June 2010 

Version 1 

 

 

Revisions to the Definition of Solid Waste Final 

Rule Compilations: The Legitimate Recycling 

Standard 

 

Materials Recovery and Waste Management Division 

Office of Resource Conservation and Recovery 

U.S. Environmental Protection Agency 

 

 

 

 

 

 

 

 

EPA530-R-10-007
Revisions to the Definition of Solid Waste Final Rule Compilations: 

The Legitimate Recycling Standard 

Introduction i

INTRODUCTION 

Contents 

Click a topic below to go to a section

INTRODUCTION ..........................................I 

THE LEGITIMATE RECYCLING 

STANDARD .................................................1 

Purpose of Legitimacy .................................1 

Applicability of the Legitimacy Provision in 

the Final Rule...............................................1 

Factor 1—Useful Contribution.................3 

Factor 2—Valuable Product or 

Intermediate.............................................5 

Factor 3—Managed as a Valuable 

Commodity ..............................................7 

Factor 4—Comparison of Toxics in the 

Product ....................................................9 

Economics .................................................14 

Demonstration and Enforcement of 

Legitimacy..................................................17 

CFR LANGUAGE ......................................19 

ACRONYMS ..............................................23 

INDEX........................................................24 

About the 2008 DSW Rule 

On October 30, 2008, the U.S. 

Environmental Protection Agency (EPA) 

published a final rule that streamlines 

regulation of hazardous secondary 

materials to encourage beneficial 

recycling and to help conserve resources. 

The Revisions to the Definition of Solid 

Waste (DSW) Final Rule (“DSW rule”) 

amends and clarifies the Resource 

Conservation and Recovery Act (RCRA) 

definition of solid waste (40 CFR 261.2). 

In particular, this rule establishes three 

self-implementing exclusions to the 

definition of solid waste for hazardous 

secondary materials that are reclaimed. 

One of the exclusions involves 

hazardous secondary materials that are 

legitimately reclaimed under the control 

of the generator (onsite reclamation, 

reclamation by the same company, and 

reclamation under certain tolling 

arrangements). The second exclusion 

involves hazardous secondary materials 

that are transferred to another company 

for reclamation. The last exclusion 

involves hazardous secondary materials 

that are exported for reclamation. In 

addition, the 2008 DSW rule outlines a 

procedure for case-by-case non-waste 

determinations. 

For more information on the DSW rule, 

see EPA’s DSW Federal Register 

Notices web page. 

About the “Revisions to the Definition of Solid Waste Final 

Rule Compilations” 

The Revisions to the Definition of Solid Waste Final Rule Compilations provide easy 

access for EPA, the states, the regulated community, and the public to important 

information regarding a number of the provisions in the DSW rule: legitimate recycling, 

reasonable efforts and the contained standard. This user-friendly reference tool reduces 

the need for stakeholders to search through multiple Federal Register notices and will 

improve understanding of each of these three subjects. For each compilation, EPA has 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

The Legitimate Recycling Standard 

Introduction ii

incorporated information from relevant preambles, regulations, and other materials. 

Please note that this reference is designed to be web-based; therefore, the usefulness of 

the document is maximized when it is viewed on a computer connected to the Internet. 

This volume of the Compilations series provides information about the legitimate 

recycling standard under the DSW rule. A more in-depth version of this compilation, 

covering the history of legitimate recycling, and compilations addressing the contained 

standard and the reasonable efforts condition will be available at 

http://www.epa.gov/epawaste/hazard/dsw/impresource.htm#guide. 

This document is not a rulemaking and does not change any existing solid or hazardous 

waste requirements. Any reformatting of regulatory language for the new exclusions is 

only intended to make the language easier to read. Moreover, EPA’s intention is to 

include only that CFR language that is directly relevant to the legitimate recycling 

standard. Note: other relevant language to this standard may exist and may not be 

included in this document; users of this document are responsible for examining all CFR 

language and other information that may be relevant to the legitimate recycling standard. 

Any language in this document, including any reformatted CFR language to assist in ease 

of reading, is not a substitute for the CFR itself or the requirements in the CFR. In 

addition, we also provide links to the Government Printing Office’s Electronic Code of 

Federal Regulations Web site (e-CFR), which is updated almost daily. 

In addition, this reference document presents matters related only to the legitimate 

recycling standard of the federal definition of solid waste and hazardous waste recycling 

regulations. Most states are authorized to manage their own solid and hazardous waste 

regulatory programs. Therefore, states may have their own regulations that apply in lieu 

of the federal regulations. While most state regulations are based on the federal 

requirements, some states have developed regulations that are more stringent than the 

federal program. We direct you to the following web site to determine if your state 

regulatory program is different from the federal program: 

http://epa.gov/waste/wyl/stateprograms.htm. 

For a collection of written materials about other issues related to the definition of solid 

waste, see the Definition of Solid Waste Compendium. For more information regarding 

the various regulations applied to facilities generating or managing hazardous waste, see 

Hazardous Waste Generators: A User Friendly Reference Document. 

The Compilations series is also available in Microsoft Word format from EPA upon 

request. For more information on these versions and any other questions or comments 

concerning this document, please contact EPA’s Office of Resource Conservation and 

Recovery: 

Mary Beth Sheridan 

sheridan.marybeth@epa.gov 

703-308-4941 

Kathy Lett 

lett.kathy@epa.gov 

703-605-0761 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

The Legitimate Recycling Standard 

Introduction iii

About “The Legitimate Recycling Standard” Compilation 

Under the 2008 DSW rule, EPA requires hazardous secondary materials being reclaimed 

under the control of the generator (40 CFR 261.2(a)(2)(ii) and 40 CFR 261.4(a)(23)) or 

transferred for the purpose of reclamation (40 CFR 261.4(a)(24) and 40 CFR 

261.4(a)(25)) to meet the legitimate recycling standard. Materials for which an applicant 

applies for a non-waste determinations at 40 CFR 260.34 must also meet the legitimacy 

standard. EPA has long articulated the need to distinguish between "legitimate" (i.e., true) 

recycling and "sham" recycling and has codified legitimacy provisions in the DSW rule. 

This compilation is designed for users who want to read about the legitimate recycling 

standard under the 2008 DSW Rule. This compilation discusses the following subjects 

(click a topic below to jump to a section): 

• Purpose of legitimacy

• Applicability of the legitimacy requirements

• Structure of the legitimacy requirements

• Details of Factors 1–4

• Economics

• Demonstration and enforcement of legitimacy

• Regulatory text

The text in the following sections is taken nearly verbatim from the preamble to the 2008 

final rule and from final regulatory language. The excerpts presented in this compilation 

do not necessarily appear in the same order as in the original source. In some cases, we 

have reformatted passages to improve readability. Where the language in this compilation 

does not exactly match preamble or regulatory language, we have indicated this by 

bracketing the text (with the exception of headings and bold titles). As noted above, any 

changes to the preamble or regulatory text are for the convenience of the reader and are 

not to be taken as substitutes for the actual language of the regulations or the preamble. 

EPA has also developed a longer version of the legitimacy compilation. The longer 

version is useful for those users who want to look at the history of legitimate recycling or 

compare other guidance on legitimate recycling to the requirements in the 2008 final rule. 

The longer version is available at 

www.epa.gov/epawaste/hazard/dsw/impresource.htm#guide and includes excerpts from 

the 2003 and 2007 proposals for the DSW final rule. It also includes topics such as the 

rationale for codifying the legitimacy factors and a description of how these factors 

compare to earlier guidance such as the “Lowrance Memo.” 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

The Legitimate Recycling Standard

The Legitimate Recycling Standard 1

THE LEGITIMATE RECYCLING 

STANDARD 

Purpose of Legitimacy 

Under the RCRA Subtitle C definition of solid waste, certain hazardous secondary 

materials, if recycled, are not solid wastes and, therefore, are not subject to RCRA’s 

“cradle to grave” management system. The basic idea behind this principle is that 

recycling of these materials often closely resembles industrial manufacturing rather than 

waste management. However, due to economic incentives for managing hazardous 

secondary materials outside the RCRA regulatory system, there is a potential for some 

handlers to claim that they are recycling the hazardous secondary materials when, in fact, 

they are conducting waste treatment and/or disposal. To guard against this, EPA has long 

articulated the need to distinguish between “legitimate” (i.e., true) recycling and “sham” 

recycling, beginning with the preamble to the 1985 regulations that discussed the 

definition of solid waste (50 FR 638, January 4, 1985) and continuing through [the 2008 

DSW] final rule. [73 FR 64670] The legitimacy provision in [the] final exclusions and 

non-waste determinations is designed to distinguish between real recycling activities—

legitimate recycling—and “sham” recycling, an activity undertaken by an entity to avoid 

the requirements of managing a hazardous secondary material as a hazardous waste. [73 

FR 64701] 

Applicability of the Legitimacy Provision in the Final Rule 

As part of [the DSW Rule], EPA has decided to codify in 40 CFR 260.43 the requirement 

that materials be legitimately recycled as a requirement for the exclusion for hazardous 

secondary materials that are legitimately reclaimed under the control of the generator (40 

CFR 261.2(a)(2)(ii) and 40 CFR 261.4(a)(23)) and as a condition of the exclusion for 

hazardous secondary materials that are transferred for the purpose of legitimate 

reclamation (40 CFR 261.4(a)(24) and 40 CFR 261.4(a)(25)). EPA is also requiring that 

hazardous secondary materials must be legitimately recycled under the final non-waste 

determinations (40 CFR 260.34) for hazardous secondary materials that are (a) reclaimed 

in a continuous industrial process and (b) indistinguishable in all relevant aspects from a 

product or intermediate. [73 FR 64700] These requirements can be found in the final 

regulatory text at §260.34(b), §261.2(a)(2)(ii), §261.4(a)(23)(v), and §261.4(a)(24)(iv). 

Each of these provisions refers to §260.43, where the full requirements for determining 

the legitimacy of the reclamation operation can be found. [73 FR 64701] 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

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The Legitimate Recycling Standard 2

EPA [codified] a legitimacy provision in [the] final rule as part of the final exclusions 

and non-waste determinations, but stresses that EPA retains its long-standing policy that 

all recycling of hazardous secondary materials must be legitimate. If a facility is engaged 

in sham recycling, this, by definition, is not real recycling and that material is being 

discarded. The legitimacy policy continues to apply to all hazardous secondary materials 

that are excluded or exempted from Subtitle C regulation because they are recycled and 

to recyclable hazardous wastes that remain subject to the hazardous waste regulations. 

This policy is well-understood throughout the regulated community and among the state 

implementing agencies. [73 FR 64707–64708] 

EPA believes that the four legitimacy factors [...] codified in 40 CFR 260.43 are 

substantively the same as the existing legitimacy policy. These factors are a 

simplification and clarification of the policy statements in the 1989 Lowrance Memo and 

in various Definition of Solid Waste Federal Register notices. [73 FR 64708] 

Nonetheless, to avoid confusion among the regulated community and state and other 

implementing regulatory agencies about the status of recycling under the existing 

exclusions, the Agency has decided not to codify the legitimacy factors for existing 

exclusions and, thus, states and other implementing agencies will continue to apply the 

existing legitimacy policy to all recycling as they have in the past in order to ensure that 

recycling is real and not a sham. The legitimacy provisions of the final rule are codified 

only for the exclusions and non-waste determinations being promulgated [in the final 

rule]. In developing the codified legitimacy language, [EPA] did not intend to raise 

questions about the status of legitimacy determinations that underlie existing exclusions 

from the definition of solid waste, or about case-specific determinations that have been 

made by EPA or the states. Current exclusions and other prior solid waste determinations 

or variances, including determinations made in letters of interpretation and inspection 

reports, remain in effect. [73 FR 64708] 

In summary, all hazardous secondary materials recycling and hazardous waste recycling, 

whether such recycling remains under hazardous waste regulations or is excluded from 

the definition of solid waste, must be legitimate. This has been our long-standing policy 

and it is well understood throughout the regulated community and the implementing state 

regulatory agencies. In order to be clear that the legitimacy provision codified at 40 CFR 

260.43 under [the] final rule would not affect how the current legitimacy policy applies to 

recycling under existing exclusions, the legitimacy provision at 40 CFR 260.43 is 

explicitly designated as applying only to the exclusions and non-waste determinations 

being finalized in [the final] rule. [73 FR 64708] 

Final Legitimacy Structure 

Under the first paragraph of 40 CFR 260.43, hazardous secondary materials that are not 

legitimately recycled are discarded materials and, therefore, are solid wastes. This 

paragraph also states that anyone claiming an exclusion at §261.2(a)(2)(ii), §261.4(a)(23), 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

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The Legitimate Recycling Standard 3

§261.4(a)(24), or §261.4(a)(25) or using a non-waste determination at §260.30(d) or (e) 

must be able to demonstrate that its recycling activity is legitimate.[73 FR 64701] 

The design of legitimacy in the final rule has two parts. The first is a requirement that 

hazardous secondary materials being recycled provide a useful contribution to the 

recycling process or to the product of the recycling process and a requirement that the 

product of the recycling process is valuable. 

These two legitimacy factors make up the 

core of legitimacy and, therefore, a process 

that does not conform to them cannot be a 

legitimate recycling process, but would be 

considered sham recycling. [73 FR 64701] 

The second part of legitimacy is two factors 

that must be considered when a recycler is 

making a legitimacy determination. EPA 

believes that these two factors are important 

in determining legitimacy, but has not made 

them factors that must be met because the 

Agency knows that there will be some situations in which a legitimate recycling process 

does not conform to one or both of these two factors, yet the reclamation activity would 

still be considered legitimate. EPA does not believe that this will be a common 

occurrence, but in recognition that legitimate recycling may occur in these situations, 

EPA has made management of the hazardous secondary materials and the presence of 

hazardous constituents in the product of the recycling process to be factors that must be 

considered in the overall legitimacy determination, but not factors that must always be 

met. [73 FR 64701] 

Factor 1—Useful Contribution 

‘‘Legitimate recycling must involve a hazardous secondary material that provides a 

useful contribution to the recycling process or to a product of the recycling process * * * 

The hazardous secondary material provides a useful contribution if it (i) contributes 

valuable ingredients to a product or intermediate; or (ii) replaces a catalyst or carrier in 

the recycling process; or (iii) is the source of a valuable constituent recovered in the 

recycling process; or (iv) is recovered or regenerated by the recycling process; or (v) is 

used as an effective substitute for a commercial product’’ (40 CFR 260.43(b)(1)). [73 FR 

64701] 

This factor, one of the two core legitimacy factors, expresses the principle that hazardous 

secondary materials should contribute value to the recycling process. This factor is an 

essential element to legitimate recycling because real recycling is not occurring if the 

hazardous secondary materials being added or recovered do not add anything to the 

process. This factor is intended to prevent the practice of adding to or recovering 

hazardous secondary materials from a manufacturing operation simply as a means of 

The Four Legitimacy Factors 

Core Factors: 

• Factor 1—Useful Contribution 

• Factor 2—Valuable Product or 

Intermediate 

Factors that Must Be Considered: 

• Factor 3—Managed as a Valuable 

Commodity 

• Factor 4—Comparison of Toxics in the 

Product
Revisions to the Definition of Solid Waste Final Rule Compilations: 

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disposing of them, or recovering only small amounts of a constituent, which EPA would 

consider sham recycling. [73 FR 64701–64702] 

In response to comments received on this factor asking for more clarification on what 

useful contribution means, the regulatory text includes an explanation of how useful 

contribution might be achieved in (i) through (v) of §260.43(b)(1). EPA stresses that the 

ways in which hazardous secondary materials can add value and be useful in a recycling 

process are (i) contributing valuable ingredients to a product or intermediate; (ii) 

replacing a catalyst or carrier in the recycling process; (iii) providing a valuable 

constituent to be recovered; (iv) being regenerated; or (v) being used as an effective 

substitute for a commercial product. The preamble to the October 2003 proposed rule 

gave full descriptions of these five situations (68 FR 61585), but the Agency has also 

included them in the regulatory text to clarify this factor for the regulated community. [73 

FR 64702] 

The Agency also wants to restate for clarification that for hazardous secondary materials 

to meet the useful contribution factor, not every constituent or component of the 

hazardous secondary material has to make a contribution to the recycling activity. For 

example, a legitimate recycling operation involving precious metals might not recover all 

of the components of the hazardous secondary material, but would recover precious 

metals with sufficient value to consider the recycling process legitimate. In addition, the 

recycling activity does not have to involve the hazardous component of the hazardous 

secondary materials if the value of the contribution of the non-hazardous component 

justifies the recycling activity. One example of this factor from an existing exemption is 

where hazardous secondary materials containing large amounts of zinc, a non-hazardous 

component, are recycled into zinc micronutrient fertilizers. In cases where the hazardous 

component is not being used or recycled, the Agency stresses that the recycler is 

responsible for the management of any hazardous residuals of the recycling process. [73 

FR 64702] 

In a situation where more than one hazardous secondary material is used in a single 

recycling process and the hazardous secondary materials are mixed or blended as a part 

of the process, each hazardous secondary material would need to satisfy the useful 

contribution factor. This requirement prevents situations where a worthless hazardous 

secondary material could be mixed with valuable and useful hazardous secondary 

materials in an attempt to disguise and dispose of it. In addition, a situation in which 

hazardous secondary materials that can be useful to a process are added to that process in 

much greater amounts than are needed to make the end-product or to otherwise provide 

its useful contribution would also be sham recycling. [73 FR 64702] 

Another way the usefulness of the hazardous secondary material’s contribution could be 

demonstrated is by looking at the efficiency of the material’s use in the recycling 

process—that is, how much of the constituent in a hazardous secondary material is 

actually being used. As an example, if there is a constituent in the hazardous secondary 

material that could add value to the recycling process, but, due to process design, most of 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

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The Legitimate Recycling Standard 5

it is not being recovered but is being disposed of in the residuals, this would be a possible 

indicator of sham recycling. However, there are certainly recycling scenarios where a low 

recovery rate could still be legitimate. For example, under an existing exclusion, if the 

concentration in a metal-bearing hazardous secondary material is low (2%–4%) and a 

recycling process was able to recover a large percentage of the target metal, this factor 

could be met and the recycling may be legitimate (depending on the outcome of the 

analysis of the other legitimacy factors). [73 FR 64702] 

One way to use the efficiency of the recycling process to evaluate legitimacy is to 

compare the process to typical industry recovery rates from raw materials to determine if 

the recycling process is reasonably efficient. This method should involve an examination 

of the overall process, not just a single step of the process. For example, if one step in the 

process recovers a small percentage of the constituent, but the overall process recovers a 

much larger percentage, the Agency would consider the overall efficiency of the 

recycling process in determining whether hazardous secondary materials are providing a 

useful contribution. [73 FR 64702] 

There are various ways in which hazardous secondary materials can be useful to a 

recycling process and various ways are laid out in this discussion of how a facility might 

demonstrate conformity with this factor. In addition, we provided a number of different 

ways a material could contribute to the process in the regulatory text describing this 

factor. Any one of these would be sufficient to demonstrate that the hazardous secondary 

material provides a useful contribution. Overall, the Agency considers this factor to be a 

critical element in determining legitimacy and any recycling process that does not meet 

this factor cannot be considered legitimate recycling. [73 FR 64702] 

Factor 2—Valuable Product or Intermediate 

‘‘The recycling process must produce a valuable product or intermediate * * * The 

product or intermediate is valuable if it is (i) sold to a third party or (ii) used by the 

recycler or the generator as an effective substitute for a commercial product or as an 

ingredient or intermediate in an industrial process’’ (40 CFR 260.43 (b)(2)). [73 FR 

64702] 

This factor, one of the two core legitimacy factors, expresses the principle that the 

product or intermediate of the recycling process should be a material of value, either to a 

third party who buys it from the recycler, or to the generator or recycler itself, who can 

use it as a substitute for another material that it would otherwise have to buy or obtain for 

its industrial process. This factor is also an essential element of the concept of legitimate 

recycling because recycling cannot be occurring if the product or intermediate of the 

recycling process is not of use to anyone and, therefore, is not a real product. This factor 

is intended to prevent the practice of running a hazardous secondary material through an 

industrial process to make something just for the purpose of avoiding the costs of 

hazardous waste management, rather than for the purpose of using the product or 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

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Definition of “valuable” 

[A] recyclable product may be 

considered “valuable” if it can be 

shown to have either economic 

value or a more intrinsic value to 

the end user. [73 FR 64702] 

intermediate of the recycling activity. Such a practice would be sham recycling. [73 FR 

64702]

Most commenters on the proposed rule for this factor stated that this is a useful way of 

gauging whether recycling is actually taking place, but requested that the Agency clarify 

the meaning of the term valuable, as it is used in the regulatory text. [For] the purpose of 

this factor, a recyclable product may be 

considered “valuable” if it can be shown to have 

either economic value or a more intrinsic value to 

the end user. Evaluations of “valuable” for the 

purpose of this factor should be done on a caseby-case basis, but one way to demonstrate that the 

recycling process yields a valuable product would 

be the documented sale of a product of the recycling process to a third party. Such 

documentation could be in the form of receipts or contracts and agreements that establish 

the terms of the sale or transaction. This transaction could include money changing hands 

or, in other circumstances, may involve trade or barter. A recycler that has not yet 

arranged for the sale of its product to a third party could establish value by demonstrating 

that it can replace another product or intermediate that is available in the marketplace. A 

product of the recycling process may be sold at a loss in some circumstances, but the 

recycler would have to be prepared to show how the product is clearly valuable to the 

purchaser. [73 FR 64702–64703] 

However, many recycling processes produce outputs that are not sold to another party, 

but are instead used by the generator or recycler. A product of the recycling process may 

be used as a feedstock in a manufacturing process, but have no established monetary 

value in the marketplace. Such recycled products or intermediates would be considered to 

have intrinsic value, though demonstrating intrinsic value may be less straightforward 

than demonstrating value for products that are sold in the marketplace. Demonstrations of 

intrinsic value could involve showing that the product of the recycling process or 

intermediate replaces an alternative product that would otherwise have to be purchased or 

could involve a showing that the product of the recycling process or intermediate meets 

specific product specifications or specific industry standards. Another approach could be 

to compare the products or intermediates physical and chemical properties or efficacy for 

certain uses with those of comparable products or intermediates made from raw 

materials. [73 FR 64703] 

Some recycling processes may consist of multiple steps that may occur at separate 

facilities. In some cases, each processing step will yield a valuable product or 

intermediate, such as when a metal-bearing hazardous secondary material is processed to 

reclaim a precious metal and is then put through another process to reclaim a different 

mineral. When each step in the process yields a valuable product or intermediate that is 

salable or usable in that form, the recycling activity would conform to this factor. [73 FR 

64703] 
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Definition of “analogous raw material” 

An “analogous raw material” is a material for which 

a hazardous secondary material substitutes and which 

serves the same function and has similar physical and 

chemical properties as the hazardous secondary 

material. A raw material that has significantly 

different physical or chemical properties would not 

be considered analogous even if it serves the same 

function. For example, a metal-bearing ore might 

serve the same function as a metal-bearing air 

pollution control dust, but because the physical 

properties of the dust would make it more susceptible 

to wind dispersal, the two would not be considered 

analogous. Similarly, hazardous secondary materials 

with high levels of toxic volatile chemicals would not 

be considered analogous to a raw material that does 

not have these volatile chemicals or that has only 

minimal levels of volatile chemicals. [73 FR 64691] 

Like the other factors, this factor should be examined and evaluated on a case-by-case 

basis looking at the specific facts of a recycling activity. If, for instance, a recycling 

activity produces a product or intermediate that is used by the recycler itself, but does not 

serve any purpose and is just being used so that the product or intermediate appears 

valuable, that would be an indicator of sham recycling. An example of this would be a 

recycler that reclaims a hazardous secondary material and then uses that material to make 

blocks or building materials for which it has no market and then “uses” those building 

materials to make a warehouse in which it stores the remainder of the building materials 

that it is unable to sell. [73 FR 64703] 

Factor 3—Managed as a Valuable Commodity 

‘‘The generator and the recycler should manage the hazardous secondary material as a 

valuable commodity. Where there is an analogous raw material, the hazardous secondary 

material should be managed, at a minimum, in a manner consistent with the management 

of the raw material. Where there is no analogous raw material, the hazardous secondary 

material should be contained. Hazardous secondary materials that are released to the 

environment and are not recovered immediately are discarded’’ (40 CFR 260.43 (c)(1)). 

[73 FR 64703] 

The first of the additional factors that must be considered expresses the principle that 

hazardous secondary materials being recycled should be managed in the same manner as 

other valuable materials. This factor requires those making a legitimacy determination to 

look at how the hazardous secondary material is managed before it enters the recycling 

process. In EPA’s view, a recycler will value hazardous secondary materials that provide 

an important contribution to its process or product and, therefore, will manage those 

hazardous secondary materials in a manner consistent with how it manages a valuable 

feedstock. If, on the other hand, 

the recycler does not manage the 

hazardous secondary materials as 

it would a valuable feedstock, that 

behavior may indicate that the 

hazardous secondary materials 

may not be recycled, but rather 

released into the environment and 

discarded. [73 FR 64703] 

This factor may be particularly 

appropriate in the case where a 

recycler has been paid by a 

generator to take its materials as a 

result of the economic incentives 

in the hazardous secondary 

materials market. By looking at the 

management of the hazardous 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

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secondary material before it enters the recycler’s process, the entity making the 

legitimacy determination can tell that a material being managed like an analogous raw 

material is, in fact, valued by the recycler. If the hazardous secondary material is not 

being managed like a valuable raw material because it is uncontrolled or is being 

released, that indicates that the fee the recycler obtains for taking the hazardous 

secondary material may be its only value to that recycler. If the fee received were the 

only value to the recycler, it would mean that discard was taking place. [73 FR 64703] 

 

This factor addresses the management of hazardous secondary materials in two distinct 

situations. The first situation is when a hazardous secondary material is analogous to a 

raw material which it is replacing in the process. In this case, the hazardous secondary 

material should be managed prior to recycling similarly to the way the analogous raw 

materials are managed in the course of normal manufacturing. EPA expects that all 

parties handling hazardous secondary materials destined for recycling—generators, 

transporters, intermediate facilities and reclamation facilities—will handle them in 

generally the same manner in which they would handle the valuable raw materials they 

might otherwise be using in their process. [73 FR 64703] 

The second situation the factor addresses is the case where there is no analogous raw 

material that the hazardous secondary material is replacing. This could be either because 

the process is designed around a particular hazardous secondary material—that is, the 

hazardous secondary material is not replacing anything—or it could be because of 

physical or chemical differences between the hazardous secondary material and the raw 

material that are too significant for them to be considered “analogous.” [73 FR 64703] 

Hazardous secondary materials that have significantly different physical or chemical 

properties when compared to the raw material would not be considered analogous even if 

they serve the same function because it may not be appropriate to manage them in the 

same way. In this situation, the hazardous secondary material would have to be contained 

for this factor to be met. A hazardous secondary material is “contained” if it is placed in a 

unit that controls the movement of that material out of the unit. This requirement is 

consistent with the idea that normal manufacturing processes are designed to use valuable 

material inputs efficiently rather to than allow them to be released into the environment. 

[73 FR 64703] 

For example, if a manufacturer has an ingredient that is a dry raw material managed in 

supersacks, the Agency would expect that a hazardous secondary material that is a similar 

dry material also would be managed in supersacks or in a manner that would provide 

equivalent protection. If, on the other hand, the hazardous secondary material was instead 

managed in an outdoor pile without appropriate controls in place to address releases to 

the environment, it may indicate that it was not being handled as a valuable commodity. 

If, however, the manufacturer decided to replace the dry raw material in its process with a 

liquid having the same constituents, it would not be sufficient, nor would it make sense, 

for the liquid to be managed in supersacks. Instead, the liquid would have to be 

“contained” (for example in a tank or surface impoundment). [73 FR 64703–64704] 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

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An important part of this factor is the statement in the regulatory text clarifying that 

hazardous secondary materials that are released to the environment and not recovered 

immediately are discarded. Valuable products should not be allowed to escape into the 

environment through poor management and this factor clarifies that those hazardous 

secondary materials that do escape (and are not immediately recovered) are clearly 

discarded. Either a large release or ongoing releases of smaller amounts could indicate 

that, in general, the hazardous secondary material is not being managed as a valuable 

product, which could potentially lead to the recycling process being found not to be 

legitimate. Hazardous secondary materials that are immediately recovered before they 

disperse into the environment—air, soil, or water—and are reintroduced in the recycling 

process are not discarded. This determination must be made on a case-by-case basis, 

however. [73 FR 64704] 

In summary, given the nature of the legitimacy factors and their need to apply to all the 

practices covered by the exclusions in this final rule, it is not appropriate or practicable 

for EPA to develop a specific management standard. In the absence of such a 

management standard, EPA is using this factor: materials must be managed as analogous 

raw materials or, if there are no analogous raw materials, the materials must be contained. 

EPA’s intent with this factor is that hazardous secondary materials are managed in the 

same manner as materials that have been purchased or obtained at some cost, just as raw 

materials are. Just as it is good business practice to ensure that raw materials enter the 

manufacturing process rather than being spilled or released, we would expect hazardous 

secondary materials to be managed effectively and efficiently in order that their full value 

to the manufacturing process would be realized. [73 FR 64704] 

Factor 4—Comparison of Toxics in the Product 

‘‘The product of the recycling process does not (i) contain significant concentrations of 

any hazardous constituents found in Appendix VIII of part 261 that are not found in 

analogous products; or (ii) contain concentrations of any hazardous constituents found in 

Example where Factor 3 is not met, but recycling may be legitimate 

EPA has determined that it is appropriate that this factor is one of the two that must be 

considered rather than a factor that must be met because there are situations in which this 

factor is not met, but recycling appears to be legitimate. An example of this kind of situation is 

described in the March 2007 supplemental proposal (72 FR 14199). In the example, a 

hazardous secondary material that is a powder-like material is shipped in a woven super sack 

and stored in an indoor containment area, whereas the analogous raw material is shipped and 

stored in drums. A strict reading of this factor may determine that the hazardous secondary 

material is not being managed in a manner consistent with the raw material even if the 

differences in management are not actually impacting the likelihood of a release. By designing 

the legitimacy factors so that this one has to be considered, but not necessarily met, the 

individual facts of situations like the one described here can be evaluated on a case-by-case 

basis to determine if they affect the legitimacy of the recycling activity. [73 FR 64704] 
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Appendix VIII of part 261 at levels that are significantly elevated from those found in 

analogous products; or (iii) exhibit a hazardous characteristic (as defined in part 261 

subpart C) that analogous products do not exhibit’’ (40 CFR 260.43 (c)(2)). [73 FR 

64704] 

The second of the additional factors that must be considered requires those making a 

legitimacy determination to look at the concentrations of the hazardous constituents 

found in the product made from hazardous secondary materials and compare them to the 

concentrations of hazardous constituents in analogous products. Any of the following 

three situations could be an indicator of sham recycling: a product that contains 

significant levels of hazardous constituents that are not found in the analogous products; 

a product with hazardous constituents that were in the analogous products, but contains 

them at significantly higher concentrations; or a product that exhibits a hazardous 

characteristic that analogous products do not exhibit. Any of these situations could 

indicate that sham recycling is occurring because in lieu of proper hazardous waste 

disposal, the recycler could have incorporated hazardous constituents into the final 

product when they are not needed to make that product effective in its purpose. This 

factor, therefore, is designed to determine when toxics that are “along for the ride” are 

discarded in a final product and, therefore, the hazardous secondary material is not being 

legitimately recycled. [73 FR 64704] 

To evaluate this factor, a recycler will ordinarily compare the product of the recycling 

process to an analogous product made of raw materials. For example, if a recycling 

process produced paint, the levels of hazardous constituents in the paint will be compared 

with the levels of the same constituents found in similar paint made from virgin raw 

materials. [73 FR 64704] 

A recycler is also allowed to perform this evaluation by comparing the hazardous 

constituents in the hazardous secondary material feedstock with those in an analogous 

raw material feedstock. If the hazardous secondary material feedstock does not contain 

significantly higher concentrations of hazardous constituents than the raw material 

feedstock, then the end product of the recycling process would not contain excess 

hazardous constituents “along for the ride” either. EPA is clarifying here that this method 

of showing that the product does not have “toxics along for the ride” is acceptable. There 

may be cases in which it is easier to compare feedstocks than it is to compare products 

because the recycler knows that the hazardous secondary material is very similar in 

profile to the raw material. A comparison of feedstocks may also be easier in cases where 

the recycler creates an intermediate which is later processed again and may end up in two 

or more products, when there is no analogous product, or when production of the product 

of the recycling process has not yet begun. [73 FR 64704] 

This factor identifies three ways to evaluate whether or not unacceptable amounts of 

hazardous constituents are passed through to the products of the recycling process. (As 

explained above, these methods also could be used to compare the hazardous secondary 

material feedstock to a raw material feedstock, if the recycler prefers.) The first method 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

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specifies that when analogous products made from raw materials do not contain 

hazardous constituents, the product of the recycling process should not contain significant 

amounts of hazardous constituents. For example, if paint made from reclaimed solvent 

contains significant amounts of cadmium, but the same type of paint made from virgin 

raw materials does not contain cadmium, it could indicate that the cadmium serves no 

useful purpose and is being passed though the recycling process and discarded in the 

product. [73 FR 64704–64705] 

The second method addresses analogous products that do contain hazardous constituents 

and asks whether the concentrations of those hazardous constituents are significantly 

higher in the product of the recycling process than in the product made from raw 

materials. Concentrations of hazardous constituents in the product of the recycling 

process that are significantly higher than in the product made from virgin raw materials 

could again be an indicator of sham recycling. For example, if a lead-bearing hazardous 

secondary material was reclaimed and then that material was used as an ingredient in 

making ceramic tiles and the amount of lead in the tiles was significantly higher than the 

amount of lead found in similar tiles made from virgin raw materials, the recycler should 

look more closely at the factors to determine the overall legitimacy of the process. [73 FR 

64705] 

The third method under this factor is whether the product of the recycling process 

exhibits a hazardous characteristic that analogous products do not exhibit. Requiring an 

evaluation of hazardous characteristics ensures that products of the recycling process do 

not exhibit the characteristics of toxicity, ignitability, corrosivity, or reactivity when the 

analogous products do not. The Agency believes that most issues associated with “toxics 

along for the ride” will involve the presence of toxic constituents, which are addressed 

under the first two parts of the factor. That is, we believe that it is likely that there are few 

instances where hazardous secondary materials are used in the process and hazardous 

constituents are not present at significantly higher levels, but the product made from the 

hazardous secondary material nevertheless exhibits the hazardous characteristic of 

toxicity when the analogous product does not. It is possible, though, that the use of 

hazardous secondary materials as an ingredient could cause a product to exhibit a 

hazardous characteristic, such as corrosivity, that is not exhibited by analogous products. 

[73 FR 64705] 

The Agency has determined that it is appropriate for this factor to be considered in 

legitimacy determinations under the final exclusions and in the non-waste determinations 

in this action, but thinks that there may be situations in which the factor is not met but the 

recycling would still be considered legitimate. An example of this kind of situation that 

has been addressed by the Agency under the current regulatory scheme would be in the 

use and reuse of foundry sands for mold making in a facility’s sand loop. Because of 

repeated exposure to metals in a foundry’s process, the sands used to make the molds 

may have significantly higher concentrations of hazardous constituents than virgin sand. 

However, because the sand is part of an industrial process where there is little chance of 

the hazardous constituents being released into the environment or causing damage to 
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human health and the environment when it is kept inside, because there is lead 

throughout the foundry’s process, and because there is a clear value to reusing the sand, 

this would be an example of a situation where this factor is not met, but it does not affect 

the legitimacy of the recycling process. [73 FR 64705] 

In fact, EPA has concluded as a general matter that foundries engaged in the reuse of 

lead-containing foundry sands are recycling those sands legitimately and these sands 

would not be regulated under RCRA Subtitle C (under the circumstances described in 

EPA’s March 2001 memorandum on this subject).1 Thus, while the used sands in the 

sand loop arguably have toxics-along-for-the ride, EPA did not raise questions about the 

legitimacy of the recycling, given the overall nature of the operations. If the used foundry 

sand were being recycled into a different product, such as a material used on the ground 

or in children’s play sand, the legitimacy determination would be very different and 

significant levels of metals would likely render the recycling illegitimate. The same 

conclusions would be reached applying the factors codified in 260.43. [73 FR 64705] 

As discussed in more detail in the comments section of [the final rule] (section XVIII) 

and in the response to comments document in the docket, commenters on this factor 

requested clarification concerning what EPA meant by the terms used in this factor. In 

response to some of these comments, EPA has made two clarifications in the regulatory 

text by (1) specifying that the hazardous constituents referred to in the regulation are 

those that are found in Appendix VIII to 40 CFR part 261 and (2) clarifying that the 

hazardous characteristics to which EPA is referring to are those in 40 CFR part 261 

subpart C. [73 FR 64705] 

 

1

 Letter. Elizabeth Cotsworth, Director Office of Solid Waste, to Amy Blankenbiller, American Foundry 

Society, March 28, 2001. 

http://yosemite.epa.gov/osw/rcra.nsf/0c994248c239947e85256d090071175f/4C9A2EEE6E5F859B85256AC5004FC1C2/$file/14534.pdf

Additional examples where Factor 4 is not met, but recycling may be legitimate 

Another example of recycling that may be legitimate although this factor has not been met 

could be when the material has concentrations of toxics that could be considered “significantly 

higher” than the analogous product, but meets industry specifications for the product that 

include specific specifications for the hazardous constituent of concern. Meeting accepted 

industry standards would be a strong indication that this material is being legitimately 

recycled. A third example could be in the mining and mineral processing industry. In many 

mineral processing operations, the very nature of an operation results in hazardous 

constituents concentrating in the product as it proceeds through the various steps of the 

process. In many cases, there is not an analogous product to compare the products of these 

processes so this factor may not be relevant because of the nature of the operations. As with 

the above example, if a facility considers a factor and decides that it is not applicable to its 

process, the Agency suggests that the facility evaluate the presence of hazardous constituents 

in its product and be prepared to demonstrate both that it considered this factor and the reasons 

it believes the factor is not relevant. [73 FR 64705] 
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The Agency also received much comment on the term “significant” and what the Agency 

intended by this term. EPA has decided to keep the term in the final rule. The alternative 

to using “significant” or a similarly flexible term to determine when there may be 

hazardous constituents in the product made from recycled hazardous secondary materials 

that are not in the analogous products made from raw materials would be to set an 

absolute standard. In its discussion of legitimacy in the October 2003 proposed rule, EPA 

discussed possible “bright line” or risk-based approaches as a way to set absolute lines to 

define “significant” based on either a numerical limit or a risk level (68 FR 61587–

61588). EPA recognizes that the “bright line” or the risk-based approach may provide 

greater clarity and predictability to the regulated community, but that in both cases the 

Agency would have to establish a line for what is acceptable and the line may either be 

somewhat arbitrary or it may exclude recycling practices that, if carefully considered, 

should be considered legitimate. Based on the comments received on those approaches, 

we are convinced that they would not be workable. [73 FR 64705] 

On the other hand, a case-by-case analysis of a recycling process can take into 

consideration the relevant principles and facts for that activity, leading to a determination 

of significance based on the facts of the activity. Because this factor must apply to 

various different recycling activities, we believe the case-by-case approach is most 

appropriate. [73 FR 64705–64706] 

EPA, therefore, is finalizing its proposed option of using the term “significant” in 40 CFR 

260.43(c)(2)(i) and (ii). Evaluating the significance of levels of hazardous constituents in 

products of the recycling process may involve taking into consideration several variables, 

such as the type of product, how it is used and by whom, whether or not the elevated 

levels of hazardous constituents compromise the efficacy of the product, the availability 

of the hazardous constituents to the environment, and others. For example, if a hazardous 

secondary material has been reclaimed and made into a product that will be used by 

children, and that product contains hazardous constituents that are not in analogous 

products, that product will likely need to be closely scrutinized. On the other hand, low 

levels of a hazardous constituent in a product from that same reclamation operation that is 

used as an ingredient in an industrial process or for another industrial application may not 

be significant and must be evaluated in the context of the product’s use. [73 FR 64706] 

EPA provided several additional examples in implementing this factor in the October 

2003 proposed rule which will be repeated here. If zinc galvanizing metal made from 

hazardous secondary materials that were reclaimed contains 500 parts per million (ppm) 

of lead, while the same zinc product made from raw materials typically contains 475 

ppm, this difference in concentration would likely not be considered “significant” in the 

evaluation of this factor. If, on the other hand, the lead levels in the zinc product made 

from reclaimed hazardous secondary materials were 1,000 ppm, it may indicate that the 

product was being used to illegally dispose of lead and that the activity is sham recycling, 

unless other factors would demonstrate otherwise. [73 FR 64706] 
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In another example, if a “virgin” solvent contains no detectable amounts of barium, while 

spent solvent that has been reclaimed contains a minimal amount of barium (e.g., 1 ppm), 

this difference might not be considered significant. If, however, the barium in the 

reclaimed solvent were at much higher levels (such as 50 ppm), it may indicate discard of 

the barium and sham recycling. [73 FR 64706] 

Unfortunately, because of the variety of possible recycling scenarios under the exclusions 

and in the non-waste determinations covered by this final rule, we cannot provide 

examples for how this factor might work for all possible recycling situations. The Agency 

stresses that the determination of legitimacy for this factor should consider both the use 

and the users of the product in addition to the concentration of the hazardous constituents 

or the presence of a hazardous characteristic, as well as other relevant information. In 

addition, in some cases, the implementing agency may accept a risk argument from a 

recycler to show that the recycling activity meets this factor. If the recycler can show that 

despite elevated concentrations of hazardous constituents, such constituents pose little or 

no risk to human health or the environment, the implementing agency may consider that 

as evidence that the elevated concentrations are not significant. [73 FR 64706] 

Economics 

Consideration of economics has long been a part of the Agency's concept of legitimacy, 

as is evident in the Lowrance Memo and earlier preamble text (50 FR 638 and 53 FR 

522; see also American Petroleum Institute v. EPA (“API II”), 216 F.3d 50, 57-58 (DC 

Cir. 2000)). [The] final rule does not codify specific regulatory language on economics as 

part of the legitimacy provision, but EPA offers further guidance and clarification on how 

economics may be considered in making legitimacy determinations, which is similar to 

the preamble discussion in the March 2007 supplemental proposal. [73 FR 64706] 

Specifically, EPA believes that consideration of the economics of a recycling activity can 

be used to inform and help determine whether the recycling operation is legitimate. 

Positive economic factors would be a strong indication of legitimate recycling, whereas 

negative economic factors would be an indication that further evaluation of the recycling 

operation may be warranted in assessing the legitimacy factors. [73 FR 64706] 

Considering the economics of a recycling activity can also inform whether the hazardous 

secondary material inputs provide a useful contribution and whether the product of 

recycling is of value. Economic information that may be useful could include (1) the 

amount paid or revenue generated by the recycler for recycling hazardous secondary 

materials; (2) the revenue generated from the sale of recycled products; (3) the future cost 

of processing existing inventories of hazardous secondary materials; and (4) other costs 

and revenues associated with the recycling operation. The economics of the recycling 

transaction may be more of an issue when hazardous secondary materials are sent to a 

third-party recycler, but even when the hazardous secondary materials are recycled under 

the control of the generator, the generator must still show that the hazardous secondary 
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materials are, at a minimum, providing a useful contribution and producing a valuable 

product. [73 FR 64706] 

Useful economic information:

(1) The amount paid or revenue generated by the recycler for recycling hazardous 

secondary materials is one example of how economic information can help support a 

legitimacy determination. We have three primary illustrations to exemplify this. First, the 

basic economic flows can suggest whether the recycling operation will process inputs, 

including hazardous secondary materials, and produce products over a reasonable period 

of time, recognizing that there will be lean and slow times. A general accounting of the 

major costs, revenues, and economic flows for a recycling operation over a reasonable 

period of time can provide information for considering whether recycling is likely to 

continue at a reasonable rate, compared to the rate at which inputs are received, or 

whether it is likely that significant amounts of hazardous secondary materials would be 

accumulated and then abandoned when the facility closes. Any bona fide sources of 

revenues would be included in this consideration, such as payments by generators to 

recyclers for accepting hazardous secondary materials and subsidies supporting recycling. 

However, in order to have some level of confidence that beneficial products are or will be 

produced over a reasonable time frame, we believe that at least some portion of the 

revenues should be from product sales (or savings due to avoided purchases of products if 

the hazardous secondary materials are used directly by the recycler). This is consistent 

with the factor requiring that the hazardous secondary material must be recycled to make 

a valuable product or intermediate. [73 FR 64706] 

Second, when the economics of a recycling operation that uses hazardous secondary 

materials to produce and sell final products are similar to a manufacturing operation 

using raw materials to produce and sell final products, we believe that such an operation 

is likely to be legitimate. For instance, if the recycler pays for hazardous secondary 

materials as a manufacturer would pay for raw materials, the recycler sells products from 

the recycling process as a manufacturer would sell products from manufacturing, and the 

revenues generated equal or exceed costs, then the hazardous secondary materials appear 

to be valuable (i.e., the recycler is willing to pay for them) and appear to make a useful 

contribution to a valuable recycled product. [73 FR 64707] 

However, we also recognize that the economics of many legitimate recycling operations 

that utilize hazardous secondary materials differ from the economics of more traditional 

manufacturing operations. For example, many recyclers are paid by generators to accept 

hazardous secondary materials. Generators may be willing to pay recyclers because 

generators can save money if the recycling is less expensive than disposing of the 

hazardous secondary materials in landfills or incinerators. Also, some recyclers receive 

subsidies that may be designed to develop recycling infrastructure and markets or to 

achieve other benefits of recycling. For instance, the recycling of electronic materials can 

be legitimate even when the recycler is subsidized for processing the material. [73 FR 

64707] 
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Third, any analysis of the economics of a recycling operation should recognize that a 

recycler may be able to charge generators and still be a legitimate recycling operation. 

Because these hazardous secondary materials are hazardous wastes if disposed of, 

typically the generators' other alternative management option already carries a cost that is 

based on the existing market for hazardous waste transportation, treatment, and disposal. 

Hence, unless there is strong competition in recycling markets or the hazardous 

secondary materials are extremely valuable, a recycler may be able to charge generators 

simply because alternative disposal options cost more. [73 FR 64707] 

Recognizing that such a dynamic exists can assist those making legitimacy 

determinations in evaluating recycling operations. For example, if a recycler is charging 

generators fees (or receiving subsidies from elsewhere) for taking hazardous secondary 

materials and receives a far greater proportion of its revenue from acceptance of the fees 

than from the sale of its products, both the useful contribution and the valuable product 

factors may warrant further review, unless other information would indicate that such 

recycling is legitimate. Fees and subsidies may indicate that the economic situation 

allows the recycler to charge high fees, regardless of the contribution provided by the 

inputs, including hazardous secondary materials. In this situation, recyclers may also 

have an increased economic incentive to over-accumulate or overuse hazardous 

secondary materials or to manage them less carefully than one might manage more 

valuable inputs. Additionally, if there is little competition in the recycling market, and/or 

if acceptance fees seem to be set largely to compete with the relative costs of alternative 

disposal options rather than to reflect the quality or usefulness of the input to the 

recycling operation, this may also suggest a closer look at the useful contribution factor. 

[73 FR 64707] 

(2) A comparison of revenue from sales of recycled products to payments by 

generators is another example of how economic information can help support an 

evaluation of “valuable product.” It is possible that product sales revenues could be 

dwarfed by the acceptance of fees because markets for particular products are highly 

competitive or because high alternative disposal costs allow for high acceptance fees. 

However, relatively low sales revenues could also require a review of other factors, such 

as whether product sales prices are lower than other comparable products, products are 

being stockpiled rather than sold, or very little product is being produced relative to the 

amount of inputs to the recycling operation. These indicators may suggest that the 

product of the recycling process is not valuable and, thus, sham recycling may be 

occurring. [73 FR 64707] 

(3) A consideration of the future cost of processing or alternatively managing 

existing inventories of hazardous secondary material inputs is another example of 

how economic information can inform a legitimacy determination. When hazardous 

secondary materials make a significant useful contribution to the recycling process, a 

recycler will have an economic incentive to process the input materials relatively quickly 

and efficiently, rather than to maintain large inventories. While recyclers often need to 
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acquire sufficient amounts of hazardous secondary materials to make it economically 

feasible to recycle them, there should be little economic incentive to over-accumulate 

such materials that make a useful contribution. Overly large accumulations of input 

materials may indicate that the hazardous secondary materials are not providing a useful 

contribution or that the recycler is increasing its future costs of either processing or 

disposing of the material, and may be faced with an unsound recycling operation in the 

future. However, it is important to keep in mind that possible explanations for this may 

exist. For example, the recycler may have acquired a large stock of hazardous secondary 

materials because the price was unusually low or perhaps the hazardous secondary 

materials are generated episodically and the recycler has few opportunities to acquire 

them. [73 FR 64707] 

 

(4) An analysis of costs and revenues specific to on-site recycling is an additional, 

albeit specific, example of economic information to consider. When recycling is 

conducted under the control of the generator, the recycler may not account formally for 

some of the costs and savings of the operation. Still, when deciding whether to undertake 

or continue the recycling operation or to utilize alternative outside recycling or disposal 

options, the on-site recycler (under the control of the generator) will evaluate the basic 

economic factors as a part of doing business. One such factor could be an accounting of 

the costs of virgin materials avoided by using hazardous secondary materials. Similarly, 

sales of recycled products under the control of the generator that are sold to an external 

market may support the valuable product criterion. [73 FR 64707] 

Demonstration and Enforcement of Legitimacy 

Under the first paragraph of 40 CFR 260.43, hazardous secondary materials that are not 

legitimately recycled are discarded materials and, therefore, are solid wastes. This 

paragraph also states that anyone claiming an exclusion at §261.2(a)(2)(ii), §261.4(a)(23), 

§261.4(a)(24), or §261.4(a)(25) or using a non-waste determination at §260.30(d) or (e) 

must be able to demonstrate that its recycling activity is legitimate. The Agency has 

included the language “In determining if their recycling is legitimate, persons must 

address the requirements of §260.43(b) and must consider the requirements of 

§260.43(c)” to make it clear that the factors in paragraph (b) must be met, while the 

factors in paragraph (c) must be considered and evaluated in determining whether the 

recycling activity overall is legitimate. [73 FR 64701] 

Although there is no specific recordkeeping requirement that goes with the ability to 

demonstrate legitimacy, EPA would expect that in the event of an inspection or an 

enforcement action by an implementing agency, the recycler would be able to show how 

it made the overall legitimacy determination per §261.2(f). In the event that the process 

does not conform to one of the two factors under §260.43(c), the facility should be able to 

show that it considered that factor and why the recycling activity overall remains 

legitimate. For example, under existing exclusions from the definition of solid waste, 

reuse of lead contaminated foundry sands may or may not be legitimate, depending on 
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the use. The use and reuse of foundry sands for mold making in a facility’s sand loop 

under normal industry practices has been found to be legitimate because the sand is part 

of an industrial process where there is little chance of the hazardous constituents being 

released into the environment or causing damage to human health and the environment 

when it is kept inside, because there is lead throughout the foundry’s process, and 

because there is a clear value to reusing the sand. However, in the case of lead 

contaminated foundry sand used as children’s play sand, the same high levels of lead 

would disqualify this use from being considered legitimate recycling. The same result 

would be reached when applying Factor 4. [73 FR 64701]
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CFR Language 19

CFR LANGUAGE 

260.34 Standards and criteria for non-waste determinations. 

[CFR text not included] 

§260.34(b): The Administrator may grant a non-waste determination for hazardous 

secondary material which is reclaimed in a continuous industrial process if the applicant 

demonstrates that the hazardous secondary material is a part of the production process 

and is not discarded. The determination will be based on whether the hazardous 

secondary material is legitimately recycled as specified in §260.43 and on the following 

criteria: 

(1) The extent that the management of the hazardous secondary material is part of 

the continuous primary production process and is not waste treatment; 

(2) Whether the capacity of the production process would use the hazardous 

secondary material in a reasonable time frame and ensure that the hazardous 

secondary material will not be abandoned (for example, based on past practices, 

market factors, the nature of the hazardous secondary material, or any contractual 

arrangements); 

(3) Whether the hazardous constituents in the hazardous secondary material are 

reclaimed rather than released to the air, water or land at significantly higher 

levels from either a statistical or from a health and environmental risk perspective 

than would otherwise be released by the production process; and 

(4) Other relevant factors that demonstrate the hazardous secondary material is 

not discarded. 

[CFR text not included] 

260.43 Legitimate Recycling of Hazardous Secondary Materials Regulated 

under §260.34, §261.2(a)(2)(ii), and §261.4(a)(23), (24), or (25). 

§260.43(a) Persons regulated under §260.34 or claiming to be excluded from hazardous 

waste regulation under §261.2(a)(2)(ii), §261.4(a)(23), (24), or (25) because they are 

engaged in reclamation must be able to demonstrate that the recycling is legitimate. 

Hazardous secondary material that is not legitimately recycled is discarded material and 

is a solid waste. In determining if their recycling is legitimate, persons must address the 

requirements of §260.43(b) and must consider the requirements of §260.43(c) below. 

(b) 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 
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CFR Language 20

recycling process, and the recycling process must produce a valuable product or 

intermediate. 

(1) The hazardous secondary material provides a useful contribution if it 

(i) Contributes valuable ingredients to a product or intermediate; or 

(ii) Replaces a catalyst or carrier in the recycling process; or 

(iii) Is the source of a valuable constituent recovered in the recycling 

process; or 

(iv) Is recovered or regenerated by the recycling process; or 

(v) Is used as an effective substitute for a commercial product. 

(2) The product or intermediate is valuable if it is 

(i) Sold to a third party; or 

(ii) Used by the recycler or the generator as an effective substitute for a 

commercial product or as an ingredient or intermediate in an industrial 

process. 

(c) The following factors must be considered in making a determination as to the overall 

legitimacy of a specific recycling activity. 

(1) The generator and the recycler should manage the hazardous secondary 

material as a valuable commodity. Where there is an analogous raw material, the 

hazardous secondary material should be managed, at a minimum, in a manner 

consistent with the management of the raw material. Where there is no analogous 

raw material, the hazardous secondary material should be contained. Hazardous 

secondary materials that are released to the environment and are not recovered 

immediately are discarded. 

(2) The product of the recycling process does not 

(i) Contain significant concentrations of any hazardous constituents found 

in Appendix VIII of part 261 that are not found in analogous products; or 

(ii) Contain concentrations of any hazardous constituents found in 

Appendix VIII of part 261 at levels that are significantly elevated from 

those found in analogous products; or 

(iii) Exhibit a hazardous characteristic (as defined in part 261 subpart C) 

that analogous products do not exhibit. 
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CFR Language 21

(3) In making a determination that a hazardous secondary material is legitimately 

recycled, persons must evaluate all factors and consider legitimacy as a whole. If, 

after careful evaluation of these other considerations, one or both of the factors 

are not met, then this fact may be an indication that the material is not legitimately 

recycled. 

However, the factors in this paragraph do not have to be met for the recycling to 

be considered legitimate. In evaluating the extent to which these factors are met 

and in determining whether a process that does not meet one or both of these 

factors is still legitimate, persons can consider the protectiveness of the storage 

methods, exposure from toxics in the product, the bioavailability of the toxics in 

the product, and other relevant considerations. 

261.2(a)(2)(ii) Exclusion for Hazardous Secondary Materials That Are 

Legitimately Reclaimed Under the Control of the Generator in Non-LandBased Units. 

§261.2(a)(2)(ii):A hazardous secondary material is not discarded if it is generated and 

reclaimed under the control of the generator as defined in §260.10, it is not speculatively 

accumulated as defined in §261.1(c)(8), it is handled only in non-land-based units and is 

contained in such units, it is generated and reclaimed within the United States and its 

territories, it is not otherwise subject to material-specific management conditions under 

§261.4(a) when reclaimed, it is not a spent lead acid battery (see §266.80 and §273.2), it 

does not meet the listing description for K171 or K172 in §261.32, and the reclamation of 

the material is legitimate, as specified under §260.43. (See also the notification 

requirements of §260.42). (For hazardous secondary materials managed in land-based 

units, see §261.4(a)(23)). 

261.4(a)(23) Exclusion for Hazardous Secondary Materials That Are 

Legitimately Reclaimed Under the Control of the Generator in Land-Based 

Units. 

§261.4(a)(23): Hazardous secondary material generated and reclaimed within the United 

States or its territories and managed in land-based units as defined in §260.10 of this 

chapter is not a solid waste provided that: 

[CFR text not included] 

(v) The reclamation of the material is legitimate, as specified under §260.43 of 

this chapter; and 

[CFR text not included] 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

The Legitimate Recycling Standard

CFR Language 22

261.4(a)(24) Exclusion for Hazardous Secondary Materials That Are 

Transferred for the Purpose of Legitimate Reclamation. 

§261.4(a)(24): Hazardous secondary material that is generated and then transferred to 

another person for the purpose of reclamation is not a solid waste, provided that: 

[CFR text not included] 

(iv) The reclamation of the material is legitimate, as specified under §260.43 of 

this chapter; 

[CFR text not included] 

261.4(a)(25) Exclusion for Hazardous Secondary Materials Exported for 

Reclamation. 

§261.4(a)(25): Hazardous secondary material that is exported from the United States and 

reclaimed at a reclamation facility located in a foreign country is not a solid waste, 

provided that the hazardous secondary material generator complies with the applicable 

requirements of paragraph (a)(24)(i)–(v) of this section (excepting paragraph (a)(v)(B)(2) 

of this section for foreign reclaimers and foreign intermediate facilities)[....] 

[CFR text not included] 

261.2 Definition of Solid Waste. 

[CFR text not included] 

§261.2(f): Documentation of claims that materials are not solid wastes or are 

conditionally exempt from regulation. Respondents in actions to enforce regulations 

implementing subtitle C of RCRA who raise a claim that a certain material is not a solid 

waste, or is conditionally exempt from regulation, must demonstrate that there is a known 

market or disposition for the material, and that they meet the terms of the exclusion or 

exemption. In doing so, they must provide appropriate documentation (such as contracts 

showing that a second person uses the material as an ingredient in a production process) 

to demonstrate that the material is not a waste, or is exempt from regulation. In addition, 

owners or operators of facilities claiming that they actually are recycling materials must 

show that they have the necessary equipment to do so.
Revisions to the Definition of Solid Waste Final Rule Compilations: 

The Legitimate Recycling Standard

Acronyms 23

ACRONYMS 

CFR Code of Federal Regulations 

DSW definition of solid waste 

e-CFR electronic Code of Federal Regulations 

EPA U.S. Environmental Protection Agency 

FR Federal Register 

RCRA Resource Conservation and Recovery Act 
Revisions to the Definition of Solid Waste Final Rule Compilations: 

The Legitimate Recycling Standard

Index 24

INDEX 

analogous product ..................................................................................... 10, 11, 13, 20, 21 

analogous raw material ....................................................................................... 8, 9, 10, 20 

case-by-case .......................................................................................................... 6, 7, 9, 13 

contained......................................................................................................i, ii, 8, 9, 20, 21 

demonstrate legitimacy ..................................................................................................... 17 

discard........................................................................................................................... 8, 14 

efficiency......................................................................................................................... 4, 5 

enforcement..................................................................................................................iii, 17 

fees .................................................................................................................................... 16 

hazardous characteristic............................................................................ 10, 11, 12, 14, 21 

industry standards ............................................................................................................... 6 

intrinsic value...................................................................................................................... 6 

inventories................................................................................................................... 14, 16 

Lowrance Memo ......................................................................................................iii, 2, 14 

non-waste determination.................................................................... iii, 1, 2, 11, 14, 17, 19 

product specifications ......................................................................................................... 6 

reclaim, reclamation............................................................................................................. i 

recordkeeping.................................................................................................................... 17 

release ............................................................................................................................. 8, 9 

residuals .......................................................................................................................... 4, 5 

revenues .......................................................................................................... 14, 15, 16, 17 

risk-based approach .......................................................................................................... 13

secondary material feedstock............................................................................................ 10 

sham recycling .............................................................. 1, 2, 3, 4, 5, 6, 7, 10, 11, 13, 14, 16 

Toxics Along for the Ride (TARs) ............................................................................. 10, 11 

transfer ................................................................................................................................. i 

useful contribution .............................................................................. 3, 4, 5, 14, 15, 16, 20 

valuable commodity...................................................................................................... 8, 20 

valuable product/intermediate................................................................. 6, 9, 15, 16, 17, 20