Compliance Corner.


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.

Learn more >   Buy >   Previous Corner >

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

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

Step 2 of the recycling determination process examines four use/reuse recycling exclusions in §§261.2(e)(1)(i–iii) and 261.4(a)(8). Each of these four exclusions is addressed in the sections that follow.

Use/reuse as an ingredient or feedstock

The text of the first use/reuse recycling exclusion, as codified in §261.2(e)(1)(i), states that recycled secondary materials are not solid waste when:

“Used or reused as ingredients in an industrial process to make a product, provided the materials are not being reclaimed.”

As shown in Figure 1, secondary material recycled directly (with no reclamation) from its point of generation (POG) and used as an ingredient (along with nonwaste raw materials) in an industrial process that produces a product is excluded from the definition of solid waste. Therefore, the secondary material cannot be a RCRA hazardous waste. “When secondary materials are directly used as an ingredient or a feedstock, we are convinced that the recycled materials are usually functioning as raw materials and therefore should not ordinarily be regulated under Subtitle C.” [Emphasis in original.] [January 4, 1985; 50 FR 619]

Figure 1

Let’s examine the concept of reclamation—if reclamation is occurring, you can’t take advantage of this use/reuse recycling exclusion. You can conduct reclamation, but the secondary material remains a solid (and potentially hazardous) waste, unless one of the recycling exclusions involving reclamation applies.

Reclamation vs. incidental processing

In the preamble to the January 4, 1985 rule, EPA offered the following guidance on the concept of “reclamation”:

“[R]eclamation involves regeneration or material recovery. Wastes are regenerated when they are processed to remove contaminants in a way that restores them to their usable original condition.

“We also [draw] a distinction…between situations where material values in a spent material, by-product, or sludge are recovered as an end product of a process (as in metal recovery from secondary materials) as opposed to situations where these secondary materials are used as ingredients to make new products without distinct components of the materials being recovered as end products. The former situation is reclamation; the latter is a type of direct use that usually is not considered to constitute waste management.” [50 FR 633]

If we recover something of value from the secondary material before we use it as an ingredient, we don’t get the benefit of this particular recycling exclusion. Similarly, if we process a material to remove contaminants and restore it to an original condition, such reclamation voids the exclusion (although another exclusion might apply). Applying the above logic, the agency offers the following examples of reclamation:

  • Recovering solvent or other organics from spent solvents or other organic chemicals is reclamation. [50 FR 633]
  • Smelting F006 electroplating sludge to recover copper, nickel, or other metals is reclamation. [50 FR 633, RO 11338, 11426, 11910, 14026]
  • Re-refining off-specification jet fuel from fueling operation overflows and tank/line draining to produce a salable jet fuel is reclamation. [RO 11449] (Note, however, that the off-specification fuel is considered to be a “Commercial chemical product” in Table 1 of §261.2; commercial chemical products being reclaimed are not solid wastes.)
  • Dewatering a chrome-coated zinc and charcoal solution to facilitate the return of the chrome-coated particles to a molten zinc bath used in a galvanizing process is reclamation. Similarly, dewatering wastewater treatment sludges and any treatment of wastewater prior to recycling are also reclamation. [50 FR 639, RO 11415, 11910]

Conversely, “incidental processing” of a material does not void this first use/reuse recycling exclusion. EPA distinguished incidental processing from reclamation as “processing steps that do not themselves regenerate or recover material values and are not necessary to material recovery.” [50 FR 639] More recent guidance notes that incidental processing changes the material’s physical form with no or only minor changes in the mass or chemical composition of the material. [RO 14748] The following processes are incidental processing and are not considered reclamation:

  • Changing the particle size of a material, such as crushing, grinding, sizing, and repackaging spent refractory bricks for reuse as an ingredient in making new refractory bricks. [RO 11201, 14748]
  • Shredding and grinding of waste leather trimmings to reduce their particle size to market the material as an absorbent for spilled liquid. [RO 14025]
  • Processing that changes the physical properties of secondary materials but that does not recover material values or regenerate the materials (e.g., impurities or contaminants are not removed). Such processing includes viscosity adjustment, minor physical or gravity separation, wetting of dry wastes to avoid wind dispersion, thermal agglomeration or sintering, melting of base materials, and briquetting of dry wastes to facilitate resmelting (although the smelting itself is reclamation). [50 FR 639, RO 11271, 14748]
  • Triple distilling 99% pure mercury to produce a higher purity. [RO 11159, 14736]
  • Screening or filtering to protect the integrity of downstream pumps or equipment from foreign material (e.g., screws, nuts, bolts). [RO 14748]
  • Ensuring purity by separating minor amounts of foreign material (e.g., grit, ash, or water). [RO 14748]
  • Final processing (e.g., clarifying or settling) of a material that closely resembles a finished product to remove minor impurities. [RO 14748]

“These incidental processing activities may take place at any step during the use/reuse process. In addition, a process may involve more than one such processing step and still not be considered reclamation when the cumulative effect of all processing activities results in only the kinds of processing changes that would be considered ‘incidental.’… [A]nother indicator to consider in determining whether an activity may be incidental processing, as opposed to reclamation, is to evaluate whether an analogous process using raw materials includes the same or similar ‘incidental’…activities at the same point in the process. For example, some processes that use virgin materials filter out small amounts of ash, other inert process residues, or water as a polishing step…. Thus, it may be appropriate to view similar steps to be incidental processing when making analogous products from secondary materials.” [RO 14748]

EPA offers a warning to facilities looking to use past guidance and others’ examples to decide the status of their secondary material handling. “The determination of whether the hazardous secondary materials processed in your recycling process are more appropriately defined as ‘reclaimed’ or ‘used as an ingredient’ is a case-specific determination, more appropriately made by the state regulatory agency or the EPA regional office. Also, the state regulatory program may have regulations that differ from the federal program, so you should contact them for a more definitive determination.” [RO 11886]

The reclamation process

Unless one of the reclamation exclusions applies, hazardous secondary materials (spent materials, listed sludges, and listed by-products) being reclaimed remain hazardous until the reclamation process is complete. [50 FR 633] Thus, they would be subject to the hazardous waste generator standards in Part 262 (including use of the manifest), the hazardous waste transporter standards in Part 263, and the land disposal restrictions requirements in Part 268. [§261.6(b)] The recycling (reclamation) facilities would be subject to Parts 264 or 265, 266, 268, and 270 for storage of the hazardous wastes prior to recycling, but the recycling (reclamation) process itself is exempt from RCRA standards (with the possible exception of Subparts AA–BB). [§261.6(c)(1)]

Materials reclaimed from secondary materials are considered products—not wastes. [§261.3(c)(2)(i)] However, this principle does not apply to wastes that have been partially reclaimed but must be reclaimed further. [50 FR 633, RO 11109, 13125] When thermal metal recovery is involved, EPA notes that secondary materials destined for smelters remain hazardous waste. After smelting, recovered metals that only need to be refined are products, not wastes. For example, a lead- and copper-bearing secondary material that is 92%–99% lead and only needs to be refined prior to use would meet the definition of a fully reclaimed material. [January 4, 1985; 50 FR 634, RO 11123, 11159, 11644, 11929, 11932]

Additionally, EPA noted that reclaimed materials that are not ordinarily considered commercial products, such as wastewater or stabilized waste, generally remain solid wastes. [50 FR 634] However, the agency suggested that reclaimed wastewater that is reused (e.g., in a cleaning or rinsing process) may lose its status as a solid waste, provided it really is reclaimed and that it is an effective substitute for what would otherwise be used in the process. Such a determination would be made by state or EPA regional personnel. [RO 11374, 11546]

Although the occurrence of reclamation will invalidate this first use/reuse recycling exclusion (i.e., the secondary material will be a solid and potentially hazardous waste), the reclamation process itself is not subject to RCRA regulation. Per §261.6(c–d), hazardous waste reclamation is exempt from the RCRA management standards and permitting requirements (except for Subparts AA and BB air emission standards).

Some materials can be reclaimed without being solid wastes

The question of whether reclamation is occurring is a go/no-go issue in terms of qualifying for this first use/reuse recycling exclusion (and, as we’ll see later, the second and third exclusions as well). Thus, we’ve tried to provide a clear understanding of reclamation in the discussions above.

It’s important to remember, however, that there are cases where a hazardous secondary material can be reclaimed without triggering RCRA regulations. Specifically, EPA allows facilities to reclaim characteristic sludges, characteristic by-products, and commercial chemical products outside the reach of RCRA by excluding these materials from the definition of solid waste in §261.2(c)(3).

For example, zinc oxide dust captured in air pollution control equipment that exhibits the toxicity characteristic for lead is considered a characteristic sludge by EPA. This material would not be solid waste when reclaimed. The same logic would apply to the characteristic by-product we discussed earlier: chrome-coated zinc and charcoal particles that are reclaimed and then recycled to the molten zinc galvanizing bath. [RO 11412, 11415]

Additionally, one of the three reclamation exclusions codified by the DSW rules may apply to hazardous secondary material being reclaimed. Finally, we’ll see in the fourth use/reuse recycling exclusion another way that a hazardous secondary material can be reclaimed and still not be a solid waste.

POG considerations

Although not specifically stated in the regulations, EPA has noted repeatedly in guidance that the determination of whether a recycled secondary material is a solid waste or is excluded from RCRA applies at its POG. [RO 11412, 11644, 11747, 11774, 11877] Per the agency, “the solid waste determination for a recycled material is made at the point of generation of the waste, and takes into account the entire waste recycling process, not just the first step in a waste recycling train.” [RO 11644]

Thus, if a hazardous secondary material qualifies for this first use/reuse recycling exclusion, its entire downstream storage/transportation/processing/use is not subject to RCRA Subtitle C control. For example, secondary material that qualifies for this exclusion may be temporarily stored in piles on the land or in surface impoundments and still be exempt from the definition of solid waste. [RO 11087, 14099, 14268]

Additionally, recycled secondary material need not remain at a single location to qualify for the first use/reuse recycling exclusion. The material can be shipped from the generating site to an offsite facility where it is used as an ingredient or feedstock. Provided the material is not speculatively accumulated, it is excluded from the definition of solid waste while it is in storage at either the generating or offsite facility. [RO 11271]

Special provision for recycling spent sulfuric acid

Sulfuric acid is one of the highest-volume chemicals produced and used in the world. Thus, it is not surprising that EPA has provided a specific recycling exclusion for this type of material in §261.4(a)(7). This provision says that spent sulfuric acid used to produce virgin sulfuric acid is not a solid waste, unless it is accumulated speculatively. [RO 14348]

EPA promulgated this exclusion because certain parties believed that the reuse of spent sulfuric acid could be considered reclamation, which would result in a solid waste per Table 1 of §261.2 and would void the first use/reuse exclusion. Rather than annually add several million tons of this spent acid to the hazardous waste realm, EPA decided “the spent sulfuric acid recycling process more closely resembles a manufacturing operation than a reclamation process.” [January 4, 1985; 50 FR 642] In that 1985 rule, the agency added the §261.4(a)(7) provision. The rulemaking record for this exclusion notes that the general concentration range of spent sulfuric acid is 5%–100%. [RO 14713]

The §261.4(a)(7) exclusion is specific to spent sulfuric acid being burned in an industrial furnace to produce sulfur; the sulfur is then used to produce sulfuric acid. [RO 14570] Other recycling schemes for spent sulfuric acid are not excluded under §261.4(a)(7) and, therefore, must be judged on their own merits. [RO 11351, 11352, 11468, 12551, 14570] Similarly, high-sulfur residues burned in a sulfuric acid regeneration furnace are not excluded if they are not spent sulfuric acid. [RO 11856, 14086]

Keep in mind, if the spent sulfuric acid is stored in a land-based unit, such as a surface impoundment, that portion which leaches into the ground, if not recovered, has been disposed and would not be excluded. Furthermore, if such spent sulfuric acid exhibits a characteristic, the surface impoundment would be a hazardous waste management unit. [RO 11351]

Use as an effective substitute for a commercial product

The second use/reuse recycling exclusion applies to hazardous secondary materials that are used or reused as substitutes for commercial products. The actual exclusion states that materials are not solid wastes when:

“Used or reused as effective substitutes for commercial products.” [§261.2(e)(1)(ii)]

A hazardous secondary material used “as is” (no reclamation) as an effective substitute for a product that a facility would otherwise have to buy is excluded from the definition of solid waste and, therefore, cannot be a RCRA hazardous waste. “When secondary materials are directly used as substitutes for commercial products, we also believe these materials are functioning as raw materials and therefore are outside of RCRA’s jurisdiction and, thus, are not wastes.” [Emphasis in original.] [January 4, 1985; 50 FR 619]

No reclamation please

While the provision implementing the first use/reuse recycling exclusion [in §261.2(e)(1)(i)] explicitly prohibits reclamation, the regulatory language for the second exclusion does not. Facilities may not take consolation in this fact, however, as EPA has stated repeatedly in guidance that reclamation is not allowed. [RO 11374, 11395, 11468, 11868, 13539] This position dates back to the preamble to the January 4, 1985 final rule implementing the use/reuse recycling exclusions. In that document, the agency stated several times that secondary materials must be directly used or reused as substitutes for commercial products to qualify under §261.2(e)(1)(ii). [See 50 FR 619 and 637.]

For example, a company recycles K062 spent pickle liquor. As shown in Figure 2, the facility treats the waste to extract saleable iron sulfate that is subsequently used as a substitute for the commercial product. However, the recovery step is considered reclamation. The reclamation process invalidates the second use/reuse exclusion for the K062. The iron sulfate reclaimed in the process is considered a product when used in place of a virgin commercial product, while the remaining K062 liquor is still subject to RCRA. Per §261.3(c)(2)(i), the reused iron sulfate is not K062 as long as it is not used in a manner constituting disposal or burned for energy recovery. [RO 11468]

Figure 2

Other limitations/considerations

This second use/reuse recycling exclusion is very similar to the first one. As such, the same limitations, conditions, and POG considerations discussed previously apply to this exclusion as well.


The list below gives straightforward examples from EPA guidance of materials that are eligible for the second use/reuse recycling exclusion in §261.2(e)(1)(ii).

  • K062 spent pickle liquor is used directly as a substitute for ferric chloride in a wastewater conditioning operation. [January 4, 1985; 50 FR 637, RO 11081]
  • Spent acids are used directly in the treatment of wastewater or irrigation water as a substitute for virgin acids. [RO 11154, 11185, 13023, 14330]
  • Spent deionization acid is reused “as is” in place of virgin acid. [RO 11154]
  • Hydrofluorosilic acid (an air pollution control sludge) is used without reclamation as a substitute for a commercial fluoridating agent to fluorinate drinking water. [50 FR 637]
  • Used refrigerant is collected during equipment servicing and then reused without filtration or other processing in place of virgin refrigerant. [RO 11565]
  • Spent solvent from cleaning circuit boards is still pure enough to be used “as is” in a metal degreasing operation. [50 FR 624]
  • Used chemicals that still have very high purity, such as isopropyl alcohol, sulfuric acid, hydrochloric acid, hydrofluoric acid, and phosphoric acid, are collected and resold for further use in a manner consistent with their intended purpose without reclamation. [RO 11868]
  • Hydrochloric acid by-product is used without reclamation as a substitute for commercial hydrochloric acid as pickling liquor. [50 FR 619, RO 13671]

Closed-loop recycling with no reclamation

The third use/reuse recycling exclusion involves closed-loop recycling of secondary material. According to §261.2(e)(1)(iii), recycled secondary materials are not solid wastes when:

“Returned to the original process from which they are generated, without first being reclaimed or land disposed. The material must be returned as a substitute for feedstock materials. 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. In cases where the materials are 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.”

When hazardous secondary materials are returned to the original production process from which they were generated without first being reclaimed, EPA considers this to be manufacturing operations: “we likewise believe this recycling activity does not constitute waste management.” [January 4, 1985; 50 FR 620]

To take advantage of this third exclusion, several conditions must be met, as discussed below.

Condition 1—Reuse must be in the original process

The first condition for the closed-loop recycling exclusion is that the recycled hazardous secondary material must be reused in the original process from which that material was generated (see Figure 3). Note that this condition does not say that the secondary material must be recycled to the exact same process unit from which it was generated. Manufacturing plants commonly use multistep production processes, and EPA requires only that the unreclaimed secondary material be:

Figure 3

“returned to the same part of the process from which it was generated. The material need not be returned to the same unit operation from which it was generated. It is sufficient if it is returned to any of the unit operations associated with production of a particular product, if it originally was generated from one of those unit operations. For example, an emission control dust from a primary zinc smelting furnace could be returned to any part of the process associated with zinc production, such as the smelting furnace in the pyrolytic plant, or the dross furnace. A spent electrolyte from the primary copper production process could be returned to any part of the process involved in copper production—including the roaster, converter, or tank house. An emission control dust from steel production could be returned to the sintering plant for processing before charging to the blast furnace.

“However, in the first example, if the emission control dust from the zinc smelting furnace was sent to by-product cadmium recovery operations, it would not be considered to be returned to the same [part] of the process from which it was generated. This is because the cadmium production processes produce a different product from zinc production operations. For the same reason, if the spent electrolyte in the second example were sent to by-product recovery operations for recovery of nickel sulfate, they would not be considered to be returned to the original process. Note that this principle holds even if the by-product recovery operation is located at the same plant site.” [Emphasis in original.] [January 4, 1985; 50 FR 640]

In other guidance, EPA noted some facilities use multiple, identical reactors in banks with common feed and discharge piping. Segregating secondary materials for closed-loop recycling to the individual generating reactor would not be feasible. Thus, recycling to the same type of reactor is allowed. [RO 11361]

Although the condition of reuse in the original process would seem to eliminate the option of transporting the hazardous secondary material to another facility for recycling, EPA noted in guidance that “nothing in §261.2(e)(1)(iii) limits the closed-loop exclusion to onsite recycling.” The last sentence in the 1985 quotation cited just above also hints at offsite recycling. For example, K061 EAF dust from one steel plant could be recycled without reclamation into offsite steel production processes. Obviously, maintaining a closed-loop system is somewhat more difficult if two separate facilities are involved. But, whether hazardous secondary material is recycled on- or offsite is not a limiting factor for this exclusion [consistent with the other two exclusions in §261.2(e)(1)]. [RO 11271]

Condition 2—No reclamation can be occurring

As shown in Figure 3, the closed-loop recycling exclusion is conditioned on there being no reclamation of the hazardous secondary material from its point of generation to the point it is reinserted back into the production process. Again, we refer readers to our earlier discussion of what constitutes reclamation.

Condition 3—Reuse must be as a feedstock

Secondary material recycled under the closed-loop exclusion must be returned to its generating production process for use as a feedstock. The recycled material is reused in a production process as a substitute for raw materials that the facility would otherwise have to buy. For example, recycling spent degreasing solvent within a parts cleaning process would not qualify for the third use/reuse recycling exclusion because the returned solvent is not involved as a feedstock in a production operation—it merely cleans equipment. [50 FR 639]

Other eligibility issues

Other eligibility issues associated with the closed-loop recycling exclusion are discussed in the subsections below.

No placement on the land

According to the language of the closed-loop recycling provision, recycled hazardous secondary materials are not solid wastes when “returned to the original process from which they are generated, without first being…land disposed.” [Emphasis added.] Thus, facilities wanting to take advantage of this exclusion cannot store the material in a waste pile or surface impoundment prior to recycling it. Storage in a unit designed to contain the material or otherwise prevent its release to the environment, such as in a containment building or tank, is permissible. [September 19, 1994; 59 FR 48015]

Primary and secondary processes on equal footing

If you’ve worked with RCRA a long time, you may recall that the closed-loop recycling exclusion was originally promulgated with another limiting condition. That condition, which was removed in a September 19, 1994 final rule [59 FR 47982], required that the secondary material be recycled to a primary production process. [A primary process is one using raw materials as the majority of its feedstock. In contrast, a secondary production process uses mostly spent or waste materials (e.g., scrap metal) as its feedstock.]

EPA removed the primary process restriction based on its belief that proper management of hazardous secondary materials within all processes (primary and secondary) is more important to protecting the environment than preventing their recycling to secondary processes. Therefore, recovery operations from secondary production processes are now on the same regulatory footing as such operations from primary processes. An important beneficiary of this change is the secondary lead smelting industry—see RO 13566.


The following examples illustrate applications of the closed-loop recycling exclusion:

  • A smelting facility generates a dry emission control dust that it collects, stores (but not on the land), and resmelts in the original smelting furnace. [January 4, 1985; 50 FR 640; RO 13566]
  • A maker of alkylate products from alkylation of paraffins and olefins directly recycles used sulfuric acid to the alkylation reactors in order to fully utilize that acid. [RO 11361]
  • A scrap metal recycling foundry recycles baghouse dust to the process cupola furnace without reclamation to recover metals in the dust. [RO 12561]

Closed-loop recycling with reclamation

None of the first three use/reuse recycling exclusions discussed previously allow reclamation of the secondary material. The fourth use/reuse recycling exclusion allows certain materials to be excluded from the definition of solid waste if they are:

“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….” [§261.4(a)(8)]

The basic premise of this recycling exclusion is that reclaiming and then recycling a process residue are “best viewed as part of the production process, not as a distinct waste management operation.” [July 14, 1986; 51 FR 25442]

As is evident from the regulatory language, reclamation of the hazardous secondary material is allowed in the fourth use/reuse recycling exclusion. The material is run through a reclamation process, and it is cleaned up in some way or something of value is recovered from it. However, “the act of reclamation must be directly related to the act of production.” [51 FR 25442] A simplified representation of this fact and the other qualifying conditions for this exclusion are shown in Figure 4. Four primary conditions must be satisfied for this exclusion to apply, as codified in §261.4(a)(8) and discussed in the subsections that follow.

Figure 4

Condition 1—Reuse must be in original process

The recycled hazardous secondary material must be returned to the original production process from which it was generated. In the preamble to the July 14, 1986 final rule in which this exclusion was promulgated, EPA noted:

“[T]he material that is returned after having been reclaimed can be reused as a feedstock, as a purifying agent to remove contaminants from feedstock, and can also be reused for other purposes, including as a reaction medium to dissolve or suspend chemicals, or as a reactant to facilitate chemical reactions. To be considered as being ‘returned to the original process,’ the reclaimed material need not be returned to the same unit operation from which it was generated, but only to the same part of the process. In addition, if the same material is reused in a number of production operations at an integrated plant, and the secondary material is reclaimed in a common reclamation operation, the reclaimed material can be returned to any process which originally used the material….

“By production process, the agency intends to include those activities that tie directly into the manufacturing operation or those activities that are the primary operation at an establishment; it does not include ancillary or secondary activities that are carried out as part of the total activities at the facility….

“EPA believes that solvents returned for use as cleaning agents in dry cleaning operations will be considered to be reused in the production process…since they are used as the basic raw material in the process…. On the other hand, materials used to clean equipment (for example, solvents returned and reused as degreasers) are not normally considered to be reused in a production process.” [Emphasis in original.] [51 FR 25442]

Condition 2—Storage and conveyance limitations

According to §261.4(a)(8)(i) and (iii), this use/reuse exclusion applies when 1) any storage of recycled materials is in tanks and for no more than 12 months prior to reclamation; and 2) the entire recycling process through completion of reclamation is connected via hard piping or other comparable closed conveyances.

While piping and other conveyances must be closed, EPA does not prohibit the use of open-top tanks in eligible closed-loop recycling operations. Normally, however, the agency would expect facilities to use closed tanks to 1) reduce contamination due to rain or dust entering the tank, and 2) preclude safety problems such as the threat of explosion due to ignition of flammable vapors. The agency further noted, to qualify as legitimate recycling, the hazardous secondary material must be managed as a valuable commodity (i.e., in a manner designed to avoid loss or release). Thus, the use of open-top tanks for volatile material might cause the exclusion “to be inapplicable because [evaporated] secondary materials are not being reclaimed and returned to the process.” [51 FR 25443; see also RO 13591] The accumulation of recycled secondary materials under this fourth exclusion is not allowed in nontank units such as containers, piles, or surface impoundments.

In terms of the 12-month accumulation limit, you would not need to physically empty a given tank once a year. Rather, you would only need to show via recordkeeping or other means that at least 100% of the tank’s content was turned over within a 12-month period. This concept allows flow-through tank systems and other continuous processes to qualify for the recycling exclusion without the need to shut down and empty tanks once a year. [51 FR 25443]

Piping and other conveyances used in processes eligible for this fourth recycling exclusion must be closed, defined as “hard connections from point of generation to point of return to the original process.” [51 FR 25443] Thus, conveyances such as troughs, gutters, and trenches would not qualify under this condition. In addition, trucks, even if loaded/unloaded via hard-piped connections and kept closed during transport, would not qualify as a closed conveyance. [RO 11468]

Condition 3—No flame-based reclamation

Although reclamation is allowed under this fourth use/reuse recycling exclusion, such reclamation may not involve any type of controlled-flame combustion. This restriction precludes the use of BIFs and incinerators in the recycling process. [§261.4(a)(8)(ii)]

If it meets the limitations just noted, the reclamation process itself is not subject to RCRA regulation. Instead, it would be a manufacturing operation.

Condition 4—No production of fuels or products applied to the land

If the reclaimed material returns to a production process that produces fuel as a product, the exclusion is voided. Also, to preserve EPA’s authority to regulate hazardous secondary materials and products containing these wastes when used in a manner constituting disposal, the recycling exclusion is not available where the hazardous secondary material is recycled to a process that produces a product that is applied to the land (e.g., fertilizer, cement). [§261.4(a)(8)(iv), RO 11732]

Additional details

Several additional issues regarding the scope of the closed-loop recycling with reclamation exclusion are worthy of mention:

  • Secondary materials meeting the eligibility criteria described above are excluded from the definition of solid waste. Such materials, therefore, cannot be hazardous waste, and equipment in which they are managed (i.e., conveyed, accumulated, and/or reclaimed) is exempt from Subtitle C regulation. Thus, for example, tanks used to store recycled material per the terms of the exclusion are not subject to Part 264/265, Subpart J standards. [EPA/530/SW-87/012]
  • The recycling with reclamation exclusion does not extend beyond the dashed lines shown in Figure 4. In other words, material exiting the closed loop loses the solid waste exclusion. For example, a residue generated by the reclamation process would be a solid waste (assuming no other exclusion applies to it) and subject to RCRA regulation if it meets the definition of hazardous waste. A common example is still bottoms exiting a closed-loop solvent reclamation process that are hazardous by characteristic or listing. [July 14, 1986; 51 FR 25443, RO 11285, 12732, 13017, 13220]
  • Similar to residues, releases of hazardous secondary materials from closed-loop recycling processes are also subject to full regulation under RCRA. For example, releases at RCRA-permitted facilities would be subject to possible corrective action under Part 264, Subpart S if routine and systematic. Such releases would also be subject to possible notification requirements under CERCLA Part 302 regulations. [EPA/530/SW-87/012]


Topic: Overview of the Five-Step Recycling Determination Process

©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.