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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, 2020 Edition.

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Overview of the Five-Step Recycling Determination Process

Legitimately recycling a hazardous secondary material means the material is not a solid, or hazardous, waste. While the RCRA recycling provisions are often complicated, performing a recycling determination can be thought of as a five-step process.

What is a hazardous secondary material?

When EPA redefined “solid waste” on January 4, 1985, the agency used the term “secondary material” in many of its discussions. That term was defined in preamble language as a material that is potentially a solid and hazardous waste when recycled. [50 FR 616] More recently, the U.S. Court of Appeals for the District of Columbia Circuit noted that secondary materials are “substances generated as the remainder of industrial processes.” [API v. EPA, Docket No. 09-1038, July 7, 2017] In 2008, EPA added a definition of “hazardous secondary material” in §260.10 as a “secondary material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as hazardous waste.…” Determining the RCRA status of hazardous secondary material that is recycled is the subject of our five-step process.

What are the five steps?

The five steps of our recycling determination process involve asking the following questions:

  • Step 1—Is the material determined to be a solid waste using Table 1 of §261.2(c)? Table 1 is included below. This step includes an evaluation of whether the material is excluded from the definition of solid waste under one of the three reclamation exclusions listed in §§261.4(a)(23–25, 27).
  • Step 2—Is the secondary material excluded from the definition of solid waste under one of the four use/reuse recycling exclusions listed in §§261.2(e)(1)(i–iii) and 261.4(a)(8)?
  • Step 3—If the material is excluded under one of the §261.2(e)(1)(i–iii) use/reuse recycling exclusions, does the process meet the additional qualifying criteria listed in §261.2(e)(2)(i–iv)? If the material is excluded under one of the §§261.4(a)(23–25, 27) reclamation exclusions, does the reclamation meet the additional qualifying criteria listed in those sections?
  • Step 4—Is the recycling legitimate? This step requires an evaluation of the legitimate recycling criteria codified in §260.43, as well as a possible discussion with the facility’s state or regional RCRA authority.
  • Step 5—For all materials determined not to be solid wastes, can the facility meet the prescribed documentation requirements of §261.2(f) in the event of an inspection, evaluation, or enforcement action by the state or EPA? This step includes documentation that the recycling is legitimate.

Putting it all together

Figure 1 organizes the five-step recycling determination process into a logic diagram. For clarity, we have indicated which boxes correspond to which steps.

Figure 1a Figure 1b Table 1


Topic: Step 2 of the Five-Step Recycling Determination Process—The Four Use/Reuse Recycling Exclusions

©2020 McCoy and Associates, Inc. All rights reserved.

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.



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.