Audit, Compliance and Risk Blog

Waste Identification Part I: Is My Material A “Solid” “Waste”?

Posted by Jon Elliott on Mon, Dec 01, 2014 and state laws govern “hazardous wastes”—the federal law is commonly called RCRA, after the Resource Conservation and Recovery Act of 1976. However, RCRA itself was enacted as an expansion of the prior Solid Waste Disposal Act (SWDA) of 1965, and requirements for both solid and hazardous wastes have been revised many times in recent decades. The US Environmental Protection Agency (EPA) administers these requirements nationally, delegating many provisions to individual states that qualify for authorization to assume regulatory roles.

This blog summarizes the first half of provisions under which the facility that first produces hazardous wastes—the “generator”—determines if a material has become a “waste” and, if so, whether that waste is “solid waste.” My next blog will summarize provisions for determining whether a “solid waste” qualifies as a “hazardous waste.”

Is My Material A “Waste”?

SWDA and RCRA are only triggered once a material has become a “waste.” Typically this transformation is obviouschemicals go into a process, and come out contaminated and unusable. But other scenarios can also convert materials into wastes.

EPA’s regulations include additional qualifiers. According to these regulations, in order to be considered a solid waste, a solid material generally must be “discarded,” which means any one of the following:

  1. Abandoned

  2. Recycled 

  3. “Inherently wastelike” 

  4. Military munitions.

Materials may become abandoned by being disposed of, burned or incinerated, or accumulated, stored, or treated (but not recycled) before or instead of being disposed of, burned, or incinerated. Note that the “instead of” can introduce a subjective element, which inspectors sometimes use to question the purpose why materials are still there – if you can’t tell an inspector what use is planned for suspect chemicals, then he or she may decide it’s being accumulated instead of being disposed. If so, your facility might be penalized for exceeding time limits on accumulation.

RCRA considers recycling to be a good thing, when it meets regulatory standards. EPA excludes materials from its definition of solid waste when they are recycled in any of the following ways:

  1. By being used or reused as ingredients in an industrial process to make a product, as long as they are not first reclaimed. 

  2. Used or reused as effective substitutes for commercial products.

  3. Returned to the original process from which they are generated without first being reclaimed or land disposed.

These recycling activities are still subject to RCRA regulation. In addition, inspectors are alert for “sham recycling.” RCRA regulations define materials as solid wastes when recycled (or accumulated, stored, or treated before recycling), when they are used in the following ways:

  1. Used in a manner constituting disposal when applied to the land, or used to make products that are applied to the land.

  2. Burned for energy recovery or used to produce fuels.

  3. Reclaimed.

  4. “Accumulated speculatively” (which refers to the practice of stockpiling waste materials with the intention of recycling them when market conditions are more lucrative).

These include attempts to dilute wastes below regulatory thresholds by adding them into other material streams. One infamous example involved addition of wastes as (unnecessary) components of asphalt that was then laid down as roadbeds.

Inherently wastelike includes material that may pose a substantial hazard to human health and the environment even if recycled. These include materials with high concentrations of toxic organic compounds or bromine.

Military munition provisions define terms and uses to conform with Department of Defense provisions for use and routine disposal, to identify when specific materials are outside those provisions.

Is My Waste A “Solid Waste”?

If you know that SWDA was established to deal with municipal wastes, it shouldn’t be surprising that determination whether a material is a “solid” waste does not depend on its physical state, but instead on its source. As set forth in the legislation:

“[t]he term ‘solid waste’ means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities.”

Most wastes would be captured by this very broad definition. However, the RCRA statute and EPA regulations provide a variety of exclusions from this definition; qualifying materials are not considered “solid wastes” and therefore can be managed without any reference to SWDA or RCRA provisions.

The statute excludes the following:

  1. Solid or dissolved materials in domestic sewage.

  2. Solid or dissolved materials in irrigation return flows.

  3. Solid or dissolved materials in industrial discharges that are point sources subject to Clean Water Act permitting.

  4. Source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954.

EPA regulations cover several dozen specific wastestreams, which can be grouped as follows:

  1. Materials subjected to in situ mining techniques that are not removed from the ground as part of the extraction process.

  2. Qualifying spent materials and secondary materials from the following processes: pulping; sulfuric acid production; wood preserving; coking; electric steel furnaces; petroleum refinery and petrochemical processes; scrap metal processing; recycling of shredded circuit boards; kraft mill steam stripping; primary metal processing; qualifying comparable fuels, or syngas fuels; organic chemical manufacturing; and zinc fertilizer production.

  3. Certain wastes that are reclaimed using specified procedures, such as reclamation and return to the original process or processes in which they were generated.

  4. Qualifying hazardous secondary materials.

Self-Assessment Checklist

As a first step in RCRA compliance, generators need to determine when materials streams have become “wastes,” and then parse through inclusions and exclusions to determine whether which “wastes” are “solid wastes.”

Has my organization developed an inventory of materials onsite at its facilities, including:

  1. Materials in formal inventories, including centralized and workplace-level.

  2. Materials in use in processes (batch and continuous flow).

  3. Materials that have exited processes, including those being held and those that flow through to sewer or other discharges.

  4. Accumulations of materials outside formal inventory and process systems.

Has my organization determined whether there is a definite plan for the use of each such material?

Has my organization determined which materials are no longer useful, or to be used, for the purpose for which they were acquired (spent, off-spec, expired, etc)—and which therefore are “wastes”?

Has my organization determined whether any “wastes” qualify for exclusion from SWDA and RCRA?

Does my organization manage all “wastes” in ways that meet applicable requirements?

Where Can I Go For More Information?

Specialty Technical Publishers (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:

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About the Author Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including Environmental Compliance: A Simplified National Guide and The Complete Guide to Environmental Law.

Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).

Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).

You may contact Mr. Elliott directly at:



photo credit: the justified sinner via photopin cc

Tags: Business & Legal, Health & Safety, Environmental risks, Environmental, EPA, Hazcom, RCRA