While protecting human health and the environment are the primary goals of the Resource Conservation and Recovery Act (RCRA), the reclamation and/or recycling of hazardous secondary materials (HSMs) are also goals of the program.

HSMs are secondary materials (e.g., spent material, by-product, sludge, discarded commercial chemical products and regulated scrap metal) that, when discarded, would be identified as hazardous waste under part 261 of this chapter of the regulations.

However, RCRA also contains exclusions from regulation for generators of HSMs if they recycle their HSMs and meet certain other requirements. For example, a generator of a HSM that legitimately recycles its HSM in one of the following ways may be excluded from hazardous waste regulations because the material is not considered a solid waste once it is recycled:

• use or reused as ingredients in an industrial process; or

• use or reuse as effective substitutes for commercial products; or

• returned as a substitute for feedstock materials to the original process from which they are generated without first being reclaimed or land disposed.  (See 40 CFR 261.2(e) and 40 CFR 260.43.)

Similarly, some HSMs that are reclaimed may be excluded from being a solid waste, and a hazardous waste, provided the generator complies with the conditions found at 40 CFR 261.4 (a)(23), 261.4 (a)(25) for exports, and 261.4 (a)(27) for remanufactured solvents. These conditions include, but are not limited to: notifying Virginia DEQ that it is taking advantage of the exclusion, managing the HSM safely while being accumulated on-site in tanks and containers, ensuring the generator can respond to emergencies, sending its HSMs to either a RCRA permitted treatment, storage and disposal facility (TSDF), or  to a legitimate recycler, and ensuring the HSMs are legitimately recycled.  

Also note that there are exclusions from the definition of solid waste for specific HSMs found at 40 CFR 261.4(a), and requirements for hazardous waste recycled at 40 CFR 261.6.  

VHWMR 262.1(e) discusses what may or may not be a solid waste and/or hazardous waste when recycled. HSMs are also discussed in the linked sections of the regulations found above. A generator who believes it may generate HSMs that are recyclable and is interested in discussing this issue further should read the above sections of the regulations prior to contacting DEQ. DEQ realizes there are many variables that go into the decision to recycle a HSM or dispose of it, but we recommend you analyze your situation to determine the potential applicability of these regulations to your situation.

Please contact Lisa Ellis at 804-912-7366 if you have any questions.