McCoy’s White Paper
Definition of Solid Waste Final Rule
Seminar Supplement
McCoy and Associates
understand your environment.
For additional information regarding RCRA training, contact us at 12596 West Bayaud Avenue, Suite 210, Lakewood, CO 80228
Tel 303-526-2674 Fax 303-526-5471 www.understandrcra.com
Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation,
warranty, or guarantee in connection with the publication of this paper. McCoy and Associates, Inc. expressly disclaims any liability or
responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which
this document may conflict.
This white paper addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances
dealing with hazardous waste regulations should review state and local laws and regulations, which may be more stringent than federal
requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.
© McCoy and Associates, Inc.
Lakewood, Colorado
01-08-15
On January 13, 2015, EPA issued a rule that amends its
definition of solid waste (DSW) to promote recycling
while still protecting human health and the environment.
[80 FR 1694] This rule revises the agency’s previous 2008
DSW rule to provide additional oversight and minimize
potential risk of releases to surrounding communities.
Revised Generator-Controlled Exclusion
The 2008 DSW rule finalized two self-implementing
exclusions from the definition of solid waste. The first
exclusion applied to hazardous secondary materials that
are reclaimed under the control of the generator. The
exclusion was applicable to spent materials (that are
hazardous by either listing or characteristic), listed
sludges, and listed by-products that are reclaimed within the United States or its territories. The 2015 rule retains this generator-controlled exclusion but “strengthens” it to ensure adequate protection of human health
and the environment. A comparison of the conditions
that must be met in the original 2008 exclusion vs. the
2015 revisions is given in Table 1.
The revised exclusion does not apply to: 1) materials
already subject to an exclusion in §261.4(a); and
2) spent lead-acid batteries managed under either Part
266, Subpart G or as universal waste under Part 273.
Unlike the 2008 rule, the agency is making spent petroleum refining catalysts (K171/K172) eligible for the revised generator-controlled exclusion.
“Transfer-Based” Exclusion Replaced With
“Verified Recycler” Exclusion
The second of two 2008 exclusions from the definition of
solid waste was for spent materials, listed sludges, and
listed by-products that are transferred from the generator
to another “person” for reclamation. EPA called this the
“transfer-based” exclusion. Because the generator has
relinquished control of the material, the agency believed
that numerous conditions were needed to ensure the
hazardous secondary material would not be discarded.
Although the 2008 rule is in effect in only 6 states, EPA
noted that “to date, no environmental problems have
been reported by states related to [the] 2008 transferbased exclusion.” [80 FR 1708] Even so, to respond to
concerns raised by the Sierra Club and others, the agency is adding additional conditions to the exclusion for
hazardous secondary materials reclaimed at third-party
facilities. “Given the evidence of past damage cases
leading to significant risk to human health and the environment from hazardous secondary materials originally
intended for recycling and the underlying perverse incentives of the recycling market to over-accumulate
such hazardous secondary materials intended for recycling, resulting in discard of the material, additional
oversight of recycling beyond the self-implementing
measures of the transfer-based exclusion is needed to
ensure that the hazardous secondary material is legitimately recycled and not discarded.” [80 FR 1709]
Thus, the agency has reworked the 2008 transfer-based
exclusion into the 2015 verified recycler exclusion. As its
name implies, one of the primary conditions that must be
met to claim the verified recycler exclusion is that the recycling facility has to be “verified” by EPA or an authorized
state, considering appropriate public input. This can be
done in one of two ways: a “verified” reclamation facility
is a 1) verified recycler that has been granted a variance
[under §260.31(d)] by EPA or the state, or 2) reclamation
facility operating under a RCRA permit or interim status.
Table 2 summarizes the conditions for the 2008 transferbased exclusion vs. the 2015 verified recycler exclusion.
The verified recycler exclusion does not apply to: 1) materials already subject to an exclusion in §261.4(a); and
2) spent lead-acid batteries managed under either Part
266, Subpart G or as universal waste under Part 273. As
with the revised generator-controlled exclusion, the
agency is making spent petroleum refining catalysts
(K171/K172) eligible for the verified recycler exclusion.
New Remanufacturing Exclusion for Spent
Solvents
The 2015 DSW rule has added a new exclusion from the
definition of solid waste that allows the transfer of certain spent solvents from one manufacturer to another
for “remanufacturing” (i.e., extending the useful life of
the original solvent by recycling the spent solvent in a
manufacturing setting). This exclusion is similar to the
second form of excluded recycling that is under the
control of the generator (i.e., materials generated and
reclaimed at different facilities) discussed above; however, there is no requirement in the remanufacturing
exclusion that the generator and remanufacturer be
controlled by the same “person.” EPA has defined “remanufacturing” in §260.10 to mean:
“processing a higher-value hazardous secondary
material in order to manufacture a product that
©2015 McCoy and Associates, Inc.
1
WHITE PAPER
2015 Definition of Solid Waste Rule
WHITE PAPER
Table 1: Conditions That Must Be Met for the Generator-Controlled Exclusion
2008 DSW rule1
Exclusion condition
2015 DSW rule2
“Under the control of the generator”
Defined for three options: 1) materials gener- Same as 2008 rule
ated and reclaimed at the generating facility,
2) materials generated and reclaimed at different facilities, and 3) materials generated and
reclaimed per a tolling agreement
Materials must be “contained”
in units
No specific regulatory definition; EPA noted
in preamble language that “[g]enerally, such
material is ‘contained’ if it is placed in a unit
that controls the movement of the hazardous
secondary material out of the unit and into
the environment.” [73 FR 64681]
Formal regulatory definition of “contained”
added to §260.10: 1) the unit is in good condition, with no leaks or unpermitted releases of
materials to the environment; 2) the unit is
properly labeled or otherwise described (such
as in a log) to identify the contained materials;
and 3) material compatibility issues and po3
tential for fires and explosions are addressed
Emergency preparedness and
response
No specific requirements
Requirements found in new Part 261, Subpart M, depending on the amount of hazardous secondary material the generator accumu4
lates onsite at any time
Legitimate vs. “sham” recycling Four recycling legitimacy factors: the first two
are mandatory; the second two are not mandatory but should be “considered” when making
a legitimacy determination. No specific documentation of recycling legitimacy is required.
Four recycling legitimacy factors: all four are
mandatory.5 Documentation of how the recycling meets all four legitimacy factors must be
maintained for 3 years after the recycling operation has ceased.
Recordkeeping requirement
No specific requirements
For materials 1) generated and reclaimed at
different facilities, and 2) generated and reclaimed per a tolling agreement, the generating
and receiving facilities (or tolling contractor
and toll manufacturer) must both keep records
of each material shipment for at least 3 years
Notification requirement
Notification required but not a condition of
Notification required and a condition of the
6
the exclusion. Each party must submit a noti- exclusion. Same notification requirement as
fication prior to operating under the exclusion in 2008 rule.
and by March 1 of each even-numbered year
thereafter reporting types and quantities of
materials being reclaimed.
DSW = definition of solid waste.
1
Rule issued October 30, 2008. [73 FR 64668]
2
Rule issued January 13, 2015. [80 FR 1694]
3
Materials managed in units that meet Part 264 or 265 requirements (e.g., Subpart I containers and Subpart J tanks) are presumptively “contained.” In addition to the §260.10 definition of “contained,” 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.
4
Generators that accumulate no more than 6,000 kg of hazardous secondary material onsite must meet regulations similar to those required for
small quantity generators [i.e., regulations very similar to §262.34(d)(5) and Part 265, Subpart C]. Generators that accumulate more than
6,000 kg of hazardous secondary material onsite must meet regulations similar to those required for large quantity generators [i.e., regulations
very similar to Part 265, Subparts C and D].
5
The first three of the 2015 recycling legitimacy factors are basically the same as those in the 2008 rule. However, the fourth factor has been modified to emphasize that the product of the recycling process must meet widely-recognized commodity standards and specifications.
6
“We note that the requirement to provide this notification is not a condition of the exclusion. Thus, failure to comply with the requirement constitutes a violation of RCRA, but does not affect the excluded status of the hazardous secondary materials.” [73 FR 64682]
Source: McCoy and Associates, Inc.
2
©2015 McCoy and Associates
WHITE PAPER
Table 2: Conditions for the 2008 Transfer-Based Exclusion vs. the 2015 Verified Recycler Exclusion
Exclusion condition
2008 transfer-based exclusion
2015 verified recycler exclusion
1
Facilities involved
The material may only be handled by the gen- Same as 2008 rule
erator, the transporter, any intermediate facility, and one or more reclaimers
Generator due diligence
The generator must make “reasonable efforts,” repeated, documented, and certified
every 3 years, to ensure that each reclaimer
will legitimately recycle the material and that
any intermediate facility and reclaimer will
manage the material in a manner protective of
human health and the environment
The generator must arrange for transport of
the materials to a “verified” reclamation facility (as defined above) in the United States or
its territories
Materials must be “contained”
in units at the generator facility
Same as discussed in Table 1
Same as discussed in Table 1
Materials must be “contained”
in units at any intermediate facility and at each reclaimer
Each reclaimer and any intermediate facility
Same as 2008 rule
must manage the hazardous secondary material in a manner that is at least as protective as
2
that employed for analogous raw material
and must be contained.
Emergency preparedness and
response
Not required
Requirements found in new Part 261, Sub
part M
Legitimate vs. “sham” recycling Four recycling legitimacy factors: the first two Four recycling legitimacy factors: all four are
are mandatory; the second two are not manda- mandatory.3 No specific documentation of
tory but should be “considered” when making recycling legitimacy is required.
a legitimacy determination. No specific documentation of recycling legitimacy is required.
Residues generated from reclamation
Any residues generated from the reclamation pro- Same as 2008 rule
cess must be managed in a manner that is protective of human health and the environment;
any hazardous wastes generated must be managed in accordance with RCRA Subtitle C
Reclaimers and intermediate
facilities financial assurance
Requirements found in Part 261, Subpart H
Recordkeeping requirement
The generator, any intermediate facility, and Same as 2008 rule
each reclaimer must keep records of each material shipment for at least 3 years. Additionally,
generators must receive confirmations of receipt from each intermediate facility and reclaimer and maintain them for at least 3 years.
Notification requirement
Same as discussed in Table 1
Same as 2008 rule
Notification required and a condition of the
exclusion. Same notification requirement as
in 2008 rule.
1
If the material will be passing through an intermediate facility, the intermediate facility must have been granted a variance under §260.31(d), or
the management of the materials at that facility must be addressed under a RCRA Part B permit or interim status standards. Further, the generator must make contractual arrangements with the intermediate facility to ensure that the material is sent to the reclamation facility identified by
the generator.
2
An analogous raw material is a raw material for which a hazardous secondary material is a substitute and serves the same function and has similar physical and chemical properties as the hazardous secondary material.
3
The first three of the 2015 recycling legitimacy factors are basically the same as those in the 2008 rule. However, the fourth factor has been modified to emphasize that the product of the recycling process must meet widely-recognized commodity standards and specifications.
Source: McCoy and Associates, Inc.
©2015 McCoy and Associates, Inc.
3
WHITE PAPER
serves a similar functional purpose as the original
commercial-grade material. For the purpose of this
definition, a hazardous secondary material is considered higher-value if it was generated from the use
of a commercial-grade material in a manufacturing
process and can be remanufactured into a similar
commercial-grade material.”
remanufacturer is within one of the industries noted
above, that the remanufactured solvent will be used
for one of the purposes noted above, and that the
remanufacturing storage and recycling equipment is
equipped with and is operating air emission controls
in compliance with appropriate CAA standards or,
alternatively, new Part 261, Subparts AA, BB, and CC
standards. (These new Part 261, Subparts AA, BB,
and CC standards are essentially identical to existing
Part 264/265, Subparts AA, BB, and CC standards.)
This definition does not limit remanufacturing to just
used solvents, but the regulatory text associated with this
new remanufacturing exclusion in §261.4(a)(27) requires
that the “higher-value hazardous secondary material” must
be one of the following 18 spent solvents: toluene, xylenes,
ethylbenzene, 1,2,4-trimethylbenzene, chlorobenzene,
n-hexane, cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform, chloromethane, dichloromethane, methyl isobutyl ketone, NN-dimethylformamide, tetrahydrofuran, n-butyl alcohol, ethanol, and/or methanol.
Because the goal of the remanufacturing exclusion is to
encourage sustainable materials management by keeping materials in commerce, it does not apply to spent
solvents sent to commercial recyclers. Instead, the exclusion is only available for transfers of these spent solvents within the pharmaceutical, organic chemical,
plastics and resins, and/or the paints and coatings industries. Spent solvents managed under the exclusion
and the remanufactured (e.g., distilled) solvents can be
used only to react, extract, purify, or blend chemicals
(or to rinse out the process lines associated with these
functions). The remanufactured solvents can also be
used as ingredients to make products, but they cannot
be used for cleaning or degreasing. Note that the solvent
remanufacturer does not have to use the recycled solvent
in its operations but can sell it instead to another facility
within the industry sectors noted. [80 FR 1715–6]
This new exclusion requires both the spent solvent generator and remanufacturer to comply with the following
conditions:


4
Submit a notification prior to operating under the
exclusion and by March 1 of each even-numbered
year thereafter reporting types and quantities of materials being remanufactured.
Jointly develop and maintain a remanufacturing
plan that identifies 1) the generator(s) and remanufacturer(s); 2) the types and annual volumes of
spent solvents to be remanufactured; 3) the processes and industry sectors that generate the spent solvents; 4) the processes and industry sectors that reuse the remanufactured solvents; and 5) a certification from the remanufacturer certifying that the
©2015 McCoy and Associates
The remanufacturing plan can be updated any time
to reflect a new remanufacturer without triggering a
re-notification requirement on the part of the generator. As long as the remanufacturing plan that is
kept onsite reflects current practices, including
making sure that there is a remanufacturer that will
accept the spent solvents, the generator will be in
compliance. [80 FR 1717]

Keep records of each shipment of material for at
least three years, and generators must maintain confirmations of receipt from remanufacturers for at
least three years.

Prior to remanufacturing, store the spent solvents in
containers and tanks that meet new Part 261, Subparts I and J standards, respectively, with the contents of these containers and tanks identified by labels or other documentation. (These new Part 261,
Subparts I and J standards are essentially identical to
existing Part 264, Subparts I and J standards.)

Meet the speculative accumulation requirements in
§261.1(c)(8).
The remanufacturing exclusion can be applied to other
hazardous secondary materials, industry sectors, and/or
functional uses beyond those described above only if
approved by EPA through the formal rulemaking petition process of existing §260.20. Considerations that the
agency suggests would be of particular interest in such
petitions are described at 80 FR 1719.
Changes to the Existing RCRA Regs
Application of the Legitimacy Criteria to All Recycling
The 2008 DSW rule codified four factors for determining
if hazardous secondary materials are being legitimately
recycled under the two reclamation exclusions promulgated in that rule. Those four factors were codified in
§260.43. The 2015 DSW rule expands the application of
the §260.43 legitimacy criteria (as revised in the 2015
rule) to all recycling, including that conducted under


All hazardous secondary materials that are excluded
or exempted from RCRA Subtitle C regulation because they are recycled (e.g., scrap metal), and

The criteria for the partial reclamation variance in
§260.31(c) have been revised to clarify when the variance applies and to require, among other things, that
such reclamation meets the §260.43 legitimacy criteria.

Section 260.33(c) has been revised such that, if a change
in circumstances affects how a material meets the relevant criteria upon which a variance or nonwaste determination has been based, EPA or the state has the
option to 1) issue a determination that the material
continues to meet the relevant criteria for the variance
or nonwaste determination, or 2) require the facility to
re-apply for the variance or nonwaste determination.

EPA has decided to add a provision at §260.33(d)
limiting nonwaste determinations and variances
from classification as a solid waste to a ten-year
term. No later than six months prior to the end of
the term, facilities must re-apply if they want to
maintain the nonwaste determination or variance. A
new paragraph (e) to §260.33 states that facilities receiving a nonwaste determination or variance must
provide notification as required by §260.42, which
has been minimally revised as to the information
required in such notifications.

The criteria for nonwaste determinations in §260.34(b)(4)
and (c)(5) have been revised to require that petitioners explain or demonstrate why their materials
cannot meet, or should not have to meet, the conditions for an exclusion under §261.2 or 261.4.
All recyclable hazardous wastes that remain partially
or totally subject to the hazardous waste regulations
(e.g., precious metals).
EPA effected this broad application of the legitimacy
criteria by adding materials that are “sham recycled” as
the fourth type of abandoned materials that are solid
waste under §261.2(b). Although the agency considered
requiring regulated entities to document that all recycling meets the §260.43 legitimacy criteria, EPA relented in the final 2015 rule: “We have also determined that
documentation of legitimacy is not necessary or required for the pre-2008 recycling exclusions and exemptions, except in the rare case where the recycling is
legitimate, but does not meet factor 4.” [80 FR 1720]
New Tracking Requirement to Refute Speculative
Accumulation
The definition of speculative accumulation has been
revised by the 2015 DSW rule, requiring material accumulation start dates to be formally tracked. The following language has been added to §261.1(c)(8): “Materials
must be placed in a storage unit with a label indicating
the first date that the material began to be accumulated.
If placing a label on the storage unit is not practicable,
the accumulation period must be documented through
an inventory log or other appropriate method.”
As of the effective date of the 2015 DSW rule, this new
tracking provision will apply to all persons subject to
the speculative accumulation requirements at
§261.1(c)(8). EPA noted that this new provision “will
allow inspectors and other regulatory authorities to
quickly ascertain how long a facility has been storing an
excluded hazardous secondary material, and, therefore,
whether that facility is in compliance with the accumulation time limits of §261.1(c)(8).” [80 FR 1705]
State Authorization
This new rule will become effective in Alaska and Iowa
on July 13, 2015. The 2015 DSW rule is more stringent
than the 2008 rule, so states that adopted that rule (i.e.,
Idaho, Illinois, New Jersey, and Pennsylvania) will be required to modify their programs to be consistent with the
2015 revisions. Other states are not required to adopt the
2015 rule except for the following provisions, which are more
stringent than the regulations that existed prior to 2008:

The revisions to the definition of legitimacy in
§260.43 and the prohibition of sham recycling per
new §261.2(b)(4) and 261.2(g);

The additional accumulation date tracking requirement in the speculative accumulation provisions in
§261.1(c)(8); and

Changes/additions to the standards and criteria for
nonwaste determinations and solid waste variances
in §§260.30, 260.31, 260.33, and 260.34.
Nonwaste Determinations and Solid Waste Variances
If facilities are not able to meet the conditions of the
new or pre-existing recycling exclusions in the RCRA
regs, they can petition EPA or their state for a 1) nonwaste determination, or 2) variance from classification
as a solid waste per §§260.30, 260.31, 260.33, and
260.34. In the 2015 DSW rule, the agency made the following changes to the procedures for obtaining these
determinations and variances:
©2015 McCoy and Associates, Inc.
5
WHITE PAPER
pre-2008 recycling exclusions and exemptions. This means
that the legitimate recycling provision now applies to: