What is Recycling Under RCRA?
As many industrial facilities are implementing zero-waste-to-landfill and other sustainability goals, it is important to understand allowable exemptions and subsequent requirements for recycling under RCRA. Understanding these exemptions can allow for waste reduction and/or economic recovery of materials that would otherwise be waste. RCRA regulates the management of hazardous waste and specifically defines recycling of hazardous waste to be the “use, reuse, or reclamation” of a material [
40 CFR 261.1(c)(7)]. The term recycling is often used to describe all three processes, but there are distinct management and documentation requirements for materials that fall into each class. It is a common misconception that a generator can absolve a waste stream from RCRA regulation simply by claiming the waste is being “recycled”. A generator must ensure they
document appropriate waste determinations, and classify both the material they intend to recycle and the type of recycling they intend to complete to fully understand and fulfill all associated management, tracking and documentation obligations. As state level waste regulations can vary, take special care to understand what recycling regulations have been adopted in the state(s) your company operates in.
Types of Recycling
Recycling is the umbrella term for when a material is used or reused, reclaimed.
Under RCRA, a material is used or reused if it is either:
- used as an ingredient in an industrial process to make a product. A material would not qualify as used or reused if the components of the materials are recovered as separate end products.
- Used as an effective substitute for a commercial product.
A material must be directly used or reused, without any further processing or reclamation, to fit into these first two categories of recycling. Materials that are used or reused without prior reclamation are frequently excluded from the definition of solid waste.
A material is reclaimed if it is processed to recover a usable product or if it is regenerated. Some common examples of reclamation include recovery lead from spent lead acid batteries and regenerating spent solvents. Note that if a secondary material is reclaimed, it cannot be managed under the use/reuse recycling exclusion.
Regulatory Categories of Recycled Materials
Depending on the type of recycling occurring, the recyclable materials fall into three levels of regulation.
First, there are recyclable materials that are not subject to hazardous waste regulation. These are materials that are:
- specifically excluded from the definition of solid waste (like shredded circuit boards, scrap metal, and solvent contaminated rags that are laundered);
- materials that are solid wastes but are not hazardous wastes (like spent CFC refrigerants that are reclaimed and used oil filters that meet certain requirements); or
- materials that are not subject the hazardous waste regulations when recycled (industrial ethyl alcohol and scrap metal not excluded under 40 CFR 261.4(a)(13)).
The next group are wastes that are subject to regulatory controls when recycled. These wastes have specific regulations and requirements spelled out in RCRA and include Universal Waste, Used Oil, Materials Utilized for Precious Recovery, and other items listed in
40 CFR Subpart 266.
The third and final category of recyclable materials are those that don’t meet the requirements of the other categories and therefore must comply with all hazardous waste regulations.
Determination of Applicable Regulatory Requirements
Many generators assume that recycling a waste relieves them of all regulatory obligations. However, not all recycled materials are excluded from hazardous waste requirements, and even those excluded still require some level of documentation. To determine the exact requirements a certain recyclable material is subject to, the generator must create accurate waste determinations for the recycled material. If the recyclable material and the recycling process do not meet any of the explicit exclusions in
40 CFR 261.4, the generator should continue by consulting
Table 1 in 40 CFR 261 to determine if the recyclable material is a solid waste.
To properly make this determination, the following assessments must be made:
1. Determine if the secondary materials they are managing are:
- spent materials;
- listed sludges;
- sludges exhibiting a characteristic of hazardous waste;
- listed by-products;
- by-products exhibiting a characteristic of hazardous waste;
- commercial chemical products; or
- scrap metal as defined in 40 CFR 261.1(c)
2. Classify the recycling activity as:
- use constituting disposal;
- energy recovery;
- reclamation; or
- speculative accumulation
3. Consult Table 1 in 40 CFR 261 to determine if the material is a solid waste when recycled.
If the material is not a solid waste when recycled, then it cannot be a hazardous waste and falls into the first regulatory group of recycled materials. However, the generator must be able to demonstrate that the recycling is legitimate and all documentation requirements are met. If the material is a solid waste when recycled, then it may also be a hazardous waste and further investigation into recycling exclusions is warranted.
Four Factors of Legitimate Recycling
EPA promulgated four factors of legitimate recycling to help generators determine if their proposed recycling process is legitimate recycling under RCRA (40 CFR 260.43). The first three legitimacy factors must be met and the fourth must be considered. A full discussion of methods to complete the legitimacy determination and “consider” the fourth factor is provided in the Federal Register (73 FR 64701).
- Evaluate if the secondary material provides a “useful contribution” to the recycling process or to a product or intermediate of the recycling process. EPA considers a “useful contribution” to be:
- contributing valuable ingredients to a product or intermediate;
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replacing a catalyst of carrier in the recycling process;
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providing a valuable constituent that is recovered;
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being recovered or regenerated; or
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being used as an effective substitute for a commercial product.
The first factor is intended to prevent generators from simply adding a secondary material to an industrial process to avoid managing it as a hazardous waste, regardless of the level of contribution the material makes to the manufacturing process.
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The recycling process must produce a valuable product or intermediate that is:
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sold to a third party; or
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used by the recycler or the generator as an effective substitute for a commercial product or as an ingredient or intermediate in an industrial process.
The second factor requires demonstration that the secondary material holds true value – if the generator can demonstrate that the secondary material is as valuable as a non-waste material, this indicates legitimate recycling.
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Secondary material must be managed as a valuable commodity by the generator and recycler. If the secondary material has an analogous raw material, it must be managed in a manner consistent with the raw material. Where there is no analogous raw material, the material must be contained. For example, a recycler would not meet this factor if the secondary material is stored on the ground while the analogous material is stored in drums.
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The product of the recycling process must be comparable to an analogous product or intermediate (no “toxics along for the ride”). The concentrations of hazardous constituents found in the product or made from the secondary material must be comparable to those found in the analogous products made from virgin materials. This factor does not need to be satisfied, but must be considered to determine the overall legitimacy of the recycling process. If the fourth factor is not met, the facility should have documentation as to why the recycling process overall is still legitimate.
If the factors of legitimacy are not met, this is an indicator that the recycling process qualifies as “sham” recycling and that the material should truly be managed as a hazardous waste.
Common Pitfalls When Recycling Hazardous Waste
Recycling hazardous waste is a beneficial form of waste minimization and can be used to achieve sustainability goals. However, hazardous waste recycling does not occur without risk or regulations, some common pitfalls observed in industry include:
Sham Recycling
EPA considers sham recycling to be a management method employed to avoid managing material as a hazardous waste. If a facility has not assessed the recycling activities against the legitimacy criteria, the recycling may not be considered legitimate under RCRA and may be considered sham recycling.
Speculative Accumulation
RCRA allows a facility to accumulate material prior to recycling provided they can demonstrate the material is potentially recyclable, has a means of being recycled, and that 75% by weight or volume of the amount accumulated over the course of a calendar year has been recycled or transferred to a different site for recycling. This accumulation is called
speculative accumulation. If a facility cannot make these demonstrations, then the recyclable material is a solid waste and potentially a hazardous waste. Facilities should implement an accumulation tracking and inventory system to ensure the recyclable material is moving through the facility in the appropriate time period.
Deficient Documentation
The most common pitfall generators fall into with hazardous waste recycling is a lack of documentation. Facilities must retain documentation demonstrating:
- Classification of the recyclable material & recycling process including:
- Waste Determination
- One-time Notice to File
- Land Disposal Restriction forms (LDRs)
- Recycling Legitimacy
- Other applicable documents (i.e., accumulation time, shipping records, certificates of recycling, etc.).
RCRA requires significant documentation records to prove proper management of materials, including recyclable materials. A lack of documentation supporting recycling activities may result in an agency determining a facility incorrectly managed hazardous waste.
If you have any questions on recycling under RCRA, please consider reaching out to our team of experts for assistance at
800.229.6655:
