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2015 DSW and the Legitimate Recycling Provision for Hazardous Secondary Materials

2015 DSW and the Legitimate Recycling Provision for Hazardous Secondary Materials

The 2015 Definition of Solid Waste Final Rule (2015 DSW) was issued on January 13, 2015 and became effective in the Federal EPA regulations on July 13, 2015. It’s effective date in the individual states depends upon several factors, (read:  State Authorization of RCRA and the 2015 Definition of Solid Waste Rule).  It’s purpose is to improve upon the regulations created by a rule passed in 2008 (2008 DSW). Its title may be misleading since its primary function is to encourage the legitimate and safe recycling of what otherwise might be waste materials sent for disposal. In achieving this it has created new regulations that alter the definition of solid waste, thus the name.

Under the RCRA regulations it has always been presumed by USEPA that any recycling of a hazardous secondary material that results in its exclusion from regulation must be “legitimate”.  The 2015 DSW codifies this presumption and makes it official.  The purpose of this article is to explain the changes made to the Legitimate Recycling Provision by the 2015 Definition of Solid Waste Rule.

To begin with, the following has been added to the definition of “abandoned” at 40 CFR 261.2(b)(4):

(4) Sham recycled, as explained in paragraph (g) of this section.

It is useful to note here that a hazardous secondary material that is “abandoned” is “discarded” and therefore a solid waste.  Prior to the 2015 DSW the definition of “abandoned” included only hazardous secondary materials that were:

  • Disposed of.
  • Burned or incinerated.
  • Accumulated, stored, or treated (but not recycled) in lieu of abandoning by disposal, burning, or incineration.

For more on “abandoned” read:  When is a product abandoned? When is a product discarded? When is a product a waste?

In other words, a hazardous secondary material will be a solid waste if it is abandoned by being sham recycled as explained at 40 CFR 261.2(g), which was also added to the CFR by the 2015 DSW.  It reads:

(g) Sham recycling. A hazardous secondary material found to be sham recycled is considered discarded and a solid waste. Sham recycling is recycling that is not legitimate recycling as defined in §260.43.

Basically a hazardous secondary material will be considered a waste subject to RCRA regulations and not a product or raw material if the recycling option used is not “legitimate” as defined by regulation.  That takes us to 40 CFR 260.43 and the revisions to the Legitimate Recycling Provision.  The revised regulation is too much for me to quote here – and you can read it yourself in the CFR after July 13, 2015 or on page 1773 of the Federal Register for January 13, 2015 – what I will do is focus on the key requirements of this revised regulation.

First of all, this is not a new regulation.  The Legitimacy Criteria has been in the Federal regulations since the 2008 DSW became effective and presumed by USEPA to be the standard for long before.  Unfortunately, the way it was written in the 2008 DSW led some hazardous waste generators to be confused over its application and requirements.  Items of confusion included:

  • While EPA thought it made itself clear in the preamble to the 2008 DSW that the legitimacy criteria applied to all recycling, the regulations as they appeared led some to believe that it only applied to those specific regulations codified under the 2008 DSW, i.e.: §260.34, §261.2(a)(2)(ii), and §261.4(a)(23), (24), or (25).  Therefore, some argued, not all recycling need to be ‘legitimate’ in order to be excluded from regulation as a solid waste.
  • The wording of the original regulations seemed to imply that some of the criteria for determining legitimacy were mandatory while others need only be considered.  Therefore, some argued, I can choose to comply with those conditions if I want.

EPA dispels this confusion in the first statements of the new regulation and makes clear the following:

  • The new explanation of legitimate recycling applies to the recycling of any hazardous secondary material that is used as an exclusion from the hazardous waste regulations.
  • All four criteria of the new legitimacy provision must be addressed in order to determine if recycling of a hazardous secondary material is legitimate and therefore excluded from regulation.

Definition of hazardous secondary material at 40 CFR 260.10:

Hazardous secondary material means a secondary material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as hazardous waste under part 261 of this chapter.

Note:  The definition of a hazardous secondary material may mislead one into thinking it applies to only those three items listed, it does not.  A hazardous secondary material also includes scrap metal and commercial chemical products. In other words, anything you generate that when discarded would meet the USEPA definition of a hazardous waste is a hazardous secondary material.  Unless it can be recycled in a manner that excludes it from regulation and that’s why you’re reading this!

Also, recycling that does not completely exclude the hazardous secondary material from regulation (e.g. precious metals, lead-acid batteries sent for reclamation, and more…) are also subject to the new legitimate recycling provision.

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The four factors for legitimacy at 40 CFR 260.43:

Factor #1 at §260.43(a)(1):  The material must provide a useful contribution to either the recycling process or to the result of the recycling process (the result of the recycling process must be either a final product or an intermediate to be used in the creation of a final product).

A useful contribution means it does one of the following:

  • Contributes a valuable ingredient to the result of the recycling process (product or intermediate).
  • Replaces a catalyst or carrier in the recycling process.
  • Is the source of a valuable constituent recovered in the recycling process.
  • Is recovered or regenerated for further use by the recycling process.
  • Is used as an effective substitute for a commercial product.

Interestingly, this doesn’t mean that the hazardous constituent itself must be what is being recycled.  It could be that the hazardous secondary material is a source of a valuable ingredient that is recycled and reused.  e.g.:  A hazardous secondary material contains toxic levels of lead but it also contains zinc that is recycled into a fertilizer.  Any residuals that are not recycled must be managed as a waste (likely a hazardous waste with the D008 toxicity characteristic for lead).

Also, blending two hazardous secondary materials prior to recycling is not acceptable unless both meet the criteria of Factor #1 prior to blending.  So, dilution is not an option.

Factor #2 at §260.43(a)(2):  The recycling process must produce either a valuable product or an intermediate.

A valuable product or intermediate is demonstrated by one of the following:

  • It is sold to a third party (not the generator or recycler).
  • It is used by the generator or recycler as an effective substitute for a commercial product.
  • It is used by the generator or recycler as an ingredient or intermediate in a process.

A valuable product or intermediate does not have to be something that has a monetary value on the open market.  However, you will have to be able to demonstrate that it has a useful purpose as an ingredient or intermediate in a process.

Contact me with any questions you may have about the generation, identification, management, and disposal of hazardous waste

Daniels Training Services

815.821.1550

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Factor #3 at §260.43(a)(3):  The generator and the recycler of the hazardous secondary material must manage it as a valuable commodity.

It can be demonstrated that a hazardous secondary material is managed as a valuable commodity by both the generator and the recycler in one of two ways:

If the hazardous secondary material is similar to an existing product already used as a raw material in a similar manner, it should be managed in a manner consistent with that raw material.  In other words:  managed as a valuable product.

If no similar raw material exists for comparison, then the hazardous secondary material must be contained.  Read:  The New Definition of Contained in the 2015 DSW.  If the hazardous secondary material is released to the environment and not immediately recovered, it is discarded.

Note that this responsibility applies to both the generator of the hazardous secondary material and its recycler when it is under their control.

Factor #4 at §260.43(a)(4):  The product of recycling is comparable to a legitimate product or intermediate.

There are three ways to demonstrate that the product of recycling the hazardous secondary material is comparable to a legitimate product or intermediate:

A:  If a similar product or intermediate exists for comparison:

  • The product of recycling does not exhibit a hazardous waste characteristic (Ignitable, Corrosive, Reactive, or Toxic) that is not exhibited by the similar product or intermediate.
  • If any of the hazardous constituents listed in Appendix VIII of 40 CFR 261 are found in the product of recycling, their concentration is comparable or less than that found in the similar product or intermediate or at levels that meet widely recognized commodity standards and specifications.

B:  If no similar product or intermediate exists for comparison:

  • The product of recycling must meet widely recognized commodity standards and specifications, or;
  • The hazardous secondary material is returned to the original process from which it was generated for reuse.

C:  If the levels of hazardous constituents (as listed in Appendix VIII of 40 CFR 261) are too high or no similar product or intermediate exists for comparison – in other words: you can’t meet the requirements of A or B above – recycling may still be demonstrated to be legitimate if all of the following is completed:

  • The recycler – not the generator of the hazardous secondary material – must conduct an assessment and prepare documentation showing why the recycling is legitimate.  Examples of legitimacy in this case include a demonstration that:
    • The exposure to toxics in the product is limited.
    • The toxics in the product are in a form that limits their potential to contaminate the environment (i.e. their bioavailability).
    • Some other relevant demonstration that the recycled product doesn’t pose a significant risk to people or the environment.
  • The above documentation must include a certification statement that the recycling is legitimate.  No suggested format is provided for this certification statement, just make it look official.
  • A copy of the documentation must be maintained on-site (at the recycler) for three years after the recycling operation has ceased.
  • Recycler must notify USEPA – or authorized state – using the form for the Initial and Subsequent Notification of Regulated Waste Activity (8700-12).  Refer to USEPA’s interim procedure for submitting notifications under the 2015 DSW.

Even though all of the requirement outlined in #3 above (and codified at 40 CFR 260.43(a)(4)(iii)) are the responsibility of the recycler of the hazardous secondary material, as its generator you are responsible under §260.43(a) that you have addressed all four factors of the legitimacy criteria.  So get copies of these documents from the recycler for your own records.

A final word about documenting the legitimacy of a recycling exclusion (EPA’s suggested template for documentation of legitimacy).  While USEPA initially considered having generators and recyclers document the legitimacy of all recycled hazardous secondary materials (like scrap metal!) it relented in the Final Rule and now only requires documentation of legitimacy for a hazardous secondary material recycled under the new regulations of the 2015 DSW and not any that were recycled under regulations in effect prior to its effective date.  This means that you don’t have to have documentation demonstrating the “legitimacy” of your scrap metal recycling (or precious metal reclamation) unless it somehow does not meet the criteria of Factor #4 above.

Do you feel ‘legit’?  You ought to after all that.  Remember, the Legitimate Recycling Provision applies to all waste that is recycled in a manner that excludes it from regulation, even those that were excluded by the 2008 DSW, and this includes scrap metal.

Be sure your recycling is legitimate and be sure to provide the best annual training for your Hazardous Waste Personnel.

Contact me with any questions you may have about the generation, identification, management, and disposal of hazardous waste

Daniels Training Services

815.821.1550

Info@DanielsTraining.com

http://www.danielstraining.com/

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