40 CFR 261.4(a)(23) 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 their is no recordkeeping requirement under option #1, the use of options #2 or #3 will require the maintenance of certain records by subject facilities.  Those recordkeeping requirements are described below.

Option #2:  Recordkeeping for generating and receiving facilities:

The generating and receiving facilities must both maintain records of hazardous secondary materials sent or received under this exclusion.  The records must contain the following:

• Name of the transporter.
• Date of the shipment.
• Type and quantity of the hazardous secondary material shipped or received.

Also…

• Records must be maintained at the generating and receiving facilities.
• Records must be kept for at least three years.
• These requirements may be satisfied by routine business records (e.g.,financial records, bills of lading, copies of DOT shipping papers, or electronic confirmations).

OPTION #3:  RECORDKEEPING FOR Tolling Contractor and Tolling Manufacturer:

The tolling contractor must maintain records of hazardous secondary materials received pursuant to its written contract with the tolling manufacturer.

The tolling manufacturer must maintain records of hazardous secondary materials shipped pursuant to its written contract with the tolling contractor.

In both cases the records must contain:

• Name of the transporter.
• Date of the shipment.
• Type and quantity of the hazardous secondary material shipped or received.

Also…

• Records must be maintained on-site.
• Records must be kept for at least three years.
• These requirements may be satisfied by routine business records (e.g.,financial records, bills of lading, copies of DOT shipping papers, or electronic confirmations).

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.

These recordkeeping requirements are just one requirement of the conditional exclusion at 40 CFR 261.4(a)(23) which, in turn, is only a part of the much larger 2015 Definition of Solid Waste Rule.

Contact me if you have any questions about this conditional exclusion, the 2015 DSW, or any other aspect of the hazardous waste regulations – state or federal – of the Resource Conservation and Recovery Act.