	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:	Virginia
State Statutory Authority:	§ 10.1-1402 of the Code of Virginia
Title of Regulations: 	Virginia Hazardous Waste Management Regulations, 9VAC20-60
Effective Date:  Annual Update 2015 effective on January 27, 2016 (Virginia Register, Volume 32, Issue 09)
Date Checklist Completed: 	September 18, 2019
                                       
                                       
                                       
                                       
                             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"
9VAC20-60-260.B.2
(land-based units were not included in the contained definition)
                                       
                                       
                                       X
                                       
                                                                               
(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"
9VAC20-60-18.
Incorporated by reference (IBR) in 9VAC20-60-260A.
                                       X
                                       
                                       
                                       
                                                                               
(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"
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       
                                       
                                                                               
(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"
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       
                                       
                                                                               
(4) Hazardous secondary materials in units that meet the applicable requirements of 40 CFR parts 264 or 265 are presumptively contained. 
260.10 "contained"
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       
                                       
                                                                              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"
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       
                                       
                                                                               
                        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
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                              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)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
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)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
Contributes valuable ingredients to a product or intermediate; or
260.43(a)(1)(i)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
Replaces a catalyst or carrier in the recycling process; or
260.43(a)(1)(ii)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
Is the source of a valuable constituent recovered in the recycling process; or
260.43(a)(1)(iii)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
Is recovered or regenerated by the recycling process; or
260.43(a)(1)(iv)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
Is used as an effective substitute for a commercial product.
260.43(a)(1)(v)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
The recycling process must produce a valuable product or intermediate. The product or intermediate is valuable if it is:
260.43(a)(2)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
Sold to a third party; or
260.43(a)(2)(i)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
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)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
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)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
Removed by the May 30, 2018 rule.
260.43(a)(4)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                              2
The following factor must be considered in making a determination as to the overall legitimacy of a specific recycling activity.
260.43(b)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                              2
The product of the recycling process does not:
260.43(b)(1)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                              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)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                              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)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                              2
exhibit a hazardous characteristic (as defined in part 261 subpart C) that analogous products do not exhibit.
260.43(b)(1)(iii)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                              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)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
Remove and reserve
260.43(c)
                                 9VAC20-60-18.
IBR in 9VAC20-60-260A.
                                       X
                                       
                                       

                                                                               
            PART 261 IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
                                                                               
                               SUBPART A GENERAL
                                                                              3
Remove and reserve
261.2(a)(2)(ii)
                                 9VAC20-60-18.
IBR in 9VAC20-60-261A.
                                       X
                                       
                                       
                                       
                                                                               
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)
                                 9VAC20-60-18.
IBR in 9VAC20-60-261A.
                                       X
                                       
                                       
                                       
                                                                               
Add: Sham recycled, as explained in paragraph (g) of this section.
261.2(b)(4)
                                 9VAC20-60-18.
IBR in 9VAC20-60-261A.
                                       X
                                       
                                       
                                       
                                                                               
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)
                                 9VAC20-60-18.
IBR in 9VAC20-60-261A.
                                       X
                                       
                                       
                                       

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).
