Reusing Waste and Avoiding Sham Recycling

Posted on 3/25/2014 by Joel Gregier

To encourage recycling and keep more hazardous waste out of landfills and the ecosystem, the US EPA established the “reuse relief” in its hazardous waste regulations. The relief, found at 40 CFR 261.2(e), excludes certain materials from the definition of solid waste when they are reused in a beneficial way. In general, the exclusion applies when an otherwise hazardous waste is reused in one of three ways: 
  • To make a product,
  • As an effective substitute for a product, or
  • Returning it to the original process from which it was generated without land disposal or first reclaiming it. 
In addition to its environmental benefits, recycling hazardous waste can also help generators by lowering their compliance and process costs. Because of the regulatory and economic benefits provided by the exclusion, the EPA lays out specific criteria generators must meet to demonstrate their recycling efforts are legitimate.
“Sham Recycling”
When the EPA created the reuse relief, the Agency realized that there could be companies that would wrongfully try to take advantage of it and described this possibility in the original Federal Register that promulgated the rule. 
“Other commenters voiced concern that these exclusions open opportunities for sham recyclers to claim that they are using secondary materials, and so not engaging in waste management.” [50 FR 638-639, January 4, 1985] 
As a way to address the issue, the EPA described different reuse scenarios that it regards as “sham recycling.” Wastes reused in a way that is considered “sham” are not eligible for the reuse relief and are subject to full RCRA regulations.
Reused Materials Are Ineffective
When reused materials are ineffective or only marginally effective for their claimed use, the generator cannot claim legitimate recycling. The example EPA gives is using certain heavy metal sludges in concrete. Since the sludges do not contribute any significant element to the concrete’s properties, the EPA sees it as a method for disposing of the waste sludges, not recycling them. 
Material Used in Excess
If a waste is reused as an ingredient in a product, the waste must be used only in the amount needed for the process. If a chemical recipe asks for one gallon of ingredient, but the generator uses five gallons to get rid of excess materials, that would be sham recycling. 
Replacement Materials for Reuse
If a generator uses a material as a replacement for another chemical, the EPA is much more likely to consider it legitimate if the reused material is just as effective as the virgin chemical. Rather than giving an example of reuse that is not effective, the EPA felt it was easier to demonstrate this concept by giving an example of something that is effective reuse. The EPA uses the example of spent pickle liquor in that it is known to be as effective as virgin materials when used as a phosphorous precipitant in wastewater treatment. Thus, the Agency would consider that type of reuse to be legitimate.
Proper Product Handling
When reusing wastes as products, they should be handled and stored in the same way that a raw product would be handled and stored. The EPA specifically stated that reused materials that are stored or handled in a manner that does not guard against significant economic loss would likely be considered sham recycling. For instance, reused materials that are stored in leaking storage areas are obviously not being stored like a usable chemical. 
The Importance of Recordkeeping
As a best management practice, generators should document all of their recycling activities, especially if it is being used to get relief from the regulations. According to the EPA, companies should be treating their reused materials the same way as their raw materials, which means keeping records and documenting materials and products. If generators are unable to document how, where, and in what volumes the materials are being reused, the EPA will presume sham recycling. [40 CFR 261.2(f)]
Keep It Legitimate
Although it may be tempting, do not attempt to abuse the reuse relief. Recycling must be legitimate, or you can find yourself getting some hefty fines. And as always, document everything.
The EPA does have an updated document detailing “The History of Legitimate Recycling” (EPA 530-R-10-008). If you’d like to see a copy of this, click here.
The EPA makes a number of other recycling guidance documents available on its website as well: 
Discover how capitalizing on US EPA RCRA reliefs for reusing and recycling your hazardous waste can lighten your facility’s regulatory burden, minimize waste, and lower transport and disposal costs. On April 15, the live, instructor-led Hazardous Waste Recycling Reliefs Webinar will cover the reliefs to hazardous waste regulations found at 49 CFR Part 261. Find out how your waste may be excluded from RCRA requirements such as the 90- or 180-day rules, LDR requirements, EPA manifesting, and more. 

Tags: best, practices, RCRA, recycling, waste minimization

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