The regulations of the Resource Conservation and Recovery Act (RCRA) require all generators of hazardous waste to conduct a hazardous waste determination for all waste generated, the purpose of which is to answer the following questions:
- Is the material to be discarded?
- If yes, is it excluded from regulation as a solid waste?
- If no, it remains a solid waste; is it a listed or characteristic hazardous waste?
- If yes, is it excluded from regulation as a hazardous waste?
- If no, it remains a hazardous waste unless other exclusions exist, eg. universal waste, used oil, recyclable materials, etc.
The purpose of this article is to focus on a specific exclusion in Step 2 of the process: The exclusion from regulation as a solid waste for by-products that are recycled by reclamation.
To begin, a solid waste is described at 40 CFR 261.2(a)(1) as any discarded material not excluded elsewhere by regulation.
A discarded material is identified at §261.2(a)(2)(i) as any material which is:
- Considered inherently waste-like, or;
- Military munitions.
Pursuant to §261.1(c)(7):
A material is “recycled” if it is used, reused, or reclaimed.
So, a material that is recycled is considered to be discarded and will therefore be regulated as a solid waste (and possibly a hazardous waste) unless an exclusion from regulation as a solid waste exists. §261.2(c) identifies the recycling methods whereby a discarded material will remain a solid waste and those recycling methods where it may be excluded from regulation as a solid waste. In general a discarded material will remain a solid waste when recycled by any of the following methods unless an exclusion is identified in Table 1 of §261.2(c):
- Used in a manner constituting disposal. eg: applied to the land or used to produce products that are applied to the land.
- Burned for energy recovery or used to produce a fuel.
- Accumulated speculatively.
Reclamation is defined at §261.1(c)(4):
A material is “reclaimed” if it is processed to recover a usable product, or if it is regenerated. Examples are recovery of lead values from spent batteries and regeneration of spent solvents. There is more to the definition not included here.
Now’s as good as time as any to define a by-product:
[§261.1(c)(3)] 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. The term does not include a co-product that is produced for the general public’s use and is ordinarily used in the form it is produced by the process.
Basically, a by-product is an undesired material (and therefore to be discarded) created during the production of your intended product, ie. the “primary product”.
Turning to Table 1 of §261.2(c) we must determine if an exclusion from regulation exists for the type of discarded material we have (a by-product) by the recycling method we intend to use (reclamation). And believe it or not, the answer is pretty simple:
- A by-product whose source is listed in 40 CFR 261.31 (F-codes) or §261.32 (K-codes) is not excluded (ie. remains a solid waste) when recycled by reclamation.
- A by-product whose source is not listed that exhibits a characteristic of a hazardous waste (ignitability, corrosivity, reactivity, or toxicity) is excluded from regulation as a solid waste when recycled by reclamation.
The recycling exclusions of 40 CFR 261.2(c) may be one of the most complex, misunderstood, and important citations in all of the RCRA regulations. Contact me if you have any questions about the reclamation of a by-product, the other recycling exclusions of §261.2(c), or any other aspect of the RCRA regulations.