Authored by John D. Cain, the paper clarifies that a material becomes a solid waste only when the generator decides to discard it, and a hazardous waste only if that solid waste is characteristic or listed.
EPA’s definition of a “spent material” (§261.1(c)(1)) and the 1985 Federal Register refinement of that definition allow materials that can no longer serve one use (e.g., high-purity circuit-board cleaning) to be employed in a related use (e.g., metal degreasing) without becoming spent, provided no reclamation, filtration, distillation, or other processing occurs between uses.
This “continued use” concept is treated as analogous to the secondary-materials exclusion for materials used or reused as effective substitutes for commercial products (§261.2(e)(1)(ii)). EPA guidance memos confirm that a used solvent may later clean drums or machinery and still remain a product, that the policy is not limited to the original user, and that legitimacy is required to prevent abuse.
The paper notes that the 2017 D.C. Circuit decision in American Petroleum Institute v. EPA rejected EPA’s historical equation of reclamation with discard, adding further complexity. Because the determination is highly fact-specific and states may interpret the rules more stringently, the paper recommends experienced RCRA counsel to avoid costly non-compliance.
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