Authored by John D. Cain and Cherie N. McKenna in September 2021, the paper reviews USEPA’s historical treatment of recycling as a form of discard (creating “RCRA anyway” barriers) and the shift prompted by D.C. Circuit decisions rejecting that view.
The 2018 Definition of Solid Waste (DSW) Rule establishes four Legitimacy Factors (the first three mandatory) that must be met for recycling of hazardous secondary materials (HSMs) to be legitimate.
Under the Generator Controlled Exclusion (GCE) (§261.4(a)(23)), a generator may reclaim HSMs on-site or ship them to a facility under common corporate control (or under a tolling agreement) if it provides biennial EPA notification, contains and labels the materials, avoids speculative accumulation, documents legitimacy, maintains emergency procedures, and keeps shipment records and certifications.
Under the Transfer Based Exclusion (TBE) (§261.4(a)(24)), generators may send HSMs to independent third-party reclaimers or intermediate facilities, but must also perform and document “reasonable efforts” every three years confirming the reclaimer’s legitimacy, financial assurance, enforcement history, capability, and residual management, while both generators and reclaimers maintain detailed shipping, receipt, and management records and financial assurance.
Because the GCE and TBE concepts are optional (less-stringent) than previous Federal provisions, state adoption varies, and residual regulatory language treating recycling as discard continues to create interpretive uncertainty; the paper therefore advises companies to confirm state positions and seek experienced RCRA guidance to avoid non-compliance.
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