Rules Around Speculative Accumulation

Focus on Speculative Accumulation

Generators accumulating Hazardous Secondary Materials (HSM) for reclamation and reuse need to satisfy the regulatory requirements set forth in §40CFR 261.1 which states in section (c)(8):  A material is “accumulated speculatively” if it is accumulated before being recycled. A material is not accumulated speculatively, however, if the person accumulating it can show the material is potentially recyclable and has a feasible means of being recycled. Generators must establish exemption of materials from regulation as a Solid Waste, store and contain the materials properly, and demonstrate that reuse or reclamation is legitimate.

Solid Waste Exclusion 

The Environmental Protection Agency (EPA) revised the definition of solid waste in 2008 and again in 2015 to exclude certain HSM from regulation under subtitle C of the Resource Conservation and Recovery Act (RCRA) in order to encourage reuse and reclamation. HSM can include listed or characteristic byproducts and sludges, commercial chemical products, and spent materials. Certain HSM can be conditionally excluded from the definition of solid waste when it is not managed in a manner which constitutes being discarded and when it is shown to have potential for reuse or reclamation in a legitimate recycling process. Specific exclusions from the definition of solid waste are listed in CFR §261.4(a). Materials stored with a legitimate expectation of eventually being recycled but for which there is no known recycling market or disposition, or no feasible means of recycling, are immediately considered wastes.

Storage and Containment 

When hazardous secondary materials (HSM) are accumulated for recycling and thereby excluded from the definition of solid waste often they are stockpiled and stored prior to initiating recovery. Therefore, an important factor in maintaining conditional exemption is how the material will be stored. HSM must be stored and contained in the same manner as a valuable raw material or commercial product. Storage and containment would be subject to all applicable state, local, and federal regulations based on the characteristics of the material and/or specific storage requirements of an analogous raw product. Any non – recoverable HSM released or spilled would exit the exemption and must be reclassified as solid waste. Additionally, if a containment vessel or method of storage is shown to be problematic regarding release of material to the environment, the entire volume of HSM could be subject to reclassification as a solid waste. Note the requirement to place a label on the HSM storage unit indicating the first day the material began to be accumulated. The intent here is to provide some assurance to inspectors that the accumulation time limit is not violated. The rule adds that if placing a label on the storage unit is not practicable, the accumulation period must be documented through an inventory log or other appropriate method. The Agency does not define other appropriate method; however, the term is intended to address conditions in which HSMs are continuously recycled without prior storage.

Legitimate Recycling 

§CFR 260.43, lists several critical factors generators must evaluate and consider in determining the legitimacy of a recycling process. A generator must demonstrate there is a known market for the material. The recycled product must produce valuable ingredients, wholly substitute for a similar or analogous commercial product, itself be regenerated, and must not exhibit different characteristics or significantly higher contaminate concentrations of a similar product.  It is important to note that the EPA makes a distinction between reuse and reclamation. According to the EPA, “reclamation is the regeneration of wastes or recovery of usable materials from wastes (e.g., regenerating spent solvents in a solvent still). Wastes are regenerated when they are processed to remove contaminants in a way that restores them to their usable condition.” Reuse is direct reuse of a secondary material, with no reclamation involved beforehand. Examples include Use as an Ingredient, Used as a Product Substitute and materials Returned to The Production Process. For materials sent off-site to intermediary facilities for reclamation or toll manufacturing, generators must perform due diligence every three years as part of what the EPA defines as the “Reasonable Efforts Condition” under §261.4(a)(24)(v)(B). This should include an assessment to determine the facility meets all the conditions for materials being recycled and that the intermediate facilities will manage HSM and its recycled product in a manner consistent with protection of human health and the environment (§261.2(c)(3)). Generators and off-site facilities must document how the criteria listed under §260.43are met and maintain that record or certification statement (§261.4(a)(24)(v)(C) for 3 years.

Calculating Accumulated Volume 

§261.1(c)(8) does not establish a volume limit on stored materials. It does however, set a minimum volume or weight reduction of accumulated material that must be achieved within a calendar year; during the calendar year (commencing on January 1)—the amount of material that is recycled, or transferred to a different site for recycling, equals at least 75 percent by weight or volume of the amount of that material accumulated at the beginning of the period. The remaining 25% can be carried into the following year and included in the total volume once again. Accurate Record keeping and documentation thus become the cornerstone for generators to successfully maintain and demonstrate compliance during accumulation. A tracking and inventory system should include at a minimum; the date of generation, a description of the material, the amount produced, and the date and amount removed for reuse or reclamation. The regulation further states: In calculating the percentage of turnover, the 75 percent requirement is to be applied to each material of the same type (e.g., slags from a single smelting process) that is recycledin the same way (i.e., from which the same material is recovered or that is used in the same way). Materials accumulating in units that would be exempt from regulation under 261.4(c) are not to be included in making the calculation. Materials that are already defined as solid waste also are not to be included in making the calculation. Materials are no longer in this category once they are removed from accumulation for recycling… Although generators have a year to recycle or transfer at least 75% of accumulated material off site, documentation such as log or container labeling is subject to inspection at any time. If during the time of inspection, the total amount of accumulated material on site is shown not to have been reduced by 75%, it does not constitute a compliance violation so long as the reduction percentage requirement is met by year’s end. Outside of regulatory mandates, it is cautionary for generators to be cognizant of national capacity to recycle certain HSM’s. Generators waiting until close to the end of the calendar year to recycle or accumulate significant volumes of conditionally exempted HSM may risk delays due to limited capacity at recycling facilities. While the EPA does not directly provide relief or a variance from the 75% volume reduction requirement, it does provide several criteria for generators to make a “non – waste determination” on certain recycled materials under §CFR260.30.

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