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RCRA Beneficial Use
2012 Missouri Hazardous Waste Seminar
November 13, 2012
Kathy Flippin, MDNR Haz. Waste Program
Dale Guariglia, Partner, Bryan Cave LLP

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Key beneficial use concepts
• EPA’s Resource Conservation and
Recovery Act (RCRA) regulations
distinguish between materials:
– that are directly used or reused as products
or as ingredients in the manufacture of
products, and
– those that must be reclaimed before they can
be used or reused

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Key beneficial use concepts, cont.
• Materials used or reused without first being
reclaimed are not considered either solid or
hazardous waste
• Materials that must be reclaimed/recycled prior
to use or reuse, are considered solid waste and
may also meet the definition of hazardous waste
and
• May require hazardous waste permits for
treatment or a Missouri Resource Recovery
certification (unless exempt)

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Beneficial Use Example A – Treatment?
• Company A uses
solvents to clean
electronic parts
• Sends used solvents
offsite to permitted TSD
as D001 (ignitable) and
F005 hazardous waste
• Manager wants to
redistill/ recycle and
reuse the solvents onsite

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Recycle and reuse on site
• May the company do it?
– Yes, it would not be hazardous waste treatment
requiring a permit if it obtains a Missouri Resource
Recovery certification for the distillation unit and
follows its certification, applicable regulations and
guidance
• Why?
– Because the solvent is hazardous waste and must be
reclaimed before use (i.e., solid and hazardous waste
otherwise requiring a permit to treat)

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Resource recovery regulations
• What regulations allow
hazardous waste solvent
reclamation without a
hazardous waste permit?
– Missouri Resource
Recovery regulations -
Title 10 Code of State
Regulations, Division
25, Chapter 9

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Resource recovery
Applicable to:
• spent materials
• owner/operator of a
facility reclaiming or
reusing hazardous waste
for materials, or
transforming hazardous
waste into new products
that aren’t hazardous
waste
• Examples:
• Solvent distillation
• Lead value
reclamation
• Spent nitrating acid
distillation
• Ballistic sand
recovery
• Waste paint recovery
• Fluorescent lamp
recycling

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Recycle and reuse onsite, cont.
• Is this treatment of hazardous waste?
– No - if company follows applicable Missouri Resource
Recovery regulations and
– follows guidance on legitimate reclamation and
recycling. See legitimacy criteria and info:
http://www.epa.gov/osw/hazard/dsw/downloads/histor
y-legit-recycling.pdf

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Resource recovery exemption conditions
• Facility is exempt from RR regulations if it:
– uses, reuses, legitimately reclaims or recycles
less than 1,000 kilograms of hazardous waste
from onsite in a calendar month
– Notifies the MDNR of the name, location,
identity of wastes recovered, recovery
method(s) and approximate annual quantity
recovered
– Maintains records of the amount and type of
waste recovered

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Types of certified RR facilities
• U = use, reuse, or legitimately reclaim or
recycle more than 1,000 kg onsite in
calendar month [19]
• R1 = Mobile recyclers that recycle
hazardous waste for reuse at the
generator’s site [1]
• R2 = accept hazardous waste from offsite
for RR [4]

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RR application process
• Submit application 90 days prior to
operation
• Reviewed by engineer
• Resource Recovery Certification issued
with or without conditions

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Beneficial Use Example B – “As-is?”
• VP of Company A doesn’t
want to buy a distillation
unit and tells his manager
to find someone who can
use the solvent.
• Manager finds Company
B who agrees to take the
solvents “as-is” to clean
metal parts, but won’t buy
the solvents and will take
them only if Company A
pays to transport the
solvents to Company B.

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Solvents Used As-Is By Company B
Are the solvents sent to Company B regulated as
hazardous waste under RCRA?
Not necessarily
Why?
• Because the solvents are:
– Not spent; and
– Not solid waste and therefore not hazardous waste
when they are recycled by being used or reused as
effective substitutes for commercial products.

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Solid Waste Exclusions Under RCRA
Under 40 CFR 261.2(e) materials that otherwise would be
considered hazardous wastes may be excluded from
being a solid waste when recycled by being:
• used or reused in an industrial process to make a
product, provided the materials are not being
reclaimed;
• used or reused as an effective substitute for
commercial products; or
• returned to the original process from which they are
generated, without first being reclaimed.

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Under 40 CFR 261.1(c)(5), a material is “used or
reused” if it is either:
• Employed as an ingredient in an industrial
process to make a product (e.g. distillation
bottoms used as feedstock in another
process); or
• Employed in a particular function or application
as an effective substitute for a commercial
product (e.g. spent pickle liquor used in
wastewater treatment plants).

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Concept of Spent under RCRA
Spent Material – “any material that has been used and as a result of
contamination can no longer serve the purpose for which it was produced
without processing.” 40 CFR 261.1(c)(1).
“Spent” does not include materials that are reused for their original purpose
EPA letter of interpretation (1994):
The reuse of a solvent (first used to clean circuit boards) as a metal degreaser
constitutes a legitimate use of a product for its original purpose. The fact that
the solvent is "spent" in terms of its use as a circuit boards cleaner does not
make it a spent material. As long as the solvent does not undergo
reclamation prior to its reuse as a metal degreaser, it is product excluded from
jurisdiction under RCRA. Determining factor is not whether a used chemical is
marketable, but rather whether it is reused in a manner consistent with its
original use without prior reclamation.

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Considerations for Companies A and B
• Company A – assure compliance with 40
CFR 261.2(f) documentation requirements
– Obtain and maintain a contract or written
agreement that specifies use
– Assure Company B has equipment/processes
and they use the material as claimed
– For Company A and B – assure there is no
speculative accumulation – maintain records

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Recycling legitimacy tips
• April 26, 1989, EPA Office of Solid Waste
memorandum consolidated preamble
statements on legitimate recycling into a list of
criteria to be considered in evaluating legitimacy
[OSWER directive 9441.1989(19)]
• Primary source of guidance for the regulated
community and for overseeing agencies in
distinguishing between legitimate and sham
recycling

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More on legitimacy evaluation
• Case-specific information needed to make
legitimacy determination
• If material being recycled is being used as
a commodity, rather than as a waste
• Six criteria for consideration
• Some criteria may weigh more heavily
than others in making legitimacy
determinations

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The 6 legitimacy criteria
1. Is the secondary material similar to an analogous raw material or
product?
2. What degree of processing is required to produce a finished
product?
3. What is the value of the secondary material?
4. Is there a guaranteed market for the end product?
5. Is the secondary material handled in a manner consistent with the
raw material/product it replaces?
6. Other relevant factors (e.g., economics of the recycling process,
toxic constituents “along for the ride”)?
Source: 68 FR 61582(1)–(2), October 28, 2003

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Good onsite
management
matters

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Inventory and records of use

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Beneficial Use Example C – Treatment?
• Company B is having
some operational issues-
tells Company A it will
only take the reclaimed
solvent IF:
• Company A filters and…
• “neutralizes” it first
• Company A manager
asks “is this treatment?”

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Is scenario C “treatment?”
• Yes, at first look
• Appears to be
treatment (requiring a
permit or RR
certification) if the
material cannot be
used without
reclamation
• Questions for A to ask
B
• Why is the filtering
needed?
• What type of
“neutralization” is
needed and why?

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Filtration
• Might be OK and would
not void the recycling
exemption if it is
“incidental processing”
(IP)
• See RCRAOnline 14748
• IP changes material’s
physical form with no or
only minor changes in
mass or chemical
composition
Examples:
•Screening or filtering to
protect the integrity of
downstream pumps or
equipment from foreign
material (e.g., screws, nuts,
bolts)
•Ensuring purity by
separating minor amounts
of foreign material

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Treatment considerations
• “Neutralization” is
unclear
• Why for F005/D001
waste?
• Is Company B asking
Company A to render
the waste non-
hazardous so it may
avoid hazardous
waste disposal costs?

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Beneficial Use Example D – Fertilizer?
• Company B will no longer
use Company A’s
solvents – went “green”
with citrus-based solvents
• Company A finds
Company C who will use
solvents as is (without
reclamation) on same
terms as Company B,
BUT will use the solvent
to make fertilizer

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Beneficial Use Example D - Treatment?
• Are the solvents sent to Company C
regulated as solid or hazardous waste
under RCRA?
Possibly, but less likely if they are used to produce zinc
fertilizers
• Why?
Recycled materials used to produce products
that are applied to the land are considered solid
waste under RCRA.

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Hazardous waste solvent in fertilizer?
• Few fertilizers are made from recycled hazardous
wastes
• Most made from a variety of zinc-bearing industrial
wastes
• Fertilizer manufacturers must use a series of processing
steps to remove contaminants (lead, cadmium, arsenic,
chromium, mercury, dioxins, etc.) in order to meet EPA
standards

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Recycled Materials Used in Fertilizers
• Under 40 CFR 261.2(e)(2), even if recycling
involves use, reuse, or return to the original
process, secondary materials used in a manner
constituting disposal or used to produce a
product that is applied to the land are solid
wastes subject to RCRA.
• Adding hazardous wastes to fertilizers as a way
of simply disposing of them is illegal under the
RCRA, appears as “sham recycling” and is
punishable as a civil and/or criminal offense.

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Exclusion for Recycled Materials used
in Zinc Fertilizers and Products
• 40 CFR 261.4(a)(20) specifically excludes
from the definition of “solid waste”, zinc
fertilizers made from recycled hazardous
secondary materials.
• This exclusion applies to hazardous
secondary materials that are recycled to
make zinc fertilizers or zinc fertilizer
ingredients.

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Conditions to Satisfy the Zinc Fertilizer
Ingredient Exclusion
• may not speculatively accumulatively
• must submit one-time notification to Regional
Administrator or State Director
• properly store hazardous secondary materials in
containers that prevent the release
• provide written notice to receiving facility that
materials are subject to these conditions
• maintain all records of shipments for 3 years

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Advice to Company A
Ask Company C if it has evaluated this using the legitimacy
criteria and how it fits as there are several areas of concern:
1. What is the analogous raw material or product the secondary
material is replacing?
2. What degree of processing is required to produce a finished
product?
3. What is the value of the secondary material?
4. Is there a guaranteed market for the end product?
5. Is the secondary material handled in a manner consistent with the
raw material/product it replaces?
6. Other relevant factors (e.g., economics of the recycling process,
toxic constituents “along for the ride”)?

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Questions?
Kathy Flippin
MDNR Hazardous Waste Program
kathy.flippin@dnr.mo.gov
(573) 751-1718
Dale Guariglia
Bryan Cave, LLP
daguariglia@bryancave.com
(314) 259-2606