RCRA REVISION CHECKLIST 233B
Legitimacy-related provisions, including prohibition of sham recycling, definition of legitimacy, definition of contained 
More stringent for all state programs that did not adopt the 2015 DSW rule

Revisions to the Definition of Solid Waste
80 FR 1694-1814, January 13, 2015
83 FR 24664-24671, May 30, 2018
(RCRA Cluster XXIV, Non-HSWA)

Name of State:  

State Statutory Authority: 

Title of Regulations:  							Effective Date:   

Date Checklist Completed:  

	
FEDERAL REQUIREMENTS	
FEDERAL RCRA CITATION	
ANALOGOUS STATE CITATION	
STATE ANALOG IS:	
				
EQUIV-ALENT	
LESS
STRIN-
GENT	
MORE STRIN-GENT	
BROADER IN SCOPE	
	PART 260 HAZARDOUS WASTE MANAGEMENT SYSTEM:  GENERAL	
	SUBPART B DEFINITIONS	
	DEFINITIONS	
	Add Contained to mean” held in a unit (including a land-based unit as defined in this subpart) that meets the following criteria: 	260.10 “contained”						
	(1) The unit is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary materials to the environment, and is designed, as appropriate for the hazardous secondary materials, to prevent releases of hazardous secondary materials to the environment. Unpermitted releases are releases that are not covered by a permit (such as a permit to discharge to water or air) and may include, but are not limited to, releases through surface transport by precipitation runoff, releases to soil and groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures;	260.10 “contained”						
	(2) The unit is properly labeled or otherwise has a system (such as a log) to immediately identify the hazardous secondary materials in the unit; and	260.10 “contained”						
	(3) The unit holds hazardous secondary materials that are compatible with other hazardous secondary materials placed in the unit and is compatible with the materials used to construct the unit and addresses any potential risks of fires or explosions.	260.10 “contained”						
 	(4) Hazardous secondary materials in units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively contained. 	260.10 “contained”						
1	Add “Hazardous secondary material” to mean: 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 “Hazardous secondary material”						
	SUBPART C RULEMAKING PETITIONS	
 	STANDARDS AND CRITERIA FOR VARIANCES FROM CLASSIFICATION AS A SOLID WASTE	
	Add or revise section 260.43; section heading: Legitimate recycling of hazardous secondary materials.	260.43 section heading						
2	Recycling of hazardous secondary materials for the purpose of the exclusions or exemptions from the hazardous waste regulations must be 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 all the requirements of this paragraph and must consider the requirements of paragraph (b) of this section.	260.43(a)						
	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 recycling process. The hazardous secondary material provides a useful contribution if it:	260.43(a)(1)						
	Contributes valuable ingredients to a product or intermediate; or	260.43(a)(1)(i)						
	Replaces a catalyst or carrier in the recycling process; or	260.43(a)(1)(ii)						
	Is the source of a valuable constituent recovered in the recycling process; or	260.43(a)(1)(iii)						
	Is recovered or regenerated by the recycling process; or	260.43(a)(1)(iv)						
	Is used as an effective substitute for a commercial product.	260.43(a)(1)(v)						
	The recycling process must produce a valuable product or intermediate. The product or intermediate is valuable if it is:	260.43(a)(2)						
	Sold to a third party; or	260.43(a)(2)(i)						
	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.	260.43(a)(2)(ii)						
	The generator and the recycler must manage the hazardous secondary material as a valuable commodity when it is under their control. Where there is an analogous raw material, the hazardous secondary material must be managed, at a minimum, in a manner consistent with the management of the raw material or in an equally protective manner. Where there is no analogous raw material, the hazardous secondary material must be contained. Hazardous secondary materials that are released to the environment and are not recovered immediately are discarded.	260.43(a)(3)						
2	The following factor must be considered in making a determination as to the overall legitimacy of a specific recycling activity.	260.43(b)						
2	The product of the recycling process does not:	260.43(b)(1)						
2	contain significant concentrations of any hazardous constituents found in appendix VIII of part 261 that are not found in analogous products; or	260.43(b)(1)(i)						
2	contain concentrations of hazardous constituents found in appendix VIII of part 261 at levels that are significantly elevated from those found in analogous products, or	260.43(b)(1)(ii)						
2	exhibit a hazardous characteristic (as defined in part 261 subpart C) that analogous products do not exhibit.	260.43(b)(1)(iii)						
2	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 considerations, the factor in this paragraph is not met, then this fact may be an indication that the material is not legitimately recycled. However, the factor in this paragraph does not have to be met for the recycling to be considered legitimate. In evaluating the extent to which this factor is met and in determining whether a process that does not meet this factor is still legitimate, persons can consider exposure from toxics in the product, the bioavailability of the toxics in the product and other relevant considerations.	260.43(b)(2)						
	Remove and reserve	260.43(c)						
	PART 261 IDENTIFICATION AND LISTING OF HAZARDOUS WASTE	
	SUBPART A GENERAL	
3	Remove and reserve	261.2(a)(2)(ii)						
	Revise to read: Accumulated, stored, or treated (but not recycled) before or in lieu of being abandoned by being disposed of, burned or incinerated; or	261.2(b)(3)						
	Add: Sham recycled, as explained in paragraph (g) of this section.	261.2(b)(4)						
	Add: Sham recycling. A hazardous secondary material found to be sham recycled is considered discarded and a solid waste. Sham recycling is recycling that is not legitimate recycling as defined in § 260.43.	261.2(g)						

1 This provision was promulgated under the October 30, 2008 rule and is unaffected by today’s rule.  

2 This provision was affected by the final rule: “Response to Vacatur of Certain Provisions of the Definition of Solid Waste Rule,” 83 FR 24664, May 30, 2018. It is optional for states that adopted the 2015 DSW rule.

3 The removal of section 261.2(a)(2)(ii) is necessary only in those states which have adopted the 2008 DSW rule    (October 30, 2008, 73 FR 64668).  In addition to adding 261.2(a)(2)(ii), the 2008 DSW rule also renumbered the       previous 261.2(a)(2)(i)-(iv) as 261.2(a)(2)(i)(A)-(D).