July 15, 2019

Status of Materials Under RCRA Is Independent of Value

Although some find it counter-intuitive, a material can have monetary value and still be a solid waste when sent for recovery of valuable constituents. For example, a lead smelting company that reclaims ingots from lead plates of spent automobile batteries must manage the batteries as solid waste because there is an asterisk at the intersection of “spent materials” and “reclamation” in §261.2(c), Table 1. For the same reason, a metals reclaimer must manage spent catalyst as solid waste before recovering its metal content, even though it pays the refinery for the spent catalyst. The fact that these materials are solid waste under RCRA does not change “just because a reclaimer has purchased or finds value in the components.” [U.S. v. ILCO, 996 F.2d 1126 (1993)] Note that there are three relatively new exclusions from the definition of solid waste for spent materials being reclaimed in §§261.4(a)(23–25, 27) that may come into play depending upon the material, how it is being recycled, and whether the implementing authority has adopted the rules.

In the preamble to the February 22, 2019 pharmaceuticals management rule, EPA reiterated its position: “EPA has long maintained, and continues to maintain, the interpretation that value is not determinative of solid waste status.” [84 FR 5829] “[W]hether a pharmaceutical has monetary value (such as when it receives manufacturer credit) is not determinative of whether it is a waste under RCRA.” [84 FR 5839]

This RCRA regulatory outcome—that used materials sent for recovery may be solid waste (and thus potentially hazardous waste) even if the reclaimer pays for them—is often misunderstood. Thus, if a recycling broker comes into an industrial plant and offers to buy a used material that the plant had been sending offsite as waste, plant personnel might be tempted to send the material to the recycler as a product outside of the RCRA program. However, that could lead to an enforcement situation, unless one of the exclusions from the definition of solid waste noted above applies. Because of this, a facility should ask specific questions about how the used material will subsequently be used/processed when sent offsite to determine the material’s RCRA status and manage it appropriately.

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 environmental regulations. Persons evaluating specific circumstances dealing with the environmental 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.