Legitimate Hazardous Waste Recycling
Since the beginning of the RCRA program, EPA has made the distinction between real recycling activities -- legitimate recycling -- and "sham recycling,” an activity undertaken to avoid hazardous waste requirements. EPA established the regulatory definition of legitimate recycling through a series of rules, with the current version finalized in 2018.
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Definition and Factors of Legitimate Recycling
EPA’s definition of legitimate recycling is found in Title 40 of the Code of Federal Regulations (CFR) section 260.43. Under RCRA, all recycling of hazardous secondary materials must be legitimate in order to be eligible for a recycling exemption or exclusion.
The four legitimacy factors are as follows:
- Legitimate recycling must involve a hazardous secondary material that provides a useful contribution to the recycling process or to a product or intermediate of the recycling process.
- The recycling process must produce a valuable product or intermediate.
- The generator and the recycler must manage the hazardous secondary material as a valuable commodity when it is under their control.
- The product of the recycling process is analogous to a legitimate product or intermediate.
Under the definition of legitimate recycling, the first three factors must be met, and the fourth factor must be considered. Refer to the inspection checklist tool, appendix A below for examples on how to meet these legitimacy factors.
Sham Recycling
By contrast, hazardous secondary materials that are sham recycled are solid and hazardous wastes, per 40 CFR section 261.2(b)(4) and (g).
Some examples of "sham" recycling include:
- Ineffective or only marginally effective for the claimed use - e.g., using certain heavy metal sludges in concrete when such sludges do not contribute any significant element to the concrete's properties. (Fails Factor 1 and possibly Factor 4).
- Used in excess of the amount necessary - e.g., using materials containing chlorine as an ingredient in a process requiring chlorine, but in amounts that well exceed the required chlorine levels. (Fails Factor 1).
- Used to produce a product that has no value – e.g., a recycler that uses materials to make blocks or building materials for which there is no market and then “uses” those blocks to make a warehouse to store the remainder of the materials that it can’t sell. (Fails Factor 2).
- Handled in a manner inconsistent with its use as a raw material or commercial product substitute - e.g., storing materials in a leaking surface impoundment as compared to a tank in good condition that is intended for storing raw materials. (Fails Factor 3).
- Recycled product is not comparable to a product made from analogous raw materials – e.g., producing a product with much higher concentrations of hazardous constituents than would normally be found in such a product. (Fails Factor 4).
However, if the hazardous constituents identified during the consideration of factor 4 are not bioavailable, and there is no human exposure to the constituents, then the recycling may still be legitimate (assuming it passes the other three mandatory factors).
Resources
- Example Template for Legitimate Recycling Documentation (pdf)(140 KB).
- Hazardous Secondary Materials Requirements and the Definition of Solid Waste Training Slides (pdf)(September 2024)(2.84 MB).
- Inspection Checklist Tool for Facilities Generating and Recycling HSM (July 2024) - refer to Appendix A: Legitimate Recycling (pdf)(1.77 MB).