In 2008, the EPA issued its definition of solid waste (DSW) rule in an attempt to clarify the decades-long uncertainty among the regulated community about when hazardous secondary materials (HSMs) are legitimately recycled. 

According to the EPA, an HSM can indeed be returned to a process or a product, but unless that action meets specific legitimacy criteria, it is simply a disguised attempt by businesses to dispose of their hazardous waste and avoid Resource Conservation and Recovery Act (RCRA) hazardous waste regulations by claiming that recycling has occurred. 

For many years previous to the 2008 rule, the EPA made use of a test containing four criteria that would need to be applied to determine if recycling was legitimate or a sham.  In the 2008 rule, the Agency simplified the test by requiring that only two of the criteria needed to be met while the other two must be only “considered.”  The specifics of the two mandatory criteria and several explanatory points the Agency added are described below.

• Useful contribution.  For recycling to be legitimate, a HSM must provide a useful contribution to the recycling process or to a product of the recycling process.  The DSW rule states that a useful contribution is being made if it contributes valuable ingredients to a product or intermediate; or if it replaces a catalyst or carrier in the recycling process; or if it is the source of a valuable constituent recovered in the recycling process; or if it is recovered or regenerated by the recycling process; or if it is used as an effective substitute for a commercial product.
  • Not every constituent or component of the HSM has to make a contribution to the recycling activity.  For example, a legitimate recycling operation involving precious metals might not recover all the components of the HSM, but would recover precious metals with sufficient value to consider the recycling process legitimate.
  • The recycling activity does not have to involve the hazardous component of the HSM if the value of the contribution of the non-hazardous component justifies the recycling activity.
  • Where more than one HSM is used in a single recycling process and the HSMs are mixed or blended as a part of the process, each HSM would need to satisfy the useful contribution factor.
• Valuable product or intermediate.  The recycling process must produce a valuable product or intermediate.  The product or intermediate is valuable if it is sold to a third party or if it is 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.
  • One way to demonstrate that the recycling process yields a valuable product would be the documented sale of a product of the recycling process to a third party. Such documentation could be in the form of receipts or contracts and agreements that establish the terms of the sale or transaction.
  • For HSMs that are intermediates—i.e., not sold, but instead used by the generator in the recycling process—intrinsic value can be demonstrated by showing that the product of the recycling process or intermediate replaces an alternative product that would otherwise have to be purchased.  Alternatively, a demonstration could involve showing that the product of the recycling process or intermediate meets product specifications or specific industry standards.  Another approach could be to compare the product’s or intermediate’s physical and chemical properties or efficacy for certain uses with those of comparable products or intermediates made from raw materials.
  • As with the useful contribution criterion, assessment of an HSM’s value should be made on a case-by-case basis.  For example, an HSM recycling activity that produces a product or intermediate that is used by the recycler itself but does not serve any purpose and is just being used so that the product or intermediate appears valuable would be an indicator of sham recycling.  For instance, a recycler reclaims an HSM and then uses that material to make blocks or building materials for which it has no market.  The recycler uses those building materials to erect a warehouse in which he stores the remainder of the building materials that the recycler is unable to sell. 

  Whenever determining compliance with federal RCRA regulations, it is essential to also review any related state RCRA regulations, since states have the authority to impose requirements that are more stringent than the federal requirements, and many states have done so. 

  EPA’s rule revising the definition of a solid waste was published in the October 2008, FR.