40 CFR 261.4(a)(23), known as the Generator-Controlled Exclusion, is a conditional exclusion from regulation as a solid waste for a hazardous secondary material if its generator complies with the requirements of the exclusion and is generated and reclaimed under one of the following arrangements:

1. Generated and reclaimed at the generating facility.
2. Reclaimed at an off-site facility that is owned/controlled by the generator or one under the same ownership/control as the generator.
3. Generated pursuant to a written contract between a tolling contractor and a toll manufacturer and is reclaimed by the tolling contractor.

While no certification is required under option #1, the use of options #2 or #3 will require the subject facility to provide the specified certification.  Those certification requirements are described below.

Option #2: hazardous secondary material sent off-site for reclamation:

The generator of the hazardous secondary material must provide one of the following certifications:

On behalf of [insert generator facility name], I certify that this facility will send the indicated hazardous secondary material to [insert reclaimer facility name], which is controlled by [insert generator facility name] and that [insert name of either facility] has acknowledged full responsibility for the safe management of the hazardous secondary material.

Or…

On behalf of [insert generator facility name], I certify that this facility will send the indicated hazardous secondary material to [insert reclaimer facility name], that both facilities are under common control, and that [insert name of either facility] has acknowledged full responsibility for the safe management of the hazardous secondary material.

“Control” means the power to direct the policies of the facility, whether by the ownership of stock, voting rights, or otherwise.  Contractors who operate a facility on behalf of a different person do not “control” such facilities.

Option #3: hazardous secondary material is reclaimed under a tolling agreement:

The tolling contractor must provide the following certification:

On behalf of [insert tolling contractor name], I certify that [insert tolling contractor name] has a written contract with [insert toll manufacturer name] to manufacture [insert name of product or intermediate] which is made from specified unused materials, and that [insert tolling contractor name] will reclaim the hazardous secondary materials generated during this manufacture. On behalf of [insert tolling contractor name], I also certify that [insert tolling contractor name] retains ownership of, and responsibility for, the hazardous secondary materials that are generated during the course of the manufacture, including any releases of hazardous secondary materials that occur during the manufacturing process.

Tolling contractor means a person who arranges for the production of a product or intermediate made from specified unused materials through a written contract with a toll manufacturer.

Toll manufacturer means a person who produces a product or intermediate made from specified unused materials pursuant to a written contract with a tolling contractor.