40 CFR 261.4(a)(23) excludes a hazardous secondary material from regulation as a solid waste - and thus as a hazardous waste - if the conditions of the exclusion are met. This presentation briefly summarizes the requirements of this RCRA conditional exclusion from regulation. The Generator-Controlled Exclusion was retained and strengthened by the 2015 Definition of Solid Waste Final Rule which was a revision of the 2008 Definition of Solid Waste Rule. Its purpose is to exclude from regulation certain materials that might normally be a hazardous waste but have some value that make reclamation in a safe manner financially viable. A generator of a hazardous secondary material must comply with the conditions of this exclusion in order to take advantage of its removal of the burden of the cradle-to-grave management of a hazardous waste.

1. EXCLUSIONS FROM
REGULATION AS SOLID
WASTE
One presentation in a series that briefly explains
the Federal exclusions from full regulation for
certain materials under the Resource
Conservation and Recovery Act (RCRA).
@DanielsTraining 1
This presentation: 40 CFR 261.4(a)(23):
Generator-Controlled Exclusion
40 CFR 261.4(a)(23)

2. PRESENTED BY:
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@DanielsTraining 240 CFR 261.4(a)(23)

3. 40 CFR 261.4(a)
• Paragraph ‘a’ of section 261.4 identifies 27
materials excluded from regulation as a solid
waste.
• If a material does not meet the definition of a solid
waste, it cannot be a hazardous waste.
@DanielsTraining 3
Solid
Waste
Hazardous
Waste
40 CFR 261.4(a)(23)

4. What is Excluded @ 40 CFR 261.4(a)?
1) Domestic sewage.
2) Point source
discharge
3) Irrigation return flow
4) Radioactive waste
5) In-situ mining
6) Pulping liquors
7) Spent sulfuric acid
8) Reclamation in
enclosed tanks
9) Spent wood
preservatives
10) Coke by-product
wastes
11) Splash condenser
dross residue
4@DanielsTraining40 CFR 261.4(a)(23)

5. What is Excluded @ 40 CFR 261.4(a)?
12) Hazardous secondary
materials from the
petroleum refining
industry
13) Excluded scrap metal
14) Shredded circuits
boards
15) Pulping condensates
derived from kraft mill
steam strippers
16) Comparable fuels
17) Mineral processing
secondary materials
being recycled
18) Petrochemical
recovered oil
19) Spent caustic
solutions from
petroleum refining
5@DanielsTraining40 CFR 261.4(a)(23)

6. What is Excluded @ 40 CFR 261.4(a)?
20) Hazardous secondary
materials used to
make zinc fertilizers
21) Zinc fertilizers made
from hazardous
wastes
22) Used cathode ray
tubes (CRTS)
23) Hazardous
secondary material
reclaimed by
generator
24) Hazardous secondary
material transferred to
verified recycler
25) Hazardous secondary
material exported from
U.S. for reclamation
26) Solvent-contaminated
wipes sent for
cleaning & reuse
27) Solvent
Remanufacturing
6@DanielsTraining40 CFR 261.4(a)(23)

7. The Generator-Controlled Exclusion
“The 2015 DSW final rule is expected to increase recycling
by retaining the 2008 generator-controlled exclusion for
hazardous secondary materials reclaimed by the generator:
• On-site
• Within the same company
• Within certain tolling agreements
By maintaining control over, and potential liability for, the
reclamation process, and meeting the conditions of the
exclusion, the generator ensures that the hazardous
secondary materials are legitimately recycled.
The final rule includes several changes to strengthen and
ensure protectiveness of the generator-controlled
exclusion. Most notable is a codification of a performance-
based “contained” standard for hazardous secondary
materials.”
@DanielsTraining 740 CFR 261.4(a)(23)
Overview of 2015 DSW Final Rule

8. “The following materials are not solid
wastes for the purpose of this part…”
• A hazardous secondary material.
And…
• Generated & reclaimed w/i U.S.
• Not speculatively accumulated.
• Reclamation is legitimate.
• Must be contained.
And…
• 3 options for reclamation.
40 CFR 261.4(a)(24) @DanielsTraining 8

9. “The following materials are not solid
wastes for the purpose of this part…”
Option #1:
• Generated & reclaimed
at generating facility.
40 CFR 261.4(a)(24) @DanielsTraining 9

10. “The following materials are not solid
wastes for the purpose of this part…”
40 CFR 261.4(a)(24) @DanielsTraining 10
Option #2:
• Generated & reclaimed
at different facilities if
both controlled by
generator or under
control of same
person.

11. “The following materials are not solid
wastes for the purpose of this part…”
Option #3:
• Generated pursuant
to written contract
between tolling
contractor & toll
manufacturer & is
reclaimed by tolling
contractor.
40 CFR 261.4(a)(24) @DanielsTraining 11

12. “The following materials are not solid
wastes for the purpose of this part…”
• This exclusion does
not apply to the
following:
• Material subject to
exclusion under
§261.4(a).
• Spent lead acid
battery subject to
§266.80 or §273.2.
40 CFR 261.4(a)(24) @DanielsTraining 12

13. “The following materials are not solid
wastes for the purpose of this part…”
• Additional for all
options:
• Comply w/
emergency
preparedness &
response conditions.
• Provide notification
of activity.
40 CFR 261.4(a)(24) @DanielsTraining 13

14. “The following materials are not solid
wastes for the purpose of this part…”
• Additional if Option #2:
• Generator provides 1
of 2 certifications.
• Generator &
receiving facility
retain records on-site
of all hazardous
secondary materials
sent off-site or
received on-site.
40 CFR 261.4(a)(24) @DanielsTraining 14

15. “The following materials are not solid
wastes for the purpose of this part…”
• Additional if Option #3:
• Tolling contractor provides
certification.
• Tolling contractor
maintains records of
hazardous secondary
materials received.
• Toll manufacturer
maintains records of
hazardous secondary
materials shipped.
40 CFR 261.4(a)(24) @DanielsTraining 15

16. “The following materials are not solid
wastes for the purpose of this part…”
• Requirements of
persons performing
recycling:
• Maintain on-site
documentation of
legitimacy
determination.
40 CFR 261.4(a)(24) @DanielsTraining 16

17. More to Consider (1)…
• Read more about the 2015 Definition of Solid
Waste Rule.
• Hazardous secondary material means a
secondary material (e.g., spent material, by-
product, or sludge) that, when discarded, would
be identified as hazardous waste under part 261
of this chapter (§260.10).
• Generating facility means all contiguous property
owned, leased, or otherwise controlled by the
hazardous secondary material generator.
40 CFR 261.4(a)(23) @DanielsTraining 17

18. More to Consider (2)…
• Speculative accumulation occurs whenever a
hazardous secondary material is accumulated &
the following can not be demonstrated:
1. Material is potentially recyclable & has a
feasible means of being recycled.
2. Of amount on-site at beginning of calendar year
(January 1), 75% by weight or volume is
recycled (on-site or off-site) by end of calendar
year (December 31st).
• The speculative accumulation provision was
strengthened by the 2015 DSW. More…
40 CFR 261.4(a)(24) @DanielsTraining 18

19. More to Consider (3)…
• Legitimate reclamation of a hazardous secondary
material requires each of the following 4 factors:
1. Material provides useful contribution to
recycling process or result of recycling
process.
2. Recycling process produces a valuable
product or intermediate.
3. Generator & recycler manage hazardous
secondary material as a valuable commodity.
4. Product of recycling is comparable to a
legitimate product or intermediate.
• More…
40 CFR 261.4(a)(24) @DanielsTraining 19

20. More to Consider (4)…
• To be contained a hazardous secondary material
must be held in a unit that is…
• In good condition w/ no leaks.
• Labeled or otherwise identifies hazardous
secondary material.
• Compatible w/ contents.
• Designed to address any potential risk of fire or
explosion.
• More…
40 CFR 261.4(a)(24) @DanielsTraining 20

21. More to Consider (5)…
• “Control” means the power to direct the policies of
the facility, whether by the ownership of stock,
voting rights, or otherwise.
Except…
• Contractors who operate facilities on behalf of a
different person do not “control” such facilities.
40 CFR 261.4(a)(23) @DanielsTraining 21

22. More to Consider (6)…
• Person means an individual, trust, firm, joint stock
company, Federal Agency, corporation (including
a government corporation), partnership,
association, State, municipality, commission,
political subdivision of a State, or any interstate
body. (40 CFR 260.10)
40 CFR 261.4(a)(23) @DanielsTraining 22

23. More to Consider (7)…
Tolling Contractor
• Contracts w/ toll
manufacturer to
produce product.
• Receives hazardous
secondary material
from toll manufacturer.
• Reclaims hazardous
secondary material.
Toll Manufacturer
• Produces product for
tolling contractor.
• Generates hazardous
secondary material as
residual of producing
product.
• Returns hazardous
secondary material to
tolling contractor.
40 CFR 261.4(a)(23) @DanielsTraining 23
And…

24. “In these situations, management and recycling of
the material are in essence done under the control
of the tolling company, even though the material is
physically generated by another company.”
2015 DSW FAQs
More to Consider (8)…
40 CFR 261.4(a)(23) @DanielsTraining 24
Generated
here
Managed &
reclaimed here

25. More to Consider (9)…
40 CFR 266.80
• Exemption for spent
lead acid batteries
sent for reclamation.
40 CFR 273.2
• Universal waste rule
applicable to
batteries.
40 CFR 261.4(a)(24) @DanielsTraining 25

26. More to Consider (10)…
• Emergency preparedness & response conditions of
§261, Subpart M:
• ≤6,000 kg hazardous secondary material on-site
at one time:
• Preparedness & prevention
• Emergency response
• >6,000 kg hazardous secondary material on-site
at one time.
• Preparedness & prevention
• Contingency plan & emergency response
• More…
40 CFR 261.4(a)(24) @DanielsTraining 26

27. More to Consider (11)…
“Persons performing recycling” may be…
• Option #1:
• Generator of hazardous secondary material.
• Option #2:
• Reclamation facility.
• Option #3:
• Tolling contractor.
40 CFR 261.4(a)(23) @DanielsTraining 27

28. More to Consider (12)…
• EPA has created a
voluntary label for
hazardous secondary
materials sent for
recycling.
40 CFR 261.4(a)(24) @DanielsTraining 28

29. More to Consider (13)…
• Hazardous secondary
material must be
generated & reclaimed
w/i U.S.
• Check w/ your State as
it may not recognize
this Federal exclusion.
@DanielsTraining 2940 CFR 261.4(a)(23)

30. 40 CFR 261.4(a)(23) Verbatim:
(a) Materials which are not solid wastes. The following
materials are not solid wastes for the purpose of this
part:
…
(23) Hazardous secondary material generated and
legitimately reclaimed within the United States or its territories
and under the control of the generator, provided that the
material complies with paragraphs (a)(23)(i) and (ii) of this
section:
(i)(A) The hazardous secondary material is generated and
reclaimed at the generating facility (for purposes of this
definition, generating facility means all contiguous property
owned, leased, or otherwise controlled by the hazardous
secondary material generator); or
@DanielsTraining 3040 CFR 261.4(a)(23)

31. 40 CFR 261.4(a)(23) Verbatim (cont):
(a) Materials which are not solid wastes. The following
materials are not solid wastes for the purpose of this part:
…
(B) The hazardous secondary material is generated and
reclaimed at different facilities, if the reclaiming facility is
controlled by the generator or if both the generating facility
and the reclaiming facility are controlled by a person as
defined in §260.10 of this chapter, and if the generator
provides one of the following certifications: “on behalf of
[insert generator facility name], I certify that this facility will
send the indicated hazardous secondary material to [insert
reclaimer facility name], which is controlled by [insert
generator facility name] and that [insert name of either
facility] has acknowledged full responsibility for the safe
management of the hazardous secondary material,” or
@DanielsTraining 3140 CFR 261.4(a)(23)

32. 40 CFR 261.4(a)(23) Verbatim (cont):
(a) Materials which are not solid wastes. The following
materials are not solid wastes for the purpose of this
part:
…
“on behalf of [insert generator facility name], I certify
that this facility will send the indicated hazardous
secondary material to [insert reclaimer facility name],
that both facilities are under common control, and that
[insert name of either facility] has acknowledged full
responsibility for the safe management of the
hazardous secondary material.”
@DanielsTraining 3240 CFR 261.4(a)(23)

33. 40 CFR 261.4(a)(23) Verbatim (cont):
(a) Materials which are not solid wastes. The
following materials are not solid wastes for the
purpose of this part:
…
For purposes of this paragraph, “control” means
the power to direct the policies of the facility,
whether by the ownership of stock, voting rights, or
otherwise, except that contractors who operate
facilities on behalf of a different person as defined
in §260.10 shall not be deemed to “control” such
facilities.
@DanielsTraining 3340 CFR 261.4(a)(23)

34. 40 CFR 261.4(a)(23) Verbatim (cont):
(a) Materials which are not solid wastes. The following
materials are not solid wastes for the purpose of this part:
…
The generating and receiving facilities must both maintain
at their facilities for no less than three years records of
hazardous secondary materials sent or received under this
exclusion. In both cases, the records must contain the
name of the transporter, the date of the shipment, and the
type and quantity of the hazardous secondary material
shipped or received under the exclusion. These
requirements may be satisfied by routine business records
(e.g.,financial records, bills of lading, copies of DOT
shipping papers, or electronic confirmations); or
@DanielsTraining 3440 CFR 261.4(a)(23)

35. 40 CFR 261.4(a)(23) Verbatim (cont):
(a) Materials which are not solid wastes. The following materials are
not solid wastes for the purpose of this part:
…
(C) The hazardous secondary material is generated pursuant to a
written contract between a tolling contractor and a toll manufacturer
and is reclaimed by the tolling contractor, if the tolling contractor
certifies the following: “On behalf of [insert tolling contractor name], I
certify that [insert tolling contractor name] has a written contract with
[insert toll manufacturer name] to manufacture [insert name of
product or intermediate] which is made from specified unused
materials, and that [insert tolling contractor name] will reclaim the
hazardous secondary materials generated during this manufacture.
On behalf of [insert tolling contractor name], I also certify that [insert
tolling contractor name] retains ownership of, and responsibility for,
the hazardous secondary materials that are generated during the
course of the manufacture, including any releases of hazardous
secondary materials that occur during the manufacturing process”.
@DanielsTraining 3540 CFR 261.4(a)(23)

36. 40 CFR 261.4(a)(23) Verbatim (cont):
(a) Materials which are not solid wastes. The following
materials are not solid wastes for the purpose of this part:
…
The tolling contractor must maintain at its facility for no less
than three years records of hazardous secondary materials
received pursuant to its written contract with the tolling
manufacturer, and the tolling manufacturer must maintain at its
facility for no less than three years records of hazardous
secondary materials shipped pursuant to its written contract
with the tolling contractor. In both cases, the records must
contain the name of the transporter, the date of the shipment,
and the type and quantity of the hazardous secondary material
shipped or received pursuant to the written contract. These
requirements may be satisfied by routine business records
(e.g., financial records, bills of lading, copies of DOT shipping
papers, or electronic confirmations).
@DanielsTraining 3640 CFR 261.4(a)(23)

37. 40 CFR 261.4(a)(23) Verbatim (cont):
(a) Materials which are not solid wastes. The following
materials are not solid wastes for the purpose of this
part:
…
For purposes of this paragraph, tolling contractor
means a person who arranges for the production of a
product or intermediate made from specified unused
materials through a written contract with a toll
manufacturer. Toll manufacturer means a person who
produces a product or intermediate made from
specified unused materials pursuant to a written
contract with a tolling contractor.
@DanielsTraining 3740 CFR 261.4(a)(23)

38. 40 CFR 261.4(a)(23) Verbatim (cont):
(a) Materials which are not solid wastes. The following
materials are not solid wastes for the purpose of this
part:
…
(ii)(A) The hazardous secondary material is contained
as defined in §260.10 of this chapter. A hazardous
secondary material released to the environment is
discarded and a solid waste unless it is immediately
recovered for the purpose of reclamation. Hazardous
secondary material managed in a unit with leaks or
other continuing or intermittent unpermitted releases is
discarded and a solid waste.
@DanielsTraining 3840 CFR 261.4(a)(23)

39. 40 CFR 261.4(a)(23) Verbatim (cont):
(a) Materials which are not solid wastes. The following
materials are not solid wastes for the purpose of this
part:
…
(B) The hazardous secondary material is not
speculatively accumulated, as defined in §261.1(c)(8).
(C) Notice is provided as required by §260.42 of this
chapter.
(D) The material is not otherwise subject to material-
specific management conditions under paragraph (a)
of this section when reclaimed, and it is not a spent
lead-acid battery (see §266.80 and §273.2 of this
chapter).
@DanielsTraining 3940 CFR 261.4(a)(23)

40. 40 CFR 261.4(a)(23) Verbatim (cont):
(a) Materials which are not solid wastes. The following
materials are not solid wastes for the purpose of this
part:
…
(E) Persons performing the recycling of hazardous
secondary materials under this exclusion must
maintain documentation of their legitimacy
determination on-site. Documentation must be a
written description of how the recycling meets all four
factors in §260.43(a). Documentation must be
maintained for three years after the recycling operation
has ceased.
(F) The emergency preparedness and response
requirements found in subpart M of this part are met.
@DanielsTraining 4040 CFR 261.4(a)(23)

41. Got Questions
About RCRA or
HazMat
Transportation?
I provide both:
RCRA Training for
Hazardous Waste
Personnel
And…
HazMat Employee
Training
Webinar, or Onsite
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40 CFR 261.4(a)(23)