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EXCLUSIONS FROM REGULATION AS SOLID WASTEOne presentation in a series that briefly explains the Federal exclusions from full regulation for certain materials under the Resource Conservation and Recovery Act (RCRA).

This presentation: 40 CFR 261.4(a)(23):Generator-Controlled Exclusion

40 CFR 261.4(a)(23)

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PRESENTED BY:

Daniels Training Services815.821.1550www.DanielsTraining.comInfo@DanielsTraining.com

A different kind of training.

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)• Paragraph ‘a’ of section 261.4 identifies 27 materials excluded from regulation as a solid waste.

• If a material does not meet the definition of a solid waste, it cannot be a hazardous waste.

Solid Waste

Hazardous Waste

40 CFR 261.4(a)(23)

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What is Excluded @ 40 CFR 261.4(a)?

1) Domestic sewage.2) Point source

discharge3) Irrigation return flow4) Radioactive waste 5) In-situ mining6) Pulping liquors7) Spent sulfuric acid8) Reclamation in

enclosed tanks9) Spent wood

preservatives10) Coke by-product

wastes11) Splash condenser

dross residue

40 CFR 261.4(a)(23)

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What is Excluded @ 40 CFR 261.4(a)?

12) Hazardous secondary materials from the petroleum refining industry

13) Excluded scrap metal14) Shredded circuits

boards15) Pulping condensates

derived from kraft mill steam strippers

16) Comparable fuels17) Mineral processing

secondary materials being recycled

18) Petrochemical recovered oil

19) Spent caustic solutions from petroleum refining

40 CFR 261.4(a)(23)

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What is Excluded @ 40 CFR 261.4(a)?

20) Hazardous secondary materials used to make zinc fertilizers

21) Zinc fertilizers made from hazardous wastes

22) Used cathode ray tubes (CRTS)

23) Hazardous secondary material reclaimed by generator

24) Hazardous secondary material transferred to verified recycler

25) Hazardous secondary material exported from U.S. for reclamation

26) Solvent-contaminated wipes sent for cleaning & reuse

27) Solvent Remanufacturing

40 CFR 261.4(a)(23)

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The Generator-Controlled Exclusion“The 2015 DSW final rule is expected to increase recycling by retaining the 2008 generator-controlled exclusion for hazardous secondary materials reclaimed by the generator:• On-site• Within the same company• Within certain tolling agreementsBy maintaining control over, and potential liability for, the reclamation process, and meeting the conditions of the exclusion, the generator ensures that the hazardous secondary materials are legitimately recycled.The final rule includes several changes to strengthen and ensure protectiveness of the generator-controlled exclusion. Most notable is a codification of a performance-based “contained” standard for hazardous secondary materials.”

40 CFR 261.4(a)(23)

Overview of 2015 DSW Final Rule

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“The following materials are not solid wastes for the purpose of this part…”• A hazardous secondary material.And…

• Generated & reclaimed w/i U.S.• Not speculatively accumulated.• Reclamation is legitimate.• Must be contained.

And…• 3 options for reclamation.

40 CFR 261.4(a)(24)

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“The following materials are not solid wastes for the purpose of this part…”

Option #1:• Generated & reclaimed at generating facility.

40 CFR 261.4(a)(24)

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“The following materials are not solid wastes for the purpose of this part…”

40 CFR 261.4(a)(24)

Option #2:• Generated & reclaimed at different facilities if both controlled by generator or under control of same person.

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“The following materials are not solid wastes for the purpose of this part…”

Option #3:• Generated pursuant to written contract between tolling contractor & toll manufacturer & is reclaimed by tolling contractor.

40 CFR 261.4(a)(24)

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“The following materials are not solid wastes for the purpose of this part…”

• This exclusion does not apply to the following:• Material subject to exclusion under §261.4(a).

• Spent lead acid battery subject to §266.80 or §273.2.

40 CFR 261.4(a)(24)

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“The following materials are not solid wastes for the purpose of this part…”

• Additional for all options:• Comply w/ emergency preparedness & response conditions.

• Provide notification of activity.

40 CFR 261.4(a)(24)

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“The following materials are not solid wastes for the purpose of this part…”

• Additional if Option #2:• Generator provides 1 of 2 certifications.

• Generator & receiving facility retain records on-site of all hazardous secondary materials sent off-site or received on-site.

40 CFR 261.4(a)(24)

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“The following materials are not solid wastes for the purpose of this part…”

• Additional if Option #3:• Tolling contractor provides certification.

• Tolling contractor maintains records of hazardous secondary materials received.

• Toll manufacturer maintains records of hazardous secondary materials shipped.

40 CFR 261.4(a)(24)

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“The following materials are not solid wastes for the purpose of this part…”

• Requirements of persons performing recycling:• Maintain on-site documentation of legitimacy determination.

40 CFR 261.4(a)(24)

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More to Consider (1)…• Read more about the 2015 Definition of Solid Waste Rule.

• Hazardous secondary material means a secondary material (e.g., spent material, by-product, or sludge) that, when discarded, would be identified as hazardous waste under part 261 of this chapter (§260.10).

• Generating facility means all contiguous property owned, leased, or otherwise controlled by the hazardous secondary material generator.

40 CFR 261.4(a)(23)

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More to Consider (2)…• Speculative accumulation occurs whenever a hazardous secondary material is accumulated & the following can not be demonstrated:

1. Material is potentially recyclable & has a feasible means of being recycled.

2. Of amount on-site at beginning of calendar year (January 1), 75% by weight or volume is recycled (on-site or off-site) by end of calendar year (December 31st).

• The speculative accumulation provision was strengthened by the 2015 DSW. More…

40 CFR 261.4(a)(24)

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More to Consider (3)…• Legitimate reclamation of a hazardous secondary material requires each of the following 4 factors:1. Material provides useful contribution to

recycling process or result of recycling process.2. Recycling process produces a valuable product

or intermediate.3. Generator & recycler manage hazardous

secondary material as a valuable commodity.4. Product of recycling is comparable to a

legitimate product or intermediate.• More…

40 CFR 261.4(a)(24)

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More to Consider (4)…• To be contained a hazardous secondary material must be held in a unit that is…• In good condition w/ no leaks.• Labeled or otherwise identifies hazardous secondary material.

• Compatible w/ contents.• Designed to address any potential risk of fire or explosion.

• More…

40 CFR 261.4(a)(24)

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More to Consider (5)…• “Control” means the power to direct the policies of the facility, whether by the ownership of stock, voting rights, or otherwise.

Except…• Contractors who operate facilities on behalf of a different person do not “control” such facilities.

40 CFR 261.4(a)(23)

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More to Consider (6)…• Person means an individual, trust, firm, joint stock company, Federal Agency, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or any interstate body. (40 CFR 260.10)

40 CFR 261.4(a)(23)

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More to Consider (7)…

Tolling Contractor

• Contracts w/ toll manufacturer to produce product.

• Receives hazardous secondary material from toll manufacturer.

• Reclaims hazardous secondary material.

Toll Manufacturer

• Produces product for tolling contractor.

• Generates hazardous secondary material as residual of producing product.

• Returns hazardous secondary material to tolling contractor.

40 CFR 261.4(a)(23)

And…

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“In these situations, management and recycling of the material are in essence done under the control of the tolling company, even though the material is physically generated by another company.”2015 DSW FAQs

More to Consider (8)…

40 CFR 261.4(a)(23)

Generated here

Managed & reclaimed here

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More to Consider (9)…

40 CFR 266.80

• Exemption for spent lead acid batteries sent for reclamation.

40 CFR 273.2

• Universal waste rule applicable to batteries.

40 CFR 261.4(a)(24)

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More to Consider (10)…• Emergency preparedness & response conditions of §261, Subpart M:• ≤6,000 kg hazardous secondary material on-site at one time:• Preparedness & prevention• Emergency response

• >6,000 kg hazardous secondary material on-site at one time.• Preparedness & prevention• Contingency plan & emergency response

• More…

40 CFR 261.4(a)(24)

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More to Consider (11)…“Persons performing recycling” may be…• Option #1:

• Generator of hazardous secondary material.• Option #2:

• Reclamation facility.• Option #3:

• Tolling contractor.

40 CFR 261.4(a)(23)

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More to Consider (12)…• EPA has created a voluntary label for hazardous secondary materials sent for recycling.

40 CFR 261.4(a)(24)

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More to Consider (13)…• Hazardous secondary material must be generated & reclaimed w/i U.S.

• Check w/ your State as it may not recognize this Federal exclusion.

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim:(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…(23) Hazardous secondary material generated and legitimately reclaimed within the United States or its territories and under the control of the generator, provided that the material complies with paragraphs (a)(23)(i) and (ii) of this section:(i)(A) The hazardous secondary material is generated and reclaimed at the generating facility (for purposes of this definition, generating facility means all contiguous property owned, leased, or otherwise controlled by the hazardous secondary material generator); or

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim (cont):(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…(B) The hazardous secondary material is generated and reclaimed at different facilities, if the reclaiming facility is controlled by the generator or if both the generating facility and the reclaiming facility are controlled by a person as defined in §260.10 of this chapter, and if the generator provides 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

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim (cont):(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…“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.”

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim (cont):(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…For purposes of this paragraph, “control” means the power to direct the policies of the facility, whether by the ownership of stock, voting rights, or otherwise, except that contractors who operate facilities on behalf of a different person as defined in §260.10 shall not be deemed to “control” such facilities.

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim (cont):(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…The generating and receiving facilities must both maintain at their facilities for no less than three years records of hazardous secondary materials sent or received under this exclusion. In both cases, the records must contain the name of the transporter, the date of the shipment, and the type and quantity of the hazardous secondary material shipped or received under the exclusion. These requirements may be satisfied by routine business records (e.g.,financial records, bills of lading, copies of DOT shipping papers, or electronic confirmations); or

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim (cont):(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…(C) The hazardous secondary material is generated pursuant to a written contract between a tolling contractor and a toll manufacturer and is reclaimed by the tolling contractor, if the tolling contractor certifies the following: “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”.

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim (cont):(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…The tolling contractor must maintain at its facility for no less than three years records of hazardous secondary materials received pursuant to its written contract with the tolling manufacturer, and the tolling manufacturer must maintain at its facility for no less than three years records of hazardous secondary materials shipped pursuant to its written contract with the tolling contractor. In both cases, the records must contain the name of the transporter, the date of the shipment, and the type and quantity of the hazardous secondary material shipped or received pursuant to the written contract. These requirements may be satisfied by routine business records (e.g., financial records, bills of lading, copies of DOT shipping papers, or electronic confirmations).

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim (cont):(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…For purposes of this paragraph, 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.

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim (cont):(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…(ii)(A) The hazardous secondary material is contained as defined in §260.10 of this chapter. A hazardous secondary material released to the environment is discarded and a solid waste unless it is immediately recovered for the purpose of reclamation. Hazardous secondary material managed in a unit with leaks or other continuing or intermittent unpermitted releases is discarded and a solid waste.

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim (cont):(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…(B) The hazardous secondary material is not speculatively accumulated, as defined in §261.1(c)(8).(C) Notice is provided as required by §260.42 of this chapter.(D) The material is not otherwise subject to material-specific management conditions under paragraph (a) of this section when reclaimed, and it is not a spent lead-acid battery (see §266.80 and §273.2 of this chapter).

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23) Verbatim (cont):(a) Materials which are not solid wastes. The following materials are not solid wastes for the purpose of this part:…(E) Persons performing the recycling of hazardous secondary materials under this exclusion must maintain documentation of their legitimacy determination on-site. Documentation must be a written description of how the recycling meets all four factors in §260.43(a). Documentation must be maintained for three years after the recycling operation has ceased.(F) The emergency preparedness and response requirements found in subpart M of this part are met.

40 CFR 261.4(a)(23)

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40 CFR 261.4(a)(23)