials being recycled are not solid wastes—they are manufacturing streams or otherwise valuable commodities. However, the exclusions are not effective in RCRA-authorized states unless and until the state adopts them.

Examples of recycling scenarios

Checking the table with the asterisks to determine whether a secondary material is subject to RCRA or not is exemplified as follows.

A facility generates a by-product that exhibits a characteristic. Since the facility cannot afford the cost of shipping the material directly to a reclaimer, it instead ships the material to a nearby TSD facility that, in turn, sends the material on to the reclaimer. Is the by-product a solid and hazardous waste at the generator facility? How about after it is shipped to the TSD facility?

Recycling activities are viewed prospectively; that is, the status of the material is determined based on how it is going to be recycled. Thus, when it is known that the by-product is eventually headed for legitimate reclamation, we look at Table 1. A dash is found at the intersection of the row for “By-products exhibiting a characteristic” and the column for “Reclamation,” indicating that the material is not a solid waste when recycled in that manner. Thus, the material does not have to be managed as a solid or hazardous waste at the generator or TSD facility.

“The term ‘when’ as it is used in §261.2(c) for recycling activities (e.g., when reclaimed) 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…. [I]f the generator intends to have his/her characteristic by-product reclaimed at some point in the future, he/she would not be deemed to be managing a solid or hazardous waste, according to [Table 1].” [RO 11877]

If, however, the eventual disposition of the by-product were not known (or not certain enough that the generator or the TSD facility could adequately document the planned reclamation of the material), then storage at the generating facility and shipment to the TSD facility would be subject to hazardous waste regulations. Additionally, “when secondary materials are excluded or exempt based on a claim of recycling, the material will no longer be excluded or exempt if it is accumulated speculatively prior to recycling.” [RO 11877] If at least 75% of the by-product is not recycled within the calendar year, the material is considered to be speculatively accumulated and would be a solid and hazardous waste per Table 1. [RO 11747]

An unused pesticide will be recycled by burning it for energy recovery. What is the regulatory status of the pesticide?

An unused product, such as a pesticide, is considered a “Commercial chemical product.” Although the wording in Table 1 seems to cover only those chemicals in §261.33 (i.e., the P- and U-listed chemicals), EPA has noted that “we meant also to include commercial chemical products that are not specifically listed in §261.33 as well (for example, a commercial chemical product that exhibits the ignitability characteristic identified in §261.21).” [RO 11713] Thus, whether or not the unused pesticide in question is on the P- or U-list in §261.33, it is regarded as a “Commercial chemical product” in Table 1 for purposes of determining whether it is a solid waste.

Because there is an asterisk at the intersection of “Commercial chemical products” and “Burning for energy recovery,” the pesticide is a solid waste when put into a fuel blending program. If the pesticide is included in the P- or U-list of chemicals or if it exhibits a characteristic, it would have to be managed as a hazardous waste. Per §261.2(c)(2)(i)(B), the resulting fuel will also be a solid and hazardous waste. Note, however, that §261.2(c)(2)(ii) exempts from RCRA commercial products that are burned for energy recovery if they are themselves fuels. For example, off-spec gasoline or jet fuel would not be a solid waste when reclaimed and burned for energy recovery. [RO 11713]

A characteristically hazardous sludge is generated in an air pollution control device. The sludge is sent to another facility to recover its copper content; lead that is also recovered from the sludge is processed into a low-grade solder. What is the status of the sludge when shipped to the offsite recovery facility?

Recovering copper and lead from a sludge would meet the definition of “Reclamation.” Checking Table 1, there is a dash at the intersection of a “Characteristic sludge” (third row) and “Reclamation” (third column). This indicates that the material is not a solid waste (so it cannot be a hazardous waste) when recycled in this fashion. The sludge will be subject to RCRA only if it is speculatively accumulated. [RO 11113]

Wastewater from electroplating nickel and chrome bumpers is treated in tanks. Periodically, a metal hydroxide sludge is removed from the tanks and sent to an offsite copper smelter for metal recovery. How is the sludge regulated?

Sludge from treating wastewater from electroplating operations meets the F006 listing description. Metal smelters are reclamation units. There is an asterisk at the intersection of “Listed sludge” and “Reclamation” in Table 1, indicating that the material is a solid waste when sent for reclamation. [RO 11910] However, there are several exceptions to the asterisks; the third type consists of the exceptions noted in the column heading under “Reclamation” in that table. Since the metal sludge is not generated in the primary mineral processing industry, the only applicable exceptions are contained in §§261.4(a)(23), (24–25), and (27). Reading through those sections results in selection of the exclusion for materials reclaimed under the transfer-based exclusion. Note that to qualify for the exclusion, the metal recovery from the sludge must meet the requirements in §266.100(d)(1)–(3) and the residues from the reclamation process must meet the requirements in §266.112. [§261.1(c)(4)] If the recycling process meets these requirements as well as all other conditions discussed in §§261.4(a)(24–25), the sludge may not be a solid waste, contingent upon meeting other recycling exclusion requirements.

Must gasoline recovered from ground water that will be put into a fuel blending program be managed as a D001 hazardous waste?

No. The recovered gasoline is considered an off-spec commercial chemical product. (Fuel is not “used” until it is burned.) Section 261.2(c)(2)(ii) exempts from RCRA commercial products that are burned for energy recovery if they are themselves fuels. “Recovered free product that is normally used as a fuel is not regulated as a RCRA Subtitle C waste if it is used as an ingredient to make a fuel (e.g., by blending into fuel).” [RO 11713; see also July 28, 1994; 59 FR 38539] Be careful, however, that what you are managing outside of RCRA is truly an off-spec product. If the ground water contains just a few ppm of hydrocarbons, that looks more like a solid waste to EPA: “The management of petroleum-contaminated ground water in separation and treatment units is clearly solid waste (and potentially hazardous waste) management, essentially wastewater treatment.” [59 FR 38540] In more recent guidance, EPA noted that if contaminated wastewater does not have recoverable fuel product prior to bulking with other off-spec fuels, it would not be making a useful contribution and would not be considered a commercial chemical product being legitimately recycled. [RO 14883]

Why “—” results may be excluded

In the first example described above, the dash at the Table 1 intersection indicates that the subject hazardous secondary material recycled in the manner described is not a solid waste. This is not the end of the process for these materials, however. You must still determine that the recycling is legitimate and keep adequate documentation before you may conclude that your hazardous secondary material is not a solid waste. Details of these steps will be discussed in a future Compliance Corner.

Note that sometimes, more than one of the recycling activities listed in Table 1 may occur in sequence. For example, what if a characteristic sludge undergoes reclamation followed by use constituting disposal. There is a dash (indicating that the material is not solid waste) associated with reclamation, but an asterisk (indicating that the material is a solid waste) when such a material is applied to the land. So, is it a solid waste or not? EPA notes that when a secondary material will ultimately be incorporated into a product that will be placed on the land, the entire recycling activity is defined as “use constituting disposal.” [RO 11113, 13723, 14348] Thus, a characteristic sludge or by-product that would not be a solid waste when reclaimed (per Table 1) is a solid waste if the reclaimed material is subsequently burned for energy recovery, applied to the land, or speculatively accumulated. [RO 14195]

Managing excluded materials

When a hazardous secondary material is recycled in a way that results in a dash in Table 1, the material is not a solid waste (subject to the limitations discussed just above). Such materials are not subject to RCRA hazardous waste regulations in terms of storage, transportation, etc. A characteristic by-product destined for reclamation, for example, could be placed/stored in piles on the ground prior to reclamation and not be subject to Subtitle C requirements, including provisions dealing with land placement (as long as it is not speculatively accumulated). [RO 11087, 14099, 14268]

Don’t quit if you hit an “*”

As noted previously, checking Table 1 in the first step of the recycling determination process may seem to result in the recycled material being designated as a solid waste. Nevertheless, don’t quit the process if you hit an asterisk. If you hit an asterisk under the “Reclamation” column, evaluate whether you qualify for one of the reclamation exclusions in the column heading. If none of those apply, or you have hit any other asterisk in Table 1, there are other recycling exclusions in §§261.2(e)(1) and 261.4(a)(8). Even though the material might seem to be a solid waste per the table with the asterisks, it may still qualify for one of the use/reuse recycling exclusions described in these sections. If it does, it may yet be excluded from the definition of solid waste.


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©2018 McCoy and Associates, Inc. All rights reserved.

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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.