Vol. 80 Tuesday, 

No. 8 January 13, 2015 

Part II 

Environmental Protection Agency 

40 CFR Parts 260 and 261 

Definition of Solid Waste; Final Rule 


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1694 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 260 and 261 

[EPA–HQ–RCRA–2010–0742; FRL–9728–5– 

OSWER] 

RIN 2050–AG62 

Definition of Solid Waste 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA, or the Agency) is 

publishing a final rule that revises 

several recycling-related provisions 

associated with the definition of solid 

waste used to determine hazardous 

waste regulation under Subtitle C of the 

Resource Conservation and Recovery 

Act (RCRA). The purpose of these 

revisions is to ensure that the hazardous 

secondary materials recycling 

regulations, as implemented, encourage 

reclamation in a way that does not 

result in increased risk to human health 

and the environment from discarded 

hazardous secondary material. 

DATES: This final rule is effective on July 

13, 2015. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–RCRA–2010–0742. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

such as Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically at 

www.regulations.gov or in hard copy at 

the RCRA Docket, EPA/DC, William 

Jefferson Clinton Building West, Room 

3334, 1301 Constitution Ave. NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 a.m. to 4:30 

p.m. Monday through Friday, excluding 

legal holidays. The telephone number 

for the Public Reading Room is (202) 

566–1744 and the telephone number for 

the RCRA Docket is (202) 566–0276. 

FOR FURTHER INFORMATION CONTACT: 

Tracy Atagi, Office of Resource 

Conservation and Recovery, Materials 

Recovery and Waste Management 

Division, MC 5304P, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460, at 

(703) 308–8672, (atagi.tracy@epa.gov) or 

Amanda Kohler, Office of Resource 

Conservation and Recovery, Materials 

Recovery and Waste Management 

Division, MC 5304P, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460, at 

(703) 347–8975, 

(kohler.amanda@epa.gov). 

SUPPLEMENTARY INFORMATION: 

A. Does this action apply to me? 

Entities potentially affected by today’s 

action include over 5,000 industrial 

facilities in 634 industries (at the 6-digit 

North American Industry Classification 

System (NAICS) code level) that 

generate or recycle hazardous secondary 

materials (HSM). Most of these 634 

industries have relatively few entities 

that are potentially affected. The top-5 

economic sectors (at the 2-digit NAICS 

code level) with the largest number of 

potentially affected entities are as 

follows: (1) 41% in NAICS code 33—the 

manufacturing sector, which consists of 

metals, metal products, machinery, 

computer & electronics, electrical 

equipment, transportation equipment, 

furniture, and miscellaneous 

manufacturing subsectors, (2) 23% in 

NAICS code 32—the manufacturing 

sector, which consists of wood 

products, paper, printing, petroleum & 

coal products, chemicals plastics & 

rubber products, and nonmetallic 

mineral products manufacturing 

subsectors, (3) 3.0% in NAICS code 

92—the public administration sector, (4) 

2.9% in NAICS code 61—the 

educational services sector, and (5) 

2.8% in NAICS code 54—the 

professional, scientific and technical 

services sector. 

Information on the estimated future 

economic impacts of today’s action is 

presented in section XXI of this notice, 

as well as in the RIA available in the 

docket for today’s action. 

Preamble Outline 

I. Statutory Authority 

II. Which revisions to the regulations is EPA 

finalizing? 

III. History of the Definition of Solid Waste 

IV. When will the final rule become 

effective? 

V. Revisions to the Exclusion for Hazardous 

Secondary Materials That Are 

Legitimately Reclaimed Under the 

Control of the Generator 

VI. Verified Recycler Exclusion Replacing the 

Exclusion for Hazardous Secondary 

Materials That Are Transferred for the 

Purpose of Reclamation 

VII. Remanufacturing eXclusion 

VIII. Revisions to the Definition of 

Legitimacy and Prohibition of Sham 

Recycling 

IX. Revisions to Solid Waste Variances and 

Non-Waste Determinations 

X. Effect on Facilities Currently Operating 

Under Solid Waste Exclusions 

XI. Effect on Spent Petroleum Catalysts 

XII. Effect on CERCLA 

XIII. General Comments on the 2011 

Proposed Revisions to the Definition of 

Solid Waste 

XIV. Major Comments on the Exclusion for 

Hazardous Secondary Materials 

Legitimately Reclaimed Under the 

Control of the Generator and 

Recordkeeping for Speculative 

Accumulation 

XV. Major Comments on the Replacement of 

the Exclusion for Hazardous Secondary 

Materials That Are Transferred for the 

Purpose of Reclamation 

XVI. Major Comments on the 

Remanufacturing Exclusion 

XVII. Major Comments on Legitimacy 

XVIII. Major Comments on the Revisions to 

Solid Waste Variances and Non-Waste 

Determinations 

XIX. Major Comments on the Proposed 

Revisions to Pre-2008 Recycling 

Exclusions 

XX. State Authorization 

XXI. Statutory and Executive Order (E.O.) 

Reviews 

I. Statutory Authority 

These regulations are promulgated 

under the authority of sections 2002, 

3001, 3002, 3003, 3004, 3007, 3010, and 

3017 of the Solid Waste Disposal Act of 

1970, as amended by the Resource 

Conservation and Recovery Act of 1976 

(RCRA), as amended by the Hazardous 

and Solid Waste Amendments of 1984 

(HSWA), 42 U.S.C. 6921, 6922, 6923, 

and 6924. This statute is commonly 

referred to as ‘‘RCRA.’’ 

II. Which revisions to the regulations is 

EPA finalizing? 

In today’s rule, EPA is revising a 

number of provisions related to the 

definition of solid waste as it applies to 

the regulation of hazardous waste under 

Subtitle C of RCRA (42 U.S.C. 6921 

through 6939(e)). These revisions affect 

certain types of hazardous secondary 

materials that are currently 

conditionally excluded from the 

definition of solid waste when 

reclaimed. These exclusions were 

promulgated in October 2008 (73 FR 

64688, October 30, 2008) and were 

intended to encourage the recovery and 

reuse of valuable resources as an 

alternative to land disposal or 

incineration, while at the same time 

maintaining protection of human health 

and the environment. In response to 

concerns raised by stakeholders about 

potential increases in risks to human 

health and the environment from 

hazardous secondary materials, today’s 

rule revises the 2008 DSW final rule in 

order to ensure that the rule, as 

implemented, encourages reclamation 

in a way that protects human health and 

the environment from the 


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1Any provisions promulgated in the 2008 DSW 

rule that are not addressed in this final rule remain 

in effect. 

mismanagement of hazardous secondary 

materials. 

The six major regulatory areas are 

summarized below.1 The intent of this 

summary is to give a brief overview of 

the actions EPA is taking today. More 

detailed discussions, including the 

Agency’s rationale for the changes, are 

found in later sections of this preamble. 

A. Exclusion for Hazardous Secondary 

Materials That Are Legitimately 

Reclaimed Under the Control of the 

Generator 

Under today’s final rule, EPA is 

retaining the exclusion for hazardous 

secondary materials that are legitimately 

reclaimed under the control of the 

generator (‘‘generator-controlled 

exclusion’’), with certain revisions from 

the 2008 DSW final rule. These 

revisions include (1) adding a codified 

definition of ‘‘contained,’’ (2) adding 

recordkeeping requirements for samecompany and toll manufacturing 

reclamation, (3) making notification a 

condition of the exclusion, (4) adding a 

requirement to document that recycling 

under the exclusion is legitimate, and 

(5) adding emergency preparedness and 

response conditions. In addition, we 

have amended the speculative 

accumulation provisions to add a 

recordkeeping requirement. This 

requirement applies to all persons 

subject to speculative accumulation. 

The generator-controlled exclusion 

(40 CFR 261.4(a)(23)) excludes certain 

hazardous secondary materials (i.e., 

listed sludges, listed by-products, and 

spent materials) from the definition of 

solid waste if they are generated and 

legitimately reclaimed within the 

United States or its territories under the 

control of the generator. Specifically, 

hazardous secondary materials are 

excluded if (1) the reclamation process 

meets the definition of legitimate 

recycling under 40 CFR 260.43; (2) the 

materials are not speculatively 

accumulated as defined in 40 CFR 

261.1(c)(8) (including a new 

recordkeeping requirement, being 

finalized today); (3) they meet the 

notification condition under 40 CFR 

260.42; (4) they are managed in a unit 

that meets the new definition of 

‘‘contained’’ in 40 CFR 260.10, which 

specifies that storage units must be in 

good condition, properly labeled, do not 

hold incompatible materials, and 

address potential risks of fires or 

explosions; and (5) the generator 

satisfies certain emergency 

preparedness and response conditions. 

Further discussion of the generatorcontrolled exclusion can be found in 

section V of this preamble. 

B. Verified Recycler Exclusion 

Replacing the Exclusion for Hazardous 

Secondary Materials That Are 

Transferred for the Purpose of 

Legitimate Reclamation 

EPA is replacing the exclusions at 40 

CFR 261.4(a)(24) and (25) for hazardous 

secondary materials that are transferred 

from the generator to other persons for 

the purpose of reclamation with an 

exclusion for hazardous secondary 

materials sent for reclamation to a 

verified recycler. By this change, EPA 

intends to promote safe and sustainable 

reclamation of these materials. Under 

this new exclusion, generators who 

want to recycle their hazardous 

secondary materials without having 

them become hazardous wastes must 

send their materials to either a RCRApermitted reclamation facility or to a 

verified recycler of hazardous secondary 

materials who has obtained a solid 

waste variance from EPA or the 

authorized state. In order to obtain a 

variance from EPA or the authorized 

state, the recycler must (1) demonstrate 

their recycling is legitimate; (2) have 

financial assurance in place to properly 

manage the hazardous secondary 

material when the facility closes; (3) not 

be subject to a formal enforcement 

action in the previous three years and 

not be classified as a significant noncomplier under RCRA Subtitle C, or 

must provide credible evidence that the 

facility will manage the hazardous 

secondary materials properly; (4) have 

the proper equipment and trained 

personnel, and meet emergency 

preparedness and response conditions 

to safely recycle the material; (5) 

manage the residuals from recycling 

properly; and (6) take steps to protect 

nearby communities and reduce risk of 

potential unpermitted releases of the 

hazardous secondary material to the 

environment (i.e., releases that are not 

covered by a permit (such as a permit 

to discharge to water or air). Further 

discussion of the replacement of the 

transfer-based exclusion with the 

verified recycler exclusion can be found 

in section VI of this preamble. 

C. Remanufacturing Exclusion 

EPA is also finalizing an exclusion 

from the definition of solid waste for 

certain higher-value solvents transferred 

from one manufacturer to another for 

the purpose of extending the useful life 

of the solvent by remanufacturing the 

spent solvent back into the commercial 

grade solvent. This remanufacturing 

exclusion will help promote sustainable 

materials management by extending the 

productive use of these materials, which 

reduces the need for raw materials used 

and the environmental impacts 

associated with production of these 

materials. In addition, EPA is also 

making clear that a rulemaking petition 

pursuant to 40 CFR 260.20 can be 

submitted for adding other higher-value 

hazardous secondary materials that are 

destined to be remanufactured into 

similarly higher-value products. Further 

discussion of this exclusion can be 

found in section VII of this preamble. 

D. Prohibition of Sham Recycling and 

Revisions to the Definition of Legitimacy 

In this final rulemaking, EPA is 

codifying in its regulations at 40 CFR 

261.2(g) the long-standing policy that 

hazardous secondary materials found to 

be sham recycled are discarded and 

solid wastes, thereby prohibiting 

materials that are sham recycled from 

being excluded from the definition of 

solid waste. 

In addition, EPA has changed the 

definition of legitimate recycling in 

§ 260.43 to make clear that all four 

factors identified in § 260.43 must be 

met, but also to provide some flexibility 

in determining legitimacy for certain 

types of recycling. In particular, in cases 

where there is no analogous product 

made from raw materials, EPA has 

clarified that the product of recycling is 

still a legitimate product when it meets 

widely recognized commodity standards 

(e.g., commodity-grade scrap metal) or 

when the hazardous secondary material 

is recycled back into the production 

process from which it was generated 

(e.g., closed-loop recycling). In addition, 

for cases in which the product of the 

recycling process has levels of 

hazardous constituents that are not 

comparable to analogous products, the 

revised legitimacy standard includes a 

process that allows the facility to 

document and certify that the recycling 

is still legitimate, keep such 

documentation at the facility, and send 

a notification to the regulatory authority 

to that effect. Further discussion of 

legitimacy can be found in section VIII 

of this preamble. 

E. Revisions to Solid Waste Variances 

and Non-Waste Determinations 

Today’s rule finalizes revisions to the 

solid waste variances and non-waste 

determinations found in 40 CFR 260.30– 

260.34 in order to ensure protection of 

human health and the environment and 

foster greater consistency on the part of 

implementing agencies. Revisions 

include (1) requiring facilities to send a 

notice to the Administrator (or State 

Director, if the state is authorized) and 


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2EPA requested comment on adding these 

requirements to a list of 32 existing recycling 

exclusions in the 2011 proposed rule (76 FR 44139, 

July 22, 2011). 

potentially re-apply for a variance in the 

event of a change in circumstances that 

affects how a hazardous secondary 

material meets the criteria upon which 

a solid waste variance has been based; 

(2) establishing a fixed term not to 

exceed ten years for variance and nonwaste determinations, at the end of 

which facilities must re-apply for a 

variance or non-waste determination, (3) 

requiring facilities to re-notify every two 

years with updated information; (4) 

revising the criteria for the partial 

reclamation variance to clarify when the 

variance applies and to require, among 

other things, that all the criteria for this 

variance must be met; and (5) for the 

non-waste determinations in 40 CFR 

260.34, requiring that petitioners 

demonstrate why the existing solid 

waste exclusions would not apply to 

their hazardous secondary materials. 

EPA is not finalizing the proposed 

change to designate the Regional 

Administrator as the EPA recipient of 

petitions for all variances and non-waste 

determinations. Further discussion of 

these revisions can be found in section 

IX of this preamble. 

F. Deferral on Revisions to Pre-2008 

Recycling Exclusions 

EPA is not finalizing revisions to the 

pre-2008 recycling exclusions and 

exemptions to include the contained 

standard or to require notification.2 EPA 

is instead deferring action until EPA can 

more adequately address commenters’ 

concerns. For further discussion, see 

section X for more information. 

III. History of the Definition of Solid 

Waste 

A. Background 

RCRA gives EPA the authority to 

regulate hazardous wastes (see RCRA 

sections 3001–3004). The original 

statutory designation of the subtitle for 

the hazardous waste program was 

Subtitle C and the national hazardous 

waste program is referred to as the 

RCRA Subtitle C program. Subtitle C is 

codified at 42 U.S.C. 6921 through 

6939f. Subtitle C regulations are found 

at 40 CFR parts 260 through 279. 

Hazardous wastes are those that, 

because of their quantity, concentration, 

physical, or chemical characteristics, 

may (1) cause, or significantly 

contribute to an increase in mortality or 

an increase in serious irreversible or 

incapacitating reversible illness or (2) 

pose a substantial present or potential 

hazard to human health or the 

environment when improperly treated, 

stored, transported, or disposed of, or 

otherwise managed (see RCRA section 

1004(5)). Hazardous wastes are a subset 

of solid wastes. 

Materials that are not solid wastes are 

not subject to regulation as hazardous 

wastes under RCRA Subtitle C. Thus, 

the definition of solid waste plays a key 

role in defining the scope of EPA’s 

authorities under Subtitle C of RCRA. 

The statute defines ‘‘solid waste’’ as 

‘‘. . . any garbage, refuse, sludge from a 

waste treatment plant, water supply 

treatment plant, or air pollution control 

facility and other discarded material 

. . . resulting from industrial, 

commercial, mining, and agricultural 

operations, and from community 

activities . . .’’ (RCRA section 1004 (27) 

(emphasis added)). 

Since 1980, EPA has interpreted 

‘‘solid waste’’ under its Subtitle C 

regulations to encompass both materials 

that are destined for final, permanent 

treatment and placement in disposal 

units, as well as certain materials that 

are destined for recycling (see 45 FR 

33090–95, May 19, 1980; 50 FR 604– 

656, January 4, 1985 (see in particular 

pages 616–618)). EPA has offered three 

arguments in support of this 

interpretation: 

• The statute and the legislative history 

suggest that Congress expected EPA to 

regulate certain materials that are destined 

for recycling as solid and hazardous wastes 

(see 45 FR 33091, citing numerous sections 

of the statute and U.S. Brewers’ Association 

v. EPA, 600 F. 2d 974 (D.C. Cir. 1979); 48 FR 

14502–04, April 3, 1983; and 50 FR 616–618, 

January 4, 1985). 

• Hazardous secondary materials stored or 

transported prior to recycling have the 

potential to present the same types of threats 

to human health and the environment as 

hazardous wastes stored or transported prior 

to disposal. In fact, EPA has found that 

recycling operations have accounted for a 

number of significant damage incidents. For 

example, hazardous secondary materials 

destined for recycling were involved in onethird of the first 60 filings under RCRA’s 

imminent and substantial endangerment 

authority and in 20 of the initial 160 

hazardous material sites listed for potential 

clean up under the Comprehensive 

Environmental Response, Compensation and 

Liability Act (CERCLA) (48 FR 14474, April 

4, 1983). Congress also cited some damage 

cases which involve recycling (H.R. Rep. 94– 

1491, 94th Cong., 2d Sess., at 17, 18, 22). 

Additional data (i.e., information on damage 

incidents occurring after 1982) included in 

the rulemaking docket for today’s rule 

corroborate the fact that recycling operations 

can and have resulted in significant damage 

incidents. 

• Excluding all hazardous secondary 

materials destined for recycling would allow 

materials to move in and out of the 

hazardous waste management system 

depending on what any person handling the 

hazardous secondary materials intended to 

do with them, which is inconsistent with the 

RCRA mandate to track hazardous wastes 

and control them from ‘‘cradle to grave.’’ 

Hence, RCRA confers on EPA the 

authority to regulate discarded 

hazardous secondary materials even if 

they are destined for recycling and may 

be beneficially reused. The Agency has 

therefore developed in part 261 of 40 

CFR a definition of ‘‘solid waste’’ for 

Subtitle C regulatory purposes. (Note: 

This definition is narrower than the 

definition of ‘‘solid waste’’ for RCRA 

endangerment and informationgathering authorities. (See 40 CFR 

261.1(b)). Also Connecticut Coastal 

Fishermen’s Association v. Remington 

Arms Co., 989 F.2d 1305, 1315 (2d Cir. 

1993) holds that EPA’s use of a narrower 

and more specific definition of solid 

waste for Subtitle C purposes is a 

reasonable interpretation of the statute. 

(See also Military Toxics Project v. EPA, 

146 F.3d 948 (D.C. Cir. 1998).)) 

EPA has consistently asserted that 

hazardous secondary materials are not 

excluded from regulation as solid 

wastes merely because of a claim that 

they will be recycled. EPA has 

consistently considered hazardous 

secondary materials intended for ‘‘sham 

recycling’’ (i.e., disposal performed in 

the guise of recycling) to be discarded 

and, hence, to be solid wastes for 

Subtitle C purposes (see 45 FR 33093, 

May 19, 1980; 50 FR 638–639, January 

4, 1985). The U.S. Court of Appeals for 

the D.C. Circuit has agreed that 

materials undergoing sham recycling are 

discarded and, consequently, are solid 

wastes under RCRA (see American 

Petroleum Institute v. EPA, 216 F.3d 50, 

58–59 (D.C. Cir. 2000)). 

B. A Series of D.C. Circuit Court 

Decisions on the Definition of Solid 

Waste 

Because the interpretation of what 

constitutes a solid waste is the 

foundation of the hazardous waste 

regulatory program, there has been quite 

a bit of litigation over the meaning of 

‘‘solid waste’’ under Subtitle C of RCRA. 

Specifically, industries representing 

mining and oil refining interests 

challenged EPA’s January 1985 

regulatory definition of solid waste. In 

1987, the D.C. Circuit held that EPA 

exceeded its authority ‘‘in seeking to 

bring materials that are not discarded or 

otherwise disposed of within the 

compass of ‘waste’ ’’ (American Mining 

Congress v. EPA (‘‘AMC I’’), 824 F.2d 

1177, 1178 (D.C. Cir. 1987)). The Court 

held that certain materials EPA was 

seeking to regulate were not ‘‘discarded 

materials’’ under RCRA section 


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Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 1697 

1004(27). The Court also held that 

Congress used the term ‘‘discarded’’ in 

its ordinary sense, to mean ‘‘disposed 

of’’ or ‘‘abandoned’’ (824 F.2d at 1188– 

89). The Court further held that the term 

‘‘discarded materials’’ could not include 

materials ‘‘destined for beneficial reuse 

or recycling in a continuous process by 

the generating industry itself (because 

they) are not yet part of the waste 

disposal problem’’ (824 F.2d at 1190). 

The Court held that Congress had 

directly spoken to this issue, so that 

EPA’s definition was not entitled to 

deference under Chevron U.S.A., Inc. v. 

NRDC, 467 U.S. 837 (1984) (824 F.2d at 

1183, 1189–90, 1193). 

At the same time, the Court held that 

recycled materials could be regulated as 

discarded materials. The Court 

mentioned at least two examples of 

recycled materials that may be regulated 

as wastes, noting that used oil can be 

considered a solid waste (824 F.3d at 

1187 (fn 14)). Also, the Court suggested 

that materials disposed of and recycled 

as part of a waste management program 

may be regulated as solid wastes (824 F. 

2d at 1179). 

Subsequent decisions by the D.C. 

Circuit also indicate that some materials 

destined for recycling may be 

considered ‘‘discarded.’’ In particular, 

the Court held that emission control 

dust from steelmaking operations listed 

as hazardous waste ‘‘K061’’ is a solid 

waste, even when sent to a metals 

reclamation facility, at least where that 

is the treatment method required under 

EPA’s land disposal restrictions 

program (American Petroleum Institute 

v. EPA (‘‘API I’’), 906 F.2d 729 (D.C. Cir. 

1990)). In addition, the Court held that 

it is reasonable for EPA to consider as 

discarded (and solid wastes) listed 

wastes managed in units that are in part 

wastewater treatment units, especially 

where it is not clear that the industry 

actually reuses the materials (AMC II, 

907 F.2d 1179 (D.C. Cir. 1990)). 

It also is worth noting that two other 

Circuits also have held that EPA may 

regulate as solid wastes under RCRA at 

least some materials destined for 

reclamation rather than final discard. 

The U.S. Court of Appeals for the 

Eleventh Circuit found that ‘‘[i]t is 

unnecessary to read into the term 

‘discarded’ a congressional intent that 

the waste in question must finally and 

forever be discarded’’ (U.S. v. ILCO, 996 

F.2d 1126, 1132 (Eleventh Cir. 1993) 

(finding that used lead batteries sent to 

a reclaimer have been ‘‘discarded once’’ 

by the entity that sent the battery to the 

reclaimer)). In addition, the Fourth 

Circuit found that slag held on the 

ground untouched for six months before 

sale for use as road bed could be a solid 

waste (Owen Electric Steel Co. v. EPA, 

37 F.3d 146, 150 (4th Cir. 1994)). 

In 1998, EPA promulgated a rule in 

which EPA regulated hazardous 

secondary materials recycled by 

reclamation within the mineral 

processing industry, the ‘‘LDR Phase IV 

rule’’ (63 FR 28556, May 26, 1998), 

under Subtitle C of RCRA. In that rule, 

EPA promulgated a conditional 

exclusion for all types of mineral 

processing hazardous secondary 

materials destined for reclamation. As a 

condition of the exclusion, EPA 

prohibited the land-based storage of 

these mineral processing secondary 

materials prior to reclamation because it 

considered hazardous secondary 

materials from the mineral processing 

industry that were stored on the land to 

be solid wastes (63 FR 28581, May 26, 

1998). The conditional exclusion 

decreased regulation over spent 

materials stored prior to reclamation, 

but increased regulation over byproducts and sludges that exhibit a 

hazardous characteristic and that are 

stored prior to reclamation. EPA noted 

that the statute does not authorize it to 

regulate ‘‘materials that are destined for 

immediate reuse in another phase of the 

industry’s ongoing production process.’’ 

EPA, however, took the position that 

hazardous secondary materials that are 

removed from a production process for 

storage are not ‘‘immediately reused,’’ 

and therefore are ‘‘discarded’’ (63 FR 

28580, May 26, 1998). 

The mining industry challenged the 

rule, and the D.C. Circuit vacated the 

provisions that expanded EPA 

regulation over characteristic byproducts and sludges destined for 

reclamation (Association of Battery 

Recyclers v. EPA (‘‘ABR’’), 208 F.3d 

1047 (D.C. Cir. 2000)). The Court held 

that it had already resolved this issue in 

its opinion in AMC I, where it found 

that ‘‘Congress unambiguously 

expressed its intent that ‘solid waste’ 

(and therefore EPA’s regulatory 

authority) be limited to materials that 

are ‘discarded’ by virtue of being 

disposed of, abandoned, or thrown 

away’’ (208 F.2d at 1051). The Court 

also did not find that storage before 

reclamation automatically makes 

materials discarded. Rather, it repeated 

that materials reused within an ongoing 

industrial process are neither disposed 

of nor abandoned (208 F.3d at 1051–52) 

and that ‘‘at least some of the secondary 

material EPA seeks to regulate as solid 

waste (in the mineral processing rule) is 

destined for reuse as part of a 

continuous industrial process and thus 

is not abandoned or thrown away’’ (208 

F.3d at 1056). It explained that the 

intervening API I and AMC II decisions 

had not narrowed the holding in AMC 

I (208 F.3d at 1054–1056). 

In its most recent opinion dealing 

with the definition of solid waste, Safe 

Food and Fertilizer v. EPA (‘‘Safe 

Food’’), 350 F.3d 1263 (D.C. Cir. 2003), 

the D.C. Circuit upheld an EPA rule that 

excludes from the definition of solid 

waste hazardous secondary materials 

used to make zinc fertilizers, and the 

fertilizers themselves, as long as the 

hazardous secondary materials meet 

certain handling, storage, and reporting 

conditions and the resulting fertilizers 

have concentration levels for lead, 

arsenic, mercury, cadmium, chromium, 

and dioxins that fall below specified 

thresholds (Final Rule, ‘‘Zinc Fertilizers 

Made From Recycled Hazardous 

Secondary Materials’’ (‘‘Fertilizer 

Rule’’), 67 FR 48393, July 24, 2002). 

EPA determined that if these conditions 

are met, the hazardous secondary 

materials used to make such fertilizer 

have not been discarded. The conditions 

also apply to a number of recycled 

materials not produced in the fertilizer 

production industry, including certain 

zinc-bearing hazardous secondary 

materials, such as brass foundry dusts. 

EPA’s reasoning was that market 

participants, consistent with the EPArequired conditions in the rule, would 

treat the excluded materials more like 

valuable products than like negativelyvalued wastes and, thus, would manage 

them in ways inconsistent with discard. 

In addition, the fertilizers derived from 

these recycled feedstocks are chemically 

indistinguishable from analogous 

commercial products made from raw 

materials (350 F.3d at 1269). The Court 

held that EPA’s explanation that market 

participants manage materials in ways 

inconsistent with discard, and the fact 

that the levels of contaminants in the 

recycled fertilizers were ‘‘identical’’ to 

the fertilizers made with virgin raw 

materials (also called ‘‘the identity 

principle’’) as reasonable. The Court 

also held that this interpretation of 

‘‘discard’’ was reasonable and consistent 

with the statutory purpose. The Court 

noted that the identity principle was 

defensible because the differences in 

health and environmental risks between 

the two types of fertilizers are so slight 

as to be substantively meaningless. 

In addition, the Court stated that it 

‘‘need not consider whether a material 

could be classified as a non-discard 

exclusively on the basis of the marketparticipation theory’’ (350 F.3d at 1269). 

The Court only determined that the 

combination of market participants’ 

treatment of the materials, EPA-required 

management standards, and the 

‘‘identity principle’’ constitutes a 

reasonable set of tools to establish that 


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3EPA initially identified over 800 potential 

damage cases, most of which were not included in 

the analysis because (1) the damages occurred 

before 1982, (2) the damages were not caused by 

recycling, or (3) there was not enough information 

to determine when the damages occurred or 

whether recycling contributed to the damages. The 

cases EPA considered, but did not include, were 

listed in an appendix to the report to allow the 

public to comment on whether additional cases 

should be included in the analysis. As a result of 

public comment to the 2011 DSW proposal, EPA 

has updated the damage case information using the 

same methodology, resulting in a total of 250 

damage cases as of 2012. EPA has determined that 

the new damage case information is consistent with 

the damage cases previously cited in the study. 

the recycled hazardous secondary 

materials and fertilizers are not 

discarded. 

C. October 2003 Proposal To Revise the 

Definition of Solid Waste 

Prompted by concerns articulated in 

various Court opinions decided up to 

that point, in October 2003, EPA 

proposed a rule which defined those 

circumstances under which hazardous 

secondary materials would be excluded 

from RCRA’s hazardous waste 

regulations because they are generated 

and reclaimed in a continuous process 

within the same industry. In addition, 

the Agency also clarified in a regulatory 

context the concept of ‘‘legitimate 

recycling,’’ which has been a key 

component of RCRA’s regulatory 

program for hazardous material 

recycling, but which up to that point, 

had been implemented without specific 

regulatory criteria (68 FR 61558, 

October 28, 2003). 

In response to the October 2003 DSW 

proposal, a number of commenters 

criticized the Agency for not having 

conducted a study of the potential 

impacts of the proposed regulatory 

changes. These commenters expressed 

the general concern that deregulating 

hazardous secondary materials that are 

reclaimed in the manner proposed 

could result in the mismanagement of 

these materials and could create new 

cases of environmental damage that 

would require remedial action under 

federal or state authorities. Some of the 

commenters further cited a number of 

examples of environmental damage that 

were attributed to hazardous secondary 

material recycling, including sites listed 

on the Superfund National Priorities 

List (NPL). 

Other commenters to the 2003 DSW 

proposal expressed the view that the 

great majority of these cases of 

recycling-related environmental 

problems occurred before RCRA, 

CERCLA, or other environmental 

programs were established in the early 

1980s. These commenters argued that 

these environmental programs—most 

notably, RCRA’s hazardous waste 

regulations and the liability provisions 

of CERCLA—have created strong 

incentives for proper management of 

recyclable hazardous secondary 

materials and recycling residuals. 

Several commenters further noted that, 

because of these developments, 

industrial recycling practices have 

changed substantially since the early 

1980s and present day generators and 

recyclers are much better environmental 

stewards than in the pre-RCRA/- 

CERCLA era. Thus, they argued that 

cases of ‘‘historical’’ recycling-related 

environmental damage are not 

particularly relevant when modifying 

the current RCRA hazardous waste 

regulations for hazardous secondary 

materials recycling. 

D. Recycling Studies 

In light of these comments on the 

2003 DSW proposal, and in deliberating 

on how to proceed with the rulemaking 

effort, the Agency decided that 

additional information on hazardous 

secondary material recycling would 

benefit its regulatory decision-making 

and would provide stakeholders with a 

clearer picture of the hazardous 

secondary material recycling industry in 

this country. Accordingly, the Agency 

examined three issues that we believed 

were of particular importance to 

revising the definition of solid waste: 

• How do responsible generators and 

recyclers of hazardous secondary materials 

ensure that recycling is done in an 

environmentally safe manner? 

• To what extent have hazardous 

secondary material recycling practices 

resulted in environmental problems since 

enactment of major waste management 

statutes, and why? 

• Are there certain economic forces or 

incentives specific to hazardous secondary 

material recycling that can explain why 

environmental problems can sometimes 

originate from such recycling activities? 

Reports documenting these studies 

are available in the docket for the 2008 

DSW final rule under the following 

titles: 

• An Assessment of Good Current Practices 

for Recycling of Hazardous Secondary 

Materials (EPA–HQ–RCRA–2002–0031– 

0354) (‘‘study of successful recycling’’) 

• An Assessment of Environmental Problems 

Associated With Recycling of Hazardous 

Secondary Materials (EPA–HQ–RCRA– 

2002–0031–0355) (‘‘environmental 

problems study’’) 

• A Study of Potential Effects of Market 

Forces on the Management of Hazardous 

Secondary Materials Intended for 

Recycling (EPA–HQ–RCRA–2002–0031– 

0358) (‘‘market forces study’’) 

In the study of successful recycling, 

EPA found that responsible recycling 

practices used by generators and 

recyclers to manage hazardous 

secondary materials fall into two general 

categories. The first category includes 

the audit activities and inquiries 

performed by a generator of a hazardous 

secondary material to determine 

whether the entity to which it is sending 

such material is equipped to manage it 

responsibly without the risk of releases 

or other environmental damage. These 

recycling and waste audits of other 

companies’ facilities are common to 

those generators that responsibly recycle 

in the hazardous secondary materials 

market. The second category of 

responsible recycling practices consists 

of the control practices that ensure 

responsible management of any given 

shipment of hazardous secondary 

material, such as the contracts under 

which the transaction takes place and 

the tracking systems that can inform a 

generator that its hazardous secondary 

material has been properly managed. 

The goal of the environmental 

problems study was to identify and 

characterize environmental problems 

associated with some types of hazardous 

secondary material recycling that are 

relevant for the purpose of this 

rulemaking effort. To address 

commenters’ concerns that historic 

damages are irrelevant to current 

practices because environmental 

programs (post-RCRA and -CERCLA 

implementation) have created strong 

incentives for proper management of 

recyclable hazardous secondary 

materials, EPA only included cases 

where damages occurred after 1982. The 

study identifies 208 cases in which 

environmental damages of some kind 

occurred from some type of recycling 

activity and that otherwise fit the scope 

of the study.3

The Agency has determined that the 

occurrence of certain types of 

environmental problems associated with 

post-1982 recycling practices shows that 

discard has occurred. In particular, 

instances where hazardous secondary 

materials were abandoned (e.g., in 

warehouses) and which required 

removal, oversight by a government 

agency and the expenditure of public 

funds clearly demonstrate that the 

hazardous secondary material was 

discarded. Of the 208 damage cases 

presented in the original damage case 

study, 69 cases (33%) involve 

abandoned materials. The relatively 

high incidence of abandoned materials 

likely reflects the fact that bankruptcies 

or other types of business failures were 

associated with 138 (66%) of the cases. 

In addition, the pattern of 

environmental damages that resulted 

from the mismanagement of recyclable 


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materials (including contamination of 

soils, groundwater, surface water and 

air) is a strong indication that the 

hazardous secondary materials were 

generally not managed as valuable 

commodities and were discarded. Of the 

208 damage cases presented in the 

original damage case study, 81 cases 

(40%) primarily resulted from the 

mismanagement of recyclable hazardous 

secondary materials, while 

mismanagement of recycling residuals 

was the primary cause in 71 cases 

(34%). Often, in the case of 

mismanagement of recycling residuals, 

reclamation processes generated 

residuals in which the toxic 

components of the recycled materials 

were separated from the non-toxic 

components, and these portions of the 

hazardous secondary material were then 

mismanaged and discarded. Examples 

of this include a number of drum 

reconditioning facilities, where large 

numbers of used drums were cleaned 

out to remove small amounts of 

remaining product, such as solvent, and 

these wastes were then improperly 

stored or disposed, while the drums 

were reused or recycled. 

The market forces study used 

accepted economic theory to describe 

how various market incentives can 

influence a firm’s decision-making 

process when recycling hazardous 

secondary materials. This study helps 

explain some of the possible 

fundamental economic drivers of both 

successful and unsuccessful recycling 

practices. 

As pointed out by some commenters 

to the 2003 DSW proposed rule, the 

economic forces shaping the behavior of 

firms that recycle hazardous secondary 

materials are often different from those 

at play in manufacturing processes 

using virgin materials. The market 

forces study used economic theory to 

provide information on how certain 

characteristics can influence three 

different recycling models to encourage 

or discourage an optimal outcome. The 

three recycling models examined were 

(1) commercial recycling, where the 

primary business of the firm is the 

recycling of hazardous secondary 

materials that are accepted from off-site 

industrial sources (which usually pay a 

fee); (2) industrial intra-company 

recycling, where firms generate 

hazardous secondary materials as byproducts of their main production 

processes and recycle the hazardous 

secondary materials for sale or for their 

own reuse in production; and (3) 

industrial inter-company recycling, 

where firms either use or recycle 

hazardous secondary materials obtained 

from other firms, with the objective of 

reducing the cost of their production 

inputs. The report also looked at how 

the outcome from each model is 

potentially affected by three market 

characteristics: (1) The value of the 

recycled product, (2) the price stability 

of recycling output or inputs, and (3) the 

net worth of the firm. 

An individual firm’s decision-making 

is based on many factors and 

extrapolating a firm’s likely behavior 

from a few factors could be an oversimplification. However, when used in 

conjunction with other information, the 

economic theory can be quite 

illuminating. For example, according to 

the market forces study, industrial intraand inter-company recyclers have more 

flexibility in adjusting to unstable 

recycling markets (e.g., during price 

fluctuations, these companies can more 

easily switch from recycling to disposal 

or from recycled inputs to virgin 

inputs). Therefore, they would be 

expected to be less likely to have 

environmental problems from overaccumulated materials. 

On the other hand, in certain types of 

commercial recycling, the product has 

low value, the prices are unstable, and/ 

or the firm has a low net worth. 

Facilities in these situations can be 

more susceptible to environmental 

problems from the over-accumulation or 

mishandling of hazardous secondary 

materials, especially when compared to 

recycling by a well-capitalized firm that 

yields a product with high value. In 

short, commercial recyclers depend on 

revenue from two sources: (1) Accepting 

hazardous secondary materials for 

recycling, and (2) selling the recycled 

product. When recycled product prices 

fall, commercial recyclers rely on profits 

from accepting hazardous waste, which 

can result in over-accumulation, 

mismanagement, sham recycling, and 

abandonment of hazardous secondary 

materials. Further, because these 

facilities often have little capital at risk, 

they can go bankrupt leaving 

environmental damages behind. These 

predicted outcomes appear to be 

supported by the results of the 

environmental problems study, which 

showed the vast majority of 

environmental damages—approximately 

94%—occur at off-site commercial 

recyclers. 

However, as shown by the study of 

successful recycling, generators who 

could otherwise bear a large liability 

from poorly-managed recycling at other 

companies have addressed this issue by 

carefully examining the recyclers to 

which they send their hazardous 

secondary materials, such as through 

audits to ensure that they are 

technically and financially capable of 

performing the recycling. In addition, 

we have seen that successful recyclers 

(both commercial and industrial) have 

often taken advantage of mechanisms, 

such as long-term contracts to help 

stabilize price fluctuations, allowing 

recyclers to plan their operations more 

effectively. 

Further discussion of the recycling 

studies, including the methodology and 

limitations of the studies, can be found 

in the March 2007 DSW supplemental 

proposal (72 FR 14178–83) and the 

October 2008 DSW final rule (73 FR 

64673–74), and the studies themselves 

can be found in the docket for the 2008 

DSW final rule (EPA–HQ–RCRA–2002– 

0031–0355). 

E. March 2007 Supplemental Proposal 

To Revise the Definition of Solid Waste 

In March 2007, EPA published a 

supplemental proposal that provided 

the public the opportunity to comment 

on these studies. The Agency also restructured the proposed rule and 

proposed (1) two exclusions for 

hazardous secondary materials recycled 

under the control of the generator (one 

exclusion would apply to hazardous 

secondary materials managed in nonland-based units, and the other 

exclusion would apply to hazardous 

secondary materials managed in landbased units) and (2) an exclusion for 

hazardous secondary materials 

transferred to another party for 

reclamation. The Agency also proposed 

a non-waste determination petition 

process, and re-proposed the legitimacy 

criteria, with certain modifications (72 

FR 14172, March 26, 2007). 

For the exclusions of hazardous 

secondary materials reclaimed under 

the control of the generator, EPA 

described three circumstances under 

which we believed that discard does not 

take place and where the potential for 

environmental releases is low. The three 

situations involve hazardous secondary 

materials that are generated and 

legitimately reclaimed at the generating 

facility, legitimately reclaimed at a 

different facility within the same 

company, or legitimately reclaimed 

through a tolling arrangement. Under all 

three circumstances, the hazardous 

secondary materials must be generated 

and reclaimed within the United States 

or its territories. Because the hazardous 

secondary material generator in these 

situations still retains control of the 

hazardous secondary materials, finds 

value in them, and intends to use them, 

EPA proposed to exclude these 

materials from the definition of solid 

waste and, thus, from regulation under 

Subtitle C of RCRA, provided the 

reclamation is legitimate and the 


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4 In its lawsuit, API claimed that EPA had 

improperly decided that certain petroleum 

catalysts, when recycled are hazardous wastes. See 

73 FR 64714 for EPA’s decision to defer a decision 

on the eligibility of those catalysts for the 2008 

DSW final rule. API argued, among other things, 

that these catalysts should be treated the same as 

other materials that were receiving the transferbased exclusion. API’s challenge proceeded to 

briefing and argument before the Court of Appeals. 

By order of June 8, 2012, the Court reconsidered 

and decided to hold API’s challenge in abeyance 

until EPA issued this rule in final form. Since EPA 

is removing the transfer-based exclusion and 

making spent petroleum catalysts eligible for the 

generator-controlled and verified recycler 

exclusions, API’s challenge that the Agency failed 

to treat the catalysts as other excluded materials is 

now moot. See section XI below for further 

discussion on the effect of this rule on spent 

petroleum catalysts. 

hazardous secondary materials are 

contained and not speculatively 

accumulated. In addition, EPA proposed 

that facilities generating and reclaiming 

hazardous secondary materials under 

the control of the generator must submit 

notification to their regulatory authority. 

For the exclusion of hazardous 

secondary materials transferred to 

another party for reclamation (referred 

to as the transfer-based exclusion), the 

Agency proposed conditions that, when 

met, would indicate that these 

hazardous secondary materials were not 

discarded. Specifically, the generator 

would need to make reasonable efforts, 

a form of due diligence, to determine 

that its hazardous secondary materials 

would be properly and legitimately 

recycled (and that the hazardous 

secondary material would not be 

discarded). Another condition would 

require the reclamation facility to have 

adequate financial assurance (thus 

demonstrating that the hazardous 

secondary material would not be 

abandoned). In addition, EPA proposed 

that both the generator and reclaimer 

would be required to maintain shipping 

records (to demonstrate that the 

hazardous secondary material was sent 

for reclamation and was received by the 

reclaimer). Furthermore, the reclaimer 

would be subject to additional storage 

and residual management standards (to 

address the instances of discard 

observed at off-site reclamation facilities 

in the damage cases). Finally, facilities 

operating under the transfer-based 

exclusion must also submit notification 

to their regulatory authority. 

In addition, the 2007 DSW 

supplemental proposal included a caseby-case non-waste determination 

petition process that would allow 

applicants to receive a formal 

determination from EPA that their 

hazardous secondary materials were not 

discarded and therefore were not solid 

wastes. The case-by-case petition 

process would allow EPA or the 

authorized state to take into account the 

particular fact pattern of the recycling 

and to determine that the hazardous 

secondary materials in question were 

not solid wastes. The petition process 

for the non-waste determination was the 

same as that for the variances from the 

definition of solid waste found at 40 

CFR 260.31. 

Finally, EPA proposed a definition of 

legitimate recycling that restructured 

the legitimacy factors originally 

proposed in October 2003. The 

proposed legitimacy factors would be 

used to determine that the recycling of 

hazardous secondary materials is not a 

‘‘sham’’ and thus, does not constitute 

discard. 

F. October 2008 Final Rule To Revise 

the Definition of Solid Waste 

In October 2008, EPA promulgated a 

final rule largely as proposed in March 

2007, with some revisions and 

clarifications, including (1) clarifying 

that hazardous secondary materials held 

at a transfer facility for less than 10 days 

are considered to be in transport (and 

therefore such transfer facilities are not 

considered to be storing the hazardous 

secondary materials for the purpose of 

the DSW exclusion), (2) allowing the 

use of intermediate facilities that store 

hazardous secondary materials for more 

than 10 days under the transfer-based 

exclusion, provided the facilities 

comply with the same conditions 

applicable to reclamation facilities, (3) 

codifying financial assurance language 

in 40 CFR 261 subpart H for the transferbased exclusion applicable to 

intermediate and reclamation facilities 

without RCRA permits, (4) requiring 

facilities operating under the generatorcontrolled and/or the transfer-based 

exclusion to notify their regulatory 

authority prior to operating under the 

exclusion and every other year 

thereafter, and (5) making legitimacy a 

condition of the exclusions and the nonwaste determinations in that rule, but 

not finalizing the legitimacy language 

for all recycling activities. 

G. Section 7004 Petition Submitted by 

the Sierra Club and Industry Response 

On January 29, 2009, the Sierra Club 

submitted an administrative petition 

under RCRA section 7004(a), 42 U.S.C. 

6974(a), to the Administrator of EPA 

requesting that the Agency repeal the 

October 2008 revisions to the definition 

of solid waste rule and stay the 

implementation of the rule. 

The administrative petition was 

submitted at the same time that the 

American Petroleum Institute (API) and 

Sierra Club filed judicial Petitions for 

Review under RCRA section 7006(a), 42 

U.S.C. 6976(a) challenging the rule in 

the United States Court of Appeals for 

the District of Columbia Circuit (D.C. 

Circuit). These cases, designated as 

Docket Nos. 09–1038 and 1041, 

respectively, are currently before the 

D.C. Circuit.4

The Sierra Club petition argued that 

the revised regulations are unlawful and 

that they increase threats to public 

health and the environment without 

producing compensatory benefits and, 

therefore, should be repealed. Among 

other things, the petition singled out the 

lack of regulatory definitions for key 

conditions of the rule and disagreed 

with the Agency’s findings that the rule 

would have no adverse environmental 

impacts, including the finding there 

would be no adverse impact to 

environmental justice communities or 

children’s health. 

On March 6, 2009, a coalition of 

industry associations (‘‘industry 

coalition’’) submitted a letter to the 

Administrator of EPA in response to the 

Sierra Club petition. This letter 

requested that EPA deny Sierra Club’s 

petition on the grounds that the 2008 

DSW final rule comports with court 

cases construing the scope of the 

definition of solid waste under RCRA, 

and that the 2008 DSW final rule 

achieves significant economic and 

conservation benefits, while imposing 

significant controls on the hazardous 

secondary material recycling industry 

that are fully protective of the 

environment. The letter also responds to 

each of the specific points raised by 

Sierra Club in its petition. 

H. June 2009 Public Meeting and the 

Draft DSW Environmental Justice 

Analysis Methodology 

In response to Sierra Club’s 

administrative petition and the industry 

coalition’s letter to the Administrator of 

EPA, a May 27, 2009, Federal Register 

notice (74 FR 25200) was issued 

describing possible actions and optional 

paths forward, as well as announcing a 

public meeting on June 30, 2009, to 

allow the public and interested 

stakeholders the opportunity to provide 

input to the decision-making process. 

In the May 27, 2009, Federal Register 

notice announcing the public meeting, 

EPA described the scope of possible 

actions, which is governed by the 

concept of ‘‘discard.’’ As stated in RCRA 

section 1004(27), ‘‘solid waste’’ is 

defined as ‘‘any garbage, refuse, sludge 

from a waste treatment plant, water 

supply treatment plant, or air pollution 

control facility and other discarded 

material . . . resulting from industrial, 

commercial, mining and agricultural 


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5The proposed rulemaking was signed by the 

Administrator of EPA on June 30, 2011. 

activities.’’ The May 2009 public 

meeting notice said that 

[b]ecause the final revisions to the definition 

of solid waste are closely tied to EPA’s 

interpretation of the concept of ‘‘discard,’’ 

EPA does not plan to repeal the rule in whole 

or stay its implementation. Such an action 

could result in hazardous secondary 

materials that are not discarded being 

regulated as hazardous waste. In particular, 

EPA does not expect to repeal either the 

exclusion for hazardous secondary materials 

reclaimed under the control of the generator 

or the non-waste determination petition 

process. However, EPA believes there may be 

other opportunities to revise or clarify the 

definition of solid waste rule, particularly 

with respect to the definition of legitimacy 

and the transfer-based exclusion, in ways 

that could improve implementation and 

enforcement of the provisions, thus increase 

environmental protection, while still 

appropriately defining when a hazardous 

secondary material being reclaimed is a solid 

waste and subject to hazardous waste 

regulation. (74 FR 25203). 

Thirty-three people spoke at the 

public meeting and approximately 4,000 

written comments were received, of 

which the majority were from private 

citizens who wrote in via a mass email 

campaign to repeal the rule. The 

remaining comments came from state 

and local governments (17), companies 

that generate hazardous secondary 

materials that are recycled (i.e., the 

generating industry) (28), the waste 

management/recycling industry (15), 

environmental, public health and 

community organizations (12), and 

academics (2). Comments from the 

generating industry were uniformly in 

favor of denying the Sierra Club petition 

to repeal the rule, citing legal issues and 

the protectiveness of the rule’s 

conditions. Environmental and 

community organizations, on the other 

hand, were uniformly in favor of 

repealing the rule, expressing concerns 

over the protectiveness, enforceability, 

and environmental justice and 

children’s health impacts of the rule. 

Waste management/recycling industry 

comments were split, with hazardous 

waste recyclers generally advocating 

that EPA retain and improve the rule 

with more stringent standards. Other 

waste management industry comments, 

particularly those from companies 

representing landfills and incinerators, 

were in favor of repealing the rule. State 

comments expressed concerns about 

implementing the rule, particularly 

given the economic climate, and 

generally were in favor of repealing or 

significantly revising the transfer-based 

exclusion. A copy of the public meeting 

transcript and the comments submitted 

in response to the public meeting notice 

are available in the docket for the public 

meeting (Docket ID number EPA–HQ– 

RCRA–2009–0315). 

Many of the commenters (including 

those at the public meeting and those 

who responded with written comments) 

expressed strong concerns that the 

Agency did not adequately address 

environmental justice in the 

rulemaking. In response to the concerns 

over the environmental justice analysis, 

EPA committed to perform a more 

rigorous and thorough analysis of the 

environmental justice impacts of the 

2008 DSW final rule. On January 15, 

2010, EPA released for public input a 

draft methodology for conducting the 

DSW Environmental Justice Analysis. 

The draft methodology was presented to 

the National Environmental Justice 

Advisory Committee (NEJAC) and 

discussed at three public roundtable 

meetings, and was used to develop the 

draft environmental justice analysis for 

the DSW rulemaking. 

I. Settlement Agreement With the Sierra 

Club 

1. Overview of Settlement Agreement 

On September 7, 2010, EPA signed a 

settlement agreement with the Sierra 

Club under which the Sierra Club 

agreed to withdraw their administrative 

petition and EPA agreed to (1) prepare 

a notice of proposed rulemaking to be 

signed no later than June 30, 2011,5

which would address, at a minimum, 

the issues raised in the Sierra Club’s 

administrative petition and (2) take final 

administrative action concerning the 

notice of proposed rulemaking to be 

signed no later than December 31, 2012. 

The settlement agreement did not 

specify the outcome of the final rule or 

what regulatory changes EPA would 

propose. The settlement agreement was 

approved by the court on January 11, 

2011. Although EPA was unable to 

make the settlement agreement deadline 

for a final administrative action, today’s 

rule does address all issues raised in 

Sierra Club’s administrative petition, 

including the four issues discussed in 

the May 27, 2009, public meeting 

Federal Register notice (74 FR 25200). 

Specifically, the four issues in the 

settlement agreement are (1) the 

definition of ‘‘contained’’ (which 

includes the issue of defining 

‘‘significant releases’’) (addressed in 

section V of this preamble), (2) 

notification before operating under the 

exclusion (also addressed in section V 

of this preamble), (3) the definition of 

‘‘legitimacy’’ (addressed in section VIII 

of this preamble) and (4) the transferbased exclusion (addressed in section VI 

of this preamble). Other issues 

presented in the administrative petition 

are discussed below. 

2. Request to Immediately Stay the 

Implementation of and Revoke the 2008 

DSW Rule 

The Sierra Club’s administrative 

petition included a request to 

immediately stay and revoke the 2008 

DSW final rule. To support this request, 

the petition asserted that the damage 

case study demonstrates that hazardous 

waste recycling has caused substantial 

harm to health and the environment and 

that the 2008 DSW final rule increases 

the likelihood of greater future harm. 

The petition also asserted that the 2008 

DSW final rule does not account for the 

possibility that unstable recycling 

markets or financial conditions increase 

the risk of hazardous waste 

abandonment. In addition, the petition 

asserted that the 2008 DSW final rule 

will not substantially increase recycling 

and that the economic benefits are few 

and will only accrue to deregulated 

industries. Furthermore, the petition 

claimed that there would be job losses 

in the hazardous waste treatment 

industry and increased worker health 

problems as a result of the rule. 

EPA addressed Sierra Club’s request 

to revoke the 2008 DSW final rule in 

whole and stay its implementation in 

the May 27, 2009, public meeting 

notice, which continues to reflect EPA’s 

current thinking. In that notice, EPA 

stated at 74 FR 25202: 

The scope of possible changes to the 

definition of solid waste is governed by the 

concept of ‘‘discard.’’ As discussed in the 

preamble to the DSW final rule, EPA used the 

concept of discard as the central organizing 

idea behind the October 2008 revisions to the 

definition of solid waste. As stated in RCRA 

section 1004(27), ‘‘solid waste’’ is defined as 

‘‘. . . any garbage, refuse, sludge from a 

waste treatment plant, water supply 

treatment plant, or air pollution control 

facility and other discarded material . . . 

resulting from industrial, commercial, 

mining and agricultural activities’’ (emphasis 

added). Therefore, in the context of the DSW 

final rule, a key issue relates to the 

circumstances under which a hazardous 

secondary material that is recycled by 

reclamation is or is not discarded (73 FR 

64675). In exercising its discretion in the 

DSW final rule to define what constitutes 

‘‘discard’’ for hazardous secondary materials 

reclamation, EPA included an explanation of 

how each provision of the final rule relates 

to discard (73 FR 64676–64679). 

For example, in the DSW final rule, EPA 

determined that if the generator maintains 

control over the recycled hazardous 

secondary material and if the material is 

legitimately recycled under the standards 

established in the final rule and not 


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1702 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

6U.S. EPA. Draft Environmental Justice 

Methodology for the Definition of Solid Waste Rule, 

January 2010, http://www.epa.gov/epawaste/

hazard/dsw/ej.htm. 

speculatively accumulated within the 

meaning of EPA’s regulations, then the 

hazardous secondary material is not 

discarded. This is because the hazardous 

secondary material is being treated as a 

valuable commodity rather than as a waste. 

By maintaining control over, and potential 

liability for, the reclamation process, the 

generator ensures that the hazardous 

secondary materials are not discarded. (See 

73 FR 64676.) 

Because the final revisions to the definition 

of solid waste are closely tied to EPA’s 

interpretation of the concept of ‘‘discard,’’ 

EPA does not plan to repeal the rule in whole 

or stay its implementation. Such an action 

could result in hazardous secondary 

materials that are not discarded being 

regulated as hazardous wastes. In particular, 

EPA does not expect to repeal either the 

exclusion for hazardous secondary materials 

reclaimed under the control of the generator 

or the non-waste determination petition 

process. 

Today’s final rule includes several 

changes to the generator-controlled 

exclusion and to the non-waste 

determination petition process, but, for 

the reasons stated above, EPA did not 

stay the rule and is not withdrawing 

either provision. 

3. Adequacy of EPA’s Analyses 

Finally, the Sierra Club’s petition 

asserted that EPA’s conclusion that the 

2008 DSW final rule would have no 

adverse environmental impacts, and 

therefore would have no disproportional 

adverse impacts to minority and lowincome communities, is unsupported by 

the administrative record. In response to 

these comments and similar comments 

by other stakeholders at the June 2009 

public meeting, EPA committed to 

producing an expanded analysis of the 

potential disproportionate impacts of 

the 2008 DSW final rule. A draft 

methodology for the analysis was shared 

with the public in January 2010, and 

three public roundtable discussions 

were held to discuss the draft 

methodology and were addressed in the 

development of the draft DSW 

environmental justice analysis.6

J. Draft DSW Environmental Justice 

Analysis 

As part of the development of the 

2011 DSW proposal, EPA conducted a 

revised environmental justice analysis, 

following the methodology discussed 

with stakeholders during the 2010 

roundtable discussions. The purpose of 

the draft DSW environmental justice 

analysis was two-fold. First, the analysis 

represents a systematic examination of 

the potential for an increase in adverse 

impacts under the 2008 DSW final rule 

(considered independently from which 

communities might be impacted). 

Second, the analysis includes a 

demographic assessment, characterizing 

the extent any potential adverse impacts 

are likely to affect minority and/or lowincome communities. The results of this 

analysis were intended to inform EPA’s 

decision-making on which regulatory 

options to pursue, within the scope of 

the Agency’s authority to regulate 

hazardous waste. 

The results of the draft DSW 

environmental justice analysis 

demonstrate that hazardous secondary 

material recycling can pose significant 

potential hazards to human health and 

the environment, and that it is 

reasonable to conclude that the 

potential for hazards from hazardous 

secondary materials recycling adversely 

impacting human health and the 

environment could increase under the 

2008 DSW final rule. Of particular 

concern are (1) the absence of required 

measures (e.g., weekly inspections, 

training, contingency plans) at 

hazardous secondary materials 

reclaimers to prevent problems (e.g., 

spills, fires, explosions), (2) the 

incentives to accumulate larger volumes 

of hazardous secondary materials due to 

longer storage time limits, and (3) the 

reduction in access to information and 

opportunity for public participation. 

Moreover, the analysis demonstrates 

that some of the communities 

potentially impacted are minority and 

low-income communities, and in most 

cases, the populations potentially 

impacted are disproportionately 

minority and/or low income. In 

particular, the population-level analysis 

shows a statistically significant 

potential disproportionate impact to 

minority and low-income populations. 

In addition, underlying vulnerabilities 

traditionally associated with minority 

and low-income communities can pose 

the potential to exacerbate potential 

adverse impacts of the 2008 DSW final 

rule. The ability of communities to 

participate in the decision-making 

process and the potential for multiple 

and cumulative effects are of particular 

concern. 

The analysis has undergone peer 

review, and the draft environmental 

justice analysis and peer review 

comments were presented for public 

comment as part of the supporting 

documentation for the 2011 DSW 

proposal. 

K. July 2011 Proposal To Revise the 

Definition of Solid Waste 

On July 22, 2011, EPA published a 

proposal to revise the definition of solid 

waste. Comments were requested, and 

the comment period was extended until 

October 20, 2011. In September 2011, 

EPA held two public meetings to accept 

public comment on the proposal in 

Philadelphia, PA and in Chicago, IL. 

The goal of the 2011 DSW proposal was 

to re-examine the 2008 DSW final rule 

to determine if any changes are needed 

to ensure that the rule, as implemented, 

protects human health and the 

environment from the mismanagement 

of hazardous secondary materials, while 

at the same time promote sustainability 

by encouraging the reclamation of such 

materials. The proposed rule consisted 

of six possible actions, which are 

summarized below. 

1. Revisions to the Exclusion for 

Hazardous Secondary Materials 

Reclaimed Under the Control of the 

Generator 

In the 2011 DSW proposal, EPA 

proposed to retain the exclusion for 

hazardous secondary materials 

reclaimed under the control of the 

generator found at 40 CFR 261.4(a)(23), 

with certain revisions. Proposed 

revisions to the 2008 DSW rule 

generator-controlled exclusion include 

(1) adding a regulatory definition of 

‘‘contained,’’ (2) making notification a 

condition of the exclusion, (3) adding a 

recordkeeping requirement for 

speculative accumulation, and (4) 

adding a recordkeeping requirement for 

reclamation under toll manufacturing 

agreements. In addition, EPA requested 

comment on other ways to strengthen 

the generator-controlled exclusion in 

order to protect human health and the 

environment. 

2. Exclusion for Hazardous Secondary 

Materials That Are Transferred for the 

Purpose of Reclamation 

EPA proposed to replace the 

exclusion for hazardous secondary 

materials that are transferred from the 

generator to other persons for the 

purpose of reclamation found at 40 CFR 

261.4(a)(24) and(25) with an alternative 

Subtitle C regulatory scheme. EPA’s 

analyses of potential hazards posed by 

the 2008 DSW rule indicate that, when 

implemented, the transfer-based 

exclusion may adversely impact human 

health and the environment from 

hazardous secondary materials that may 

become discarded, and that minority 

and low-income populations may be 

disproportionately affected by these 

impacts. 

Under the proposed alternative 

Subtitle C requirements, the hazardous 

recyclable materials would be managed 

in accordance with the current RCRA 

Subtitle C requirements, including 


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manifesting and hazardous waste 

permits for storage. However, an 

exception to these proposed 

requirements would allow generators to 

accumulate hazardous recyclable 

materials for up to a year without a 

RCRA permit if they make advance 

arrangements for legitimate reclamation 

and document those arrangements in a 

reclamation plan. 

EPA also requested comment on 

alternative approaches that would 

address the concerns regarding the 

potential risk under the transfer-based 

exclusion to human health and the 

environment from discarded hazardous 

secondary material, such as including 

additional conditions. 

3. Remanufacturing Exclusion 

In addition, EPA requested comment 

on an exclusion from the definition of 

solid waste for certain types of highervalue solvents sent for remanufacturing 

into similarly higher-value products. 

Further, the action requested comment 

on a petition process for adding other 

higher-value hazardous secondary 

materials that are destined to be 

remanufactured into similarly highervalue products. 

4. Proposed Revisions to the Definition 

of Legitimacy 

EPA also proposed revisions to the 

definition of legitimacy found at 40 CFR 

260.43 for the purpose of distinguishing 

genuine recycling from ‘‘sham 

recycling.’’ Proposed revisions to the 

2008 DSW final rule legitimacy 

definition include (1) applying the 

codified ‘‘legitimacy’’ definition to all 

hazardous secondary material recycling 

activities; (2) making all legitimacy 

factors mandatory, with a petition 

process for those instances that a factor 

is not met even when the recycling is 

legitimate; and (3) requiring 

documentation of legitimacy. 

5. Proposed Revisions to Solid Waste 

Variances and Non-Waste 

Determinations 

EPA also proposed revisions to the 

case-by-case solid waste variances and 

non-waste determinations found at 40 

CFR 260.30–260.34 in order to ensure 

protection of human health and the 

environment and foster greater 

consistency among the implementing 

agencies. Proposed revisions affect both 

the non-waste determinations from the 

2008 DSW final rule and pre-2008 

existing variances. Specific proposed 

revisions include (1) requiring facilities 

which were granted a variance to reapply for the variance in the event of a 

change in circumstances that affects 

how that hazardous secondary material 

meets the criteria for the variance; (2) 

requiring facilities to re-notify every two 

years with updated information; (3) 

revising the criteria for the partial 

reclamation variance to clarify when the 

variance applies and to require, among 

other things, that all the criteria for this 

variance must be met; (4) revising the 

criteria for the non-waste determination 

in 40 CFR 260.34 to require that 

petitioners demonstrate why the 

existing solid waste exclusions would 

not apply to their hazardous secondary 

materials; and (5) designating the 

Regional Administrator as the EPA 

recipient of petitions for variances and 

non-waste determinations. 

6. Request for Comment on Revisions to 

Other Recycling Exclusions and 

Exemptions 

Finally, EPA requested comment on 

revisions that would affect other (pre2008) solid waste exclusions and 

hazardous waste exemptions for 

recyclable materials. These possible 

revisions include (1) recordkeeping for 

speculative accumulation as applicable; 

(2) requiring facilities to re-notify every 

two years with updated information on 

their operating status under the various 

exclusions and exemptions; and (3) 

containment standards for excluded 

hazardous secondary materials. 

IV. When will the final rule become 

effective? 

This final rule is effective on July 13, 

2015. 

V. Revisions to the Exclusion for 

Hazardous Secondary Materials That 

Are Legitimately Reclaimed Under the 

Control of the Generator 

In today’s final rule, EPA is retaining 

and revising the conditional exclusion 

from the definition of solid waste at 40 

CFR 261.4(a)(23) for those hazardous 

secondary materials that are legitimately 

reclaimed within the United States or its 

territories under the control of the 

generator. Revisions to the generatorcontrolled exclusion include (1) adding 

a codified definition of ‘‘contained;’’ (2) 

adding recordkeeping requirements for 

same company and toll manufacturing 

reclamation; (3) making notification a 

condition of the exclusion; (4) adding a 

requirement to document that recycling 

under the exclusion is legitimate; and 

(5) adding emergency preparedness and 

response conditions. In addition, we 

have amended the speculative 

accumulation provisions to add a 

recordkeeping requirement. A 

discussion of the public comments on 

the July 2011 DSW proposal and the 

Agency’s responses can be found in 

section XIV of this preamble and the full 

response to comment document in the 

docket for this rulemaking. 

A. Scope of the Exclusion 

The definition of ‘‘hazardous 

secondary material generated and 

reclaimed under the control of the 

generator’’ is found at 40 CFR 

261.4(a)(23) for both land-based and 

non-land-based units, since the 

requirements for both types of units are 

the same. A land-based unit is defined 

in 40 CFR 260.10 as an area where 

hazardous secondary materials are 

placed in or on the land before 

recycling, but this definition does not 

include land-based production units. 

Examples of land-based units include 

surface impoundments and piles. 

Examples of non-land-based units 

include tanks, containers, and 

containment buildings. 

Hazardous secondary materials are 

considered ‘‘under the control of the 

generator’’ under the following 

circumstances: 

• They are generated and then reclaimed at 

the generating facility; or 

• they are generated and reclaimed at 

different facilities, if the generator certifies 

that the hazardous secondary materials are 

sent either to a facility controlled by the 

generator or to a facility under common 

control with the generator, and that either the 

generator or the reclaimer has acknowledged 

responsibility for the safe management of the 

hazardous secondary materials. In addition, 

the generating and receiving facilities must 

maintain at their facilities for no less than 

three years records of hazardous secondary 

materials sent or received under this 

exclusion. The records must contain the 

name of the transporter, the date of the 

shipment, and the type and quantity of the 

hazardous secondary material shipped or 

received. The requirements may be satisfied 

by routine business records (e.g., financial 

records, bills of lading, copies of DOT 

shipping papers, or electronic confirmations); 

or 

• they are generated and reclaimed 

pursuant to a written agreement between a 

tolling contractor and toll manufacturer, if 

the tolling contractor certifies that it has 

entered into a tolling contract with a toll 

manufacturer and that the tolling contractor 

retains ownership of, and responsibility for, 

the hazardous secondary materials generated 

during the course of the manufacture, 

including any releases of hazardous 

secondary materials that occur during the 

manufacturing process. The tolling contractor 

and the toll manufacturer must maintain at 

their facilities for no less than three years 

records of hazardous secondary materials 

sent or received under this exclusion. The 

records must contain the name of the 

transporter, the date of the shipment, and the 

type and quantity of the hazardous secondary 

material shipped or received. The 

requirements may be satisfied by routine 

business records (e.g., financial records, bills 

of lading, copies of DOT shipping papers, or 

electronic confirmations). 


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Materials subject to material-specific 

management conditions under the other 

exclusions of 40 CFR 261.4(a) when 

reclaimed and spent lead-acid batteries 

are not eligible for the generatorcontrolled exclusion at 40 CFR 

261.4(a)(23). 

In addition, materials managed under 

the generator-controlled exclusion at 40 

CFR 261.4(a)(23) must be contained, 

may not be speculatively accumulated, 

and are subject to a notification 

provision and documentation of 

legitimacy determinations, which must 

be maintained on site. Furthermore, the 

generator must satisfy certain 

emergency preparedness and response 

conditions. These conditions and any 

changes from the 2008 DSW final rule 

are explained below. 

B. EPA’s Rationale for Retaining and 

Revising the Generator-Controlled 

Exclusion 

In the 2008 DSW final rule, EPA 

determined that if the generator 

maintains control over the recycled 

hazardous secondary material, the 

material is legitimately recycled under 

the conditions of the exclusion, and the 

material is not speculatively 

accumulated within the meaning of 

EPA’s regulations, then the hazardous 

secondary material is not discarded. 

Under these circumstances, the 

hazardous secondary material is being 

treated as a valuable commodity rather 

than as a waste. By maintaining control 

over, and potential liability for, the 

recycling process, the generator ensures 

that the hazardous secondary materials 

are not discarded (see ABR 208 F.3d 

1051 (‘‘Rather than throwing these 

materials [destined for recycling] away, 

the producers saves them; rather than 

abandoning them, the producer reuses 

them.’’)) (73 FR 64676–7). 

In today’s final rule, EPA reaffirms its 

determination that when a generator 

legitimately recycles hazardous 

secondary materials under its control 

under the conditions of the exclusion, 

the generator has not abandoned the 

material and has every opportunity and 

incentive to maintain oversight of, and 

responsibility for, the hazardous 

secondary material that is reclaimed. 

EPA is however making several 

revisions to the generator-controlled 

exclusion, the rationale for each of 

which is explained below. 

1. Contained Definition 

Under the generator-controlled 

exclusion, hazardous secondary 

materials must be contained pursuant to 

the definition in 40 CFR 260.10, 

regardless of whether they are stored in 

land-based units or non-land-based 

units. Under that definition, a 

hazardous secondary material is 

contained if it is managed in a unit that 

meets the following criteria: (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 material, to 

prevent releases of the 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; (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 (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. Hazardous secondary 

materials in units that meet the 

applicable requirements of 40 CFR parts 

264 or 265 are presumptively contained. 

The codification of these regulatory 

criteria will help regulatory authorities 

and facilities operating under the 

exclusion to determine whether a unit 

adequately controls the movement of 

hazardous secondary materials. The 

contained standard is a key provision 

for determining that a hazardous 

secondary material is not discarded. 

Hazardous secondary materials that are 

not contained and are instead released 

to the environment are not destined for 

recycling and are clearly discarded. 

In today’s final rule, EPA is retaining 

the ‘‘contained’’ condition based on the 

rationale that hazardous secondary 

materials released to the environment 

are not destined for recycling and are 

clearly discarded, but is adding a 

regulatory definition of contained to 

make it easier for implementing 

agencies and the regulatory community 

to determine that a material is 

contained. In the preamble to the 2008 

DSW final rule (73 FR 64681), the 

Agency stated that a hazardous 

secondary material is ‘‘contained’’ if it 

is placed in a unit that controls the 

movement of the hazardous secondary 

materials out of the unit and into the 

environment. However, EPA did not 

provide more specific guidance on how 

an implementing agency or the 

regulated community would determine 

if a unit did adequately control the 

movement of hazardous secondary 

materials and meet the contained 

standard. 

As EPA noted in the 2011 DSW 

proposal and as reflected in many of the 

public comments, of particular concern 

is the lack of preventative measures in 

the contained standard in the 2008 DSW 

final rule. This is noted as a major 

regulatory gap in EPA’s assessment of 

the potential for adverse impacts from 

the 2008 DSW final rule, including 

adverse impacts to minority and low 

income communities. Given that the 

contained standard is one of the major 

requirements for determining that 

hazardous secondary materials 

reclaimed under the generatorcontrolled exclusion are not discarded, 

this lack of specificity could undermine 

the exclusion. That is, if the primary or 

only way to determine that the 

hazardous secondary material is not 

contained is to wait until it is released 

to the environment, then the 2008 DSW 

final rule increases the likelihood of 

discard for these materials. 

The Agency therefore is adding a 

regulatory definition of ‘‘contained’’ that 

resolves this uncertainty without 

sacrificing the flexibility that would 

allow the implementing authority to 

take into account a wide variety of casespecific circumstances when necessary. 

This definition specifies factors which, 

if met, demonstrate that the hazardous 

secondary materials in a unit are 

handled as valuable raw materials, 

intermediates, or products and thus are 

not being discarded. We note that the 

elements of the contained definition are 

all measures that are used to prevent 

releases and ensure operation and 

maintenance of the storage unit in the 

same manner as a production unit. 

If these criteria were not met, the 

materials remaining in the unit would 

be considered solid and hazardous 

wastes and the unit would be subject to 

the appropriate hazardous waste 

regulations. 

Also, to clarify the regulatory status of 

units from which releases have 

occurred, the Agency is also adding to 

40 CFR 261.4(a)(23) the following 

language: (1) A hazardous secondary 

material released to the environment is 

discarded and a solid waste unless it is 

immediately recovered for the purpose 

of reclamation; and (2) hazardous 

secondary material managed in a unit 

with leaks or other continuing or 

intermittent unpermitted releases of the 

hazardous secondary material to the 

environment is discarded and a solid 

waste. 


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7Taken together, leaks, spills, fires, explosions, or 

other accidents caused environmental damage at 

19% of the 250 environmental damage sites. U.S. 

EPA ‘‘An Assessment of Environmental Problems 

Associated with Recycling of Hazardous Secondary 

Materials (Updated)’’ December 2014. 

2. Notification as a Condition 

Under today’s rule, generators, 

reclaimers, tolling contractors, and toll 

manufacturers operating under the 

generator-controlled exclusion at 40 

CFR 261.4(a)(23) are required to submit 

a notification prior to operating under 

these exclusions and by March 1 of each 

even-numbered year thereafter to their 

regulatory authority. Facilities must also 

notify their regulatory authority within 

30 days of stopping management of 

hazardous secondary materials under 

the rule. The notification provisions are 

found at 40 CFR 260.42. 

The substance of the notification 

provisions is essentially the same as that 

under the 2008 DSW final rule. 

However, under today’s rule, such 

notification is a condition of the 

exclusion rather than a requirement. At 

issue here are not the specifics of the 

notification in 40 CFR 260.42, but rather 

the consequences an entity would face 

for failing to notify. Thus, if notification 

is a requirement under the authority of 

RCRA section 3007 (as specified under 

the 2008 DSW final rule), it means that 

failure to notify would constitute a 

violation of the notification regulations. 

On the other hand, if notification is a 

condition of the exclusion, it means 

failure to notify would potentially result 

in the loss of the exclusion for the 

hazardous secondary materials (i.e., the 

hazardous secondary materials may 

become solid and hazardous wastes and 

subject to full Subtitle C regulation). 

EPA is finalizing the notification 

provision as a condition of the 

generator-controlled exclusion because 

it is the only formal indication of a 

facility’s intent to reclaim a hazardous 

secondary material under the 

conditional exclusion rather than to 

discard it. For example, if during an 

inspection of a large quantity generator 

of hazardous waste, EPA were to 

discover a hazardous secondary material 

that had been stored on-site for more 

than 90 days without a RCRA permit (an 

act that would typically be a violation 

of the hazardous waste regulations), a 

previously filed notification would be 

an indication that the facility was 

planning to reclaim the hazardous 

secondary material under the conditions 

of the exclusion. Absent such a 

notification, it would be difficult for the 

facility to justify its true intentions for 

the hazardous secondary material. 

Failure to meet the notification 

provision would be a strong indication 

that the facility either did not intend to 

comply with or was unaware of the 

provisions of the exclusion, since it 

failed to comply with the first step for 

claiming the exclusion. In both cases, 

the lack of notification shows that the 

hazardous secondary material may be 

discarded. Making notification a 

condition of the rule would further 

discourage facilities from trying to 

evade enforcement by not notifying 

because the costs of not notifying could 

be significantly higher than if 

notification remains a requirement. 

Finally, notification is important for 

informing regulators and the public 

about hazardous secondary materials 

activity and, without such notification, 

regulators are unable to effectively 

monitor compliance. This notification 

condition will keep regulators and the 

public informed about hazardous 

secondary materials activity and will 

enable effective compliance monitoring. 

3. Recordkeeping for Speculative 

Accumulation 

Under today’s rule, all persons subject 

to the speculative accumulation 

requirements at 40 CFR 261.1(c)(8) 

(including, but not limited to, persons 

operating under the generator-controlled 

exclusion at § 261.4(a)(23)) must place 

materials subject to those requirements 

in a storage unit with a label indicating 

the first date that the material began to 

be accumulated. 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. This 

provision will allow inspectors and 

other regulatory authorities to quickly 

ascertain how long a facility has been 

storing an excluded hazardous 

secondary material, and, therefore, 

whether that facility is in compliance 

with the accumulation time limits of 

§ 261.1(c)(8). 

EPA notes that the speculative 

accumulation provision only applies to 

persons who are accumulating 

hazardous secondary materials. 

Processes involving hazardous 

secondary materials being returned to 

the original process via pipes are not 

considered to accumulate hazardous 

secondary materials and thus the 

speculative accumulation provision 

(and recordkeeping therein) would not 

apply to these scenarios. 

4. Other Recordkeeping 

Today’s exclusion for tolling and 

‘‘same-company’’ recycling requires 

recordkeeping for shipments sent and 

received under the exclusion. The 

records must contain the name of the 

transporter, the date of the shipment, 

and the type and quantity of hazardous 

secondary material shipped or received. 

These records may consist of normal 

business records. Such recordkeeping 

will facilitate enforcement of the 

exclusion and will allow tracking of 

hazardous secondary materials to ensure 

that these materials remain under the 

control of the generator and are not 

discarded. 

5. Documentation of Legitimacy 

Determinations 

Persons performing the recycling of 

hazardous secondary materials under 

the generator-controlled exclusion of 40 

CFR 261.4(a)(23) must maintain 

documentation of their legitimacy 

determination on-site. Documentation 

must be a written description of how the 

recycling meets all four factors in 40 

CFR 260.43(a), except as otherwise 

noted in 40 CFR 260.43(d). 

Documentation must be maintained for 

three years after the recycling operation 

has ceased. 

The Agency has determined that 

requiring documentation under the 

generator-controlled exclusion to 

demonstrate that the hazardous 

secondary materials are legitimately 

recycled and not discarded is 

appropriate because this exclusion is 

generic and can be used by a wide 

variety of industries recycling any of a 

number of hazardous secondary 

materials. 

6. Emergency Preparedness and 

Response 

Many of the environmental and 

human health damages identified by the 

environmental problems study were 

caused by fires and explosions and the 

lack of specific requirements to prevent 

and respond to such problems is a 

significant gap in the 2008 DSW 

exclusion.7 Fires and explosions at 

industrial recyclers can threaten the 

lives and health of both facility 

employees and the general public and 

can cause lasting damage to the local 

environment. Recent catastrophic 

chemical accidents in the United States, 

such as the 2013 fire and explosion in 

West, Texas, that killed 15 people, the 

2010 explosion and fire at Tesoro 

Refinery in Anacortes, Washington, that 

killed seven employees, and the 2012 

Chevron Refinery hydrocarbon fire in 

Richmond, California, that affected 

15,000 people in the surrounding area, 

highlight the need for continued 

improvement in a number of areas 

related to chemical facility safety. To 

address these concerns, the President 

issued Executive Order 13650— 

Improving Chemical Facility Safety and 


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1706 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

Security (EO) on August 1, 2013. The 

EO directed the Department of 

Homeland Security, EPA, the 

Department of Labor, the Department of 

Justice, the Department of Agriculture, 

and the Department of Transportation to 

identify ways to improve operational 

coordination with state, local, tribal, 

and territorial partners; enhance federal 

agency coordination and information 

sharing; modernize policies, regulations, 

and standards to enhance safety and 

security in chemical facilities; and work 

with stakeholders to identify best 

practices to reduce safety and security 

risks in the production and storage of 

potentially harmful chemicals. 

EPA finds that planning and 

preparing for an emergency 

demonstrates a generator’s intent to not 

only protect human health and the 

environment but to reduce potential loss 

of valuable hazardous secondary 

materials. In the absence of such 

requirements, hazardous secondary 

materials pose a greater risk of being 

released and discarded to the 

environment. 

Therefore, EPA is adding a condition 

to the generator-controlled exclusion 

that generators must follow certain 

emergency preparedness and response 

regulations, found in 40 CFR part 261 

subpart M, which are dependent on the 

amount of hazardous secondary material 

the generator accumulates on site at any 

time. Under the final rule, generators 

that accumulate less than or equal to 

6,000 kg of hazardous secondary 

material on site must meet regulations 

like the emergency preparedness and 

response regulations currently required 

for small quantity generators of 

hazardous waste. Generators that 

accumulate more than 6,000 kg of 

hazardous secondary material on site 

must meet regulations like the 

emergency preparedness regulations 

currently required for large quantity 

generators of hazardous waste. EPA 

chose to set the threshold at 6,000 kg 

based on the current hazardous waste 

generator regulations, which require 

generators that accumulate greater than 

6,000 kg of hazardous waste on site to 

comply with large quantity generator 

regulations, including emergency 

preparedness and response regulations. 

EPA finds that generators that 

accumulate greater amounts of 

hazardous secondary material on site 

inherently pose greater risk to human 

health and the environment from a 

potential release caused by a fire or 

explosion and thus it is more 

appropriate for these generators to take 

additional steps to prepare for such 

events. 

Specifically, EPA is requiring that 

generators that accumulate less than or 

equal to 6,000 kg of hazardous 

secondary material on site comply with 

the emergency preparedness and 

response requirements equivalent to 

those in part 265 subpart C, which 

discuss maintaining appropriate 

emergency equipment on site, having 

access to alarm systems, maintaining 

needed aisle space, and making 

arrangements with local emergency 

authorities. A generator must also have 

a designated emergency coordinator 

who must respond to emergencies and 

must post certain information next to 

the telephone in the event of an 

emergency. 

For generators that accumulate more 

than 6,000 kg of hazardous secondary 

material on site, EPA is requiring that 

generators comply with requirements 

equivalent to those in part 265 subparts 

C and D, which includes all the 

requirements already discussed above 

for those accumulating less than or 

equal to 6,000 kg, as well as requiring 

a contingency plan and sharing the plan 

with local emergency responders. EPA 

recommends that the contingency plan 

be based on the National Response 

Team’s Integrated Contingency Plan 

Guidance (One Plan), discussed in the 

Federal Register on June 5, 1996 (61 FR 

28642). Under the One Plan Guidance, 

the generator can develop one 

contingency plan that meets all the 

regulatory standards for the various 

statutory and regulatory provisions for 

contingency planning, such as EPA’s Oil 

Pollution Prevention Regulation or Risk 

Management Programs regulations, the 

U.S. Coast Guard’s (USCG) Facility 

Response Plan regulations, OSHA’s 

Hazardous Waste Operations and 

Emergency Response (HAZWOPER) 

regulations, and several others. 

EPA has determined that adding these 

emergency preparedness and response 

conditions to the generator-controlled 

exclusion meets the goals of the 

Chemical Safety EO and also will ensure 

that those facilities managing hazardous 

secondary material under the exclusion 

will be doing so in a manner that allows 

them to safely recycle the hazardous 

secondary material and limit loss of 

materials that are supposed to be 

recycled into the environment. These 

provisions are the common-sense steps 

that a facility that manages hazardous 

materials should take to reduce risk to 

their workers and the public. 

Additionally, EPA has determined that 

structuring the emergency preparedness 

and response conditions of the 

generator-controlled exclusion after the 

existing hazardous waste requirements 

serves to reduce burden on generators, 

as generators are likely already familiar 

and complying with this regulations. 

VI. Verified Recycler Exclusion 

Replacing the Exclusion for Hazardous 

Secondary Materials That Are 

Transferred for the Purpose of 

Reclamation 

Based on comments received and 

further assessment, EPA has decided to 

replace the 2008 DSW exclusion for 

hazardous secondary materials that are 

transferred for the purpose of legitimate 

reclamation (i.e., the transfer-based 

exclusion) with an exclusion for 

hazardous secondary materials sent for 

reclamation at a verified recycler (i.e., 

the verified recycler exclusion). The 

verified recycler exclusion is being 

finalized instead of the proposed 

Subtitle C alternative recycling 

standards because EPA has determined 

that such an exclusion will address the 

regulatory gaps identified in the 2008 

DSW rule in a way that appropriately 

identifies hazardous secondary 

materials that will be legitimately 

recycled and not discarded. Based on 

the evidence from states currently 

implementing the transfer-based 

exclusion, hazardous secondary 

materials transferred to another party for 

recycling can be legitimately recycled 

and not discarded, provided that there 

is a mechanism for adequate oversight at 

the recycling facility. Subtitle C 

regulation of this activity is unnecessary 

and would result in EPA regulating as 

hazardous waste some materials that 

have not been discarded. By adding the 

condition of requiring the recycler to 

obtain a solid waste variance or have a 

RCRA permit, EPA is addressing the 

potential for future discard while 

allowing the legitimate recycling 

activities that are already occurring to 

continue. (A discussion of the public 

comments on the July 2011 proposal 

and the Agency’s responses can be 

found in section XV of this preamble 

and the full response to comment 

document is in the docket for this 

rulemaking.) 

A. Summary of Transfer-Based 

Exclusion 

The 2008 exclusion for hazardous 

secondary materials that are transferred 

for the purpose of legitimate 

reclamation, which EPA is withdrawing 

today and replacing with the verified 

recycler exclusion, applied to hazardous 

secondary materials (i.e., spent 

materials, listed sludges, and listed byproducts) that are generated and 

subsequently transferred to a different 

person or company for the purpose of 


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Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 1707 

8 40 CFR 261.4(a)(24) is the primary transferbased exclusion and 40 CFR 261.4(a)(25) contains 

the export requirements for the transfer-based 

exclusion. 

9 Intermediate facilities are those facilities that do 

not reclaim hazardous secondary materials, but 

store them for more than 10 days. 

reclamation. This exclusion was found 

at 40 CFR 261.4(a)(24) and (25).8

General conditions for hazardous 

secondary material generators, 

reclaimers, and intermediate facilities 9

under this exclusion included the 

following: 

• Entities must submit a notification prior 

to operating under the exclusion and by 

March 1 of each even-numbered year 

thereafter reporting types and quantities of 

hazardous secondary materials being 

reclaimed, and 

• hazardous secondary materials managed 

at such facilities must not be speculatively 

accumulated as defined in § 261.1(c)(8) and 

must be legitimately reclaimed as specified 

in § 260.43. 

Conditions applicable to generators of 

hazardous secondary materials included 

the following: 

• Containment of such hazardous 

secondary materials, 

• reasonable efforts, a form of due 

diligence, to ensure that the intermediate 

facility or reclaimer intends to properly 

manage and legitimately recycle the 

hazardous secondary material, and 

• retention of records of off-site shipments 

for three years. 

Conditions applicable to intermediate 

facilities and reclaimers included the 

following: 

• Containment of hazardous secondary 

materials, 

• transmittal of confirmations of receipt to 

generators, 

• retention of records for hazardous 

secondary materials received and sent offsite, 

• financial assurance equivalent to that 

required of hazardous waste facilities, and 

• (for reclaimers) proper management of 

any residuals generated from the reclamation 

activities. 

In addition, for any hazardous 

secondary materials excluded under 40 

CFR 261.4(a)(24) generated and then 

exported to another country for 

reclamation, the exporter must notify 

and obtain consent from the receiving 

country and file an annual report per 40 

CFR 261.4(a)(25). 

B. EPA’s Rationale for Requiring 

Conditions for Transfers of Hazardous 

Secondary Materials Sent for 

Reclamation 

In the 2008 DSW rule, EPA 

determined that, absent specific 

conditions, it is reasonable to conclude 

that transfers of hazardous secondary 

materials to third-party recyclers 

generally involve discard except for 

instances where EPA has evaluated and 

promulgated a case-specific exclusion 

that a hazardous secondary material is 

not a solid waste. Generators of 

hazardous secondary materials who do 

not reclaim these materials themselves 

often ship these materials to a 

commercial facility or another 

manufacturer for reclamation in order to 

avoid the costs of disposing of the 

material. Because of the low commercial 

value and the high potential liability 

associated with most types of hazardous 

secondary materials (i.e., spent 

materials and listed hazardous waste byproducts and sludges), generators will 

typically pay the reclamation facility to 

accept these hazardous secondary 

materials or receive a salvage fee that 

only partially offsets the cost of 

transporting and managing them. In 

such situations, the generator has 

relinquished control of the hazardous 

secondary materials and the entity 

receiving such materials may not have 

the same incentives to manage them as 

a useful product. (Note that this 

determination is unchanged from the 

2008 DSW final rule; see 73 FR 64675.) 

Evidence of hazardous secondary 

materials not being managed as a 

valuable product is shown in the results 

of the environmental problems study, 

found in the docket of the 2008 DSW 

final rule. Of the 208 damage cases 

discussed in the 2008 DSW final rule, 

195 (or approximately 94%) were from 

reclamation activities of off-site thirdparty recyclers, with clear instances of 

discard resulting in risk to human 

health and the environment, including 

cases of large-scale soil and ground 

water contamination with remediation 

costs in some instances in the tens of 

millions of dollars (73 FR 64673). 

In addition, the market forces study in 

the docket for the 2008 DSW final rule 

supports the conclusion that the pattern 

of discard at off-site third-party 

reclaimers is a result of inherent 

differences between commercial 

recycling and normal manufacturing. As 

opposed to manufacturing, where the 

cost of raw materials or intermediates 

(or inputs) is greater than zero and 

revenue is generated primarily from the 

sale of the output, hazardous secondary 

materials recycling can involve 

generating revenue primarily from the 

receipt of the hazardous secondary 

materials. Recyclers of hazardous 

secondary materials in this situation 

thus respond differently than traditional 

manufacturers to economic forces and 

incentives, accumulating more inputs 

(hazardous secondary materials) than 

can be processed (reclaimed). In 

addition, commercial recyclers have less 

flexibility than in-house recyclers in 

changing how they manage their 

hazardous secondary materials (e.g., 

during price fluctuations, in-house 

recyclers can more easily switch from 

recycling to disposal or from recycled 

inputs to virgin inputs, while 

commercial recyclers cannot switch to 

disposal without obtaining a RCRA 

permit) (73 FR 64674). In other words, 

third-party recyclers have economic 

incentives to accumulate waste beyond 

their ability to deal with it. 

C. Regulatory Gaps in the 2008 DSW 

Rule 

The 2008 DSW final rule attempted to 

address this pattern of adverse impacts 

to human health and the environment 

from hazardous secondary materials 

transferred to a third party for recycling 

by setting conditions for the transferbased exclusion. The intent of these 

conditions was to define when transfers 

to third-party recyclers would not result 

in discard. The link between each of the 

conditions and their ability to prevent 

discard is discussed in detail in the 

2008 DSW final rule preamble at 73 FR 

64675–79. 

However, EPA failed to take into 

account how the conditions of the 2008 

transfer-based exclusion would work 

when actually implemented. EPA’s 

analysis of the 2008 DSW final rule was 

based on the assumption that DSW 

conditions would be implemented to 

the same degree as Subtitle C hazardous 

waste regulations, without taking into 

consideration whether the 2008 DSW 

rule would provide EPA and the 

authorized states the ability for the same 

level of oversight as the fully applicable 

Subtitle C hazardous waste regulations, 

which leads to the second part of EPA’s 

rationale for its 2011 proposal to replace 

the transfer-based exclusion with an 

alternative Subtitle C regulatory scheme. 

Before excluding hazardous 

secondary materials that have already 

been determined to be hazardous wastes 

when discarded, the Agency needs 

adequate assurance that the conditional 

exclusion will not result in discarded 

hazardous materials posing significant 

risks to human health and the 

environment (e.g., fires/explosion, soil 

and water contamination, air emissions, 

and abandoned hazardous secondary 

materials). Because EPA has already 

evaluated these hazardous secondary 

materials (for example, during a 

hazardous waste listing determination) 

and determined them to be solid and 

hazardous wastes when discarded, the 

Agency must be able to reasonably 

expect that hazardous secondary 

materials managed under a conditional 

exclusion will not be discarded. 


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10See Chapter 11, Regulatory Impact Analysis: 

EPA’s 2008 Final Rule Amendments to the 

Industrial Recycling Exclusions of the RCRA 

Definition of Solid Waste, EPA–HQ–RCRA–2002– 

0031–0602. 

11See Chapter 2 and Appendix A of Potential 

Adverse Impacts Under the Definition of Solid 

Waste Exclusions (Including Potential 

Disproportionate Adverse Impacts to Minority and 

Low-Income Populations): Volume 1—Hazard 

Characterization, available in the docket for today’s 

rule. 12Some of these facilities are also managing 

hazardous secondary materials under the generatorcontrolled exclusion. 

13U.S. EPA, EPA’s Evaluation of Data Collected 

From Notifications Submitted Under the 2008 

Definition of Solid Waste Exclusions, April 11, 

2014. 

14Comment to the docket from Vincent J. Brisini, 

Acting Deputy Secretary for Waste, Air, Radiation 

and Remediation, Pennsylvania Department of 

Environmental Protection, October 20, 2011 (EPA– 

HQ–RCRA–2010–0742–0271). 

Over the years, EPA has developed 

many such conditional exclusions 

(found in 40 CFR 261.4(a)). In each of 

these cases, EPA did so by examining 

the specific hazardous secondary 

material or the specific recycling 

practice, or both, before making a 

determination that the hazardous 

secondary material is not solid waste. 

However, unlike these types of specific 

transfer-based exclusions from the 

definition of solid waste, the 2008 

transfer-based exclusion in 40 CFR 

261.4(a)(24) and (25) did not focus on 

the chemical or physical properties of 

any particular type of hazardous 

secondary material or on how it is 

typically managed. Instead, the transferbased exclusion is broadly applicable to 

a wide range of hazardous spent 

materials and listed by-products and 

sludges. Thus, while other solid waste 

exclusions were developed based on 

EPA’s knowledge of the specific 

hazardous secondary materials, the 

industries generating them, or the 

current recycling management practice 

for those hazardous secondary 

materials, the 2008 DSW transfer-based 

exclusion relied entirely on the 

conditions that were developed by EPA 

operating as the Agency anticipates they 

should. The conditions themselves were 

developed in a reasoned manner,10 but 

without evidence that they would work 

as intended (i.e., would not result in 

significant risk to human health and the 

environment from discarded materials). 

However, the conditions for the 

transfer-based exclusion in the 2008 

DSW final rule lack several important 

implementation provisions that the 

Subtitle C requirements for treatment, 

storage, and disposal facilities provide. 

These provisions ensure a greater level 

of oversight, which ensures that EPA or 

the state has reviewed a facility’s 

planned operations before management 

begins and which allows public 

participation in the environmental 

decision-making process, thereby 

increasing the likelihood of compliance 

and decreasing the potential for risk to 

human health and the environment 

from discarded hazardous secondary 

material. EPA has performed a detailed 

regulatory comparison of the 2008 DSW 

final rule with the fully applicable 

Subtitle C hazardous waste regulations, 

identifying significant differences that 

could lead to the potential for an 

increased likelihood of environmental 

and public health hazards, including 

fires/explosion, soil and water 

contamination, air emissions, and 

abandoned hazardous secondary 

materials.11

D. Rationale for the Verified Recycler 

Exclusion 

Based on this reconsideration of the 

DSW transfer-based exclusion 

conditions, EPA has determined that 

hazardous secondary materials 

transferred off-site to third party 

reclaimers for the purpose of legitimate 

reclamation are most appropriately 

covered under a system that allows for 

oversight and public participation prior 

to the start of operations to help ensure 

that (1) the hazardous secondary 

material will be legitimately reclaimed 

and not discarded and (2) the potential 

risk of releases from the facility 

impacting the surrounding community 

will be minimized. The need for such 

additional oversight and public 

participation is demonstrated by (1) 

evidence of past damage cases leading 

to significant risk to human health and 

the environment from hazardous 

secondary materials originally intended 

for recycling and (2) the underlying 

perverse incentives of the recycling 

market to over-accumulate such 

hazardous secondary materials intended 

for recycling, resulting in discard of the 

material. In other words, the transferbased exclusion can exacerbate financial 

incentives for small and/or 

inexperienced businesses to take in 

more hazardous secondary materials 

than they actually can use, mishandle it, 

and even go out of business, as shown 

by the fact that bankruptcies or other 

types of business failures were 

associated with 66% of the recycling 

damage cases, resulting in multi-million 

dollar cleanups. 

At the same time, as EPA noted in the 

2011 DSW proposal and as was echoed 

in the public comments, EPA has also 

carefully monitored the implementation 

of the 2008 DSW final rule since it came 

into effect in December 2008, and to 

date, no environmental problems have 

been reported by states related to 2008 

transfer-based exclusion. As of April 

2014, a total of 65 facilities are operating 

under the transfer-based exclusion, 56 

of which are generators transferring offsite and 7 which are reclamation 

facilities.12 All seven reclamation 

facilities are RCRA permitted. Of the 56 

generators operating under the transferbased exclusion, 32 generators appear to 

have either started or substantially 

increased their recycling as a result of 

the 2008 DSW exclusions. These 

include generators that had previously 

reported in their 2007, 2009, or 2011 

biennial report that they sent their 

solvents off site for fuel blending, and 

then notified that they are sending their 

spent solvents for reclamation under the 

2008 DSW final rule. In addition, in at 

least five cases, facilities have switched 

from sending spent pickle liquor to 

landfilling or deep well injection to 

recycling under the 2008 DSW rule. In 

total, the 2008 DSW notifications 

document that over 57,000 tons of 

hazardous secondary material were 

reclaimed under the 2008 DSW rule 

during 2011.13

In addition, it should be noted that 

the Department of Environmental 

Protection for the State of Pennsylvania 

(PA DEP), where 27 of the 65 facilities 

operating under the transfer-based 

exclusion are located, commented 

strongly in favor of keeping the transferbased exclusion: ‘‘PA DEP has 

experienced no compliance problems or 

issues of any nature with those 

generators or reclamation facilities 

operating under this conditional 

exclusion, known as the transfer-based 

exclusion. In addition, under the 

transfer-based exclusion, large 

quantities of hazardous solvents have 

been diverted to reclamation and reuse 

rather than being burned for energy 

recovery, resulting in greater resource 

conservation.’’ 14

Given that the transfer-based 

exclusion has been achieving its 

intended purpose of encourage safe, 

legitimate recycling, withdrawing the 

transfer-based exclusion and replacing it 

with RCRA Subtitle C hazardous waste 

requirements is unnecessary and would 

result in hazardous secondary material 

that is currently being legitimately 

recycled and not discarded being 

regulated as hazardous waste. Because 

Subtitle C regulation would be more 

stringent that the current exclusion, if 

EPA were to finalize the alternative 

Subtitle C standards, Pennsylvania (and 

other states that have adopted the 2008 

DSW rule) would have to regulate this 

material as hazardous waste, despite the 


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Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 1709 

15 Intermediate facilities are those facilities that 

do not reclaim hazardous secondary materials, but 

store them for more than 10 days. 

fact that according to the state it is 

currently being legitimately recycled 

and not discarded. 

However, it is important to note that 

the comments from PA DEP went on to 

recommend that the transfer-based 

exclusion be limited to RCRA-permitted 

facilities. Because all recycling under 

the transfer-based exclusion has been (to 

date) performed at RCRA-permitted 

facilities, EPA is unable to extrapolate 

what would happen at facilities without 

RCRA Subtitle C permits if the transferbased exclusion were fully 

implemented. Given the evidence of 

past damage cases leading to significant 

risk to human health and the 

environment from hazardous secondary 

materials originally intended for 

recycling and the underlying perverse 

incentives of the recycling market to 

over-accumulate such hazardous 

secondary materials intended for 

recycling, resulting in discard of the 

material, additional oversight of 

recycling beyond the self-implementing 

measures of the transfer-based exclusion 

is needed to ensure that the hazardous 

secondary material is legitimately 

recycled and not discarded. 

To address this issue, EPA is 

requiring as a condition of the new 

verified recycler exclusion that 

generators must send their hazardous 

secondary materials to a RCRApermitted recycler or intermediate 

facility 15 or to a verified hazardous 

secondary materials recycler or 

intermediate facility who has obtained a 

solid waste variance from EPA or the 

authorized state using the procedures 

found in 40 CFR 260.33. The verified 

recycler exclusion uses the solid waste 

variance procedure to determine if a 

facility will properly manage the 

hazardous secondary materials as 

commodities and legitimately recycle 

rather than discard them. The variance 

addresses the same criteria currently 

required for the reasonable efforts 

environmental audit under the 2008 

transfer-based exclusion (see discussion 

below). However, the variance process 

would allow EPA or the authorized state 

to evaluate the facility before it begins 

recycling hazardous secondary materials 

and would also give the affected 

community the opportunity to provide 

input prior to a decision as to whether 

the variance should be granted, thus 

addressing a major regulatory gap in the 

transfer-based exclusion that could 

result in significant risk to human 

health and the environment from 

discarded hazardous secondary 

material. 

In addition, as described below, the 

verified recycler exclusion retains those 

conditions from the 2008 transfer-based 

exclusion that EPA determined are 

necessary to properly identify 

hazardous secondary material that is 

legitimately recycled and not discarded, 

and also includes the new conditions 

that apply to the generator-controlled 

exclusion being finalized today. 

EPA expects that all facilities that are 

currently recycling hazardous secondary 

materials under the 2008 transfer-based 

exclusion will be able to continue to 

recycle these materials under the 

verified recycler exclusion, because all 

recycling under the transfer-based 

exclusion is being done at RCRApermitted facilities, which also qualify 

for the verified recycler exclusion. 

Moreover, the additional conditions of 

the verified recycler exclusion address 

the regulatory gaps EPA identified in 

the 2011 DSW proposal that could have 

resulted in significant risk to human 

health and the environment from 

discarded material, if the 2008 DSW had 

been fully implemented to include 

facilities without RCRA permits or other 

regulatory oversight prior to beginning 

recycling. 

Finally, EPA notes that facilities 

managing excluded hazardous 

secondary materials under the verified 

recycling exclusion are still potentially 

subject to RCRA enforcement actions if 

they fail to meet the conditions of the 

exclusion. Persons that handle these 

hazardous secondary materials are 

responsible for maintaining the 

exclusion by ensuring that the 

conditions are met. If the hazardous 

secondary materials are not managed 

pursuant to these restrictions, they are 

not excluded. They would then be 

considered solid and hazardous wastes 

if they were listed or they exhibited a 

hazardous waste characteristic for RCRA 

Subtitle C purposes. 

E. Conditions of the Verified Recycler 

Exclusion 

The conditions discussed below 

describe EPA’s evaluation of each of the 

conditions under the 2008 transferbased exclusion that EPA is retaining in 

the verified recycler exclusion, as well 

as the additional conditions EPA has 

determined are necessary to address the 

regulatory gaps identified in the 

transfer-based exclusion in order to 

ensure that the verified recycler 

exclusion identifies hazardous 

secondary materials that are legitimately 

recycled and not discarded. By 

including these conditions, EPA is 

identifying those hazardous secondary 

materials that will be legitimately 

recycled and not discarded. 

1. Provisions Applicable to the 

Hazardous Secondary Materials 

Generator, the Reclamation Facility, and 

any Intermediate Facility 

Prohibition on speculative 

accumulation. As a condition of the 

verified recycler exclusion, hazardous 

secondary materials cannot be 

speculatively accumulated (40 CFR 

261.1(c)(8)) at the hazardous secondary 

material generator, reclamation facility, 

or intermediate facility. Restrictions on 

speculative accumulation have been an 

important element of the RCRA 

hazardous waste recycling regulations 

since they were promulgated on January 

4, 1985. According to this regulatory 

provision, hazardous secondary 

materials are accumulated speculatively 

if the person accumulating them cannot 

show that the material is potentially 

recyclable. Further, the person 

accumulating the hazardous secondary 

material must show that during a 

calendar year (beginning January 1) the 

amount of such material that is recycled 

or transferred to a different site for 

recycling is at least 75% by weight or 

volume of the amount of the hazardous 

secondary material present at the 

beginning of the period. It is also the 

same prohibition that is being 

promulgated today for the generatorcontrolled exclusions. 

Furthermore, under today’s rule, all 

persons subject to the speculative 

accumulation requirements at 40 CFR 

261.1(c)(8) (including, but not limited 

to, persons operating under the verified 

recycler exclusion at § 261.4(a)(24)) 

must place materials subject to those 

requirements in a storage unit with a 

label indicating the first date that the 

material began to be accumulated. 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. 

This provision will allow inspectors 

and other regulatory authorities to 

quickly ascertain how long a facility has 

been storing an excluded hazardous 

secondary material, and, therefore, 

whether that facility is in compliance 

with the accumulation time limits of 

§ 261.1(c)(8).This provision is being 

retained in the verified recycler 

exclusion to ensure that the hazardous 

secondary materials will be recycled 

rather than discarded through 

speculative accumulation and 

abandonment. 

Notification. Under today’s verified 

recycler exclusion, as a condition of the 

exclusion, hazardous secondary 


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16 Intermediate facilities and reclamation 

facilities must also follow emergency prepared and 

response regulations, either through the 

requirement of their RCRA permit or through the 

criteria that must be met to obtain a verified 

recycler variance under 40 CFR 260.31(d). 

material generators, reclaimers, and 

intermediate facilities must send a 

notification prior to operating under this 

exclusion and by March 1 of each evennumbered year thereafter to the EPA 

Regional Administrator using EPA form 

8700–12. In states authorized by EPA to 

administer the RCRA Subtitle C 

hazardous waste program, notifications 

may be sent to the State Director. The 

notice must include the following: 

• The name, address, and EPA ID number 

(if applicable) of the facility; 

• The name and telephone number of a 

contact person; 

• The NAICS code of the facility; 

• The exclusion under which the 

hazardous secondary materials will be 

managed; 

• When the facility expects to begin 

managing the hazardous secondary materials 

in accordance with the exclusion; 

• A list of hazardous secondary materials 

that will be managed according to the 

exclusion (reported as the EPA hazardous 

waste numbers that would apply if the 

hazardous secondary materials were 

managed as hazardous waste); 

• For each hazardous secondary material, 

whether the material, or any portion thereof, 

will be managed in a land-based unit; 

• The quantity of each hazardous 

secondary material to be managed annually; 

and 

• The certification (included in EPA form 

8700–12) signed and dated by an authorized 

representative of the facility. 

If a facility has submitted a 

notification, but then subsequently 

stops managing hazardous secondary 

materials in accordance with the 

exclusion, the facility must re-notify the 

Regional Administrator within 30 days 

using the same EPA Form 8700–12. We 

consider a facility to have ‘stopped’ 

managing hazardous secondary 

materials when a facility no longer 

generates, manages and/or reclaims 

hazardous secondary materials under 

the exclusion and does not expect to 

manage any amount of hazardous 

secondary material under the exclusion 

for at least one year. Of course, a facility 

could certainly choose to begin 

managing hazardous secondary 

materials again and would simply have 

to submit a notification in compliance 

with 40 CFR 260.42. 

This notification condition is the 

same as the notification condition for 

the generator-controlled exclusion and 

is an indication that the facility is 

planning to legitimately recycle the 

hazardous secondary materials and not 

discard them. As with the generatorcontrolled exclusion, EPA is finalizing 

the notification provision as a condition 

of the transfer-based exclusion because 

it is the only formal indication of a 

facility’s intent to reclaim a hazardous 

secondary material under the 

conditional exclusion rather than to 

discard it. For further discussion on the 

notification, including examples of 

when a facility must re-notify that it has 

stopped managing hazardous secondary 

materials, see section V.B.2 of today’s 

preamble. 

Hazardous secondary materials must 

be contained. Another condition of the 

verified recycler exclusion applicable to 

hazardous secondary material 

generators, reclamation facilities, and 

intermediate facilities is that the 

hazardous secondary materials must be 

contained in their management units. 

This provision is the same as the 

restriction that is being promulgated for 

the generator-controlled exclusion and 

helps ensure that the hazardous 

secondary material remains in the 

management unit until it is ready to be 

recycled and is not discarded. 

Hazardous secondary materials released 

to the environment from any unit are 

discarded and would be subject to the 

hazardous waste regulations, unless 

they are immediately cleaned up. 

Hazardous secondary materials 

remaining in a unit that experiences a 

release may also be considered 

discarded in certain cases. For further 

discussion on the containment 

provisions, see section V.B.1 of today’s 

preamble. 

Emergency preparedness and 

response. As discussed above under the 

generator-controlled exclusion, one 

important cause of environmental and 

human health damages identified by the 

environmental problems study is fires, 

explosions, and accidents, with 19% of 

the environmental damage cases being 

associated with leaks, spills, fires, 

explosions, or other accidents, and the 

lack of conditions to address these 

problems is a significant regulatory gap 

in the 2008 DSW exclusions. In 

addition, the President recently released 

an Executive Order to address these 

types of concerns (EO 13650— 

Improving Chemical Facility Safety and 

Security). EPA finds that planning and 

preparing for an emergency 

demonstrates a generator’s intent to not 

only protect human health and the 

environment, but also to reduce 

potential loss of valuable hazardous 

secondary materials. In the absence of 

such requirements, hazardous 

secondary materials pose a greater risk 

of being released and discarded to the 

environment. 

Therefore, EPA is requiring that 

generators must follow certain 

emergency preparedness and response 

regulations under the verified recycler 

exclusion. These regulations are found 

in 40 CFR part 261 subpart M and are 

dependent on the amount of hazardous 

secondary material the generator 

accumulates on site at any time.16

Under the final rule, generators that 

accumulate less than or equal to 6,000 

kg of hazardous secondary material on 

site must meet regulations like the 

emergency preparedness and response 

regulations currently required for small 

quantity generators of hazardous waste. 

Generators that accumulate more than 

6,000 kg of hazardous secondary 

material on site must meet regulations 

like the emergency preparedness and 

response regulations currently required 

for large quantity generators of 

hazardous waste. EPA chose to set the 

threshold at 6,000 kg based on the 

current hazardous waste generator 

regulations, which require generators 

that accumulate greater than 6,000 kg of 

hazardous waste on site to comply with 

large quantity generator regulations, 

including emergency preparedness and 

response regulations. EPA finds that 

generators that accumulate greater 

amounts of hazardous secondary 

material on site inherently pose greater 

risk to human health and the 

environment from a potential release 

caused by a fire or explosion and thus 

it is more appropriate for these 

generators to take additional steps to 

prepare for such events. 

Specifically, EPA is requiring that 

generators that accumulate less than or 

equal to 6,000 kg of hazardous 

secondary material on site comply with 

the emergency preparedness and 

response requirements equivalent to 

those in part 265 subpart C, which 

discuss maintaining appropriate 

emergency equipment on site, having 

access to alarm systems, maintaining 

needed aisle space, and making 

arrangements with local emergency 

authorities. A generator must also have 

a designated emergency coordinator 

who must respond to emergencies and 

must post certain information next to 

the telephone in the event of an 

emergency. 

For generators that accumulate more 

than 6,000 kg of hazardous secondary 

material on site, EPA is requiring that 

they comply with requirements 

equivalent to those in part 265 subparts 

C and D, which includes all the 

requirements already discussed above 

for those accumulating less than or 

equal to 6,000 kg, as well as requiring 

a contingency plan and sharing the plan 

with local emergency responders. EPA 


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17An Assessment of Good Current Practices for 

Recycling of Hazardous Secondary Materials (EPA– 

HQ–RCRA–2002–0031–0354). 

recommends that the contingency plan 

be based on the National Response 

Team’s Integrated Contingency Plan 

Guidance (One Plan), discussed in the 

Federal Register on June 5, 1996 (61 FR 

28642). Under the One Plan Guidance, 

the generator can develop one 

contingency plan that meets all the 

regulatory standards for the various 

statutory and regulatory provisions for 

contingency planning, such as EPA’s Oil 

Pollution Prevention Regulation or Risk 

Management Programs regulations, the 

U.S. Coast Guard’s (USCG) Facility 

Response Plan regulations, OSHA’s 

Hazardous Waste Operations and 

Emergency Response (HAZWOPER) 

regulations, and several others. 

EPA has determined that adding these 

emergency preparedness and response 

conditions meets the goals of the 

Chemical Safety EO and also will ensure 

that those facilities managing hazardous 

secondary material under the exclusion 

will be doing so in a manner that allows 

them to safely recycle the hazardous 

secondary material and limit loss into 

the environment of materials that are 

supposed to be recycled. These 

provisions are the common-sense steps 

that a facility that manages hazardous 

materials should take to reduce risk to 

their workers and the public. 

Additionally, structuring the emergency 

preparedness and response conditions 

of the verified recycler exclusion after 

the existing hazardous waste 

requirements serves to reduce burden 

on generators, as generators are already 

familiar and complying with this 

regulations. 

Exclusion is limited to recycling 

performed within the United States. 

Because the verified recycler exclusion 

requires that hazardous secondary 

materials are sent to a verified 

reclamation facility (or facilities) that 

has been granted either a RCRA permit 

or interim status that addresses the 

hazardous secondary material or has 

received a variance from EPA or the 

authorized state, this exclusion is 

limited to recycling performed within 

the United States or its territories. 

Because hazardous secondary materials 

that are exported for recycling passes 

out of the regulatory control of the 

federal government, it is not possible to 

verify whether the foreign reclaimer will 

safely and legitimately recycle the 

hazardous secondary material and not 

discard it. 

2. Provisions Applicable to the 

Hazardous Secondary Material 

Generator 

Transport to a Verified Recycler. The 

hazardous secondary material generator 

must transport hazardous secondary 

materials to a verified reclamation 

facility (or facilities) within the United 

States or its territories. A verified 

reclamation facility is a facility that has 

been granted a variance by EPA or an 

authorized state under § 260.31(d) or a 

reclamation facility where the 

management of the hazardous secondary 

materials is addressed under a RCRA 

Part B permit or interim status 

standards. If the hazardous secondary 

material will be passing through an 

intermediate facility, the intermediate 

facility must have been granted a 

variance under § 260.31(d) or the 

management of the hazardous secondary 

materials at that facility must be 

addressed under a RCRA Part B permit 

or interim status standards. The 

hazardous secondary material generator 

must also make contractual 

arrangements with the intermediate 

facility to ensure that the intermediate 

facility sends the hazardous secondary 

material to the verified reclamation 

facility identified by the hazardous 

secondary material generator. 

Note that in the case of a permitted 

facility the management of the 

hazardous secondary materials must be 

addressed under the RCRA part B 

permit or interim status standards. In 

other words, if the permit standards do 

not extend to the hazardous secondary 

materials being reclaimed, then the 

reclamation or intermediate facility is 

required to either modify the permit to 

cover those materials or obtain a solid 

waste variance from EPA or the 

authorized state before operating under 

the exclusion. 

This condition addresses the major 

regulatory gap in the transfer-based 

exclusion of lack of oversight and public 

participation for hazardous secondary 

material recycling facilities that do not 

have RCRA permits. Given the evidence 

of past damage cases leading to 

significant risk to human health and the 

environment from hazardous secondary 

materials originally intended for 

recycling and the underlying perverse 

incentives of the recycling market to 

over-accumulate such hazardous 

secondary materials intended for 

recycling, resulting in discard of the 

material, additional oversight of 

recycling beyond the self-implementing 

measures of the transfer-based exclusion 

are needed to ensure that the hazardous 

secondary material is legitimately 

recycled and not discarded. 

This condition replaces the selfimplementing ‘‘reasonable efforts’’ 

environmental audits of the recycling 

facility required under the 2008 

transfer-based exclusion. EPA has 

determined that it more appropriate for 

the state or EPA to make the 

determination that a facility can safely 

and legitimately recycle hazardous 

secondary material. While EPA has 

found that many large companies do 

conduct environmental audits of 

recycling facilities, many smaller 

generators would not have the technical 

expertise or resources to conduct such 

an effort.17 In addition, it is more 

efficient for the EPA or the authorized 

state to perform one evaluation of a 

recycler via the permit or variance 

process rather than have multiple 

evaluations of a recycler conducted by 

each generator using that recycler. 

Recordkeeping. EPA is requiring 

hazardous secondary material 

generators to maintain at the generating 

facility certain records that document 

off-site shipments of hazardous 

secondary materials for a period of three 

years. Specifically, for each shipment of 

hazardous secondary material, the 

generator must maintain documentation 

of when the shipment occurred, who the 

transporter was, the name and address 

of the reclaimer(s) and, if applicable, 

each intermediate facility, and the type 

and quantity of the hazardous secondary 

materials in the shipment. This 

recordkeeping requirement may be 

fulfilled by ordinary business records, 

such as bills of lading. 

In addition, hazardous secondary 

material generators are required to 

maintain confirmations of receipt from 

each reclaimer and intermediate facility 

for all off-site shipments of hazardous 

secondary materials in order to verify 

that the hazardous secondary materials 

reached their intended destination and 

were not discarded. These receipts must 

be maintained at the generating facility 

for a period of three years. Specifically, 

the hazardous secondary material 

generator must maintain documentation 

of receipt that includes the name and 

address of the reclaimer or intermediate 

facility, the type and quantity of 

hazardous secondary materials received, 

and the date which the hazardous 

secondary materials were received. The 

Agency is not requiring a specific 

template or format for confirmations of 

receipt and anticipates that routine 

business records (e.g., financial records, 

bills of lading, copies of Department of 

Transportation (DOT) shipping papers, 

electronic confirmations of receipt) 

could contain the appropriate 

information sufficient for meeting this 

requirement. 

We recognize that, in some cases, 

reclamation of a hazardous secondary 

material may involve more than one 


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reclamation step. In these cases, the 

recordkeeping condition under the 

terms of the exclusion applies for each 

reclaimer and intermediate facility, 

regardless of how many reclamation 

steps were involved. For example, if a 

hazardous secondary material generator 

shipped hazardous secondary materials 

to one reclaimer for partial reclamation 

and then arranged for the partiallyreclaimed material to be subsequently 

sent to another reclaimer for ‘‘final’’ 

reclamation, the generator must 

maintain confirmations of receipt from 

each reclaimer involved in the 

reclamation process. 

The recordkeeping requirements are 

the same as those in the 2008 transferbased exclusion and Agency continues 

to believe that the recordkeeping 

requirements in today’s rule comprise 

the minimum information needed to 

enable effective oversight to ensure the 

hazardous secondary materials were 

sent for reclamation and were not 

discarded. 

3. Provisions Applicable to the 

Transportation of Hazardous Secondary 

Materials 

Hazardous secondary materials may 

be stored for up to 10 days at a transfer 

facility and still be considered in transit. 

However, if the facility stores the 

hazardous secondary materials for more 

than 10 days, then it would be 

considered an intermediate facility and 

subject to the conditions in 40 CFR 

261.4(a)(24)(vi). While at the transfer 

facility, the hazardous secondary 

materials must continue to meet all 

applicable DOT standards. Hazardous 

secondary materials may be 

consolidated for shipping, but cannot be 

intermingled in a way that would 

constitute waste management. This 

provision is unchanged from the 2008 

transfer-based exclusion and describes 

the intersection of the RCRA and DOT 

requirements for these shipments. 

4. Provisions Applicable to the 

Reclamation Facility and any 

Intermediate Facilities 

Recordkeeping. Reclaimers and 

intermediate facilities who operate 

under the verified recycler exclusion 

must maintain certain records, similar 

to the records we are requiring for 

hazardous secondary material 

generators. Specifically, reclaimers and 

intermediate facilities must maintain at 

their facilities for a period of three years 

records of all shipments of hazardous 

secondary materials that were received 

at the facility and, if applicable, records 

of all shipments of hazardous secondary 

materials sent off-site from the facility. 

For hazardous secondary materials 

received at the reclamation and 

intermediate facility, such records must 

document the name and address of the 

hazardous secondary material generator, 

the type and quantity of hazardous 

secondary materials received at the 

facility, any intermediate facilities that 

managed the hazardous secondary 

materials, the name of the transporter 

that brought the hazardous secondary 

materials to the facility, and the date 

such materials were received at the 

facility. 

For hazardous secondary materials 

that, after being received by the 

reclaimer or intermediate facility, are 

subsequently sent off-site for further 

reclamation, reclaimers and 

intermediate facilities must document 

the name and address of the hazardous 

secondary material generator, when the 

shipment occurred, who the transporter 

was, the name and address of the 

subsequent reclaimer and, if applicable, 

each subsequent intermediate facility, 

and the type and quantity of hazardous 

secondary materials in the shipment. 

This recordkeeping requirement may be 

fulfilled by ordinary business records, 

such as bills of lading. 

Reclaimers and intermediate facilities 

must also send confirmations of receipt 

to the hazardous secondary material 

generator for all off-site shipments of 

hazardous secondary materials received 

at the facility in order to verify for the 

hazardous secondary material generator 

that their materials reached the 

intended destination and were not 

discarded. Specifically, the reclaimer (or 

each reclaimer, when more than one 

reclamation step is required) and, if 

applicable, each intermediate facility, 

must send documentation of receipt to 

the hazardous secondary material 

generator that includes the name and 

address of the reclaimer or intermediate 

facility, the type and quantity of the 

hazardous secondary materials received 

and the date which the hazardous 

secondary materials were received. The 

Agency is not requiring a specific 

template or format for confirmations of 

receipt and anticipates that routine 

business records (e.g., financial records, 

bills of lading, copies of DOT shipping 

papers, electronic confirmations of 

receipt) could contain the appropriate 

information sufficient for meeting this 

requirement. 

In addition, reclaimers and 

intermediate facilities must also meet 

the recordkeeping requirements under 

financial assurance discussed below in 

this section. 

Storage of Hazardous Secondary 

Materials. In addition to the condition 

that the hazardous secondary materials 

must be contained (40 CFR 

261.4(a)(24)(v)(A)), reclamation facilities 

and intermediate facilities must also 

manage the hazardous secondary 

materials in a manner that is at least as 

protective as that employed for the 

analogous raw material, where there is 

an analogous raw material. Where there 

is no analogous raw material, the 

hazardous secondary material must be 

contained. 

An ‘‘analogous raw material’’ is a 

material for which a hazardous 

secondary material substitutes and 

which serves the same function and has 

similar physical and chemical 

properties as the hazardous secondary 

material. A raw material that has 

significantly different physical or 

chemical properties would not be 

considered analogous even if it serves 

the same function. For example, a 

metal-bearing ore might serve the same 

function as a metal-bearing air pollution 

control dust, but because the physical 

properties of the dust would make it 

more susceptible to wind dispersal, the 

two would not be considered analogous. 

Similarly, hazardous secondary 

materials with high levels of toxic 

volatile chemicals would not be 

considered analogous to a raw material 

that does not have these volatile 

chemicals or that has only minimal 

levels of volatile chemicals. Storage 

conditions for reclamation facilities and 

intermediate facilities that operate 

under today’s exclusion demonstrate 

that the materials are not discarded, but 

instead are treated valuable 

commodities which would be used and 

not lost to the environment. 

This condition is the same as the 

parallel condition in the 2008 transferbased exclusion and is based on the fact 

that the great majority of damage cases 

documented in the environmental 

problems study occurred at commercial 

reclamation and intermediate storage 

facilities, and mismanagement of 

hazardous secondary materials was 

found to be a cause of environmental 

problems in approximately 40% of the 

incidents. Accordingly, EPA has 

determined that this condition for 

storage is necessary and appropriate for 

reclamation facilities and intermediate 

facilities that take advantage of this 

exclusion to show that storage of these 

materials is not just another way of 

disposing of them. In addition, it will 

establish an expectation for the owner/ 

operators of such facilities that they 

must manage hazardous secondary 

materials in a manner at least as 

protective as they would an analogous 

raw material and in such a way that 

materials would not be released into the 

environment. 


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Management of recycling residuals. 

Another condition of the verified 

recycler exclusion is that any residuals 

that are generated from the reclamation 

processes must be managed in a manner 

that is protective of human health and 

the environment. If any residuals 

exhibit a hazardous characteristic 

according to subpart C of 40 CFR part 

261, or themselves are listed hazardous 

wastes, they are hazardous wastes (if 

discarded) and must be managed 

according to the applicable 

requirements of 40 CFR parts 260 

through 273. 

This condition is the same as the 

parallel condition in the 2008 transferbased exclusion and the purpose of this 

condition is to clarify the regulatory 

status of these waste materials and to 

emphasize in explicit terms that 

residuals that are generated from the 

reclamation of hazardous secondary 

materials must be managed properly so 

that the reclamation operation does not 

become another way of avoiding waste 

management and simply becomes 

another way of discarding unwanted 

material. The study of recent (i.e., postCERCLA and post-RCRA) recyclingrelated environmental problems 

revealed that mismanagement of 

residuals was the cause of such 

problems in one-third of the incidents 

that were documented. Some common 

examples of these mismanaged residuals 

were acids and casings from the 

processing of lead-acid batteries, 

solvents and other liquids generated 

from cleaning drums at drum 

reconditioning facilities, and PCBs and 

other oils generated from disassembled 

transformers. In many of these damage 

incidents, the residuals were simply 

disposed of on-site with little regard for 

the environmental consequences of such 

mismanagement or possible CERCLA 

liabilities associated with cleanup of 

these releases. By making proper 

management of the recycling residuals a 

condition of the exclusion, EPA ensures 

that the reclamation operation is not just 

another way of discarding hazardous 

constituents. This has the added benefit 

of ensuring that the reclamation 

operation does not pose a significant 

risk to human health and the 

environment. 

Financial Assurance. The financial 

assurance condition is another 

condition that is the same as the parallel 

condition in the transfer-based 

exclusion. By obtaining financial 

assurance, the reclamation or 

intermediate facility is making a direct 

demonstration that it will not abandon 

the hazardous secondary materials, it 

will properly decontaminate equipment, 

and it will clean up any unacceptable 

releases, even if events beyond its 

control make its operations 

uneconomical. Moreover, financial 

assurance also addresses the correlation 

of the financial health of a reclamation 

or intermediate facility with the absence 

of discard. In essence, financial 

assurance will help demonstrate that the 

reclamation facility or intermediate 

facility owner/operators who would 

operate under the terms of this 

exclusion are financially sound and will 

not discard the hazardous secondary 

materials, or if the facility faces 

financial difficulties, that funds would 

have been set aside to address any 

issues and, therefore, these costs will 

not be imposed on the U.S. taxpayer. 

The financial assurance requirement 

has been retained in 40 CFR part 261 

subpart H because the substance of the 

requirement is unchanged from the 

financial assurance requirement for the 

2008 DSW transfer-based exclusion. 

However, the financial assurance 

condition is now one of the criteria that 

is evaluated under the verified recycler 

solid waste variance, allowing the state 

or EPA to verify that the financial 

assurance obtained by the reclamation 

facility or intermediate facility is 

sufficient and accessible (in contrast, 

the financial assurance condition in the 

2008 DSW transfer-based exclusion was 

self-implementing and not subject to 

review by EPA or the authorized state 

prior to the facility beginning 

operation). 

A detailed discussion of the 40 CFR 

part 261 subpart H financial assurance 

provisions can be found in the 2008 

DSW final rule at 73 FR 64692–8, 

October 30, 2008. 

Verification of the Recycler. As 

discussed earlier, the condition 

requiring verification of the recycler is 

the one of the major differences between 

the transfer-based exclusion and the 

verified recycler exclusion and 

addresses the major regulatory gap in 

the transfer-based exclusion of lack of 

oversight and public participation for 

hazardous secondary material recycling 

facilities that do not have RCRA 

permits. The reclaimer and intermediate 

facility must have been granted a solid 

waste variance by EPA or an authorized 

state under § 260.31(d) or must have a 

RCRA Part B permit or interim status 

standards that address the management 

of the hazardous secondary materials. 

An intermediate or reclamation facility 

may apply for a solid waste variance to 

accept hazardous secondary materials 

by addressing the substantive criteria of 

the ‘‘reasonable efforts’’ condition that 

had previously applied to the hazardous 

secondary material generator under 40 

CFR 261.4(a)(24)(B). In addition, the 

variance must address the potential for 

risk to proximate populations from 

unpermitted releases of the hazardous 

secondary material to the environment. 

Specifically, to qualify for the solid 

waste variance, the facility must address 

the following criteria: 

(1) The intermediate or reclamation 

facility must demonstrate that the 

reclamation process for the hazardous 

secondary materials is legitimate 

pursuant to § 260.43; 

(2) The intermediate or reclamation 

facility must satisfy the financial 

assurance condition in 

§ 261.4(a)(24)(vi)(F); 

(3) The intermediate or reclamation 

facility must not be subject to a formal 

enforcement action in the previous three 

years and must not be classified as a 

significant non-complier under RCRA 

Subtitle C, or must provide credible 

evidence that the facility will manage 

the hazardous secondary materials 

properly. Credible evidence may 

include a demonstration that the facility 

has taken remedial steps to address the 

violations and prevent future violations, 

or that the violations are not relevant to 

the proper management of the 

hazardous secondary materials; 

(4) The intermediate or reclamation 

facility must have the equipment and 

trained personnel to safely manage the 

hazardous secondary material and must 

meet emergency preparedness and 

response requirements; 

(5) If residuals are generated from the 

reclamation of the excluded hazardous 

secondary materials, the reclamation 

facility must have the permits required 

(if any) to manage the residuals, have a 

contract with an appropriately 

permitted facility to dispose of the 

residuals, or present credible evidence 

that the residuals will be managed in a 

manner that is protective of human 

health and the environment; and 

(6) The intermediate or reclamation 

facility must address the potential for 

risk to proximate populations from 

unpermitted releases of the hazardous 

secondary material to the environment 

(including 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, potential 

releases through surface transport by 

precipitation runoff, releases to soil and 

groundwater, wind-blown dust, fugitive 

air emissions, and catastrophic unit 

failures), and must include 

consideration of potential cumulative 

risks from other nearby potential 

stressors. 

The rationale for each of these criteria 

is discussed below. 

Criterion (1) is based on the first 

reasonable efforts question in the 2008 


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transfer-based exclusion and focuses on 

whether the reclamation facility 

receiving hazardous secondary materials 

from a generator legitimately recycles 

such materials. Determining whether a 

recycling operation is legitimate is a 

fundamental basis for establishing that a 

generator’s hazardous secondary 

materials will not be discarded. For 

further discussion of legitimate 

recycling, see section VIII. 

Criterion (2) is based on the second 

reasonable efforts question in the 2008 

transfer-based exclusion and addresses 

whether the facility has the necessary 

financial assurance to cover the costs of 

managing any hazardous secondary 

materials that remain if the facility 

closes. If a facility was found to have 

failed to meet the condition to have 

financial assurance, then it also would 

have failed to show a good faith effort 

towards demonstrating that it intends to 

recycle the hazardous secondary 

materials (or, in the case of the 

intermediate facility, properly store the 

hazardous secondary material) and not 

discard them. Note that the second 

reasonable efforts question also required 

the generator to verify that the 

regulatory authority had been notified 

by the recycler under the 2008 transferbased exclusion, but under the verified 

recycler exclusion, the state or EPA can 

verify that directly, thus, it is not 

included here. 

Criterion (3) is based on the third 

reasonable efforts question in the 

transfer-based exclusion and focuses on 

the compliance history of the recycler or 

the intermediate facility (to the extent 

that the hazardous secondary material 

generator uses an intermediate facility). 

The language of this requirement has 

been simplified from the corresponding 

reasonable efforts question because the 

information is submitted to the 

regulatory agency who already has 

access to the pertinent enforcement 

information, rather than obtained by the 

generator who would need to rely on 

publicly-available data. This criterion 

requires that the facility must either not 

be subject to a formal enforcement 

action in the previous three years and 

not be classified as a significant noncomplier under RCRA Subtitle C, or 

must provide credible evidence that the 

facility will manage the hazardous 

secondary materials properly. 

‘‘Formal enforcement’’ is a written 

document that mandates compliance 

and/or initiates a criminal, civil or 

administrative process, with or without 

appeal rights before a trial of fact that 

results in an enforceable agreement or 

order and an appropriate sanction. For 

EPA, formal enforcement action is a 

referral to the U.S. Department of Justice 

for the commencement of a criminal or 

civil action in the appropriate U.S. 

District Court, or the filing of an 

administrative complaint, or the 

issuance of an order, requiring 

compliance and a sanction. For states, 

formal enforcement action is a referral 

to the state’s Attorney General for the 

commencement of a criminal, civil or 

administrative action in the appropriate 

forum, or the filing of an administrative 

complaint, or the issuance of an order, 

requiring compliance and a sanction. 

‘‘Significant non-complier’’ is a defined 

term in EPA’s Hazardous Waste Civil 

Enforcement Response Policy and 

means the violators have caused actual 

exposure or a substantial likelihood of 

exposure to hazardous waste or 

hazardous waste constituents; are 

chronic or recalcitrant violators; or 

deviate substantially from the terms of 

a permit, order, agreement, or from the 

RCRA statutory or regulatory 

requirements. In evaluating whether 

there has been actual or likely exposure 

to hazardous waste or hazardous waste 

constituents, EPA and the states 

consider both the environmental and 

human health concerns, including the 

potential exposure of workers to 

hazardous waste or hazardous waste 

constituents. For both terms, see EPA’s 

Hazardous Waste Civil Enforcement 

Response Policy (Dec. 2003) at http://

www.epa.gov/compliance/resources/

policies/civil/rcra/finalerp1203.pdf. 

While a facility being designated as a 

significant non-complier and/or the 

subject of a formal enforcement action 

does not automatically mean that the 

facility would not reclaim the hazardous 

secondary materials properly, it does 

raise questions that we believe the 

facility requesting the variance should 

address. That is, if any formal 

enforcement actions were taken against 

the facility in the previous three years 

for such non-compliance and the facility 

was alleged to be a significant noncomplier, the facility must adequately 

explain how it has resolved any issues 

or how the reclamation facility will 

properly manage the hazardous 

secondary materials to avoid future 

violations and/or enforcement actions. 

Criterion (4) is based on the fourth 

reasonable efforts question from the 

2008 transfer-based exclusion and 

addresses the technical capability of the 

recycler or intermediate facility, the 

most basic requirement for ensuring 

proper and legitimate recycling of 

hazardous secondary materials. If a 

reclamation or intermediate facility was 

found to have no equipment or 

inadequate equipment for storing the 

hazardous secondary material or was 

found to have personnel who have not 

been trained for reclaiming the 

hazardous secondary materials, it raises 

serious questions as to whether the 

facility would properly manage such 

materials and avoid discarding them to 

the environment. This criterion also 

includes the addition of verifying that 

the facility meets the new emergency 

preparedness and response condition 

discussed earlier. 

Criterion (5) is based on the fifth 

reasonable efforts question in the 2008 

transfer-based exclusion and addresses 

another major cause of environmental 

problems from recycling hazardous 

secondary materials: the management of 

residuals. This criterion relates to 

discard through the concept that a 

generator or reclaimer may actually be 

discarding hazardous secondary 

materials through the release of 

residuals from the recycling process. 

While the product made from recycling 

may be a legitimate product, the whole 

recycling process could be considered 

discard if hazardous constituents from 

the recycled hazardous secondary 

materials are released to the 

environment. Roughly one-third of the 

damage cases documented in EPA’s 

environmental problems study were 

caused by mismanagement of the 

residuals from recycling. To address 

criterion (5), the petitioner would need 

to demonstrate that the reclamation 

facility has practices in place to ensure 

that residuals are managed in a manner 

that is protective of human health and 

the environment and according to 

applicable federal or state standards. 

Criterion (6) is a new standard not 

included in the 2008 transfer-based 

exclusion and is a case-specific 

performance-based criterion that 

addresses the risk to proximate 

populations from unpermitted releases 

of the hazardous secondary material to 

the environment (including 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, 

potential releases through surface 

transport by precipitation runoff, 

releases to soil and groundwater, windblown dust, fugitive air emissions, and 

catastrophic unit failures), and must 

include consideration of potential 

cumulative risks from other nearby 

potential stressors. The purpose of this 

criterion is to specifically address the 

differences in the preventative measures 

between a RCRA-permitted facility as 

compared to a facility managing 

excluded hazardous secondary material, 

including the lack of prescriptive 

standards for storage and containment 

(including air emissions standards). In 

addition, this criterion would address 

the finding that many of the populations 


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likely to be proximate to hazardous 

secondary materials recycling facilities 

are subject to multiple environmental 

stressors, including other industrial 

facilities, landfills, transportationrelated air emissions, poor housing 

conditions (e.g., lead-based paint), 

leaking underground tanks, pesticides, 

and incompatible land uses. 

The steps the petitioner would take to 

address this criterion would depend on 

case-specific circumstances. For 

example, a facility that is recycling a 

hazardous secondary material that is not 

particularly mobile in the environment 

(e.g., a non-liquid material that does not 

pose a risk of wind-blown dust) and is 

not located near population centers 

would simply need to document these 

facts in order to meet this criterion. On 

the other hand, a facility recycling a 

hazardous secondary material that is 

volatile, ignitable, or otherwise has a 

high potential to adversely impact 

nearby populations in case of a release 

would need to document the specific 

steps taken to prevent releases. EPA 

recommends that the petitioner engage 

the potentially affected community in 

developing this document to ensure that 

they have addressed the concerns 

expressed by the community. 

E. Procedure for Obtaining a Verified 

Recycler Solid Waste Variance 

The process for obtaining a verified 

recycler solid waste variance is the same 

as that for the other solid waste 

variances found in 40 CFR 260.30. In 

order to obtain a variance, a facility that 

manages hazardous secondary materials 

that would otherwise be regulated under 

40 CFR part 261 as either a solid waste 

or a hazardous waste must apply to the 

Administrator or the authorized state 

per the procedures described in 40 CFR 

260.33, which EPA is amending today to 

apply to verified recyclers and 

intermediate facilities. The application 

must address the relevant criteria 

discussed in detail above. The 

Administrator or authorized state will 

evaluate the submission and issue a 

draft notice tentatively granting or 

denying the application. Notification of 

this tentative decision will be provided 

by newspaper advertisement or radio 

broadcast in the locality where the 

facility is located. The Administrator or 

authorized state will accept comment on 

the tentative decision for 30 days and 

may also hold a public hearing. The 

Administrator or authorized state will 

issue a final decision after receipt of 

comments and after the hearing (if 

held). If the application is denied, the 

facility may still pursue a solid waste 

variance or exclusion (for example, one 

of the solid waste variances under 40 

CFR 260.30 or solid waste exclusions 

under 40 CFR 261.4). (Note that today’s 

rule includes several modifications to 

the variances procedure in 40 CFR 

260.33, which would also apply in this 

case. For further discussion see Section 

IX of today’s preamble). 

F. Termination of the Exclusion 

As with the generator-controlled 

exclusion (and the 2008 transfer-based 

exclusion), units managing hazardous 

secondary materials excluded under the 

verified recycler exclusion are not 

subject to the closure regulations in 40 

CFR parts 264 and 265 subpart G. 

However, when the use of these units is 

ultimately discontinued, owners and 

operators of reclamation facilities and 

intermediate facilities must manage any 

remaining hazardous secondary 

materials, including any residues that 

are not reclaimed, as hazardous waste 

and remove or decontaminate 

contaminated containment system 

components, equipment structures, and 

soils. These hazardous secondary 

materials and residues, if no longer 

intended for reclamation, would also no 

longer be eligible for the exclusion 

(which only applies to hazardous 

secondary materials that are reclaimed). 

Failure to remove these materials within 

a reasonable time frame after operations 

cease could cause the facility to become 

subject to the full Subtitle C 

requirements if the Agency determines 

that reclamation is no longer feasible. 

While this final rule does not set a 

specific time frame for these activities, 

they typically should be completed 

within the time frames established for 

analogous activities. For example, the 

requirements for product tanks under 40 

CFR 261.4(c) allow 90 days for removal 

of hazardous material after the unit 

ceases to be operated for manufacturing. 

This time frame should serve as a 

guideline for regulators in determining, 

on a case-by-case basis, whether owners 

and operators of reclamation facilities 

and intermediate facilities have 

completed these activities within a 

reasonable time frame. In any event, 

these hazardous secondary materials 

remain subject to the speculative 

accumulation restrictions in 40 CFR 

261.4(a)(8), which includes both a time 

limitation of recycling 75% of the 

hazardous secondary material within a 

year and a requirement that the facility 

be able to show there is a feasible means 

of recycling the hazardous secondary 

material. 

VII. Remanufacturing Exclusion 

Today, EPA is also finalizing an 

exclusion from the definition of solid 

waste for higher-value solvents 

transferred from one manufacturer to 

another for the purpose of extending the 

useful life of the original solvent 

product by keeping such materials in 

commerce to reproduce a commercial 

grade of the original solvent product 

provided that certain conditions are 

met. For the purpose of this preamble 

discussion, EPA is defining this process 

as ‘‘remanufacturing.’’ Remanufacturing 

that conforms to these conditions would 

not involve discard, and therefore the 

hazardous secondary materials would 

not be regulated as solid waste. As with 

all recycling-related exclusions and 

exemptions, such excluded hazardous 

secondary materials would also need to 

be recycled legitimately. (A discussion 

of the public comments on the July 2011 

proposal and the Agency’s responses 

can be found in section XVI of this 

preamble and the full response to 

comment document is in the docket for 

the rulemaking.) 

A. Purpose of the Remanufacturing 

Exclusion 

In finalizing this conditional 

exclusion, EPA’s objective is to 

encourage sustainable materials 

management by identifying specific 

types of transfers of hazardous 

secondary materials to third parties, that 

under appropriate conditions, do not 

involve discard and can result in 

extending the useful life of a 

commercial-grade chemical. 

Remanufacturing these higher-value 

hazardous secondary materials can have 

a significantly lower environmental 

impact than manufacturing these 

chemicals for a one-time use and then 

transferring them for disposal. Thus, 

remanufacturing allows the hazardous 

secondary material product to be used 

again, lowering their life-cycle 

environmental impacts significantly. 

Specifically, EPA has determined 

that, under appropriate conditions, the 

potential for discard in inter-company 

remanufacturing transfers for certain 

higher-value spent solvents would be 

low because they will be incorporated 

into the manufacturing process rather 

than accumulated or disposed of. Once 

these solvents are remanufactured to 

commercial grade, they can be used as 

replacements for virgin commercial 

grade solvents. The economic incentive 

for a company receiving the spent 

solvents would be to sell or directly use 

(avoiding purchase of virgin product) 

the remanufactured solvent products to 

realize an economic value. The 

company sending these higher-value 

spent solvents for remanufacturing is 

expected to have little economic 

incentive to pay the receiving company 

more than a nominal amount of money, 


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1716 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

18U.S. EPA. 2020 Vision Report: Sustainable 

Materials Management: The Road Ahead, Table 1, 

page 25. .www.epa.gov/waste/inforesources/pubs/

vision.htm. The other top ranked sectors are electric 

services (#1) and cotton production (#2). 

19Allen, D., Shonnard, D, Green Engineering: 

Environmentally Conscious Design of Chemical 

Processes, Risk Concepts, chapter 2, pgs 35–62, 

Austin, S., US EPA Editor, Published by PrenticeHall, 2001. 

20For information on U.S. EPA’s Green Chemistry 

Program, see http://www.epa.gov/gcc/. 

21 Information on the American Chemical 

Society’s Green Chemistry Institute’s 

Pharmaceutical Roundtable is available via the ACS 

Web site http://portal.acs.org/portal/acs/corg/

content. 

22All solvents are volatile, and virtually all spent 

solvents must go through the fuel-blending process 

prior to disposal (U.S. EPA, Selection of Industry 

Sectors, Chemicals and Functions in the 

Remanufacturing Exclusion, June 2011). 

23 Id. 

since it would already be transferring 

something of intrinsic market value 

(materials that can be easily 

remanufactured for profit). So, unlike 

the RCRA-permitted waste handler 

which can charge a considerable fee for 

receiving discarded waste, the company 

receiving these higher-value spent 

solvents for remanufacturing is expected 

to realize most of its profit from the sale 

or use of the remanufactured solvents. 

Once remanufacturing processes are 

in place, EPA expects that solvent 

remanufacturers would be competitive 

with other solvent manufacturers even 

in the event of a downturn in the sizable 

chemical market. Companies would also 

have the flexibility to redirect 

remanufacturing capacity to 

manufacturing should it ever make 

economic sense to do so, leaving little 

economic reason to accumulate unsold 

or unused remanufactured solvents. 

B. Scope and Applicability 

1. Designated Solvents 

The conditional exclusion for 

remanufacturing applies to hazardous 

spent solvents that are currently 

regulated as hazardous wastes because 

their recycling involves reclamation. 

Only the following 18 spent solvents are 

eligible for the remanufacturing 

exclusion: Toluene, xylenes, 

ethylbenzene, 1,2,4-trimethylbenzene, 

chlorobenzene, n-hexane, cyclohexane, 

methyl tert-butyl ether, acetonitrile, 

chloroform, chloromethane, 

dichloromethane, methyl isobutyl 

ketone, NN-dimethylformamide, 

tetrahydrofuran, n-butyl alcohol, 

ethanol, and/or methanol. 

These 18 solvents are used in large 

volumes as chemical manufacturing 

aids, chemical processing aids, and 

chemical formulation aids (generally 

referred to as ‘‘processing aids’’ for the 

purpose of this rule). The processing aid 

solvents assist in the reaction, 

extraction, purification, and blending of 

ingredients and reactive products, but 

are not themselves reacted. These 

processing aid solvents, once used, can 

then be remanufactured to commercial 

grade again. These higher-value solvents 

were selected because there are existing 

markets for all these solvents to be 

remanufactured to serve similar 

purposes to those of the original 

commercial-grade materials. 

Note that, as explained below, these 

hazardous spent solvents are only 

eligible if they are remanufactured to 

serve certain types of chemical 

functions, and if their originating use 

was of a specific type. This restriction 

limits the exclusion to higher-value 

materials and processes that resemble 

manufacturing rather than waste 

management. 

Hazardous spent solvents are 

particularly appropriate for the 

remanufacturing exclusion because they 

are derived from a non-renewable 

resource (petroleum), and they are 

manufactured in the industrial 

chemicals sector, which, according to 

EPA’s report on sustainable materials 

management, ranks third overall as far 

as direct adverse overall impact to the 

environment.18

In addition, remanufacturing these 

spent solvents represents an 

opportunity for risk reduction. Risk is a 

function of hazard and exposure, and, 

from a hazard perspective, all of these 

chemicals have suspected or recognized 

hazardous health effects associated with 

their manufacture, processing, and 

use.19 Although EPA and industry have 

been working to find substitutes for the 

more hazardous of these solvents, or 

find ways to use less of them, this has 

not yet been fully achieved.20 21 With 

respect to the pharmaceutical sector in 

particular, complex chemical processes 

already registered with the Food and 

Drug Administration are involved, and 

EPA has found this a very challenging 

area to address. 

In addition, some of these solvents are 

building block and primary 

intermediate chemicals, making them 

difficult to replace. Until lower-risk 

substitutes for these solvents are found, 

it is appropriate from a health risk 

standpoint to minimize the volume of 

solvents manufactured and to limit 

exposure to those already manufactured. 

This is the intention of the 

remanufacturing exclusion. 

The exclusion can reduce exposure to 

these solvents in three ways. First, the 

exclusion would extend the useful life 

of existing solvents, which would 

reduce the health risks associated with 

their manufacture by slowing the rate at 

which they are manufactured. Second, 

the exclusion would reduce exposure to 

solvents already manufactured by 

reducing the fuel blending of spent 

solvents. That is, remanufacturing a 

spent solvent will eliminate the need for 

blending it with another spent solvent 

to satisfy the fuel-ratio requirements of 

incinerators and cement kilns. This, in 

turn, will reduce the fugitive emissions 

associated with unloading and loading 

containers of volatile solvents at fuelblending facilities.22 Third and finally, 

the exclusion can reduce the potential 

exposure from any transportation 

incidents, since it is likely that spent 

solvents can be transported shorter 

distances for remanufacturing purposes 

than they can for disposal purposes.23

2. Chemical Functions 

After remanufacturing, the continuing 

use of the solvent is limited to reacting, 

extracting, purifying, or blending 

chemicals (or for rinsing out the process 

lines associated with these functions), 

or using them as ingredients in a 

product in the pharmaceutical, organic 

chemical, plastics and resins 

manufacturing sectors, or the paint and 

coatings sector. Furthermore, the 

continuing use of the solvent, after 

remanufacturing, cannot involve 

cleaning or degreasing oil, grease, or 

similar material from textiles, glassware, 

metal surfaces, or other articles. 

EPA has selected these chemical 

functions because the remanufactured 

chemical product should serve a similar 

functional purpose as the original 

commercial-grade material so that it can 

substitute for virgin product, since it is 

this substitution that displaces some 

manufacturing of virgin product and 

fosters a system where the original 

solvent remains in commerce and is not 

discarded. In these functions, the 

solvents do not get contaminated by 

substances, such as inks and greases 

that are difficult to separate, but only get 

mixed with pure product ingredients, 

from which they can be separated 

readily in a commercially feasible 

manner. 

Furthermore, manufacturing and 

processing operations can be more 

easily controlled in terms of exposure 

and releases, whereas the spent solvents 

from downstream uses, such as 

degreasing and cleaning operations are 

of inherently lower-value and these 

downstream operations result in more 

widespread exposure and releases and a 

higher potential for discard. 

In addition, more environmental 

benefits will be obtained by maximizing 

the number of times a chemical product 

can be used at high-purity grade as an 


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24U.S. EPA, Selection of Industry Sectors, 

Chemicals and Functions in the Remanufacturing 

Exclusion, June 2011. 

25As with the generator-controlled exclusion in 

40 CFR 261.4(a)(23), notification is a condition of 

the remanufacturing exclusion. See section XIV.F 

for further discussion. 

26This condition is parallel to the provisions 

found at 40 CFR 264.1030(e) for AA, 40 CFR 

264.1064(m) for BB, and 40 CFR 264.1080(7) for CC. 

aid to chemical manufacturing and 

processing, before it is used for at lowerpurity as a cleaner or degreaser. While 

it is possible to extend the product life 

of a used chemical as a cleaner/

degreaser, it takes significantly less 

energy to bring solvents used as 

chemical manufacturing aids back to 

commercial grade than to bring solvents 

used as cleaners and degreasers back to 

lower grade functionality, making 

remanufacturing of the higher-value 

solvents more economically feasible. 

3. Manufacturing Sectors 

The remanufacturing exclusion is 

limited to companies whose primary 

business is manufacturing, rather than 

waste management, as indicated by 

particular NAICS codes. Four 

manufacturing sectors are eligible for 

the remanufacturing exclusion: 

Pharmaceutical manufacturing (NAICS 

325412), basic organic chemical 

manufacturing (NAICS 325199), plastics 

and resins manufacturing (NAICS 

325211), and the paints and coatings 

manufacturing sectors (NAICS 325510). 

Manufacturers within these four sectors 

all use one or more of the 18 identified 

solvents as chemical manufacturing, 

processing, and formulation aids in high 

volumes. Based on the Toxics Release 

Inventory information, these four 

sectors are also closely associated with 

the chemical functions identified in the 

exclusion and currently use a high 

volume of the solvents for the functional 

purposes included in this exclusion.24

EPA is limiting the remanufacturing 

exclusion to companies whose business 

is primarily manufacturing because the 

nature of the exclusion relies on the fact 

that the eligible spent solvents are 

indistinguishable from a risk 

perspective from the virgin chemicals 

that manufacturers in these sectors are 

already accustomed to handling—no 

special equipment and personal training 

beyond what the facility already has 

would be needed. Chemical 

manufacturers in these sectors are also 

subject to the Occupational Safety and 

Health Act (OSHA) and Clean Air Act 

(CAA) standards that cover the 

management of these chemicals. 

C. Conditions 

Facilities operating under the 

remanufacturing exclusions must meet 

the following conditions. 

1. Notification 

Hazardous secondary material 

generators and remanufacturers must 

submit a notification prior to operating 

under the exclusion and by March 1 of 

each even-numbered year thereafter 

using EPA form 8700–12 to the EPA 

Regional Administrator or the State 

Director, in an authorized state. 

Additionally, these facilities would 

have to notify within 30 days of 

stopping management of hazardous 

secondary materials under the 

exclusion. 

The intent of the notification 

condition is to provide basic 

information to the regulatory agencies 

about who will be managing the 

hazardous secondary spent solvents 

under the remanufacturing exclusion. 

The specific information included in the 

notification—that is, the information on 

EPA form 8700–12—enables regulatory 

agencies to monitor compliance and to 

ensure that the hazardous secondary 

spent solvents are managed in 

accordance with the exclusion and not 

discarded.25

2. Remanufacturing Plan 

A key issue for the remanufacturing 

exclusion is how the facilities operating 

under the exclusion would demonstrate 

that they meet the requirements (e.g., 

that the hazardous spent solvents, 

functions, and manufacturing sectors 

are those identified in the exclusion). A 

straightforward solution is requiring a 

remanufacturing plan to be prepared 

and maintained by both the hazardous 

secondary material generator and 

remanufacturer that includes 

information on the types and expected 

annual quantities of excluded spent 

solvents, the processes and industry 

sectors that generate the spent solvents, 

and the specific uses and industry 

sectors—for the remanufactured 

solvents. 

The hazardous secondary material 

generator is also required to make 

arrangements with the remanufacturer 

to jointly develop this plan and to verify 

the appropriateness of the hazardous 

spent solvents for the remanufacturing 

process before claiming the exclusion, 

thus helping ensure that the hazardous 

spent solvents will be remanufactured 

and not discarded. 

Finally, to help ensure that the 

remanufacturer is a legitimate 

remanufacturer, the plan must include a 

certification from the remanufacturer 

stating ‘‘on behalf of [insert 

remanufacturer facility name], I certify 

that this facility is a remanufacturer 

under the pharmaceutical 

manufacturing (NAICS 325412), basic 

organic chemical manufacturing (NAICS 

325199), plastics and resins 

manufacturing (NAICS 325211), and/or 

the paints and coatings manufacturing 

sectors (NAICS 325510), and will accept 

the spent solvent(s) for the sole purpose 

of remanufacturing into commercialgrade solvent(s) that will be used for 

reacting, extracting, purifying, or 

blending chemicals (or for rinsing out 

the process lines associated with these 

functions) or for use as product 

ingredients. I also certify that the 

remanufacturing equipment, vents, and 

tanks are equipped with and are 

operating air emission controls in 

compliance with CAA regulations under 

40 CFR part 60, part 61 or part 63,26 or, 

absent such CAA standards for the 

particular operation or piece of 

equipment covered by the 

remanufacturing exclusion, are in 

compliance with the appropriate 

standards in 40 CFR part 261 subparts 

AA (vents), BB (equipment) and CC 

(tank storage).’’ 

One of the issues raised in the 

comments was concern that the 

remanufacturing plan would stifle 

competitiveness by locking the 

generator into a single remanufacturer 

for their hazardous spent solvents. That 

was not the Agency’s intention, and 

EPA would like to clarify that the 

remanufacturing plan can be updated 

any time to reflect a new remanufacturer 

without triggering a re-notification 

requirement on the part of the generator. 

(If the new remanufacturer has not 

notified before, then he would need to 

do so under the exclusion.) As long as 

the remanufacturing plan that is kept 

on-site reflects the current practices, 

including making sure that there is a 

remanufacturer that will accept the 

hazardous spent solvents, the generator 

would be in compliance with this 

condition. 

3. Record of Shipments and 

Confirmation of Receipts 

Under the remanufacturing exclusion, 

generators and remanufacturers need to 

maintain at the facility records of 

shipments of hazardous spent solvents 

for a period of three years. Specifically, 

for each shipment of hazardous spent 

solvent, the generator and 

remanufacturer need to maintain 

documentation of when the shipment 

occurred, who the transporter was, and 

the type and quantity of the hazardous 

spent solvent in the shipment. This 

recordkeeping requirement may be 


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27U.S. EPA, An Assessment of Environmental 

Problems Associated with Recycling of Hazardous 

Secondary Materials (Updated), December 2014. 

28U.S. EPA Equivalent Containment Standards 

for the Remanufacturing Exclusion, June 2011. 

29This condition is parallel to the provisions 

found at 40 CFR 264.1030(e) for subpart AA, 40 

CFR 264.1064(m) for subpart BB, and 40 CFR 

264.1080(7) for subpart CC. 

fulfilled by ordinary business records, 

such as bills of lading. 

In addition, generators must maintain 

confirmations of receipt for all off-site 

shipments of hazardous spent solvent in 

order to verify that the hazardous spent 

solvent reached their intended 

destination and were not discarded. 

These receipts must be maintained at 

the facility for a period of three years 

from when they were created. 

Specifically, the documentation of 

receipt would include the name and 

address of the remanufacturer, and the 

type and quantity of hazardous spent 

solvents and date that the hazardous 

spent solvents were received. The 

Agency is not requiring a specific 

template or format for confirmation of 

receipt since routine business records 

(e.g., financial records, bills of lading, 

and electronic confirmation of receipt) 

would contain the appropriate 

information sufficient for meeting this 

requirement. 

This provision is necessary so all 

parties responsible for the excluded 

hazardous spent solvent would be able 

to demonstrate that the materials were 

in fact sent for remanufacturing and 

arrived at the intended facility and were 

not discarded in transit. 

4. Management in Tanks and Containers 

Basic good management practices 

dictate that solvents, whether virgin or 

spent, are best stored in tanks or 

containers that possess inherent 

controls to address issues, such as 

volatile air emissions, leaks, and fires or 

explosions. Solvents present particular 

management challenges associated with 

the storage of liquids containing volatile 

organic chemicals and include both 

halogenated and non-halogenated 

organic chemicals, which represent a 

broad range of chemicals and associated 

hazards. 

By focusing on higher-value spent 

solvents going to remanufacturing, the 

remanufacturing exclusion reduces the 

chance of mismanagement of the spent 

solvents. However, given the history of 

spent solvent mismanagement, as 

demonstrated in the damage cases found 

in environmental problems study, EPA 

has determined that it is appropriate to 

make an explicit condition that spent 

solvents excluded under the 

remanufacturing exclusion be stored 

prior to remanufacturing in tanks or 

containers that are labeled and that meet 

technical standards that will ensure the 

hazardous spent solvents will go to 

remanufacturing and will not be 

discarded via leaks, spills or 

explosions.27

For ease of implementation, EPA is 

establishing explicit tank and container 

standards in 40 CFR part 261 subparts 

I and J. These technical standards are 

the same as those found in 40 CFR part 

264 subparts I and J, except that the part 

261 subparts I and J specify that the 

material is ‘‘hazardous secondary 

material’’ rather than hazardous waste, 

omit references to RCRA permitting 

requirements, and include other minor 

conforming changes, as discussed 

below. Although the 40 CFR part 264 

tank and container standards were 

developed for hazardous wastes, an 

analysis of the full set of technical 

requirements under subparts I and J 

shows that they are comparable to 

product storage standards, including 

regulations promulgated under OSHA, 

DOT, and industry standards.28 In 

addition to being comparable to product 

storage standards, technical standards 

that mirror subparts I and J of 40 CFR 

part 264 have the benefit of being 

technical standards that the regulated 

community is familiar with, and are 

designed to prevent the spent solvents 

from being discarded through leaks or 

explosions. 

During remanufacturing and storage 

prior to remanufacturing, good 

management practices also include 

effective controls of hazardous air 

emissions. Under the remanufacturing 

exclusion, this is ensured by requiring 

that the remanufacturer certifies, as part 

of the remanufacturing plan, that the 

remanufacturing equipment, vents, and 

tanks are equipped with and are 

operating air emission controls in 

compliance with CAA regulations under 

40 CFR part 60, part 61 or part 63.29

Absent such CAA standards for the 

particular operation or piece of 

equipment covered by the 

remanufacturing exclusion, then the 

appropriate standards in 40 CFR part 

261 subparts AA (vents), BB 

(equipment) and CC (tank storage), 

which are equivalent to the technical 

standards found in 40 CFR part 264 and 

265 subparts AA, BB, and CC, would 

apply. 

The air emission requirements on 

remanufacturing equipment, vents, and 

tanks will ensure that the 

remanufactured solvents do not become 

discarded through fires and explosions, 

guard against the volatilization of 

hazardous spent solvents, and protect 

workers, handlers and transporters from 

spent solvent emissions. EPA notes that 

most manufacturers in the 

pharmaceutical manufacturing (NAICS 

325412), basic organic chemical 

manufacturing (NAICS 325199), plastics 

and resins manufacturing (NAICS 

325211), and the paints and coatings 

manufacturing sectors (NAICS 325510) 

will already have their solvent 

management practices covered under 

the CAA regulations, but for any 

remanufacturer that is not covered 

under CAA, 40 CFR part 261 subparts 

AA, BB, and CC will ensure that they 

meet good management practices 

appropriate for solvent management. 

In modifying the tank and container 

standards and the air emission 

standards to apply specifically to 

solvents being remanufactured under 

the remanufacturing exclusion, EPA has 

made other minor conforming 

regulatory changes to 40 CFR part 261. 

These changes include (1) reserving 

certain subparts, such as subparts K 

through L and N though Z, in order to 

maintain the same numbering as is 

found in part 264 for the tank and 

container standards and the air emission 

standards, (2) codifying 40 CFR 261.197 

to address termination of the 

remanufacturing exclusion (rather than 

closure, as is required in part 264), and 

(3) deleting references to the uniform 

hazardous waste manifest in 40 CFR 

261.1086 because manifest requirements 

are not applicable under the 

remanufacturing exclusion. 

5. Prohibition on Speculative 

Accumulation 

In addition to the other conditions, 

hazardous spent solvents under the 

remanufacturing exclusion are subject to 

the speculative accumulation 

restrictions in 40 CFR 261.1(c)(8). 

Speculative accumulation ensures that 

the hazardous spent solvents are 

remanufactured and not discarded. 

D. Closure of Tank Units 

Units managing excluded hazardous 

spent solvent are not subject to the 

closure regulations in 40 CFR parts 264 

and 265 subpart G. However, when the 

use of these units is ultimately 

discontinued, all owners and operators 

must manage any remaining hazardous 

spent solvents that are not 

remanufactured as hazardous waste and 

remove or decontaminate all hazardous 

residues and contaminated containment 

system components, equipment 

structures, and soils. These hazardous 

spent solvents and residues, if no longer 


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intended for remanufacturing, would 

also no longer be eligible for the 

exclusion (which only applies to 

materials that will be remanufactured) 

and would therefore be hazardous 

waste. These systems would be subject 

to the requirements for product tanks 

under 40 CFR 261.4(c), which allow 90 

days for removal of hazardous material 

after the unit ceases to be operated for 

manufacturing. 

E. Petition Process for Additional 

Remanufacturing Exclusions 

As EPA noted in the 2011 DSW 

proposal, it is possible that other 

hazardous secondary materials, industry 

sectors, and/or functional uses beyond 

those being finalized today may also be 

suitable candidates for the 

remanufacturing exclusion if they 

involve the transfer of a higher-value 

hazardous secondary material from one 

manufacturer to another, for the purpose 

of remanufacturing a material with 

significant commercial value. In the 

2011 DSW proposal, EPA requested 

comment on whether to also include a 

specific petition process, similar to 40 

CFR 260.20, where petitioners may 

apply to EPA to request a hazardous 

secondary material, industry sector, 

and/or functional use be added to the 

exclusion. 

After reviewing the comments, EPA 

has determined that a separate 

rulemaking petition process is not 

necessary and that the current process 

in 40 CFR 260.20, including the 

administrative procedure for processing 

the petition would be the best vehicle 

for addressing additional hazardous 

secondary materials, industry sectors, 

and/or functional uses to the 

remanufacturing exclusion. Given the 

variety of hazardous secondary 

materials, manufacturing processes, and 

markets for potential remanufactured 

materials, a general process gives the 

most flexibility for petitioners to submit 

information on potential excluded 

materials. 

In addition, the Agency would like to 

encourage the research, development, 

and demonstration of innovative 

recycling processes that could be used 

to recover higher-value hazardous 

secondary materials. Therefore EPA 

encourages companies to explore using 

the existing regulatory flexibilities, such 

as treatability study exemptions in 40 

CFR 261.4(e) and (f) and research 

development and demonstration 

permits allowed under 40 CFR 270.65, 

to assess and develop recycling 

technologies to facilitate 

remanufacturing of higher-value 

materials. 

In submitting a rulemaking petition 

under 40 CFR 260.20, petitioners must 

include (1) the petitioner’s name and 

address, (2) a statement of the 

petitioner’s interest in the proposed 

action, (3) a description of the proposed 

action, including (where appropriate) 

suggested regulatory language, and (4) a 

statement of the need and justification 

for the proposed action, including any 

supporting tests, studies, and other 

information. With respect to the fourth 

factor, EPA would encourage petitioners 

to provide any information they believe 

demonstrates that their hazardous 

secondary material is suited for a solid 

waste exclusion under the 

remanufacturing exclusion. Below are 

some considerations that may assist 

petitioners in developing their petitions; 

however, these are guidelines only and 

should not constrain suggested 

rulemaking revisions if the petitioner 

otherwise has information that the 

hazardous secondary material should be 

excluded from regulation. 

(1) Is the hazardous secondary 

material generated from a 

manufacturing process that results in 

minimal contamination, and does the 

hazardous nature of the hazardous 

secondary material stem chiefly from 

the inherent nature of the commercial 

product that is to be recovered, and not 

from any contamination? 

For example, the remanufacturing 

exclusion being promulgated today is 

focused on materials that originated 

from using commercial grade solvents 

for reacting, extracting, purifying, or 

blending chemicals (or for rinsing out 

the process lines associated with these 

functions) in the pharmaceutical 

manufacturing, organic chemical 

manufacturing, plastics and resins 

manufacturing, or paint and coatings 

sector. As a result, the solvents in 

question are only lightly contaminated, 

chiefly with other commercial-grade 

chemicals or minor impurities. 

Moreover, because the hazardous nature 

of the material stems from the recycled 

product (or at least a significant portion 

of the recycled product) and not from 

the contamination, the remanufacturing 

exclusion helps reduce overall risk by 

keeping hazardous chemicals in 

commerce, rather than discarding them. 

(2) Does the hazardous secondary 

material present a similar risk profile as 

an analogous raw material or product 

and require no special storage or 

handling beyond what is normally used 

for the analogous raw material or 

product? 

For example, the spent solvents 

eligible for the remanufacturing 

exclusion present the same risk profile 

as solvent products. The same tanks, 

containers, and transportation standards 

that are used for solvent products also 

work for the spent solvents intended for 

remanufacturing. 

(3) Is there any special equipment or 

personnel training required for the 

remanufacturing of the material or for 

the management of the residuals? 

For example, under the 

remanufacturing exclusion being 

promulgated today, the same distillation 

columns used to manufacture solvents 

from raw materials can be used to 

remanufacture spent solvents. The still 

bottoms generated from both processes 

can be managed in a similar fashion. 

(4) Is the market for the 

remanufactured product stable enough 

to ensure that neither the hazardous 

secondary material nor the 

remanufactured products are overaccumulated? 

For example, the remanufacturing 

exclusion being promulgated today 

focuses on solvents that are known to be 

widely used in a variety of industries for 

the purposes described. 

VIII. Revisions to the Definition of 

Legitimacy and Prohibition of Sham 

Recycling 

EPA has a long-standing policy that 

all recycling of hazardous secondary 

materials must be legitimate, including 

both excluded recycling and the 

recycling of regulated hazardous wastes. 

The legitimacy provision in today’s final 

rule is designed to distinguish between 

real recycling activities—legitimate 

recycling—and ‘‘sham’’ recycling, an 

activity undertaken by an entity to avoid 

the requirements of managing a 

hazardous secondary material as a 

hazardous waste. Because of the 

economic advantages in managing 

hazardous secondary materials as 

recycled materials rather than as 

hazardous wastes, there is an incentive 

for some handlers to claim they are 

recycling when, in fact, they are 

conducting waste treatment and/or 

disposal. 

In this final rulemaking, EPA is 

codifying in its regulations the 

requirement that all recycling must be 

legitimate by adding a prohibition on 

sham recycling to 40 CFR 261.2(g). In 

addition, EPA has changed the 

definition of legitimate recycling in 

§ 260.43. The new definition specifies 

four factors that must be met for 

recycling to be legitimate. However, it 

also provides new ways that a facility 

can show that it meets factors 3 and 4 

of the legitimacy standard. 

The four legitimacy factors are as 

follows: 

• Factor 1: Legitimate recycling must 

involve a hazardous secondary material that 


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provides a useful contribution to the 

recycling process or to a product or 

intermediate of the recycling process. 

• Factor 2: The recycling process must 

produce a valuable product or intermediate. 

• Factor 3: The generator and the recycler 

must manage the hazardous secondary 

material as a valuable commodity when it is 

under their control. 

• Factor 4: The product of the recycling 

process must be comparable to a legitimate 

product or intermediate. 

A. Background 

Under the RCRA Subtitle C definition 

of solid waste, many existing hazardous 

secondary materials are not solid wastes 

and, thus, are not subject to RCRA’s 

cradle to grave management system if 

they are recycled. The basic idea behind 

this construct is that recycling of such 

materials often more closely resembles 

normal industrial manufacturing than 

waste management. However, since 

there can be significant cost savings 

from managing hazardous secondary 

materials outside the RCRA Subtitle C 

regulatory system, some handlers may 

claim that they are recycling, when, in 

fact, they are conducting waste 

treatment and/or disposal in the guise of 

recycling. For example, a facility whose 

primary business was mixing electric 

arc furnace dust (K061) with 

agricultural lime for sale as a 

micronutrient lost its customers and 

could not sell its product, but continued 

to accept K061 even though there was 

no prospect of it being used to produce 

a product. To guard against practices 

like these, EPA has long articulated the 

need to distinguish between 

‘‘legitimate’’ (i.e., true) recycling and 

‘‘sham’’ (i.e., fake) recycling, beginning 

with the preamble to the 1985 

regulations that established the 

definition of solid waste (50 FR 638, 

January 4, 1985). 

The prohibition on sham recycling 

being finalized in this rulemaking is 

consistent with the Agency’s 

longstanding policy and interpretation 

of legitimate recycling that has been 

expressed in those earlier preamble 

discussions and policy statements. The 

January 4, 1985, preamble to the 

definition of solid waste regulations 

established EPA’s concept of legitimacy 

and described several indicators of 

sham recycling. 

On April 26, 1989, the Office of Solid 

Waste (OSW) issued a memorandum 

that consolidated preamble statements 

concerning legitimate recycling that had 

been articulated previously into a list of 

criteria to be considered in evaluating 

legitimacy [OSWER directive 

9441.1989(19)]. This memorandum, 

known to many as the ‘‘Lowrance 

Memo,’’ has been a primary source of 

guidance for the regulated community 

and for implementing agencies in 

distinguishing between legitimate and 

sham recycling for many years. The 

October 2003 and March 2007 DSW 

proposals and the October 2008 DSW 

final rule also all include extensive 

discussions of EPA’s legitimacy policy. 

In the 2008 DSW final rule, EPA 

promulgated a codified legitimacy 

requirement for the specific exclusions 

in that rulemaking. Today’s final rule 

expands that legitimacy requirement to 

all hazardous secondary material 

recycling, as the Agency proposed to do 

in the July 22, 2011, proposal (76 FR 

44094). Section VIII.B discusses these 

final legitimacy provisions and 

describes the requirements. Section 

VIII.C discusses the changes EPA made 

from the proposed regulations. A 

discussion of the public comments on 

the July 2011 proposal and Agency 

responses can be found in section XVII 

of this preamble and the full response 

to comment document is in the docket 

for the rulemaking. 

B. Legitimate Recycling Provisions Being 

Finalized 

This section discusses the rationale 

and the requirements being finalized in 

this rulemaking for ensuring that all 

recycling of hazardous secondary 

material is legitimate. 

1. Legitimacy for All Recycling 

In today’s final rule, EPA is retaining 

its long-standing policy that all 

recycling of hazardous secondary 

materials must be legitimate. If a facility 

is engaged in sham recycling, this, by 

definition, is not real recycling and that 

hazardous secondary material is being 

discarded and is a solid waste. Today, 

we are codifying that the legitimate 

recycling provision applies to all 

hazardous secondary materials that are 

excluded or exempted from Subtitle C 

regulation because they are recycled and 

that it also applies to recyclable 

hazardous wastes that remain subject to 

the hazardous waste regulations. 

However, instead of changing the 

language of each recycling exclusion or 

exemption to include the requirement as 

we proposed in the 2011 DSW proposal, 

we have instead added language in 

§ 261.2(g) that specifically prohibits 

sham recycling to ensure that all 

recycling, including recycling under the 

pre-2008 exclusions is legitimate (i.e., 

real recycling). We have also 

determined that documentation of 

legitimacy is not necessary or required 

for the pre-2008 recycling exclusions 

and exemptions, except in the rare case 

where the recycling is legitimate, but 

does not meet factor 4. 

EPA has determined that the four 

legitimacy factors being codified in 40 

CFR 260.43 are substantively the same 

as the existing legitimacy policy. These 

factors are a simplification and 

clarification of the policy statements in 

the 1989 Lowrance Memo and in 

various DSW Federal Register notices. 

This policy is well understood 

throughout the regulated community 

and among the state implementing 

agencies. By providing one standard of 

legitimacy for all recycling, the Agency 

expects there will be more clarity, 

consistency, and predictability for 

making legitimate recycling 

determinations. Having one standard in 

the regulations will also lead to 

increased knowledge and understanding 

of the basic requirement that any 

recycling must be legitimate, leading to 

better implementation and enforcement 

of the RCRA hazardous waste 

regulations. 

In developing the codified legitimacy 

language, we did not intend to raise 

questions about the status of general 

legitimacy determinations that underlie 

existing exclusions from the definition 

of solid waste (e.g., the solid waste 

exclusions in 40 CFR 261.4(a)), or about 

case-specific determinations that have 

already been made by EPA or the states. 

Current exclusions and other prior solid 

waste determinations or variances that 

are based on the hazardous secondary 

material being legitimately recycled, 

including determinations made in 

letters of interpretation and inspection 

reports, remain in effect. 

Some stakeholders have raised 

concerns with the application of the 

codified legitimacy factors to these 

existing waste-specific and industry 

specific exclusions. In particular, as we 

noted in the October 2003 DSW 

proposal and the March 2007 DSW 

supplemental proposal, EPA has 

examined in depth a number of wastespecific and industry-specific recycling 

activities and has promulgated specific 

regulatory exclusions or provisions that 

address the legitimacy of these practices 

in much more specific terms than the 

general legitimacy factors as described 

in 40 CFR 260.43. 

EPA expects that the vast majority of 

recycling being performed under these 

existing exclusions is currently being 

undertaken conscientiously and would 

be considered legitimate under the new 

legitimacy provision with no further 

action required on the part of the 

company. If a company is meeting the 

conditions of its exclusion while 

managing the hazardous secondary 

material responsibly and using it to 

make a legitimate product, that 

company would not have to change any 


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of its existing business practices or 

otherwise take action to show that its 

recycling meets the legitimacy factors. 

EPA is not requiring documentation of 

compliance with the four legitimacy 

factors, except in the case where the 

recycling does not meet factor 4 on its 

face, but the facility believes that its 

recycling operation is nonetheless 

legitimate. Many of the measures the 

companies take in order to meet the 

terms of the conditional exclusions or to 

follow best management practices are 

the same actions that indicate that a 

recycling process is legitimate. These 

measures and business practices were 

generally evaluated as part of the 

original legitimacy determination by the 

agency, and therefore employment of 

those or similar practices indicated 

legitimate recycling as addressed by the 

original legitimacy determinations. 

One example is the regulation for zinc 

fertilizers made from recycled 

hazardous secondary materials. If the 

hazardous secondary material recycled 

under the exclusion contains 

recoverable amounts of zinc, which 

provides a useful contribution to the 

recycled product (factor 1) and results 

in a valuable product, i.e., zinc 

micronutrient fertilizer (factor 2), EPA 

would consider these legitimacy factors 

to be met. In addition, under the 

exclusion, the generator and recycler 

must manage the zinc-containing 

hazardous secondary material as a 

valuable commodity (factor 3), that is, in 

compliance with 261.4(a)(20)(ii)(B): 

Store the excluded secondary material 

in tanks, containers, or buildings that 

are constructed and maintained in a 

way that prevents releases of the 

secondary materials into the 

environment. At a minimum, any 

building used for this purpose must be 

an engineered structure made of nonearthen materials that provide structural 

support, and must have a floor, walls 

and a roof that prevent wind dispersal 

and contact with rainwater. Tanks used 

for this purpose must be structurally 

sound and, if outdoors, must have roofs 

or covers that prevent contact with wind 

and rain. Containers used for this 

purpose must be kept closed except 

when it is necessary to add or remove 

material, and must be in sound 

condition. Containers that are stored 

outdoors must be managed within 

storage areas that: (1) Have containment 

structures or systems sufficiently 

impervious to contain leaks, spills and 

accumulated precipitation; and (2) 

provide for effective drainage and 

removal of leaks, spills and 

accumulated precipitation; and (3) 

prevent run-on into the containment 

system. Finally, in the zinc fertilizer 

regulation, among the requirements 

established by EPA are specific 

numerical limits on five heavy metal 

contaminants and dioxins in the zinc 

fertilizer product at 40 CFR 261.4(a)(21). 

If the zinc fertilizer product meets these 

concentrations, the product would meet 

factor 4 (assuming other hazardous 

secondary contaminants have not been 

added to the product). 

Another example is shredded circuit 

boards excluded under 40 CFR 

261.4(a)(14). Shredded circuit boards 

that contain recoverable metals that 

provide a useful contribution to the 

product of the recycling process (factor 

1) and go to a recycling process that 

produces a valuable metal product 

(factor 2) would meet these legitimacy 

factors. In addition, under the 

exclusion, the shredded circuit boards 

must be stored in containers sufficient 

to prevent a release to the environment 

prior to recovery (factor 3) and must be 

free of mercury switches, mercury relays 

and nickel-cadmium and lithium 

batteries (factor 4). 

Another example is hazardous 

secondary materials recycled in a 

‘‘closed-loop’’ production process under 

40 CFR 261.4(a)(8). Under this 

exclusion, the hazardous secondary 

material is reused within the production 

process from which it came, thus 

providing a useful contribution to the 

product (factor 1) and also producing a 

valuable product or intermediate (factor 

2) (assuming that the production 

process is, by definition, producing a 

product). Since the closed-loop 

exclusion requires tank storage and that 

the entire process through completion of 

reclamation is closed by being entirely 

connected with pipes and other 

comparable enclosed means of 

conveyance, this management would be 

considered to meet factor 3, 

management of the hazardous secondary 

material as a valuable commodity. The 

product of this type of recycling process 

would be comparable to a legitimate 

product or intermediate because the 

hazardous secondary materials being 

recycled are returned to the original 

process from which they were generated 

to be reused (factor 4). 

Another example is spent wood 

preserving solutions and wastewaters 

that have been reclaimed and reused 

onsite in the production process for 

their original intended purpose under 

§ 261.4(a)(9). Reclaimed wood 

preservatives that are used to treat wood 

would be making a useful contribution 

to the product (factor 1) and would 

produce a valuable product (factor 2). 

The conditions of the exclusion include 

a requirement that they are managed to 

prevent releases, and include specific 

standards for drip pads that manage the 

material (factor 3). The product of this 

type of recycling process would be 

comparable to a legitimate product or 

intermediate because the hazardous 

secondary materials being recycled are 

returned to the original process from 

which they were generated to be reused 

(factor 4). 

Another example is the long-standing 

exclusion for excluded scrap metal 

(processed scrap metal, unprocessed 

home scrap metal, and unprocessed 

prompt scrap metal) being recycled (40 

CFR 261.4(a)(13)). Excluded scrap metal 

that contains recoverable metals would 

provide a useful contribution to the 

product of the recycling process (factor 

1) and, as long as the recycling process 

produces a valuable metal product 

(factor 2), the recycling would meet the 

first two legitimacy factors. If the 

recycler uses appropriate handling and 

good management practices to store and 

manage the excluded scrap metal to 

prevent releases of hazardous secondary 

materials to the environment, the 

recycler would generally meet factor 3 

for managing the scrap metal as a 

valuable commodity. 

EPA notes that managing scrap metal 

as a valuable commodity can include 

situations where it is stored on the 

ground. Scrap metal stored on the 

ground is subject to occasional 

precipitation runoff that consists 

essentially of water, with trace amounts 

of hazardous constituents. As long as 

the hazardous secondary material itself 

is not swept away by the runoff, this 

transport via precipitation runoff would 

not generally be a concern. However, if 

metal dust, debris and pieces of scrap 

metal were released into the 

environment, for example, by metal 

falling into a waterway (as has 

happened in one damage case 

documented by EPA), this would not be 

considered managed as a valuable 

commodity. Finally, as long as the 

recovered metal meets widelyrecognized commodity standards/

specifications for the metal product, 

factor 4 would be satisfied. 

The conditions developed for the 

recycling exclusions in § 261.4(a) were 

found to be necessary under materialspecific rulemakings that determined 

when the particular hazardous 

secondary material in question is not a 

solid waste. When EPA originally made 

the decision that these materials are not 

solid waste, the Agency took into 

account the relevant factors about the 

hazardous secondary materials, 

including how the material was 

managed and what toxic chemicals were 

present. 


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In the 2011 DSW proposal, EPA 

explicitly did not reopen comment on 

any substantive provisions of the 

previous recycling exclusions or 

exemptions and facilities with pre-2008 

exclusions can generally follow the 

normal good business practices that 

were considered when the exclusions 

were granted and still be considered to 

be legitimate recycling. If the facility is 

complying with the terms of the 

exclusion and following industry best 

practices to engage in legitimate 

recycling activity, this would generally 

not raise questions as to its legitimacy. 

All these examples support EPA’s 

determination that most current 

recycling under existing exclusions is 

legitimate, and that companies 

complying with the conditions of 

exclusions would generally not need to 

take action to show that their recycling 

meets the legitimacy factors. 

However, at the same time, these 

material-specific exclusions from the 

definition of solid waste do not negate 

the basic requirement that the 

hazardous secondary material must be 

legitimately recycled. Recycling that is 

not legitimate is not recycling at all, but 

rather ‘‘sham recycling’’—discard in the 

guise of recycling. Regarding the 

existing exclusions in the regulations, 

EPA acknowledges that, in establishing 

a specific exclusion, we have already 

determined in the rulemaking record 

that the specific recycling practice is 

excluded from the definition of solid 

waste provided all the conditions of the 

rule are met. However, the Agency has 

always enforced its rules on the basis 

that any recycling must be legitimate 

(See U.S. v. Self, 2 F. 3d 1071, 1079 

(10th Cir. 1993); U.S. v. Marine Shale 

Processors, 81 F. 3d 1361, 1366 (5th Cir. 

1996): Marine Shale Processors v. EPA, 

81 F. 3d 1371, 1381–83 (5th Cir. 1996)). 

This is meant to prevent a company 

from claiming to be operating under an 

existing exclusion and simply using that 

as a way to avoid full RCRA Subtitle C 

regulation. 

For example, under EPA’s historic 

guidance, a facility could not plausibly 

claim the zinc fertilizer product 

exclusion at 40 CFR 261.4(a)(21) for a 

hazardous secondary material that 

contained absolutely no or minimal 

levels of zinc, even if all the conditions 

of the zinc fertilizer exclusion were met. 

The exclusion was developed to 

encourage legitimate recycling of zinccontaining hazardous secondary 

materials and the legitimacy provision 

prevents hazardous waste from being 

discarded into purported fertilizer in the 

name of recycling when the hazardous 

secondary material provides no 

recognizable benefit to the product. 

Similarly, if a facility accepted zinccontaining hazardous waste, claiming to 

make zinc fertilizer, but failed to 

produce a product that was actually 

sold or was otherwise valuable, such a 

process would not be legitimate 

recycling in the historic legitimacy 

guidance, even if the management 

conditions and the constituent levels in 

the zinc fertilizer exclusion were met. 

The consequences of the latter example 

are illustrated in one of the damage 

cases in the environmental problems 

study. A facility whose primary 

business was mixing electric arc furnace 

dust (K061) with agricultural lime for 

sale as a micronutrient lost its 

customers and could not sell its 

product. However, the facility 

continued to accept K061, and, after 

approximately seven months, the 

facility had accepted over 60,000 tons of 

this hazardous waste and stored it on 

the ground in piles up to 30 feet high, 

with no prospect of it being used to 

produce a product and, thus, 

legitimately recycled. While the initial 

recycling of the K061 hazardous waste 

was legitimate, when the facility failed 

to produce a product that was actually 

sold, the K061 could no longer be 

considered legitimately recycled. Even 

if the recycler were to claim that the 

material may be recycled at some point 

in the future, the material was being 

speculatively accumulated and thus, a 

solid and hazardous waste at that point. 

In summary, all hazardous secondary 

materials recycling and hazardous waste 

recycling, whether such recycling 

remains under hazardous waste 

regulations or is excluded from the 

definition of solid waste, must be 

legitimate. This has been our longstanding policy and it is well known 

throughout the regulated community 

and the implementing state regulatory 

agencies. To reinforce that concept and 

make it clear in the regulations, we are 

today codifying our policy that 

hazardous secondary materials being 

sham recycled are discarded and thus, 

are solid waste. To do this, EPA has 

decided to codify the following 

statement in § 261.2 (the definition of 

solid waste) instead of adding a 

reference to legitimacy in each of the 

recycling exclusions and exemptions (as 

was suggested in the proposed rule): ‘‘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.’’ 

For persons interested in an in-depth 

analysis of the evolution of EPA’s 

concept of legitimate recycling from 

policy and preamble statements to 

regulations, EPA provided this analysis 

in the 2008 DSW final rule that 

described how the promulgated 

legitimacy factors compare to the 

previous primary guidance on 

legitimacy and the Lowrance Memo. 

EPA continues to maintain that the 

legitimate recycling provision is 

substantively the same as existing 

policy because we developed the 

legitimacy factors in 40 CFR 260.43 by 

closely examining the questions and 

sub-questions in the Lowrance Memo 

and in the Federal Register preambles 

and converting them into four more 

direct factors. For a detailed explanation 

of how each of the four factors is 

derived from the Lowrance Memo and 

other existing policy statements, see 73 

FR 64708 –64710, October 30, 2008. 

2. All Factors Mandatory 

The structure of the legitimacy 

standard codified in the 2008 DSW final 

rule (specifically for the exclusions 

promulgated in that rulemaking) had 

two parts. The first part included a 

requirement that hazardous secondary 

materials being recycled must provide a 

useful contribution to the recycling 

process or to the product of the 

recycling process and a requirement that 

the product of the recycling process 

must be valuable. At the time, EPA 

considered those two factors to make up 

the core of legitimacy and, therefore, a 

process that did not conform to them 

could not be a legitimate recycling 

process, but would be considered sham 

recycling. The second part of legitimacy 

in the 2008 DSW final rule included two 

factors that must be considered, but not 

necessarily met, when a recycler is 

making a legitimacy determination. In 

this final rule, the Agency is changing 

the structure and the application of the 

legitimate recycling provision so that all 

four factors are written as mandatory 

requirements that must be met, except 

as otherwise noted. The Agency has 

determined that this action will improve 

the effectiveness and protectiveness of 

the legitimacy provision. The Agency’s 

experience with implementing the 

legitimate recycling structure finalized 

in the 2008 DSW final rule has led us 

to this realization. Even though we 

stressed the importance of considering 

each factor in the 2008 DSW final rule, 

some stakeholders continue to be under 

the mistaken impression that the factors 

defined as ‘‘to be considered’’ were 

actually optional and could be ignored. 

We made it clear in the 2008 DSW final 

rule that failing to meet a ‘‘nonmandatory’’ factor could, in some cases, 

be enough to determine that a recycling 

process is not legitimate. We did not 

intend for the ‘‘to-be-considered’’ factors 


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30As noted above, and as described in more detail 

in Section VIII.B.6, products of a recycling process 

that meet widely-recognized commodity standards/ 

specifications and hazardous secondary materials 

that are recycled by being returned to the original 

process from which they were generated are 

considered to meet factor 4 of the legitimacy 

standard. 

to be less important and thus, have 

determined that the only way to correct 

this perception and give these factors 

the proper weight is to make them 

requirements that must be met, except 

as otherwise noted, on equal footing 

with the other legitimacy factors. 

However, to address concerns raised, 

both factor 3 (managed as a valuable 

commodity) and factor 4 (products must 

have comparable levels of hazardous 

constituents) have been revised from the 

2008 DSW final rule to add flexibility to 

address situations where the recycling is 

legitimate, but the specific situation 

might not meet the legitimacy factor . 

For example, under factor 3, we 

proposed and are finalizing the 

following language to more closely 

reflect the intent of the provision: 

‘‘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.’’ Thus, 

a generator or recycler would meet this 

factor if their hazardous secondary 

material is stored in a different manner 

than the analogous raw material, as long 

as that storage is as protective as the 

way the analogous raw material is 

stored. 

Under factor 4, we have also added 

more explanation and flexibility for 

situations where there is no analogous 

product to compare to the product made 

from hazardous secondary materials. 

For example, in some cases, the Agency 

will consider a product of a recycling 

process that meets widely-recognized 

commodity standards/specifications, 

such as scrap metal, to meet factor 4. 

Within factor 4, the Agency is also 

creating a provision for hazardous 

secondary materials that are recycled by 

being returned to the original process 

from which they were generated, such 

as in a closed-loop recycling process, to 

meet the factor. The specific changes to 

factor 3 and factor 4 are described in 

greater detail below. 

In making all legitimacy factors 

mandatory requirements, the first 

sentence of the regulatory language of 

both factors was revised to indicate that 

these factors must be met. For factor 3, 

the first sentence now reads as follows: 

‘‘The generator and the recycler must 

manage the hazardous secondary 

material as a valuable commodity when 

it is under their control.’’ For factor 4, 

the first sentence now reads as follows: 

‘‘The product of the recycling process 

must be comparable to a legitimate 

product or intermediate.’’ 

In the 2011 DSW proposal, we 

proposed a petition process for facilities 

that believe their recycling is legitimate 

despite not meeting one or both of these 

two factors. After review and 

consideration of the public comment on 

this issue, the Agency has decided that 

instead of a petition process, facilities 

that do not meet factor 4 and yet are still 

legitimately recycling must notify the 

Regional Administrator (or State 

Director, if the state is authorized) and 

keep documentation and a certification 

in their files explaining how the 

recycling is still legitimate.30 See 

section VIII.B.6 below for a full 

discussion of the documentation and 

notification process under factor 4. 

3. Factor 1: Useful Contribution— 

§ 260.43(a)(1) 

(1) 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: 

(i) Contributes valuable ingredients to 

a product or intermediate; or 

(ii) Replaces a catalyst or carrier in the 

recycling process; or 

(iii) Is the source of a valuable 

constituent recovered in the recycling 

process; or 

(iv) Is recovered or regenerated by the 

recycling process; or 

(v) Is used as an effective substitute 

for a commercial product. 

This factor expresses the principle 

that hazardous secondary materials 

must contribute value to the recycling 

process. Providing a useful contribution 

is an essential element to legitimate 

recycling because real or legitimate 

recycling is not occurring if the 

hazardous secondary material being 

added or recovered does not add to the 

process. This factor is intended to 

prevent the practice of adding a 

hazardous secondary material to a 

recycling process simply as a means of 

disposing of it, or recovering only small 

amounts of a constituent, which EPA 

would consider sham recycling. 

Paragraphs (i) through (v) of 

§ 260.43(a)(1) list five ways that a 

hazardous secondary material can 

provide a useful contribution: (i) 

Contributing valuable ingredients to a 

product or intermediate; (ii) replacing a 

catalyst or carrier in the recycling 

process; (iii) providing a valuable 

constituent to be recovered; (iv) being 

regenerated; or (v) being used as an 

effective substitute for a commercial 

product. Any one of these can 

demonstrate that the hazardous 

secondary material provides a useful 

contribution. 

An important note in applying this 

factor is that not every constituent or 

component of the hazardous secondary 

material has to make a contribution to 

the recycling activity to meet the useful 

contribution factor. For example, a 

legitimate recycling operation involving 

precious metals might not recover all of 

the components of the hazardous 

secondary material, but would recover 

precious metals with sufficient value to 

consider the recycling process 

legitimate. In addition, the recycling 

activity does not have to involve the 

hazardous component of the hazardous 

secondary materials if the value of the 

contribution of the non-hazardous 

component justifies the recycling 

activity. One example of this factor from 

an existing exemption is where 

hazardous secondary materials 

containing large amounts of zinc, a nonhazardous component, are recycled into 

zinc micronutrient fertilizers. However, 

in cases where the hazardous 

component is not being used or 

recycled, the Agency stresses that the 

recycler is responsible for the proper 

management of any hazardous residuals 

of the recycling process. 

In a situation where more than one 

hazardous secondary material is used in 

a single recycling process and the 

hazardous secondary materials are 

mixed or blended as a part of the 

process, each hazardous secondary 

material would need to satisfy the 

useful contribution factor. This 

requirement prevents situations where a 

worthless hazardous secondary material 

could be mixed with valuable and 

useful hazardous secondary materials in 

an attempt to disguise and dispose of it. 

In addition, a situation in which 

hazardous secondary materials that can 

be useful to a process, but are added to 

that process in much greater amounts 

than needed to make the end-product or 

to otherwise provide its useful 

contribution, would also be sham 

recycling. 

Another way the usefulness of the 

hazardous secondary material’s 

contribution could be demonstrated is 

by looking at the efficiency of the 

material’s use in the recycling process— 

that is, how much of the constituent in 

a hazardous secondary material is 

actually being used. As an example, if 

there is a constituent in the hazardous 

secondary material that could add value 

to the recycling process, but, due to 

process design, most of it is not being 


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recovered, but is being disposed of in 

the residuals, this would be a possible 

indicator of not meeting this factor and 

thus, could be sham recycling. However, 

this consideration must take the actual 

process being considered into account 

as there are certainly recycling scenarios 

where a low recovery rate could still be 

legitimate. For example, under an 

existing exclusion, if the concentration 

in a metal-bearing hazardous secondary 

material is low (e.g., 2–4%) and a 

recycling process was able to recover a 

large percentage of the target metal, this 

factor could be met and the recycling 

may be legitimate (depending on the 

outcome of the analysis of the other 

legitimacy factors). 

When evaluating a hazardous 

secondary material’s useful 

contribution, the process can be 

compared to typical industry recovery 

rates from raw materials to determine if 

the recycling process is reasonably 

efficient. This method should involve 

an examination of the overall process, 

not just a single step of the process. For 

example, if one step in the process 

recovers a small percentage of the 

constituent, but the overall process 

recovers a much larger percentage, the 

Agency would consider the overall 

efficiency of the recycling process in 

determining whether hazardous 

secondary materials are providing a 

useful contribution. 

4. Factor 2: Valuable Product or 

Intermediate—§ 260.43(a)(2) 

The recycling process must produce a 

valuable product or intermediate. The 

product or intermediate is valuable if it 

is: (i) Sold to a third party or (ii) 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. 

This factor expresses the principle 

that the product or intermediate coming 

out of the recycling process should be 

a material of value, either to a third 

party who buys it from the recycler, or 

to the generator or recycler itself, who 

can use it as a substitute for another 

material that it would otherwise have to 

buy or obtain for its industrial process. 

Legitimate recycling is not occurring if 

the product or intermediate from the 

process is not of use to anyone and, 

therefore, is not a real product. This 

factor is intended to prevent the practice 

of running a hazardous secondary 

material through an industrial 

production process to make something 

just for the purpose of avoiding the costs 

of hazardous waste management, rather 

than for the purpose of using the 

product or intermediate of the recycling 

activity. Such a practice would be sham 

recycling. 

For the purpose of this factor, a 

recyclable product may be considered 

‘‘valuable’’ if it can be shown to have 

either economic value or intrinsic value 

to the end user. Evaluations of 

‘‘valuable’’ for the purpose of this factor 

should be done on a case-by-case basis, 

but one way to determine that the 

recycling process yields a valuable 

product would be if the product of the 

recycling process is sold to a third party. 

This transaction could include money 

changing hands or, in other 

circumstances, may involve trade or 

barter. A recycler that has not yet 

arranged for the sale of its product to a 

third party could establish value by 

demonstrating that it can replace 

another product or intermediate that is 

available in the marketplace. A product 

of the recycling process may be sold at 

a loss in some circumstances, but the 

recycler should be able to demonstrate 

how the product is clearly valuable to 

the purchaser. 

EPA also knows that many recycling 

processes produce outputs that are not 

sold or traded to another party, but are 

instead used by the generator or 

recycler. A product of the recycling 

process may be used as a feedstock in 

a manufacturing process, but have no 

established monetary value in the 

marketplace. Such recycled products or 

intermediates would be considered to 

have intrinsic value, though it might be 

less straightforward in this situation to 

demonstrate value if it is necessary to 

do so. Demonstrations of intrinsic value 

could involve showing that the product 

of the recycling process or intermediate 

replaces an alternative product that 

would otherwise have to be purchased 

or could involve a showing that the 

product of the recycling process or 

intermediate meets specific product 

specifications or specific industry 

standards. Another approach could be 

to compare the product or 

intermediate’s physical and chemical 

properties or efficacy for certain uses 

with those of comparable products or 

intermediates made from raw materials. 

Some recycling processes may consist 

of multiple steps that may occur at 

separate facilities. In some cases, each 

processing step will yield a valuable 

product or intermediate, such as when 

a metal-bearing hazardous secondary 

material is processed to reclaim a 

precious metal and is then put through 

another process to reclaim a different 

mineral. When each step in the process 

yields a valuable product or 

intermediate that is salable or usable in 

that form, the recycling activity would 

conform to this factor. 

Like the other factors, this factor 

should be examined and evaluated on a 

case-by-case basis looking at the specific 

facts of a recycling activity. If, for 

instance, a recycling activity produces a 

product or intermediate that is used by 

the recycler itself, but does not serve 

any purpose and is just being used so 

that the product or intermediate appears 

valuable, that would be an indicator of 

sham recycling. An example of this 

would be a recycler that reclaims a 

hazardous secondary material and then 

uses that material to make blocks or 

building materials for which it has no 

market and then ‘‘uses’’ those building 

materials to make a warehouse in which 

it stores the remainder of the building 

materials that it is unable to sell. 

5. Factor 3: Managed as a Valuable 

Commodity—§ 260.43(a)(3) 

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. 

This factor expresses the principle 

that hazardous secondary materials 

being recycled should be managed in 

the same manner as other valuable 

materials. This factor requires those 

making a legitimacy determination to 

look at how the hazardous secondary 

material is managed before it enters the 

recycling process. In EPA’s view, a 

recycler will value hazardous secondary 

materials that provide an important 

contribution to its process or product 

and, therefore, will manage those 

hazardous secondary materials in a 

manner consistent with how it manages 

a valuable feedstock. If, on the other 

hand, the recycler does not manage the 

hazardous secondary materials as it 

would a valuable feedstock, the 

hazardous secondary materials might 

not be recycled, but rather released into 

the environment and discarded, thereby 

indicating sham recycling. 

This factor may be particularly 

important in the case where a recycler 

has been paid by a generator to take its 

materials as a result of the economic 

incentives in the hazardous secondary 

materials market. By looking at the 

management of the hazardous secondary 

material before it enters the recycler’s 

process, the entity making the 


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legitimacy determination can tell that a 

material being managed like an 

analogous raw material is, in fact, 

valued by the recycler. If the hazardous 

secondary material is not being 

managed like a valuable raw material 

because it is uncontrolled or is being 

released, that indicates that the fee the 

recycler obtains for taking the hazardous 

secondary material may be its only 

value to that recycler. If the fee received 

were the only value to the recycler, it 

could mean that discard was taking 

place. 

This factor addresses the management 

of hazardous secondary materials in two 

distinct situations. The first situation is 

when a hazardous secondary material is 

analogous to a raw material which it is 

replacing in the process. In this case, the 

hazardous secondary material should be 

managed prior to recycling similarly to 

the way the analogous raw materials are 

managed in the course of normal 

manufacturing, or in an equally 

protective manner. 

EPA expects that all parties handling 

hazardous secondary materials destined 

for recycling—generators, transporters, 

intermediate facilities and reclamation 

facilities—will handle them in generally 

the same manner in which valuable raw 

materials would otherwise be handled if 

used in the process. ‘‘Analogous raw 

material’’ is a raw material for which the 

hazardous secondary material 

substitutes and which serves the same 

function and has similar physical and 

chemical properties as the hazardous 

secondary material. 

EPA proposed and is finalizing an 

addition to the language of this factor as 

compared to the 2008 DSW final rule to 

include the words ‘‘or in an equally 

protective manner.’’ This change means 

that a recycling process would meet this 

factor if the hazardous secondary 

material is stored in a different manner 

than the analogous raw material as long 

as that storage was as protective as the 

way the analogous raw material was 

stored. 

For example, a hazardous secondary 

material in powder form that is shipped 

in a woven super sack in good condition 

(i.e., that does not leak or spill) and 

stored in an indoor containment area 

would be considered managed ‘‘in an 

equally protective manner’’ as an 

analogous raw material that is shipped 

and stored in drums. 

In addition, managing a hazardous 

secondary material in a manner 

consistent with the management of an 

analogous raw material can include 

situations where the raw material and 

the hazardous secondary material (e.g., 

scrap metal) are both stored on the 

ground. 

The second situation the factor 

addresses is the case where there is no 

analogous raw material that the 

hazardous secondary material is 

replacing. This could be either because 

the process is designed around a 

particular hazardous secondary 

material—that is, the hazardous 

secondary material is not replacing 

anything—or it could be because of 

physical or chemical differences 

between the hazardous secondary 

material and the raw material that are 

too significant for them to be considered 

‘‘analogous.’’ 

Hazardous secondary materials that 

have significantly different physical or 

chemical properties when compared to 

the raw material would not be 

considered analogous even if they serve 

the same function because it may not be 

appropriate to manage them in the same 

way. In this situation, the hazardous 

secondary material would have to be 

contained for this factor to be met. The 

term ‘‘contained’’ as discussed in 

section V of this preamble, means that 

the unit in which the material is stored 

is in good condition, with no leaks or 

releases to the environment, and that 

the unit is designed to prevent such 

releases. In addition, to meet the 

contained standard, the unit must be 

labeled or have a system to identify the 

hazardous secondary material in it and 

must not hold incompatible materials or 

pose a risk of fires. Hazardous 

secondary materials in units that meet 

the applicable requirements of 40 CFR 

parts 264 or 265 are presumed to be 

contained. Land-based units can meet 

the definition of contained. 

The requirement that a hazardous 

secondary material be contained when 

there is no analogous raw material to 

compare it to is consistent with the idea 

that normal manufacturing would 

ensure that the valuable material inputs 

are managed properly, rather than allow 

them to be released into the 

environment. 

An example of when this provision 

would be used would be if a 

manufacturer decided to replace a dry 

raw material in its process with a liquid 

having the same constituents. It would 

not be sufficient, nor would it make 

sense, for the liquid to be managed in 

supersacks, like a dry material might. 

Instead, the liquid would have to be 

contained (for example, in a tank or 

container). 

An important part of this factor is the 

statement in the regulatory text 

clarifying that hazardous secondary 

materials that are released to the 

environment and are not recovered 

immediately are discarded. Valuable 

feedstocks or products should not be 

allowed to escape into the environment 

through poor management and this 

factor clarifies that those hazardous 

secondary materials that are released 

(and are not immediately recovered) are 

clearly discarded and a solid waste. 

Either a large release or ongoing releases 

of smaller amounts could indicate that, 

in general, the hazardous secondary 

material is not being managed as a 

valuable product, which could indicate 

sham recycling. Hazardous secondary 

materials that are immediately 

recovered before they disperse into the 

environment—air, soil, or water—and 

are reintroduced in the recycling 

process are not discarded. This 

determination on factor 3 must be made 

on a case-by-case basis, however. 

In EPA’s 2008 DSW final rule, this 

factor was one of the two factors that 

was ‘‘to be considered’’ rather than one 

of the two mandatory factors because 

EPA believed that there may be some 

situations in which this factor was not 

met, but the recycling was still 

legitimate. With the addition of the 

language clarifying that the materials 

can be managed in a different way than 

the analogous raw material as long as 

that management system is equally 

protective, EPA has determined that 

there is no reason that a facility that is 

legitimately using a hazardous 

secondary material that has value to 

them in a recycling process would not 

meet this factor. EPA’s intent with this 

factor is that hazardous secondary 

materials are managed in the same 

manner as materials that have been 

purchased or obtained at some cost, as 

raw materials are. Just as it is good 

business practice to ensure that raw 

materials enter the manufacturing 

process rather than being spilled or 

released, we would expect hazardous 

secondary materials to be managed 

effectively and efficiently in order that 

their full value to the manufacturing 

process would be realized. 

6. Factor 4: Comparison of Toxics in the 

Product—§ 260.43(a)(4) 

The product of the recycling process 

must be comparable to a legitimate 

product or intermediate: 

(i) Where there is an analogous 

product or intermediate, the product of 

the recycling process is comparable to a 

legitimate product or intermediate if: 

(A) The product of the recycling 

process does not exhibit a hazardous 

characteristic (as defined in part 261 

subpart C) that analogous products do 

not exhibit, and 

(B) The concentrations of any 

hazardous constituents found in 

Appendix VIII of part 261 of this 

chapter that are in the product or 


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intermediate are at levels that are 

comparable to or lower than those found 

in analogous products or at levels that 

meet widely-recognized commodity 

standards and specifications, in the case 

where the commodity standards and 

specifications include levels that 

specifically address those hazardous 

constituents. 

(ii) Where there is no analogous 

product, the product of the recycling 

process is comparable to a legitimate 

product or intermediate if: 

(A) The product of the recycling 

process is a commodity that meets 

widely recognized commodity standards 

and specifications (e.g., commodity 

specification grades for common 

metals), or 

(B) The hazardous secondary 

materials being recycled are returned to 

the original process or processes from 

which they were generated to be reused 

(e.g., closed loop recycling). 

(iii) If the product of the recycling 

process has levels of hazardous 

constituents that are not comparable to 

or unable to be compared to a legitimate 

product or intermediate per 

subparagraphs (i) or (ii) of this 

paragraph, the recycling still may be 

shown to be legitimate, if it meets the 

requirements specified below. The 

person performing the recycling must 

conduct the necessary assessment and 

prepare documentation showing why 

the recycling is, in fact, still legitimate. 

The recycling can be shown to be 

legitimate based on lack of exposure 

from toxics in the product, lack of the 

bioavailability of the toxics in the 

product, or other relevant 

considerations which show that the 

recycled product does not contain levels 

of hazardous constituents that pose a 

significant human health or 

environmental risk. The documentation 

must include a certification statement 

that the recycling is legitimate and must 

be maintained on-site for three years 

after the recycling operation has ceased. 

The person performing the recycling 

must notify the Regional Administrator 

of this activity using EPA Form 8700– 

12. 

This factor requires that those making 

a legitimacy determination look at the 

concentrations of the hazardous 

constituents found in the product made 

from hazardous secondary materials 

and, except where otherwise specified, 

compare them to the concentrations of 

hazardous constituents in analogous 

products. A product that contains high 

levels of hazardous constituents that 

originate in a hazardous secondary 

material feedstock could indicate that 

the recycler incorporated hazardous 

constituents into the final product when 

they were not needed to make that 

product effective as a way to avoid 

proper disposal of that material, which 

would be sham recycling. This factor, 

therefore, is designed to determine 

when toxics that are ‘‘along for the ride’’ 

are discarded in a final product and the 

hazardous secondary material is not 

being legitimately recycled. 

As proposed, factor 4 was 

unsatisfactory to many of the 

stakeholders of this rulemaking. Many 

representatives from the industrial 

sector argued that they would not be 

able to meet factor 4 or would not be 

able to easily know if they met factor 4. 

EPA had expected that a small number 

of facilities would have this concern 

and had proposed a petition process to 

address this problem, but many 

commenters argued that petitions would 

take a long time to be processed, 

creating uncertainty in the industrial 

sector, and that a petition process would 

be a drain on state and industry 

resources. 

As a result of comments received on 

the proposal, EPA has made some 

revisions to this factor to ensure that 

long-standing legitimate recycling 

processes will still be considered 

legitimate under this factor. The 

requirements that are being promulgated 

today are described in full below and 

include different requirements for when 

there is an analogous product and when 

there is not, provisions for using widelyrecognized commodity standards and 

specifications to meet this factor, a 

provision to address recycling that 

includes hazardous secondary materials 

being put back into the process from 

which they came, and a documentation, 

certification and notification process for 

facilities that cannot meet these 

requirements, but still believe their 

recycling is legitimate. A full 

description of how the requirement 

being finalized differs from what was 

proposed in the 2011 DSW proposal can 

be found in section VIII.C.3 of the 

preamble. 

In addition to these changes, EPA has 

also retained the proposed language of 

this factor that states that the 

concentrations of hazardous 

constituents in the product of the 

recycling process must be ‘‘comparable 

to’’ or lower than those found in 

analogous products. This is a change 

from the 2008 DSW final rule, which 

used language stating that the 

concentrations of hazardous 

constituents should not be 

‘‘significantly higher’’ than 

concentrations in analogous products. 

Factor 4 starts with the statement that 

the product of the recycling process 

made from hazardous secondary 

materials must be comparable to a 

legitimate product or intermediate. It is 

important to note that the comparison 

that EPA is requiring here involves the 

product that comes out of a recycling 

process. That is, a recycler will 

ordinarily compare the product of the 

recycling process to an analogous 

product made of raw materials. For 

example, if a recycling process produces 

paint, the levels of hazardous 

constituents in the paint will be 

compared with the levels of the same 

constituents found in similar paint 

made from virgin raw materials. 

However, a recycler is also allowed to 

perform this evaluation by comparing 

the hazardous constituents in the 

hazardous secondary material feedstock 

with those in an analogous raw material 

feedstock. If the hazardous secondary 

material feedstock contains 

concentrations of hazardous 

constituents that are comparable to or 

lower than the concentrations in the raw 

material feedstock, then the end product 

of the recycling process would not 

contain excess hazardous constituents 

‘‘along for the ride’’ either. This method 

of showing that the product meets factor 

4 is acceptable. There may be cases in 

which it is easier to compare feedstocks 

than it is to compare products because 

the recycler knows that the hazardous 

secondary material is very similar in 

profile to the raw material. A 

comparison of feedstocks may also be 

easier in cases where the recycler 

creates an intermediate which is later 

processed again and may end up in two 

or more products, when there is no 

analogous product, or when production 

of the product of the recycling process 

has not yet begun. Note, however, that 

EPA is allowing other ways to make the 

comparable demonstration in cases 

where there is no analogous product, as 

described below in section VIII.B.6.b. 

a. Factor 4 when there is an 

analogous product. Paragraph 

260.43(a)(4)(i) describes how a facility 

can meet factor 4 when the recycled 

product can be compared to an 

analogous product that is made without 

the use of hazardous secondary material 

as a feedstock. First, the product of the 

recycling process cannot exhibit any of 

the hazardous characteristics that 

analogous products do not exhibit. Most 

issues associated with ‘‘toxics along for 

the ride’’ involve the presence of 

hazardous constituents rather than the 

characteristics of hazardous waste. It is 

possible, however, that the use of 

hazardous secondary materials as an 

ingredient could cause a product to 

exhibit a hazardous characteristic, such 

as corrosivity, that is not exhibited by 

analogous products. 


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The hazardous characteristics are 

found in 40 CFR part 261 subpart C and 

are used to identify those materials that 

are hazardous wastes, but that EPA has 

not specifically listed in part 261 

subpart D. The characteristics are 

ignitability, corrosivity, reactivity, and 

toxicity. The toxicity characteristic 

includes a list of 40 contaminants and 

the levels at which the material would 

be considered hazardous waste when 

tested using the Toxicity Characteristic 

Leaching Procedure. If a product 

produced with hazardous secondary 

material exhibited a characteristic of 

hazardous waste that an analogous 

product did not exhibit, this would be 

an indication that sham recycling could 

be occurring as a significant hazardous 

constituent or characteristic would be in 

the product only as a result of the 

recycling of the hazardous secondary 

material. This requirement is in 

§ 260.43(a)(4)(i)(A). In most cases, a 

recycler will be familiar enough with 

the material it is producing to be able to 

easily determine whether it would meet 

any of these characteristics, but if there 

are any questions, the methods for 

testing for the characteristics are found 

in 40 CFR part 261 subpart C. 

In addition to this requirement, the 

product of the recycling process must 

also meet § 260.43(a)(4)(i)(B). This 

paragraph can be met in two ways. The 

first way is if the concentrations of any 

hazardous constituent (as defined by 

Appendix VIII to part 261) that is in the 

recycled product is comparable to or 

lower than those found in analogous 

products. This provision is what EPA 

proposed in the 2011 DSW proposal, 

which included a discussion of how 

meeting product specifications could 

indicate that a recycling process is 

legitimate, as well as a request for 

comments on how EPA should 

determine what ‘‘comparable’’ levels of 

hazardous constituents are when 

determining the legitimacy of a 

recycling process. In response to 

comments received on this point, EPA 

has added to this paragraph that the 

product of the recycling process would 

be comparable if it meets widelyrecognized commodity standards that 

include levels that specifically address 

the hazardous constituents that are in 

the product. 

As stated above, the first part of 

§ 260.43(a)(4)(i)(B) is similar to the 

provision that EPA proposed in the 

2011 DSW proposal. In this provision, 

EPA has decided to finalize language 

replacing the terms ‘‘significant’’ and 

‘‘significantly elevated,’’ which were 

promulgated in the 2008 DSW final rule, 

with the phrase ‘‘comparable to or 

lower’’ because it more clearly reflects 

the intent of this factor. ‘‘Comparable to 

or lower than’’ means that any 

contaminants present in the product 

made from hazardous secondary 

materials are present at levels at or 

lower than the levels contained in an 

analogous product, or if higher, would 

be within a small acceptable range. This 

language is consistent with the 

Identification of Non-Hazardous 

Secondary Materials that are Solid 

Wastes final rule (76 FR 15456, March 

21, 2011). However, we are not changing 

the basic meaning of this factor. 

Operationally, the terms ‘‘comparable’’ 

and ‘‘not significant’’ or ‘‘not 

significantly elevated’’ are the same for 

hazardous secondary materials recycling 

and the examples the Agency provided 

in the 2008 DSW final rule preamble 

that explained how the Agency 

envisions this factor working are still 

appropriate. Those examples are 

repeated here. 

• If paint made from reclaimed solvent 

contains significant amounts of cadmium, 

but the same type of paint made from virgin 

raw materials does not contain cadmium, it 

could indicate that the cadmium serves no 

useful purpose and is being passed though 

the recycling process and discarded in the 

product. Thus, the levels of cadmium would 

not be considered ‘‘comparable’’ and the 

paint would fail this legitimacy factor, unless 

the recycler can conduct the necessary 

analysis and prepare documentation stating 

why the recycling is still legitimate. In 

addition, the recycler would need to certify 

and provide notice to the implementing 

agency of this activity. 

• If a lead-bearing hazardous secondary 

material was reclaimed and then that 

material was used as an ingredient in making 

ceramic tiles and the amount of lead in the 

tiles was significantly higher than the 

amount of lead found in similar tiles made 

from virgin raw materials, the recycler 

should look more closely at the factors to 

determine the overall legitimacy of the 

process. The significantly higher levels of 

lead may indicate that the recycled product 

is not comparable to an analogous product 

and, thus, the recycling process is really a 

sham. Alternatively, the recycler may be able 

to demonstrate the recycling is still legitimate 

even though it does not contain lead at 

comparable levels by, for example, showing 

the toxics are not bioavailable. If this is the 

case, the recycler would need to document 

the analysis and certify the legitimacy of the 

recycling practice, as well as provide notice 

to the implementing agency. 

• If zinc galvanizing metal made from 

hazardous secondary materials that are 

reclaimed contains 500 parts per million 

(ppm) of lead, while the same zinc product 

made from raw materials typically contains 

475 ppm, the levels would be considered 

comparable since they are within a small 

acceptable range and, thus, the product 

would meet this factor. If, on the other hand, 

the lead levels in the zinc product made from 

reclaimed hazardous secondary materials 

were considerably higher, these levels may 

not be comparable, and would require the 

recycler to look more closely at this factor 

since it may indicate that the product was 

being used to illegally dispose of the lead and 

that the activity is sham recycling, unless the 

recycler can conduct the necessary 

assessment and prepare documentation 

stating why the recycling is still legitimate. 

In addition, the recycler would need to 

certify and provide notice to the 

implementing agency of this activity. 

• If a ‘‘virgin’’ solvent contains no 

detectable amounts of barium, while spent 

solvent that has been reclaimed contains a 

minimal amount of barium (e.g., 1 ppm), this 

difference would likely be considered 

comparable. 

The second part of § 260.43(a)(4)(i)(B) 

relies not on a comparison of levels of 

hazardous constituents between a 

product of the recycling process and an 

analogous product, but on the product 

of the recycling process meeting widelyrecognized commodity standards and 

specifications. In this case, meeting a 

widely-recognized standard and 

specification would indicate that the 

recycling is legitimate if that standard 

and specification includes levels for the 

hazardous constituents that are found in 

the product of the recycling process. 

EPA decided that using a product’s 

ability to meet product specifications as 

an indicator of legitimate recycling 

would make the determination of 

legitimate recycling straight-forward in 

many cases where the product of the 

recycling is clearly a commodity in 

wide use in commerce. Although not 

spelled out in the regulatory language 

used in the 2008 DSW final rule, 

consideration of whether the product of 

a recycling process meets quality 

specifications has been part of the 

legitimacy determination since the 

Lowrance Memo in 1989, which 

included several questions to this effect 

as part of its determination of whether 

there is a guaranteed market for the 

product (i.e., Are there industry 

recognized product specifications for 

the product? Is it listed in industry news 

letters? Is the reclaimed product a 

recognized commodity?). Including this 

provision on product specifications as 

part of this final rulemaking will limit 

uncertainty from recyclers about 

whether their processes are legitimate. 

However, despite the value of product 

standards, EPA did not want to state 

that meeting any product specification 

was an indicator of legitimacy because 

any recycler could design its own 

specification and point to that as a way 

to circumvent the requirement. 

Therefore, this requirement requires that 

the commodity standards being met be 

widely-recognized. By ‘‘widelyrecognized commodity standard,’’ EPA 


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31ASTM International, formerly known as the 

American Society for Testing and Materials 

(ASTM), develops and delivers international 

voluntary consensus standards. Its Web site states 

that 12,000 ASTM standards are used around the 

world to improve product quality, enhance safety, 

facilitate market access and trade, and build 

consumer confidence. http://www.astm.org/

ABOUT/aboutASTM.html. 

means a standard that is used 

throughout an industry to describe a 

certain product and that is widelyavailable to anyone producing the 

product. A specific example of such a 

widely-recognized standard agency 

would be ASTM International, which 

has standards covering a wide variety of 

manufactured goods.31 However, for 

specialty batch chemical manufacturers 

or other types of specialty 

manufacturing where widely-recognized 

commodity standards are not available, 

customer specifications would be 

sufficient. 

In addition, for this part of factor 4, 

the commodity standards and 

specifications being referenced must 

specifically address those hazardous 

constituents that may be different 

between the analogous product and the 

product generated from using the 

hazardous secondary material in the 

recycling process. EPA is making this 

explicit in the regulations to avoid a 

situation in which a product from a 

process that is recycling hazardous 

secondary materials meets a widelyrecognized product specification, but 

does not include any levels for the 

hazardous constituents that are in the 

hazardous secondary material. A 

product specification could have been 

developed without any thought that the 

feedstock for that product might include 

some hazardous constituents that could 

be toxic to human health and the 

environment and, therefore, not include 

them. We are concerned with the 

potential that the analogous product 

could be substituted with the recycled 

product without full disclosure of 

potential toxics that may be in the 

recycled product. Using a standard or 

specification that does not address the 

hazardous constituents of concern to 

demonstrate meeting factor 4 of the 

legitimacy requirements where there is 

an analogous product would ignore the 

primary concern of this factor and 

would allow elevated levels of toxics 

from the hazardous secondary material 

into the final product. 

b. Factor 4 when there is no 

analogous product. Commenters on 

EPA’s 2011 DSW proposal expressed 

concern that, in many cases of 

hazardous secondary materials 

recycling, there may not be an 

analogous product with which a facility 

can compare the product of the 

recycling process. Commenters 

described recycling processes that were 

designed to use a specific hazardous 

secondary material to make a useful 

product and processes that always 

incorporated a hazardous secondary 

material back into the generating 

process during manufacturing. 

Paragraph 260.43(a)(4)(ii) describes how 

a facility can meet factor 4 in these 

situations. 

EPA had not previously identified a 

separate methodology for meeting factor 

4 in the situation where there is no 

analogous product, but the support in 

the comments in response to EPA’s 

request for input on the use of product 

specifications made it clear that this 

approach could be effective in the case 

where there is no analogous product. 

Therefore, EPA is stating in 

§ 260.43(a)(4)(ii)(A) that a product of the 

recycling process is comparable to a 

legitimate product or intermediate when 

‘‘the product of the recycling process is 

a commodity that meets widelyrecognized commodity standards and 

specifications.’’ EPA gives the example 

in the regulatory text of commodity 

specification grades for common metals, 

which would be relevant to scrap metal 

recyclers, among other metal recyclers. 

As stated above for paragraph (A), 

EPA decided that using a product’s 

ability to meet product standards and 

specifications as an indicator of 

legitimate recycling would make the 

determination of legitimate recycling 

more straight-forward in many cases 

where the product of the recycling is 

clearly a commodity in wide use in 

commerce. This would limit uncertainty 

from recyclers about whether their 

processes are legitimate. 

However, despite the value of product 

standards and specifications, EPA did 

not want to state that meeting any 

product standard or specification was 

an indicator of legitimacy because any 

recycler could design its own 

specification and point to that as a way 

to circumvent the requirement. 

Therefore, this requirement requires that 

the commodity standards and 

specifications being met be widelyrecognized. By ‘‘widely-recognized 

commodity standard and specification,’’ 

EPA means a standard or specification 

that is used throughout an industry to 

describe a certain product and that is 

widely-available to anyone producing 

the product. A specific example of such 

a widely-recognized standard agency 

would be ASTM International, which 

has standards covering a wide variety of 

manufactured goods. Note, for this part 

of factor 4, the commodity standard or 

specification must be widely 

recognized, but would not necessarily 

address a specific hazardous 

constituent, since there is no analogous 

product to compare it to. EPA has 

determined that recycled products that 

do not have analogous products can 

‘‘stand alone’’ in that they are not 

substitutes for virgin products and thus, 

either succeed or fail based on their 

inherent characteristics, including any 

hazardous constituents contained 

therein. Therefore, EPA has determined 

that market forces appropriately dictate 

whether these types of recycled 

products meet the technical provisions 

of factor 4. 

EPA also wanted to address the 

situation in which a manufacturing 

process produces a hazardous secondary 

material that is then recycled back into 

the process from which they were 

generated. In some cases, the product is 

always manufactured using this kind of 

feedback loop and, therefore, there is no 

analogous product with which it can be 

compared. EPA has included in today’s 

final rule a provision that states that 

when ‘‘hazardous secondary materials 

being recycled are returned to the 

original process or processes from 

which there were generated to be 

reused, the product of the recycling 

process is comparable to a legitimate 

product or intermediate.’’ That is, in 

those situations, the recycling process 

meets factor 4. 

Recycling that takes place under 

EPA’s closed loop recycling exclusion at 

§ 261.4(a)(8) would be an example of 

manufacturing that would consistently 

include the hazardous secondary 

material being returned to the original 

process from which it was generated 

and that would meet the legitimacy 

factors being discussed here. Another 

situation about which commenters 

expressed concern was mineral 

processing to produce primary metals, 

because these processes always include 

materials looping back into the process 

to ensure that all the valuable metals 

that can be extracted from the ore are 

being collected for use. For example, in 

precious metals production, hazardous 

secondary materials from various stages 

in the process contain concentrations of 

both precious metals and hazardous 

constituents that are higher than 

concentrations in ore. The 

concentrations of hazardous 

constituents and precious metals in 

these hazardous secondary materials 

vary depending on the makeup of the 

ore from which they came. In order to 

glean the most valuable product from 

processing the ore, these hazardous 

secondary materials are routinely put 

back into the production units that 

process the virgin materials and are put 


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32Note that a recycling facility can also compare 

the hazardous constituents in the hazardous 

secondary material to an analogous feedstock, if 

that approach works better for a particular recycling 

process. 

through the process again. Commenters 

from the precious metals industry 

argued in their comments that they 

consider this legitimate recycling of 

secondary materials (that may be 

hazardous) and that because of the 

variation in the makeup of the materials 

going back into the process, determining 

whether factor 4 has been met would be 

difficult. Thus, EPA has determined that 

the recycling process in these 

situations—that is, in which the 

hazardous secondary material is 

returned to the original production 

process, or the processes from which it 

was generated—would meet factor 4. 

EPA has determined that recycling 

hazardous secondary materials in this 

manner is not a concern as far as ‘‘toxics 

along for the ride’’ are concerned 

because the hazardous secondary 

materials came out of the very same 

process and contain the same hazardous 

constituents that are already in the 

manufacturing process. These 

hazardous constituents originated in the 

raw materials of the process that are 

being used with or without the recycling 

loop. Prohibiting the recycling of 

hazardous secondary materials in these 

situations because of factor 4 would not 

be changing the amount or nature of 

hazardous constituents in the product 

that comes out of the manufacturing 

process. In addition, that kind of 

prohibition would be misguided from a 

resource conservation perspective 

because it could limit the recycling of 

these materials back into a process, 

which leads to a more efficient process 

and therefore conserves the use of raw 

materials in manufacturing. 

c. Documentation, certification and 

notice process for factor 4. EPA 

designed the provisions above to make 

it more clear how a material can meet 

factor 4. In addition, they provide 

additional flexibility to this factor, 

where it makes environmental and 

economic sense. These added 

provisions address most of the 

comments that EPA received stating that 

a particular sector or industry would 

have trouble meeting factor 4. 

EPA recognizes, however, that despite 

these changes, there may still be 

instances where recycling is legitimate, 

but is unable to meet the technical 

provisions of factor 4 as it is written 

because the product of the recycling 

process has levels that are not 

comparable to analogous products or 

because the product of the recycling 

process cannot be compared to an 

analogous product, but does not fit 

under § 260.43(a)(4)(ii).32

It is critical that the legitimacy 

regulations be flexible enough to allow 

for situations like this, particularly with 

the regulations applying to all recycling. 

In this final rulemaking, EPA has 

replaced the petition process that it 

proposed in the 2011 DSW proposal 

with a documentation, certification and 

notice process for factor 4. 

Specifically, when a recycling facility 

has determined that it must take 

advantage of the documentation, 

certification and notice process, either 

because the product of the recycling 

process has levels that are not 

comparable to analogous products or 

because the product of the recycling 

process cannot be compared to an 

analogous product (and § 260.43(a)(4)(ii) 

does not apply), it must determine that 

its recycling process is legitimate 

despite the levels of hazardous 

constituents in the product. The 

regulatory text for this provision 

explains that in doing this analysis, the 

facility making the determination can 

consider ‘‘lack of exposure from toxics 

in the product, lack of the 

bioavailability of the toxics in the 

product, or other relevant 

considerations which show that the 

recycled product does not contain levels 

of hazardous constituents that pose a 

significant human health or 

environmental risk.’’ 

A consideration of lack of exposure 

from the toxics in a product would 

involve an assessment of the process to 

determine if the hazardous constituents 

are likely to come into contact with 

humans or the environment in a way 

that will harm them. For example, a 

product that is more of an intermediate 

in a recycling process and stays within 

an industrial setting where it is 

contained and where everyone coming 

into contact with it is familiar with any 

hazards that it poses could be 

considered a candidate for this 

certification because there is limited 

exposure to human health and the 

environment from the product. A 

consumer product, on the other hand, 

that will be leaving an industrial setting 

and entering the market where certain 

hazardous constituents may not be 

expected and may not have limited 

exposure to human health and the 

environment is unlikely to be eligible 

for this exception to factor 4. 

For example, as previously explained 

in the 2008 DSW final rule and the 2011 

DSW proposed rule, EPA has 

determined that the reuse of lead 

contaminated foundry sands may or 

may not be legitimate, depending on the 

use. The use and reuse of foundry sands 

for mold making in a facility’s sand loop 

using a non-thermal reclamation process 

under normal industry practices has 

been found to be legitimate because the 

sand is part of an industrial process 

where there is little chance of the 

hazardous constituents being released 

into the environment or causing damage 

to human health and the environment 

when it is kept inside, because there is 

lead throughout the foundry’s process, 

and because there is a clear value to 

reusing the sand, even though the levels 

of hazardous constituents in the sands 

may not be comparable to the analogous 

product. However, in the case of lead 

contaminated foundry sand used as 

children’s play sand, the same high 

levels of lead would disqualify this use 

from being considered legitimate 

recycling. 

An assessment of lack of the 

bioavailability of toxics in the product 

could be a more complicated analysis 

that would examine whether the 

hazardous constituents in the final 

product are bound up with the other 

constituents in such a way that they 

would not be released when coming 

into contact with humans or the 

environment over the lifetime of the 

product. Although this would be a 

sophisticated assessment, a facility 

wishing to perform this kind of analysis 

to inform a legitimacy determination 

under this certification process can do 

so. 

EPA has included the phrase ‘‘other 

relevant considerations which show that 

the recycled product does not contain 

levels of hazardous constituents that 

pose a significant human health or 

environmental risk’’ in the regulation to 

account for other situations that may 

arise. An example that was submitted in 

the comments to the proposal that could 

be an ‘‘other relevant consideration’’ in 

making this determination is when the 

reclaimed product contains compounds 

that are not in analogous products, but 

the products exhibit similar physical 

and chemical risk profiles and therefore 

are not posing an increased risk. There 

may be other considerations regarding 

factor 4 like these that could also be 

relevant to the legitimacy of a recycling 

process; however, the Agency thinks 

these are limited. 

After determining that its process is 

still legitimate, the recycling facility 

would prepare documentation 

explaining its assessment. This should 

take the form of a description of the 

process in question and an explanation 

of the analysis performed to determine 

legitimacy, including any relevant 

diagrams and flow charts, as well as any 


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1730 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

33EPA will revise EPA form 8700–12 to 

incorporate this notification. In the interim, persons 

may notify using the ‘‘Comments’’ box on the form. 

relevant sampling data. In addition, the 

documentation must include a 

certification statement that states that 

recycling is legitimate and that is signed 

by the responsible official at the 

recycling facility. The language for the 

certification is not mandated in the 

regulations, but an acceptable example 

would be ‘‘I certify that the hazardous 

secondary recycling process described 

in these pages is a legitimate recycling 

process.’’ 

The documentation and certification 

of legitimate recycling would have to be 

maintained or available on-site for as 

long as the recycling process is 

operating at the site and for three years 

after the recycling operation has ceased. 

In addition to preparing and 

maintaining this documentation, the 

recycling facility would notify its 

Regional Administrator (or State 

Director, in authorized states) that it is 

taking advantage of this provision by 

reporting the type of hazardous 

secondary material and the recycling 

process being used to produce a product 

with elevated levels of hazardous 

constituents (or a product that has no 

widely-known commodity standards for 

the hazardous constituents) through 

EPA Form 8700–12, otherwise known as 

the Site ID form.33 When a facility 

documents, certifies, and submits notice 

under factor 4, it is addressing factor 4 

for the purposes of the introductory 

language of § 260.43, which requires 

that all requirements of the paragraph be 

addressed. 

EPA has decided to finalize this selfimplementing certification process 

rather than the proposed petition 

process to reduce burden on facilities 

who are taking advantage of this 

provision, as well as on the regulatory 

agencies implementing the regulations. 

Because this requirement for 

documentation and a certification that 

must be maintained on-site does not 

include an approval process, facilities 

do not have to wait for any decisions 

from their implementing agencies about 

whether their recycling is legitimate. 

However, the notification aspect of 

the legitimacy regulations being 

finalized today adds some limited, but 

important, oversight to a process that 

would otherwise be taking place out of 

sight of the regulating agencies all 

together, that is, the decision that a 

recycling process that does not meet 

factor 4 is still legitimate. The 

notification gives EPA and the 

authorized states information about 

which recycling facilities are producing 

products from recycled hazardous 

secondary materials that have elevated 

levels of hazardous constituents when 

compared to non-recycled products (or 

are producing recycled products that 

have no non-recycled analogue and no 

widely recognized commodity 

specifications). This notification 

facilitates oversight and inspections of 

the recycling facility concerning the 

legitimacy of the recycling process, 

allowing EPA and authorized states to 

continue to use existing authorities to 

determine whether the recycling is 

legitimate. 

EPA has chosen this approach 

because it maintains the selfimplementing nature of the regulations, 

while providing enough information to 

EPA and the authorized states to gather 

the necessary information. In these 

ways, this approach addresses the main 

concerns raised by the stakeholders in 

the comments to this rulemaking. 

A facility that claims to be operating 

a recycling process that is legitimate 

under this provision could be subject to 

an enforcement action if the Agency 

determines that the recycling is sham. 

As always, a facility with questions 

about the regulated status of its 

hazardous secondary material can 

contact its implementing agency for 

assistance in making a waste 

determination. 

C. Changes From the Proposal 

1. Prohibition of Sham Recycling 

In today’s final rule, EPA is codifying 

the requirement that all hazardous 

secondary material recycling must be 

legitimate. However, instead of 

amending the text of each recycling 

exemption and exclusion, we are 

instead codifying a provision in 

§ 261.2(g) that states that any hazardous 

secondary material found to be sham 

recycled is discarded and thus, a solid 

waste. This more clearly reflects our 

intent and our long-standing policy that 

only those facilities truly recycling 

should be eligible for an exclusion 

based on recycling the hazardous 

secondary materials. We did not intend 

to cause facilities that are legitimately 

recycling to revisit their practices or for 

state agencies to revisit past legitimacy 

determinations. However, we do want to 

make clear that sham recycling is not 

real recycling and thus, any hazardous 

secondary material being sham recycled 

is a solid and potentially a hazardous 

waste. By making a clear statement in 

the definition of solid waste, the Agency 

is placing the appropriate emphasis on 

this issue, that is, that sham recycling is 

discard. 

2. Documentation 

When the Agency codified the 

legitimacy standard in the 2008 DSW 

final rule, we did not require specific 

documentation regarding the legitimacy 

determination, although the regulatory 

language stated that persons claiming to 

be excluded from hazardous waste 

regulation because they are engaged in 

reclamation must be able to demonstrate 

that the recycling is legitimate. In the 

2011 DSW proposal, we proposed to 

require that persons who perform 

recycling include documentation in 

their paperwork to explain how their 

hazardous secondary materials are 

legitimately recycled. 

After reviewing the public comments, 

we have decided that, as a general 

matter, documentation of legitimacy is 

not necessary for most hazardous 

secondary materials recycling. Instead, 

we will continue to rely on the current 

provision in § 261.2(f) that requires 

respondents to demonstrate that the 

material is not a waste. Section 261.2(f) 

requires persons claiming that materials 

are not solid waste or are conditionally 

exempt from RCRA Subtitle C regulation 

to provide appropriate documentation 

of these claims. 

However, we are finalizing two 

exceptions to the general case where 

documentation of legitimate recycling is 

not required. The first is that we are 

finalizing a requirement for facilities 

reclaiming hazardous secondary 

materials under the control of the 

generator, that is, any facility claiming 

the exclusion at § 261.4(a)(23), to 

document the legitimacy of the 

reclamation process. We have 

determined that it is important for those 

facilities to document the legitimacy of 

their recycling process, given the wide 

variety of hazardous secondary 

materials and industrial processes that 

can claim to be operating under the 

generator-controlled exclusion with 

relatively few conditions. After 

implementing the DSW exclusions in 

several states since its promulgation in 

October 2008, we have determined that 

documentation of legitimacy for this 

particular exclusion is important in 

ensuring compliance and will make 

oversight and enforcement more 

effective. We are therefore requiring that 

persons who perform reclamation under 

the control of the generator to include 

documentation and explain how their 

hazardous secondary materials are 

legitimately reclaimed. We expect this 

documentation to be a narrative 

description, which could include 

photographs or other illustrations or 

process diagrams of how the 

reclamation of their hazardous 


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Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 1731 

34The language in the proposed regulatory text 

for this paragraph mistakenly included an ‘‘or’’ 

instead of an ‘‘and’’ between these two 

requirements of factor 4 although the preamble 

discussion on page 76 FR 44124, column 2, 

correctly used ‘‘and.’’ Several commenters pointed 

this error out to the Agency in their comments. 

secondary materials meets the 

legitimacy factors. Reclaimers of 

hazardous secondary materials will 

need to maintain this documentation 

on-site where the reclamation occurs for 

the duration of the reclamation 

operations and for three years after the 

reclamation operations cease. Written 

documentation will provide an easily 

available explanation of the facility’s 

rationale for the legitimacy of its process 

that is available to the implementing 

agency on regular inspections or as part 

of compliance assistance. 

The other exception where 

documentation is required is for those 

facilities whose product made from 

recycled hazardous secondary materials 

does not meet factor 4, but would still 

be considered a legitimately recycled 

product. Those facilities would need to 

maintain documentation as to why, in 

fact, the recycling is still legitimate as it 

relates to factor 4. For a more detailed 

explanation of that documentation 

requirement, refer to section VIII.B.6 

above. 

3. Factor 4 

In the 2011 DSW proposal, EPA’s 

proposed factor 4 contained two main 

requirements to ensure that hazardous 

constituents were not ‘‘along for the 

ride’’ and being discarded in a final 

product under the guise of recycling. 

The proposed regulation stated that the 

product of the recycling process would 

have to have concentrations of 

hazardous constituents that are at levels 

comparable to or lower than those found 

in analogous products. In addition, the 

proposal stated that the product of the 

recycling process could not exhibit a 

hazardous characteristic that analogous 

products did not also exhibit.34 EPA 

recognized that there would be some 

legitimate recycling operations that may 

not meet this requirement, and so 

proposed to address this situation 

through a petition process in which a 

facility that did not meet factor 4 could 

petition its implementing agency, 

whether that be a state environmental 

agency or an EPA Region, and get 

agreement from that agency that its 

operations were legitimate. 

Although this approach would 

provide a way for operations that are 

legitimate, but don’t meet factor 4 to 

still operate, commenters from both the 

industrial sector, as well as from state 

regulatory agencies, commented that 

this approach was not ideal. 

Commenters from industry suggested 

that there would be more petitioners 

under this provision than EPA had 

anticipated because certain large sectors 

of industry would likely be uncertain 

about whether their recycling would 

meet the factor as written and would be 

compelled to petition their 

implementing agencies. Commenters 

provided some real world examples to 

illustrate their concerns with factor 4 

that EPA closely examined when 

redrafting the language for this 

provision. 

Commenters also were concerned that 

the petition process itself might take too 

long if the implementing agencies 

receive petitions from many facilities 

and that the response time might end up 

being very lengthy. Several of the states 

that could be responsible for replying to 

these petitions also commented that 

they were not in favor of a petition 

process because the resources that 

would be required to respond to the 

petitions are not available in the state 

program offices. 

EPA made several changes to factor 4 

in response to these comments and has 

determined that factor 4, as we are 

finalizing it today, better addresses the 

wide variety of industrial recycling 

processes. There are four main changes 

to the final language of factor 4 as 

compared to the 2011 DSW proposed 

regulation. 

First, instead of the two basic 

proposed provisions that depend on a 

comparison with an analogous product, 

factor 4 as finalized acknowledges that 

sometimes there is no analogous 

product available for a comparison. 

Subparagraph (i) covers how a recycling 

process meets the factor if there is an 

analogous product whereas 

subparagraph (ii), which was not part of 

the proposed regulatory language, 

covers how a product with no analogous 

product can meet factor 4. 

Secondly, the finalized regulatory 

language has provisions for how widelyrecognized industry standards and 

specifications can be used to meet factor 

4. EPA took comment on the usefulness 

of specifications for evaluating 

hazardous constituents in the product 

and has determined that as long as the 

standards and specifications being 

relied upon are widely recognized 

industry wide standards and 

specifications for a product (and in the 

case of (i), that they address the 

hazardous constituents in question), 

meeting them would be appropriate to 

show that hazardous constituents are 

not being discarded under the guise of 

recycling. This should make 

determinations regarding factor 4 

simpler for a wide range of industries 

producing common industrial 

commodities. EPA did not intend to 

interfere with long-standing legitimate 

recycling in these industries and this 

addition to the regulatory language 

should clarify for those industries that 

when they are meeting the extensive 

commodity standards and specifications 

for their products, they meet factor 4 as 

well. 

The third change is the addition 

under § 260.43(a)(4)(ii)(B) of language 

that states that hazardous secondary 

materials that are being recycled by 

being returned to the original 

process(es) from which they were 

generated meet factor 4. In closed loop 

recycling and in several other kinds of 

recycling, such as in mining and 

mineral processing, hazardous 

secondary materials generated from an 

industrial process are regularly returned 

to that same process to remove more of 

the valuable constituent from them. The 

hazardous constituents in the secondary 

material are no different than what is 

already in the process and returning 

them makes the entire manufacturing 

process more efficient since it requires 

fewer raw materials. 

EPA has stated in the past that it 

would not consider this practice a 

concern from the perspective of factor 4 

because the comparison in question is 

supposed to be between final products, 

but it was clear from the comments to 

the proposal that this question was still 

a concern to many facilities. When 

adding subparagraph (ii) for situations 

where there is no analogous product for 

a comparison, EPA also added this 

language to make it clear that processes 

in which the hazardous secondary 

materials are returned to the original 

process do meet factor 4. 

Collectively, these changes to the 

language of factor 4 are an improvement 

from EPA’s 2011 proposal as the 

changes clarify when factor 4 is met for 

a wide variety of industrial processes. 

Furthermore, a generator can use its 

knowledge of the materials it uses and 

of the recycling process to make 

legitimacy determinations under factor 

4. Thus, testing would be rarely 

required for a recycler to meet this 

factor because it would only be 

necessary when the product of the 

recycling does not meet widelyrecognized specifications, is not an inprocess material, and when the recycler 

does not sufficiently know what is in 

their final product to make a 

determination using generator 

knowledge. 

Finally, EPA has changed proposed 

factor 4 to require any facility that does 

not meet the technical provisions of this 


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1732 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

factor and yet is still legitimately 

recycling to document, certify, and 

provide notice that even though the 

recycling process does not meet the 

technical provisions of this factor, the 

recycling process is nevertheless 

legitimate. This requirement replaces 

the proposed petition process. The 

comments EPA received on the petition 

process expressed concern that the 

process would be expensive for facilities 

who wanted to take advantage of it and 

would place too much of a burden on 

implementing agencies. Comments also 

argued that EPA’s estimate of the 

number of facilities that would be likely 

to submit petitions was overly 

conservative. Although the changes to 

factor 4 described here will address the 

concerns of many of the facilities who 

stated that they would have to submit a 

petition, the Agency also determined 

that a self-implementing process to 

allow those recyclers to address factor 4 

would be more in keeping with the 

existing policy on legitimacy. 

The certification process requires that 

a facility go through the same thought 

process and assessment about hazardous 

constituents that are incorporated into 

the final product that would have been 

required by the petition process (and 

that is currently consistent with the 

Agency’s legitimacy policy in the 

Lowrance Memo). However, instead of 

having to submit a petition to an 

implementing agency when the process 

is legitimate despite not meeting the 

technical provisions of factor 4, the 

facility can document and certify the 

assessment that it has done and submit 

a notification on the Site ID form. This 

is a minimal burden, particularly as the 

Site ID form is a form that many of these 

facilities are already submitting to EPA 

for other reasons. In addition, these 

facilities are not left waiting for a 

response from an agency as they may 

have had to under the proposed petition 

procedure. 

All in all, these changes to factor 4 

will make this part of the legitimacy 

requirement consistent with the current 

policy in the Lowrance Memo and 

Federal Register preamble discussions 

and allow for all four legitimacy factors 

to be requirements that must be met 

without adversely affecting existing 

legitimate recycling. 

IX. Revisions to Solid Waste Variances 

and Non-Waste Determinations 

The Agency is finalizing today several 

modifications to the regulation of solid 

waste variances and non-waste 

determinations at 40 CFR 260.31(c), 40 

CFR 260.33, and 40 CFR 260.34 to 

ensure protection of human health and 

the environment and foster greater 

consistency on the part of implementing 

agencies. These final revisions include: 

(1) Revise 40 CFR 260.33(c) to require 

facilities to send a notice to the 

Administrator (or the State Director, if 

the state is authorized) in the event of 

a change in circumstances that affects 

how a hazardous secondary material 

meets the relevant criteria upon which 

a variance or non-waste determination 

has been based. The Administrator may 

issue a determination that the hazardous 

secondary material continues to meet 

the relevant criteria of the variance or 

non-waste determination or may require 

the facility to re-apply for the variance 

or non-waste determination; 

(2) Include a provision at 40 CFR 

260.33(d) that variances and non-waste 

determinations shall be effective for a 

fixed term not to exceed ten years. No 

later than six months prior to the end of 

this term, facilities must re-apply if they 

want to maintain the variance or nonwaste determination; 

(3) Include a provision at 40 CFR 

260.33(e) stating that facilities receiving 

a variance or non-waste determination 

must provide notification as required by 

40 CFR 260.42; 

(4) Revise the criteria for the partial 

reclamation variance in 40 CFR 

260.31(c) to clarify when the variance 

applies and to require, among other 

things, that the all criteria for this 

variance must met; and 

(5) Revise the criteria for the nonwaste determination in 40 CFR 260.34 

to require that petitioners explain or 

demonstrate why their hazardous 

secondary materials cannot meet, or 

should not have to meet, the existing 

DSW exclusions under 40 CFR 261.2 or 

261.4. 

A discussion of the public comments 

on the 2011 DSW proposal and Agency 

responses can be found in section XVIII 

of this preamble and the full response 

to comment document is in the docket 

for the rulemaking. 

A. Revisions to Procedures for Variances 

and Non-Waste Determinations in 40 

CFR 260.33 

Under the current regulatory 

framework, 40 CFR 260.30 provides the 

Administrator with the authority to 

grant a variance from the definition of 

solid waste or a non-waste 

determination on a case-by-case basis if 

the hazardous secondary materials are 

recycled in a particular manner. The 

practical effect of both the solid waste 

variances and the non-waste 

determinations is the same; once a 

petition is granted by EPA, or the 

authorized state, the hazardous 

secondary material is not regulated as a 

solid or hazardous waste. The 

procedures for these variances and nonwaste determinations are found in 40 

CFR 260.33. 

In today’s rule, EPA is finalizing three 

changes to 40 CFR 260.33. First, EPA is 

requiring in 40 CFR 260.33(c) that 

facilities send a notice to the 

Administrator (or the State Director, if 

the state is authorized) in the event of 

a change in circumstances that affect 

how a hazardous secondary material 

meets the relevant criteria upon which 

a variance or non-waste determination 

has been based. Second, EPA is 

establishing in 40 CFR 260.33(d) an 

effective term limit of ten years for 

variances and non-waste determinations 

unless the petitioner re-applies to the 

Agency to have the variance or nonwaste determination renewed. Third, 

EPA is requiring in 40 CFR 260.33(e) 

that facilities re-notify every two years 

under 40 CFR 260.42. 

1. Requirement That an Applicant Send 

Notice in the Event the Material No 

Longer Meets the Relevant Criteria 

EPA is modifying 40 CFR 260.33(c) to 

require, in the event of a change in 

circumstances that affects how a 

hazardous secondary material meets the 

relevant criteria contained in 40 CFR 

260.31, 260.32, or 260.34 upon which a 

variance or non-waste determination 

has been based, the applicant must send 

a description of the change in 

circumstances to the Administrator (or 

the State Director, if the state is 

authorized). The Administrator then 

may issue a determination that the 

hazardous secondary material continues 

to meet the relevant criteria of the 

variance or non-waste determination or 

may require the facility to re-apply for 

the variance or non-waste 

determination. 

The requirement that the hazardous 

secondary materials must continue to 

meet the relevant criteria of a solid 

waste variance or non-waste 

determination is inherent in the 

regulations. Failure to meet the criteria 

could indicate that the hazardous 

secondary materials are discarded and a 

solid waste and would trigger the need 

to re-examine the circumstances of the 

recycling. EPA is codifying this change 

to 40 CFR 260.33(c) to ensure that if 

there are changes that may impact how 

the hazardous secondary material meets 

the relevant criteria, that such changes 

be considered by the regulatory 

authority to ensure that those criteria 

continue to be met. This requirement 

will ensure clarity and consistency by 

providing an administrative procedure 

for reconsidering a variance or nonwaste determination in the event that 


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Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 1733 

the hazardous secondary material no 

longer meets the relative criteria. 

In some cases, a full re-application for 

a variance or non-waste determination 

may not be necessary. Under today’s 

final rule, in the event of a change, the 

facility must send a description of the 

change in circumstances to the 

regulatory authority and it is the 

regulatory authority that will determine 

whether the facility must re-apply for a 

variance or non-waste determination. 

This change in procedure allows the 

regulatory authority to avoid spending 

unnecessary resources re-reviewing 

petitions where the change in 

circumstances is found to be of no 

consequence to the original variance or 

non-waste determination the regulatory 

authority has granted. 

2. Term Limit on Variances and NonWaste Determinations 

EPA is adding a provision to 40 CFR 

260.33(d) that solid waste variances and 

non-waste determinations shall be 

effective for a fixed term not to exceed 

ten years. No later than six months prior 

to the end of this term, facilities must 

re-apply for a variance or non-waste 

determination if they want to maintain 

the variance or non-waste 

determination. A facility may continue 

to operate under an expired variance or 

non-waste determination if they have 

submitted an application for a new 

variance or non-waste determination six 

months prior to the end of the term limit 

and have not yet received a final 

decision on that application from their 

regulatory authority. 

Variances and non-waste 

determinations are granted based on the 

case-by-case circumstances of a 

particular hazardous secondary material 

being recycled. Many of the variance 

and non-waste determination criteria 

specifically consider factors such as, the 

manner in which the hazardous 

secondary material is recycled, the 

market factors of the recycling process, 

the value of the hazardous secondary 

material, and contractual arrangements. 

However, these factors do not remain 

static and, instead, tend to change and 

evolve over time. It is therefore prudent 

that regulatory authorities periodically 

review these case-by-case situations to 

ensure that the hazardous secondary 

material continues to meet the criteria of 

the variance or non-waste 

determination. 

Variances and non-waste 

determinations are granted for a fixed 

term not to exceed ten years from the 

date the facility is granted a variance or 

non-waste determination. If, for 

example, due to a change in 

circumstances, a facility is required to 

re-apply for a variance or non-waste 

determination within the 10-year time 

limit of its initial petition, then an 

automatic re-application would not be 

initiated until ten years after its second 

variance or non-waste determination is 

granted, unless otherwise specified by 

the regulatory authority. Additionally, 

regulators may stipulate time limits of 

less than 10 years, if warranted. 

3. Re-Notification Requirement 

EPA is adding a provision to 40 CFR 

260.33(e) to require facilities receiving 

variances or non-waste determinations 

to send a notification of this activity 

prior to operating under the regulatory 

provision and by March 1 of each evennumbered year thereafter to the 

Regional Administrator (or State 

Director, if the state is authorized) using 

EPA Form 8700–12 in compliance with 

40 CFR 260.42. Additionally, these 

facilities must notify within 30 days of 

stopping management of hazardous 

secondary materials under the variance 

or non-waste determination. 

The intent of the notification is to 

enable variances and non-waste 

determinations to be tracked nationally 

and over time, which facilitates state-tostate consistency in determinations. 

Additionally, notifications enable 

effective oversight of facilities receiving 

variances and non-waste determinations 

because it provides regulatory 

authorities with a mechanism for 

receiving regularly updated information 

(such as information regarding 

quantities of hazardous secondary 

materials managed under the 

determination). Additionally, this 

information can be used to identify 

facilities which may have undergone 

changes to their reclamation process 

significant enough to trigger a review of 

the determination under 40 CFR 

260.33(c). 

EPA finds that the notification 

requirement under 40 CFR 260.42 has 

worked well in enabling regulatory 

authorities to monitor compliance of 

facilities operating under the 2008 DSW 

final rule. Regulatory authorities receive 

information on the name and location of 

the facilities operating under the 

exclusion and the types and quantities 

of hazardous secondary materials the 

facility is managing, which allows the 

regulatory authority to prioritize 

inspections, as well as create a list of 

facilities that would benefit from 

training and compliance assistance on 

the rule. Additionally, notification has 

allowed regulatory authorities to 

identify problems so as to intervene 

early to prevent potential 

mismanagement. EPA is convinced of 

the value of the notification provision in 

ensuring proper implementation of its 

rules. Therefore, notification for 

variances and non-waste determinations 

will increase transparency and oversight 

of facilities receiving a variance or nonwaste determination. 

B. Revisions to Partial Reclamation 

Variance in 40 CFR 260.30(c) 

The ‘‘partial reclamation’’ variance in 

40 CFR 260.30(c) applies to hazardous 

secondary materials that have been 

reclaimed, but must be reclaimed 

further before the materials are 

completely recovered (i.e., ‘‘partial 

reclamation’’). In turn, 40 CFR 260.31(c) 

provides the specific standards that a 

partially-reclaimed material must meet 

in order to be eligible for a variance 

from classification from solid waste. 

In this final rule, EPA is revising the 

partial reclamation variance provision 

of 40 CFR 260.31(c) to clarify when 

partially-reclaimed materials are not 

solid waste because they are 

commodity-like. The objectives of the 

revisions are to clarify the regulatory 

language, foster consistent application 

of the variance criteria, and emphasize 

that the variance should be granted only 

when partial reclamation has produced 

a commodity-like material. EPA’s 

modifications to 40 CFR 260.31(c) 

include: (1) Revising the introductory 

text to clarify when the variance 

applies; (2) revising the introductory 

text to require that all of the decision 

criteria must be met; (3) revising the 

language of all of the decision criteria to 

provide greater clarity; and (4) 

eliminating the sixth criterion, ‘‘other 

relevant factors.’’ 

1. Purpose of Revisions to Partial 

Reclamation Variance 

When the partial reclamation variance 

was promulgated in 1985, EPA’s 

original intent was to provide a 

mechanism for determining if a 

hazardous secondary material had 

undergone sufficient reclamation (a type 

of processing) to produce a material that 

was more like a commodity than a solid 

waste. The variance would be 

applicable if the material was 

commodity-like, even though some 

further reclamation was required before 

the material became a commercial 

product. EPA intended that the variance 

would be applied at the point that the 

commodity-like material was produced. 

After that point, the material would be 

managed as a commodity rather than as 

a solid and hazardous waste. Prior to the 

point that partial reclamation produced 

a commodity-like material, the material 

would have to be managed as a 

hazardous waste. 


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35 Docket ID: EPA–HQ–RCRA–2010–0742–0016. 

However, EPA has become aware that 

authorized states across the country 

have applied the variance provision 

differently in similar circumstances. 

These differences may be due to: (1) The 

wide discretion allowed to the 

regulatory authority to weigh any or all 

of the decision criteria in any way it 

sees fit; (2) lack of clarity in the decision 

criteria themselves; or (3) the general 

sixth criterion ‘‘other relevant factors.’’ 

As a result, variances have been 

granted under 40 CFR 260.31(c) for 

some materials that are not commoditylike. Therefore, EPA is finalizing 

revisions to the variance criteria to 

address the inconsistency among 

authorized states, remove ambiguities, 

and clearly convey the intent of the 

partial reclamation variance that only 

partially reclaimed hazardous secondary 

materials that have produced 

commodity-like materials are eligible for 

a variance from classification as solid 

waste. Consistent and appropriate 

application of the partial reclamation 

variance is necessary so that the 

hazardous waste program provides the 

level of protection of human health and 

the environment required by the RCRA 

statute in all communities in all areas of 

the country. 

An illustration of how the revised 

variance provision would be applied to 

a commonly reclaimed hazardous waste 

example is included in the ‘‘Background 

Document: Providing Context—The 

Example of F006 Electroplating 

Sludges,’’ 35 which is included in the 

docket for this rulemaking. This 

document includes a detailed 

description of how the revised variance 

provision would be used to make 

determinations about whether a 

variance would be appropriate for the 

listed hazardous waste F006 

(wastewater treatment sludges from 

electroplating operations) at various 

steps in the reclamation process. 

2. Revisions to Introductory Text of 40 

CFR 260.31(c) 

EPA revised the introductory text of 

40 CFR 260.31(c) to clarify when a 

partial reclamation variance is 

applicable and to identify what factors 

must be used to make a determination 

that a partially-reclaimed material is 

commodity-like. The revised text states: 

The Administrator may grant requests for 

a variance from classifying as a solid waste 

those hazardous secondary materials that 

have been partially reclaimed, but must be 

reclaimed further before recovery is 

completed, if the partial reclamation has 

produced a commodity-like material. A 

determination that a partially-reclaimed 

material for which the variance is sought is 

commodity-like will be based on whether the 

hazardous secondary material is legitimately 

recycled as specified in § 260.43 of this part 

and on whether all of the following decision 

criteria are satisfied: 

As noted above, the revised text 

replaces the word ‘‘reclaimed’’ with 

‘‘partially-reclaimed’’ and clarifies that 

the variance is applicable at the point 

that partial reclamation ‘‘has produced 

a commodity-like material.’’ These 

changes clarify and reflect EPA’s intent 

that the variance applies only after 

partial reclamation has produced a 

commodity-like material and does not 

apply prior to producing a commoditylike material. 

To make a determination that a 

partially-reclaimed material is 

commodity-like, EPA revised the 

introductory text to require that such a 

determination will be based on whether 

the hazardous secondary material is 

legitimately recycled and whether all 

the decision criteria are satisfied. 

3. Revisions to Criteria for Partial 

Reclamation Variance 

Each criterion under 40 CFR 260.31(c) 

has been revised to begin with the word 

‘‘whether’’ to require that the regulatory 

authority must make a yes or no 

determination as to whether the 

material meets each criterion. In 

addition, each criterion has been revised 

to clarify and incorporate the 

characteristics of a commodity-like 

material. 

The first criterion in 40 CFR 

260.31(c)(1) asks whether the degree of 

partial reclamation the material has 

undergone is substantial as 

demonstrated by using a partial 

reclamation process other than the 

process that generated the hazardous 

waste. By using a partial reclamation 

process other than the process that 

generated the hazardous waste, the more 

likely that the material will be 

commodity-like. Changes from the 

original language of the criterion 

include (1) replacing the general word 

‘‘processing’’ with the words ‘‘partial 

reclamation’’; and (2) removing from the 

criterion ambiguity that could lead a 

regulatory authority to apply the 

variance after the initial partial 

reclamation process when a commoditylike material is not produced until 

completion of further reclamation. 

The second criterion in 40 CFR 

261.31(c)(2) asks whether the partiallyreclaimed material has sufficient 

economic value that it will be 

purchased for further reclamation. 

Changes from the original language of 

the criteria include: (1) Adding the word 

‘‘partially-’’ before the word 

‘‘reclaimed’’ to clarify that the criterion 

applies to the partially-reclaimed 

material, not the fully-reclaimed 

material produced later in the process; 

and (2) revising the wording to reflect 

the fundamental characteristic that a 

commodity-like material has sufficient 

economic value that it will be 

purchased for further reclamation. EPA 

notes that the value of a material 

produced at a later stage of reclamation 

cannot be used to justify a variance for 

the partially-reclaimed material 

produced earlier in the process. In other 

words, the criterion must be applied to 

the ‘‘partially-reclaimed’’ material at the 

specific point in the reclamation process 

where application of the variance is 

requested. Evidence to support this 

criterion may include sales information; 

demand for the materials; and business 

contracts, such as contracts specifying 

quantities of material sold, details of the 

transaction, and the effective price paid 

for the partially-reclaimed material by 

purchasers. The price paid for the 

partially-reclaimed material should be 

calculated after subtracting 

transportation costs and any other goods 

or services rendered in exchange for the 

material purchased. 

The third criterion in 40 CFR 

260.31(c)(3) asks whether the partiallyreclaimed material is a viable substitute 

for a product or intermediate produced 

from virgin or raw materials and which 

is used in subsequent production steps. 

Changes from the original language of 

the criteria include (1) adding the word 

‘‘partially-’’ before the word 

‘‘reclaimed’’ to clarify that the criterion 

applies to the partially-reclaimed 

material, not the fully-reclaimed 

material produced later in the process; 

and (2) replacing the phrase ‘‘is like an 

analogous raw material’’ with the phrase 

‘‘is a viable substitute for a product or 

intermediate produced from virgin or 

raw materials which is used in 

subsequent production steps.’’ This 

revision is intended to demonstrate that 

a partially-reclaimed, commodity-like 

material is one that will be used as a 

viable substitute for a product or 

intermediate in production. Evidence to 

support this criterion would include a 

comparison of the physical and 

chemical characteristics of the partiallyreclaimed material being considered for 

the variance to those of products or 

intermediates produced from virgin raw 

materials. 

The fourth criterion in 40 CFR 

260.31(c)(4) asks whether there is a 

market for the partially-reclaimed 

material as demonstrated by known 

customer(s) who are further reclaiming 

the material (e.g., records of sales and/ 

or contracts and evidence of subsequent 


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36The two types of non-waste determinations are 

(1) a determination for hazardous secondary 

materials reclaimed in a continuous industrial 

process and (2) a determination for hazardous 

secondary materials that are indistinguishable in all 

relevant aspects from a product or intermediate. 

use, such as bills of lading). Changes 

from the original language of the criteria 

include (1) adding the word ‘‘partially- 

’’ before the word ‘‘reclaimed’’ to clarify 

that the criterion applies to the 

partially-reclaimed material, not the 

fully-reclaimed material produced later 

in the process; (2) deleting the word 

‘‘guaranteed’’ since markets are often 

unpredictable; (3) deleting the word 

‘‘end’’ prior to the word ‘‘market’’ since 

the partially-reclaimed material could 

be sold to another reclaimer before it is 

sold to a final manufacturer or final 

reclaimer; and (4) adding the phrase, ‘‘as 

demonstrated by known customer(s) 

who are further reclaiming the material 

(e.g. record of sales and/or contracts, 

and evidence of subsequent use, such as 

bills of lading),’’ to clarify how a facility 

may demonstrate a market for the 

partially-reclaimed material. 

Additionally, this change ensures that 

the partially-reclaimed material is being 

shipped for further reclamation rather 

than being potentially stockpiled by the 

partial reclaimer. Evidence to support 

this criterion may include the material’s 

value as an input to a production 

process; traditional usage of quantities 

of the partially-reclaimed material; and 

the likely stability of markets for the 

material. A market for further reclaimed 

material produced at a later stage of 

reclamation cannot be used to justify a 

variance for a partially-reclaimed 

material. For example, if a facility 

requests a variance for an incoming 

partially-reclaimed hazardous waste, the 

market that would have to be evaluated 

is the market for the incoming partiallyreclaimed hazardous waste itself, not 

the final product. 

The fifth criterion in 40 CFR 

260.31(c)(5) asks whether the partiallyreclaimed material is handled to 

minimize loss. Changes from the 

original language of the criteria includes 

adding the word ‘‘partially-’’ before the 

word ‘‘reclaimed’’ to clarify that the 

criterion applies to the partiallyreclaimed material, not the fullyreclaimed material produced later in the 

process. Specifically, this criterion 

requires evaluation of how the partiallyreclaimed material is handled before it 

is further reclaimed. Handling a 

partially-reclaimed material to minimize 

loss indicates that the material is 

commodity-like. Generally, persons 

handling hazardous secondary materials 

with little or no economic value do not 

have the same incentives to minimize 

loss as persons handling commodities. 

The management of materials produced 

at later stages of the reclamation process 

is not relevant to whether the partiallyreclaimed material is eligible for a 

variance. Evidence to support this 

criterion may include documentation of 

facility procedures used to minimize 

loss (e.g., inspections, training) and 

storage and management equipment 

designed to minimize loss. 

Finally, in today’s final rule, EPA is 

removing the sixth criterion in 40 CFR 

260.31(c)(6), which allowed the 

regulatory authority to consider other 

relevant factors when deciding whether 

a partially-reclaimed materials is 

commodity-like. When the partial 

reclamation variance was promulgated 

in 1985, EPA believed that this criterion 

could help determine whether a 

material is commodity-like. However, 

based on experience with the variance 

provision, EPA has learned that this 

criterion may have contributed to 

different determinations of whether the 

same partially-reclaimed material is 

commodity-like. Accordingly, EPA has 

determined that the appropriate and 

complete set of criteria to consider 

when determining whether a partiallyreclaimed material is commodity-like 

are criteria (1)–(5). 

C. Revisions to Non-Waste 

Determinations Found in 40 CFR 260.34 

In today’s final rule, EPA is adding a 

criterion to non-waste determinations in 

40 CFR 260.34 that require facilities 

applying for a non-waste determination 

to explain or demonstrate why they 

cannot meet, or should not have to 

meet, the existing DSW exclusions 

under 40 CFR 261.2 or 261.4.36

Commenters to the 2009 DSW public 

meeting notice have argued that the 

non-waste determinations may be 

burdensome to states, and thus, 

requiring applicants to formally 

consider and explain why they are not 

eligible for an existing DSW exclusion 

will reduce the burden on states in two 

ways: (1) It requires facilities to consider 

existing exclusions and standards first, 

before pursuing a non-waste 

determination, which can, in turn, lead 

to facilities discovering that their 

intended recycling fits under an existing 

exclusion and therefore a non-waste 

determination petition is not needed; 

and (2) this criterion informs the 

regulatory authority why a facility 

believes it cannot meet an existing 

exclusion, which is likely to be the 

regulatory authority’s first question 

before evaluating a non-waste 

determination petition. Petitioners also 

would be allowed to seek a non-waste 

determination if they could demonstrate 

that they should not have to meet the 

conditions of another exclusion, but 

rather should be allowed to operate 

under a non-waste determination with 

fewer or different conditions. However, 

if EPA or the authorized state 

determines that an applicant may, in 

fact, use an existing solid waste 

exclusion under 40 CFR 261.2 or 261.4, 

this may be grounds for denying a nonwaste determination on the basis that 

regulatory relief has already been 

provided. 

X. Effect on Facilities Currently 

Operating Under Solid Waste 

Exclusions 

A. Effect on Pre-2008 Solid Waste 

Exclusions 

The final rule does not supersede any 

of the pre-2008 solid waste exclusions 

or other prior solid waste 

determinations or variances, including 

determinations made in letters of 

interpretation and inspection reports. If 

a hazardous secondary material has 

been determined not to be a solid waste 

for whatever reason, such a 

determination remains in effect, unless 

the authorized state decides to revisit 

the regulatory determination under their 

current authority. In addition, if a 

hazardous secondary material has been 

excluded from hazardous waste 

regulations—for example, under the 

Bevill exclusion in 40 CFR 261.4(b)(7)— 

the regulatory status of that material 

will not be affected by today’s rule. 

However, there are two revisions to 

the regulations that, while they do not 

directly affect the regulatory status of 

excluded hazardous secondary 

materials, may impact facilities’ 

responsibilities under an existing 

exclusion. These two revisions are (1) a 

new recordkeeping requirement for 

speculative accumulation; and (2) a 

documentation, certification, and 

notification requirement for recycling 

processes which are legitimate despite 

having levels of hazardous constituents 

that are not comparable to or unable to 

be compared to a legitimate product. 

These requirements must be met by the 

effective date of the rule, which is July 

13, 2015. 

1. Revised Speculative Accumulation 

Requirement 

Under the revised speculative 

accumulation requirement in 

§ 261.1(c)(8), all persons subject to the 

speculative accumulation requirements 

(for example, persons reclaiming 

characteristic by-products and sludges 

under 40 CFR 261.2(c)(3) and persons 

reclaiming hazardous secondary 


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1736 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

37Today’s rule consolidates the 2008 generatorcontrolled exclusion at 40 CFR 261.2(a)(2)(ii) and 

40 CFR 261.4(a)(23) into one exclusion at 40 CFR 

261.4(a)(23). 

38As part of the requirement of meeting 40 CFR 

260.43, if the product of recycling contains levels 

of hazardous constituents that are not comparable 

to or are unable to be compared to a legitimate 

product, the person performing the recycling must 

document, certify and notify the appropriate 

Regional Administrator of why the recycling is still 

legitimate. Where there is no analogous product 

made from virgin materials, the product of the 

recycling process is comparable to a legitimate 

product or intermediate if the product of the 

recycling process is a commodity that meets widely 

recognized commodity standards and 

specifications, or the hazardous secondary materials 

being recycled are returned to the original process 

or processes from which they were generated to be 

reused. 

materials under a definition of solid 

waste exclusion under 40 CFR 261.4(a), 

such as the sulfuric acid exclusion at 

§ 261.4(a)(7) or the generator-controlled 

exclusion at § 261.4(a)(23)) must label 

their storage unit(s) by indicating the 

first date that the material began to be 

accumulated. 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. 

2. Prohibition of Sham Recycling and 

Definition of Legitimate Recycling 

The codification of the prohibition of 

sham recycling (§ 261.2(g)), and the 

definition of legitimate recycling 

(§ 260.43) being finalized today will not 

impose any new requirements on 

persons recycling under the pre-2008 

recycling exclusions, except in the case 

where the product of the recycling 

process (1) has levels of hazardous 

constituents that are not comparable to 

or lower than those in a legitimate 

product (i.e., are significantly elevated) 

or (2) is unable to be compared to a 

legitimate product and the product of 

the recycling process is not a widely 

recognized commodity (e.g., scrap 

metal) and is not returned to the original 

production process (e.g., closed loop 

recycling). 

In this case, the person performing the 

recycling must conduct the necessary 

analysis and prepare documentation 

stating why the recycling is still 

legitimate. Persons may consider 

exposure from toxics in the product, the 

bioavailability of the toxics in the 

product, and other relevant 

considerations which show that the 

recycled product does not contain levels 

of hazardous constituents that pose a 

significant human health or 

environmental risk. The documentation 

must include a certification statement 

that the recycling is legitimate and must 

be maintained on-site. The person 

performing the recycling must also 

notify his Regional Administrator (or 

State Director, if the state is authorized) 

of this activity using EPA Form 8700– 

12. 

B. Effect on Facilities Operating Under 

the 2008 Solid Waste Exclusions 

1. Facilities Operating Under GeneratorControlled Exclusion (40 CFR 

261.2(a)(2)(ii) or 261.4(a)(23)) 37

Because today’s rule includes more 

stringent standards for the generatorcontrolled exclusion at 40 CFR 

261.4(a)(23), facilities that are currently 

managing hazardous secondary 

materials under these provisions must 

ensure they are complying with the 

more stringent standards by the effective 

date of the rule, which is July 13, 2015 

(or in an authorized state, by the 

effective date in that state). The new 

provisions include (1) complying with 

the regulatory definition of ‘‘contained’’ 

found in 40 CFR 260.10; (2) maintaining 

shipping records for reclamation under 

same-company and toll manufacturing 

agreements; (3) (for the person 

performing the recycling) documenting 

how the recycling meets all four factors 

of the legitimacy definition in 40 CFR 

260.43,38 and (4) meeting the new 

emergency preparedness and response 

conditions. 

Under the new regulatory definition 

of contained, a hazardous secondary 

material is contained if it is managed in 

a unit (which can include a land-based 

unit such as a pile) that meets the 

following criteria: (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 material, to 

prevent releases of the hazardous 

secondary material 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; (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 (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. Hazardous secondary 

materials in units that meet the 

applicable requirements of 40 CFR part 

264 or 265 (e.g., tanks and containers) 

are presumptively contained. 

Under the new requirements to 

document shipments for reclamation 

performed under the same-company and 

toll manufacturing provisions of the 

generator-controlled exclusion at 40 

CFR 261.4(a)(23), generating and 

receiving facilities must maintain 

records of hazardous secondary 

materials sent or received under this 

exclusion at their facilities for no less 

than three years. The records must 

contain the name of the transporter, the 

date of the shipment, and the type and 

quantity of the hazardous secondary 

material shipped or received. The 

requirements may be satisfied by 

routine business records (e.g., financial 

records, bills of lading, copies of DOT 

shipping papers, or electronic 

confirmations). 

Persons performing the recycling of 

hazardous secondary materials under 

the generator-controlled exclusion of 40 

CFR 261.4(a)(23) must also maintain 

documentation of their legitimacy 

determination on-site. Documentation 

must be a written description of how the 

recycling meets all four factors in 40 

CFR 260.43(a). Documentation must be 

maintained for three years after the 

recycling operation has ceased. 

The Agency is not requiring any 

particular format for the documentation 

of legitimacy; however, we expect that 

the recycler would have written 

documentation describing the recycling 

process and how it meets each 

legitimacy factor. For example: 

• Useful contribution legitimacy factor— 

the recycler would document how the 

hazardous secondary material(s) provides a 

useful contribution to the recycling process 

or to the product or intermediate of the 

recycling process. The regulatory text for this 

factor provides five ways in which a useful 

contribution can be achieved. The recycler 

would need to document how the hazardous 

secondary material(s) add value and/or are 

useful to the recycling process in one or more 

of these ways: (i) Contributing valuable 

ingredients to a product or intermediate; (ii) 

replacing a catalyst or carrier in the recycling 

process; (iii) providing a valuable constituent 

to be recovered; (iv) being regenerated; or (v) 

being used as an effective substitute for a 

commercial product. For example, if the 

hazardous secondary material is a source of 

a valuable constituent, such as a precious 

metal, the document would explain the 

specific precious metal(s) recovered and their 

value to the process. 

• Valuable product or intermediate 

legitimacy factor—the recycler would explain 

how the product or intermediate made from 

hazardous secondary material is valuable, 

either in a monetary sense or through its 

intrinsic value. If the product made from 

hazardous secondary material is sold, the 


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documentation of sale could be proof of the 

value of the material to a third party. Such 

documentation could be in the form of a 

selection of receipts or contracts and 

agreements that establish the terms of the 

sale or transaction. A recycler that has not yet 

arranged for the sale also could demonstrate 

value by showing that the product or 

intermediate can replace another product or 

intermediate that is available in the 

marketplace. Demonstrating intrinsic value 

may be less straightforward than 

demonstrating the value of products that are 

sold in the marketplace, but could involve an 

explanation of the industrial process that 

shows how the product of the recycling 

process or intermediate replaces an 

alternative product that would otherwise 

have to be purchased. 

• Managed as a valuable commodity 

legitimacy factor—the recycler would 

include a description of how the hazardous 

secondary material is managed and explain 

how this management is similar or provides 

equivalent protection to the management of 

an analogous raw material. That is, the 

documentation would describe how the 

hazardous secondary material is stored and 

handled prior to being inserted into the 

recycling process. Where there is no 

analogous raw material, the recycler would 

explain how the management of the 

hazardous secondary material ensures that 

the material is contained as discussed in 40 

CFR 260.10. 

Comparison of comparability of the 

product of recycling to a legitimate 

product factor—the recycler would 

include any data or information that 

shows that (1) the levels of hazardous 

constituents in the product are 

comparable to or lower than those found 

in analogous products, or are 

comparable to levels that meet widelyrecognized commodity standards (in the 

case where the commodity standards 

include levels that specifically address 

those hazardous constituents), or (2) if 

there is no analogous product, that the 

product meets widely recognized 

commodity standards, or that hazardous 

secondary materials being recycled are 

returned to the original process or 

processes from which they were 

generated to be reused. If the product of 

the recycling process has levels of 

hazardous constituents that are not 

comparable to or unable to be compared 

to a legitimate product, but the recycling 

is still legitimate, the person performing 

the recycling must conduct the 

necessary analysis and prepare 

documentation stating why the 

recycling is, in fact, still legitimate. 

Persons can consider exposure from 

toxics in the product, the bioavailability 

of the toxics in the product, and other 

relevant considerations which show that 

the recycled product does not contain 

levels of hazardous constituents that 

pose a significant human health or 

environmental risk. The documentation 

must include a certification statement 

that the recycling is legitimate and must 

be maintained on-site. In addition, the 

person performing the recycling must 

notify his Regional Administrator (or 

the State Director, if the state is 

authorized) of this activity using EPA 

Form 8700–12. 

Finally, under the new standards for 

emergency preparedness and response 

found in 40 CFR part 261 subpart M, 

generators that accumulate less than or 

equal to 6,000 kg of hazardous 

secondary material on site must comply 

with the emergency preparedness and 

response requirements equivalent to 

those in part 265 subpart C, which 

discuss maintaining appropriate 

emergency equipment on site, having 

access to alarm systems, maintaining 

needed aisle space, and making 

arrangements with local emergency 

authorities. A generator must also have 

a designated emergency coordinator 

who must respond to emergencies and 

must post certain information next to 

the telephone in the event of an 

emergency. For generators that 

accumulate more than 6,000 kg of 

hazardous secondary material on site, 

EPA is requiring that generators comply 

with requirements equivalent to those in 

part 265 subparts C and D, which 

includes all the requirements already 

discussed above for those accumulating 

less than or equal to 6,000 kg, as well 

as requiring a contingency plan and 

sharing the plan with local emergency 

responders. 

2. Facilities Operating Under TransferBased Exclusion (40 CFR 261.4(a)(24) or 

(25)) 

Because today’s rule replaces the 

transfer-based exclusion at 40 CFR 

261.4(a)(24) and (25) with a verified 

recycler exclusion, facilities that are 

currently managing hazardous 

secondary materials under the transferbased exclusion at 40 CFR 261.4(a)(24) 

must meet the terms of the verified 

recycler exclusion by the effective date 

of the rule, which is July 13, 2015 (or 

in an authorized state, by the effective 

date in that state). That is, facilities 

operating under the transfer-based 

exclusion who wish to continue 

operating under the verified recycler 

exclusion must send in a new 

notification form and meet the 

additional conditions in the verified 

recycler exclusion, including the 

emergency preparedness and response 

condition. In addition, any reclamation 

facility or intermediate facility that does 

not have a RCRA permit or is not 

operating under interim status must 

stop managing the hazardous secondary 

material under the transfer-based 

exclusion until they apply for and 

receive a variance from either EPA or 

the authorized state under the verified 

recycling exclusion. (As of February 

2014, there were no facilities without a 

RCRA Subtitle C permit recycling under 

the transfer-based exclusion, so EPA 

does not expect this impact to occur). 

Because the verified recycler 

exclusion is limited to recycling in the 

United States, facilities exporting 

hazardous secondary material under 40 

CFR 261.4(a)(25) must cease operating 

under this exclusion by the effective 

date of the rule. The facility must notify 

his Regional Administrator (or State 

Director, if the state is authorized) using 

EPA Form 8700–12 that they have 

stopped managing hazardous secondary 

materials under the exclusion in 

accordance with 40 CFR 260.42(b). 

Facilities must submit this notification 

within 30 days of stopping management 

of hazardous secondary materials under 

this exclusion. Note that facilities that 

manage hazardous secondary materials 

under both the export exclusion at 40 

CFR 261.4(a)(25) and the transfer-based 

exclusion at 40 CFR 261.4(a)(24) and/or 

and the generator-controlled exclusion 

at 40 CFR 261.4(a)(23) would not notify 

that they have stopped managing 

hazardous secondary materials, but 

would instead update their notification 

to make it clear they are no longer using 

the export exclusion at 40 CFR 

261.4(a)(25). 

XI. Effect on Spent Petroleum Catalysts 

In the 2008 DSW final rule, EPA 

deferred the question of whether spent 

petroleum catalysts should be eligible 

for the exclusions pending further 

consideration of the pyrophoric 

properties of the spent petroleum 

catalysts (73 FR 64714). EPA noted that 

the Agency was planning to propose— 

in a separate rulemaking from the 2008 

DSW final rule—an amendment to its 

hazardous waste regulations to 

conditionally exclude from the 

definition of solid waste spent 

hydrotreating and hydrorefining 

catalysts generated in the petroleum 

refining industry when these hazardous 

secondary materials are reclaimed. 

Spent hydrotreating and hydrorefining 

catalysts generated in the petroleum 

refining industry are routinely recycled 

by regenerating the catalyst so that it 

may be used again as a catalyst. When 

regeneration is no longer possible, these 

spent catalysts are either treated and 

disposed of as listed hazardous wastes 

or sent to RCRA-permitted reclamation 

facilities, where metals, such as 

vanadium, molybdenum, cobalt, and 

nickel are reclaimed from the spent 

catalysts. EPA originally added spent 


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hydrotreating and hydrorefining 

catalysts (waste codes K171 and K172) 

to the list of RCRA hazardous wastes 

found in 40 CFR 261.31 on the basis of 

toxicity (i.e., these materials were 

shown to pose unacceptable risk to 

human health and the environment 

when mismanaged) (63 FR 42110, 

August 6, 1998). In addition, EPA based 

its decision to list these materials as 

hazardous due to the fact that these 

spent catalysts can at times exhibit 

pyrophoric properties (i.e., can ignite 

spontaneously in contact with air). 

It was largely because of these 

pyrophoric properties that the spent 

petroleum catalysts exhibit that EPA 

deferred the question of whether spent 

petroleum catalysts should be included 

in the 2008 DSW final rule exclusions. 

While spent petroleum catalysts can be 

a valuable source of recoverable metals, 

the risk of these hazardous secondary 

materials spontaneously igniting when 

in contact with air is not a property that 

most metal recyclers would be expected 

to address, and thus, present additional 

risks that are not presented by other 

types of metal-bearing hazardous 

secondary materials and therefore may 

be most appropriately managed as 

hazardous waste when recycled. 

Under today’s final rule, EPA has 

added a regulatory definition of the 

‘‘contained’’ standard as it applied to 

the generator controlled exclusion (40 

CFR 261.4(a)(23)) and to the verified 

recycler exclusion (40 CFR 261.4(a)(24)). 

This new definition includes a 

requirement to address the risk of fires 

and explosions. This provision 

addresses the pyrophoric properties of 

the spent petroleum catalysts (as well as 

other types of ignitibility or reactivity) 

for the purposes of the generatorcontrolled exclusion and the verified 

recycler exclusion. Therefore, EPA has 

revised the generator-controlled 

exclusion to allow spent petroleum 

catalysts to be eligible for that 

exclusion, and is also allowing spent 

petroleum catalysts to be eligible for the 

verified recycler exclusion. 

XII. Effect on CERCLA 

A primary purpose of today’s final 

rule is to encourage the safe, beneficial 

reclamation of hazardous secondary 

materials. In 1999, Congress enacted the 

Superfund Recycling Equity Act 

(SREA), explicitly defining those 

hazardous substance recycling activities 

that may be exempted from liability 

under the Comprehensive 

Environmental Response, Compensation 

and Liability Act (CERCLA) (CERCLA 

section 127). Today’s final rule does not 

change the universe of recycling 

activities that could be exempted from 

CERCLA liability pursuant to CERCLA 

section 127. Today’s final rule only 

changes the definition of solid waste for 

purposes of the RCRA Subtitle C 

requirements. The final rule also does 

not limit or otherwise affect EPA’s 

ability to pursue potentially responsible 

persons under section 107 of CERCLA 

for releases or threatened releases of 

hazardous substances. 

XIII. General Comments on the 2011 

Proposed Revisions to the Definition of 

Solid Waste 

EPA received hundreds of comments 

on the July 2011 DSW proposal, most of 

which were quite detailed and raised 

multiple issues. Below is an overview of 

some of the major comments on general 

aspects of the proposals and a summary 

of EPA’s responses to those comments. 

For a complete discussion of all the 

comments and EPA’s responses to those 

comments, please see 2014 Revisions to 

the Definition of Solid Waste Final Rule 

Response to Comment Document found 

in the docket for today’s rulemaking. 

A. EPA’s Legal Authority To Regulate 

Hazardous Waste Recycling 

Comments: EPA’s Authority 

EPA received many comments that 

asserted that EPA has no authority to 

regulate legitimate recycling, because 

commenters believe that hazardous 

secondary materials sent for recycling 

are not discarded and therefore, are not 

solid wastes. The comments state that 

EPA has misread the intent of Congress, 

citing previous court cases, noting the 

‘‘analysis of the statute reveals clear 

Congressional intent to extend EPA’s 

authority only to materials that are truly 

discarded, disposed of, thrown away, or 

abandoned’’ (AMC I, 824 F.2d at 1190). 

They go on to argue that materials being 

recycled do not fall into one of these 

enumerated activities. 

Specifically, many of the comments 

cite the ABR decision (which in turn 

cites earlier court decisions), where the 

court noted that EPA’s authority is 

‘‘limited to materials that are ‘discarded’ 

by virtue of being disposed of, 

abandoned, or thrown away’’ and that 

‘‘[s]econdary materials destined for 

recycling are obviously not of that sort. 

Rather than throwing them away, the 

producer saves them, rather than 

abandoning them, the producer reuses 

them’’ (ABR 208 F.3d at 1051). The 

court also noted that ‘‘To say that when 

something is saved it is thrown away is 

an extraordinary distortion of the 

English language’’ (Id. at 1053). 

Many commenters took issue with 

EPA’s decision to withdraw the transferbased exclusion. These comments 

criticize EPA’s rationale that 

‘‘subsequent activities are more likely to 

involve discard, given that the generator 

has relinquished control of the 

hazardous secondary material’’ (72 FR 

14178). In particular, commenters cited 

Safe Food and Fertilizer, stating that the 

D.C. Circuit addressed an argument by 

the petitioners in the case that ‘‘material 

that is transferred to another firm or 

industry for subsequent recycling’’ is 

discarded and subject to RCRA 

regulation. 350 F.3d 1263, 1268 (D.C. 

Cir. 2003). The court said: 

[W]e have never said that RCRA compels 

the conclusion that material destined for 

recycling in another industry is necessarily 

‘discarded.’ . . . Although ordinary language 

seems inconsistent with treating immediate 

reuse within an industry’s ongoing industrial 

process as a ‘discard’ . . . the converse is not 

true. As firms have ample reasons to avoid 

complete vertical integration . . . firm-tofirm transfers are hardly good indicia of a 

‘discard’ as the term is ordinarily understood. 

Id. 

EPA’s Response: EPA’s Authority 

EPA disagrees with the comments that 

Congress did not intend to give EPA the 

authority to regulate hazardous waste 

recycling. As EPA noted in the July 

2011 DSW proposal, the RCRA statute 

and the legislative history suggest that 

Congress expected EPA to regulate as 

solid and hazardous wastes certain 

materials that are destined for recycling 

(see 76 FR 44097, citing numerous 

sections of the statute and U.S. Brewers’ 

Association v. EPA, 600 F. 2d 974 (D.C. 

Cir. 1979); 48 FR 14502–04, April 3, 

1983; and 50 FR 616–618). Moreover, 

the case law discussed above clearly 

shows instances where EPA properly 

regulated the recycling of solid and 

hazardous wastes. 

EPA also disagrees with comments 

that EPA cannot consider the fact that 

the generator has relinquished control of 

the hazardous secondary material (along 

with other factors that indicate discard) 

in deciding to withdraw the transferbased exclusion. EPA’s authority to 

regulate such transfers is clear: As the 

Court noted in Safe Food, ‘‘materials 

destined for future recycling by another 

industry may be considered ‘discarded’; 

the statutory definition does not 

preclude application of RCRA to such 

materials if they can reasonably be 

considered part of the waste disposal 

problem’’ (350 F.3d at 1268). 

EPA’s record for today’s rulemaking 

demonstrates that third-party recycling 

of hazardous secondary materials has 

been and continues to be part of the 

waste disposal problem. As noted in the 

July 2011 DSW proposal, EPA has 

already evaluated these hazardous 


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39U.S. EPA, An Assessment of Environmental 

Problems Associated with Recycling of Hazardous 

Secondary Materials (Updated) December 2014. 

40An Assessment of Environmental Problems 

Associated With Recycling of Hazardous Secondary 

Materials (EPA–HQ–RCRA–2002–0031–0355). 

41We would note, however, that even if EPA 

changed the date to the 1990’s, EPA still identified 

dozens of damage cases, and thus, changing the cutoff date, as some commenters suggest, would not 

impact the study’s overall findings. 

secondary materials (for example, 

during a hazardous waste listing 

determination) and determined them to 

be solid and hazardous wastes. (76 FR 

44109) Therefore, a conditional 

exclusion must reasonably be expected 

not to result in the excluded hazardous 

secondary material being discarded. Of 

the 250 damage cases evaluated in the 

2014 environmental problems study, 

229 (or approximately 92%) were from 

reclamation activities of off-site thirdparty recyclers, with clear instances of 

discard resulting in risk to human 

health and the environment, including 

cases of large-scale soil and ground 

water contamination with remediation 

costs in some instances in the tens of 

millions of dollars.39

In addition, the market forces study in 

the docket for the 2008 DSW final rule 

supports the conclusion that the pattern 

of discard at off-site, third-party 

reclaimers is a result of inherent 

differences between commercial 

recycling and normal manufacturing. As 

opposed to manufacturing, where the 

cost of raw materials or intermediates 

(or inputs) is greater than zero and 

revenue is generated primarily from the 

sale of the output, hazardous secondary 

materials recycling can involve 

generating revenue primarily from the 

receipt of the hazardous secondary 

materials. Recyclers of hazardous 

secondary materials in this situation 

may thus respond differently from 

traditional manufacturers to economic 

forces and incentives, accumulating 

more inputs (hazardous secondary 

materials) than can be processed 

(reclaimed). In addition, commercial 

third-party recyclers have less flexibility 

than in-house recyclers in changing how 

they manage their hazardous secondary 

materials (e.g., during price fluctuations, 

in-house recyclers can more easily 

switch from recycling to disposal or 

from recycled inputs to virgin inputs, 

while commercial third-party recyclers 

cannot switch to disposal without 

obtaining a RCRA permit) (73 FR 

64674). 

B. Supporting Record 

Comments: Environmental Problems 

Study 

Many commenters raised issues with 

EPA’s use of the environmental 

problems study as part of the record for 

today’s rule.40 Some commenters argued 

that EPA should not use 1982 as the cutoff year for investigating ‘‘relatively 

recent’’ damage cases. These 

commenters said that, given that the 

first major set of Subtitle C regulations 

were promulgated in 1980, going back to 

1982 unfairly and inappropriately stacks 

the deck in favor of finding a higher 

number of damage cases because it took 

many years for companies to figure out 

who was subject to the RCRA Subtitle 

C regulations. Additionally, these 

commenters noted that the vast majority 

of damage cases began operation prior to 

1982 and thus contamination on these 

sites was likely the result of historic 

poor management during a period of 

little to no oversight. Commenters 

believed that the early 1990s would be 

a more appropriate cut-off date than 

1982. One of the commenters also 

argued that the damage cases are not 

reliable, either from a lack of 

information, because they reflect 

outdated and inapplicable management 

practices, or have been greatly 

mischaracterized and should not be 

used to support any of the proposed 

changes to the DSW rule. 

Other commenters argued that the 

large majority of damage cases 

identified by EPA were caused by either 

a lack of knowledge of RCRA, blatant 

disregard for the law, or unavoidable 

accidents. These commenters noted that 

many of the damage cases involved civil 

or criminal violations, indicating that 

the problem was non-compliance with 

the regulations, not from a lack of 

regulations. 

Another commenter disagreed with 

EPA’s negative portrayal of the waste 

management industry and argued that 

EPA should have conducted more 

research to obtain an understanding of 

the necessary and positive role of the 

hazardous waste management industry. 

EPA’s Response: Environmental 

Problems Study 

The Agency maintains that the scope 

of the environmental problems study is 

appropriate for the purpose of the DSW 

rulemaking effort. Specifically, we 

continue to find that 1982 is an 

appropriate cut-off year for the damage 

case study as it best reflects the point 

where companies became aware of their 

responsibilities and liabilities for safe 

management of their hazardous 

secondary materials intended for 

recycling.41 While the CERCLA statute 

and the initial RCRA hazardous waste 

regulations became effective in 1980, 

there was an initial ‘‘phase in’’ period 

during which industry and other 

affected entities began to change their 

practices with regard to hazardous 

material recycling, and during which 

federal and state agencies were 

developing guidelines and procedures 

for implementing these new authorities. 

Thus, we deliberately did not include a 

number of recycling damage cases that 

occurred during the early 1980s that 

appeared to have been caused by 

companies and individuals who were 

not cognizant of their new 

responsibilities and potential liabilities 

under RCRA and CERCLA. 

As to the issue that there are facilities 

in the report that began operations prior 

to 1982, we agree that the facilities 

themselves may have begun operating 

earlier than the timeframe. However, the 

methodology for the analysis only 

includes facilities where the recycling 

operations occurred after 1982, and the 

environmental damages associated with 

those operations occurred after 1982. As 

a result, more than 600 damage cases 

were removed from consideration, 

leaving only those cases that EPA was 

confident have a clear link between 

post-1982 recycling practices and 

environmental damage. 

Of the damage cases that met our 

criteria, we agree that for certain types 

of damage, such as groundwater or soil 

contamination, determining when 

exactly the damage occurred and which 

property owner caused the damage is 

difficult. However, in general, the 

damage cases include multiple types of 

damage and certain damage, such as 

abandonment of materials or observed 

violations of proper storage and 

containment, can be easily attributed to 

current facility owners and to post-1982 

activities. For example, Alco Pacific, a 

lead recycling facility may have started 

operations in 1954, but it was 1990 

when the company abandoned 98 

drums and left over 1,300 cubic yards of 

lead-contaminated rubber debris and 

sand with no containment to prevent 

dispersal from wind or rainwater. 

Additionally, it was 1989 when Myers 

Drum, a drum reconditioning facility, 

was found to be storing 95% of their 

20,000 drums on their side and that 

spillage, sump overflows, and structural 

failures were observed. In 1986, 

Continental Steel, which manufactured 

wire and rod products from scrap metal, 

abandoned their facility leaving 220 

drums of product material and 50 

containers of lead-cadmium batteries 

on-site. These damages occurred well 

after RCRA and CERCLA became 

effective. 

Regarding the lack of information in 

some of its damage cases, as EPA stated 

in its 2007 environmental problem 


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42U.S. EPA, An Assessment of Good Current 

Practices for Recycling of Hazardous Secondary 

Materials, November 2006 (EPA–HQ–RCRA–2002– 

0031–0354). 43 Docket ID: EPA–HQ–RCRA–2010–0742–0010. 

study, many of the cases that were 

investigated were well documented. 

This was the case, for example, for 

many of the Superfund National Priority 

List (NPL) sites. However, in many other 

cases, it was not possible given the 

limitations of the study to document all 

facts. Often, there was considerable 

technical information as to the nature 

and extent of the contamination at the 

site, but relatively little information 

regarding the activities and 

circumstances that originally caused it. 

For some of the sites, we were able to 

collect only very basic information. 

However, for each site that was 

identified in the environmental 

problems study, we had sufficient 

information to determine that the 

damage resulted from recycling 

operations. Thus, we continue to 

maintain that the environmental 

problems study is appropriate to use in 

the development of the final rule. 

EPA also disagrees with the 

commenter who argued that the 

environmental problems study only 

demonstrates non-compliance of 

existing regulations and therefore does 

not justify the promulgation of tighter 

requirements under today’s final rule. 

On the contrary, the frequency of the 

damage cases, including violations of 

regulations demonstrates the need for 

greater, not less, oversight. 

Furthermore, as part of a separate 

analysis, EPA has considered whether 

recycling of hazardous secondary 

materials under the 2008 DSW final rule 

could result in increased risk to human 

health and the environment and 

determined it is a complex issue 

because of the interactions between how 

the regulations are written and how they 

are implemented. Under the 2008 DSW 

final rule, EPA presumed that the 

conditions of the rule would prevent 

any increase in risk. However, what the 

2008 DSW analysis failed to take into 

account was whether the conditions of 

the rule would operate as effectively in 

the real world as the more detailed 

requirements of the RCRA hazardous 

waste regulations. 

A more detailed comparative analysis 

of the regulatory requirements under the 

2008 DSW final rule with the hazardous 

waste regulations reveals potentially 

significant gaps in environmental 

protection under the 2008 DSW final 

rule. Examples of these gaps include the 

absence of measures to ensure 

compliance, incentives to accumulate 

larger volumes of hazardous secondary 

materials, the potential for increased 

releases, such as during storage and 

transportation of the hazardous 

secondary materials, the lack of 

prescriptive standards for storage and 

containment, potential issues associated 

with the interstate transport of 

hazardous secondary materials for 

recycling, and reduction in access to 

information and the opportunity for 

public participation. RCRA is a 

preventative statute and by design seeks 

to prevent damage before it occurs; 

relying solely on enforcement without 

addressing the root causes of the 

damage could needlessly increase the 

frequency, severity, and cost of damage 

cases. Therefore, EPA has chosen to 

finalize the changes to the 2008 DSW 

final rule being promulgated today. 

Finally, EPA disagrees with 

comments stating we have not 

considered the positive role of the 

hazardous waste management industry. 

In development of the DSW 

rulemakings, the Agency specifically 

conducted a study of successful 

recycling that examined how 

responsible generators and recyclers of 

hazardous secondary materials ensures 

that recycling is done in an 

environmentally safe manner.42

However, as EPA noted in the 2008 

DSW final rule, the successful recycling 

study indicates that many responsible 

generators examine the recycler’s 

technical capabilities, business viability, 

environmental track record, and other 

relevant questions before sending 

hazardous secondary materials for 

recycling. Currently, these recycler 

audits, which can be thought of as a 

form of environmental ‘‘due diligence,’’ 

are in essence a precaution to minimize 

the prospect of incurring CERCLA 

liability in the event that the recycling, 

or lack thereof, results in the release of 

material to the environment. However, 

the fact that these companies are willing 

to incur the expense of auditing 

recyclers as a business practice is of 

itself a marketplace affirmation that 

sending hazardous secondary materials 

to other companies for recycling 

involves some degree of risk. (73 FR 

64683) 

Comments: Correlation of Recycling 

Damage Cases With Regulatory 

Exclusions, Exemptions or Alternative 

Standards 

Although at least one commenter 

supported the analysis titled 

‘‘Correlation of Recycling Damage Cases 

with Regulatory Exclusions, 

Exemptions, or Alternative 

Standards,’’ 43 which is included in the 

docket for this rulemaking. However, 

most commenters argued that this 

analysis was flawed and that EPA 

should gather information in a more 

responsible manner, such as with an 

information collection request (ICR). 

Many commenters pointed out that 

EPA only identified seven exclusions 

that were ‘‘likely’’ correlated to some 

damage cases, yet EPA in its 2011 DSW 

proposal considered adding 

requirements to 32 exclusions. These 

commenters argued that this record was 

insufficient for justifying additional 

conditions. 

Some commenters also took issue 

with how EPA assigned regulatory 

exclusions to certain damage cases. For 

example, a few commenters said that 

none of the five damage cases correlated 

to precious metals involved recycling of 

in-process secondary materials as part of 

precious metals mining and primary 

mineral processing, but rather involved 

off-site entities that were attempting to 

recover precious metals from 

photographic film, circuit boards, and 

other secondary materials generated by 

industry. 

One commenter said that EPA 

identifies 35 cases that allegedly involve 

spent batteries; however, two of these 

involve non-lead batteries and thus are 

irrelevant and a third involves printed 

circuit boards. This commenter goes on 

to say that, of the remaining 32 leadacid battery-related facilities for which 

EPA has identified known dates of 

operation, none began business 

operations after the 1982 and 1985 

adoption of the RCRA regulations that 

control lead-acid battery collection and 

recycling. This commenter believed that 

the primary contamination at these sites 

almost certainly pre-dated RCRA and 

thus EPA cannot use these cases to 

support changes to 40 CFR 266.80. 

Another commenter said that none of 

the environmental damage associated 

with 52 damage cases could be shown 

to be the result of companies ‘‘likely’’ 

operating under the 261.4(a)(13) scrap 

metal exclusion and/or the 

261.6(a)(3)(ii) scrap metal recycling 

exemption. 

A few commenters argued that EPA 

has not compared the number of damage 

cases to the total number of recyclers 

and thus we do not know what 

percentage of all facilities the damage 

cases represent. Another commenter 

noted that the 132 damage cases that 

EPA correlated to the pre-2008 recycling 

exclusions makes up only 2.5% of the 

5,321 facilities that EPA estimates are 

using the exclusions (a total number 

which this commenter believes EPA 

underestimates). 


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EPA’s Response: Correlation of 

Recycling Damage Cases With 

Regulatory Exclusions, Exemptions or 

Alternative Standards 

The goal of EPA’s analysis to correlate 

damage cases with existing exclusions 

was to assess whether certain hazardous 

secondary material recycling exclusions, 

exemptions, or alternate standards are 

adequately protecting human health and 

the environment. Because the majority 

of exclusions, exemptions, and 

alternative standards do not include 

notification requirements, EPA does not 

have precise data regarding which and 

how many facilities are recycling 

hazardous secondary materials under 

reduced regulation. This lack of data 

hinders EPA’s ability to collect 

information regarding what regulations 

a specific facility was operating under 

when damage occurred. Because this 

information is limited, the Agency had 

developed a methodology that correlates 

the type of hazardous secondary 

materials identified in the damage cases 

to regulations that likely governed the 

management of the hazardous secondary 

material. EPA used this methodology to 

identify patterns related to the types of 

hazardous secondary material involved 

in damage cases and whether those 

materials were likely to be managed 

under an exclusion, exemption, or 

alternate standard. 

EPA understands commenters’ 

concerns regarding the limitations of 

this analysis, including that EPA could 

only correlate with confidence 7 of the 

32 recycling exclusions to damage cases 

in its environmental problems study. 

This result is more a lack of precision 

in the data and less that some recycling 

exclusions have no damage cases. For 

example, because notification is not 

required for these exclusions, we can 

only conservatively identify damage 

case correlations where the type of 

hazardous secondary material very 

clearly matches to an exclusion (e.g., 

scrap metal). We lack information to 

make inferences for broadly applicable 

exclusions, (e.g., use/reuse) or for 

broadly defined hazardous secondary 

materials (e.g., metal-bearing wastes). 

Therefore, by virtue of some exclusions’ 

broad applicability, we were unable to 

correlate them to specific damage cases. 

Additionally, due to the lack of data, it 

is difficult to analyze current trends in 

damage cases, and thus even more 

difficult to accurately project what the 

number of future damage cases might be 

under different scenarios. However, 

although it is difficult to assign specific 

damage cases to certain exclusions, we 

note that in the environmental problems 

study only nine of the damage cases 

were operating under a RCRA permit at 

the time of damage. Thus, EPA can 

generally conclude that the majority of 

the damage cases at third party recyclers 

were operating outside of RCRA, 

inferring these facilities were either 

operating illegally or operating under an 

exclusion, exemption, or alternate 

standard, or no standard. 

Regarding other comments on the 

analysis, including comments on 

specific damage case-to-exclusion 

pairings and on comparing the number 

of damage cases to the total number of 

affected entities, EPA agrees with 

commenters that more information is 

needed prior to taking final action on 

specific conditions of the pre-2008 

recycling provisions. EPA finds it may 

need to consider each exclusion in 

terms of evaluating specific regulatory 

gaps and whether additional conditions 

are needed to ensure protection of 

human health and the environment. 

Therefore, we are not finalizing specific 

conditions for the pre-2008 recycling 

provisions in today’s rule and are 

instead deferring action until EPA can 

more adequately address commenters’ 

concerns, including comments on the 

record. Before the Agency would take 

any such action, the Agency would 

provide the regulated community, as 

well as other stakeholders the 

opportunity for notice and comment. 

XIV. Major Comments on the Exclusion 

for Hazardous Secondary Materials 

Legitimately Reclaimed Under the 

Control of the Generator and 

Recordkeeping for Speculative 

Accumulation 

A. Proposed Changes to 2008 Final Rule 

In its July 2011 DSW proposal, EPA 

proposed or solicited comment on 

certain changes to the 2008 DSW 

exclusion from the definition of solid 

waste for hazardous secondary materials 

legitimately reclaimed under the control 

of the generator. The first change was 

adding a regulatory definition of 

‘‘contained’’ for units storing hazardous 

secondary materials. The definition 

included factors which, if met, would 

demonstrate that the unit was 

contained. Under the proposal, a storage 

unit is contained if it is in good 

condition, with no leaks or other 

continuing or intermittent unpermitted 

releases of the hazardous secondary 

material to the environment, and is 

designed, as appropriate for the 

hazardous secondary materials to 

prevent releases of hazardous secondary 

material to the environment. Such 

releases may include, but are not 

limited to, releases through surface 

transport by precipitation runoff, 

releases to soil and groundwater, windblown dust, fugitive air emissions, and 

catastrophic unit failures. The unit must 

also be properly labeled or otherwise 

have a system (such as a log) to 

immediately identify the hazardous 

secondary materials in the unit. Finally, 

the unit must not hold incompatible 

materials and must address any 

potential risks of fires or explosions. 

The definition also stated that 

hazardous secondary materials stored in 

units that meet the applicable 

requirements of 40 CFR parts 264 or 265 

are considered to be contained. 

The second change concerned new 

recordkeeping requirements for 

speculative accumulation, ‘‘samecompany’’ recycling, and recycling 

under certain tolling arrangements. 

With respect to speculative 

accumulation, EPA proposed to require 

generators and reclaimers operating 

under the generator-controlled 

exclusion to post accumulation start 

dates to allow inspectors and other 

regulatory authorities to quickly 

ascertain how long hazardous secondary 

materials had been in storage. If placing 

a label on the storage unit is not 

practicable, the first date that the 

excluded hazardous secondary material 

began to be accumulated must be 

entered in an inventory log. We also 

solicited comment on whether to add 

the proposed recordkeeping 

requirement to the general speculative 

accumulation provision at 40 CFR 

261.1(c)(8), thereby extending the 

requirement to all recyclers subject to 

that provision. We also proposed a 

recordkeeping requirement for tolling 

contractors and toll manufacturers 

operating under the tolling exclusion, 

which would require maintaining 

records of hazardous secondary 

materials sent or received pursuant to 

the tolling contract. We also solicited 

comment on whether to add a similar 

recordkeeping requirement to generators 

and reclaimers operating under the 

‘‘same-company’’ exclusion. 

The third change concerned making 

notification a condition rather than a 

requirement of the exclusions. In 

addition, we proposed two structural 

changes. These were (1) placing the 

requirements for land-based units and 

non-land-based units in one regulatory 

provision (40 CFR 261.4(a)(23)), since 

the requirements for both types of units 

are the same; and (2) placing most 

definitions applicable to the generatorcontrolled exclusion in 40 CFR 

261.4(a)(23) (together with the 

requirements) instead of in 40 CFR 

260.10. 


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Comments: Authority for Proposed 

Changes 

Many commenters supported all or 

some of these changes, either as 

proposed or with suggested 

modifications. Their comments are 

discussed below in reference to the 

specific changes that the Agency 

proposed. Some commenters, however, 

stated that EPA did not have the 

authority to impose conditions 

(particularly the ‘‘contained’’ standard) 

on hazardous secondary materials 

recycled under the control of the 

generator. These commenters generally 

believed that materials recycled under 

these exclusions are not discarded, and 

that EPA provided no new evidence that 

would justify the proposed changes. 

According to these commenters, the 

proposed changes are tantamount to 

treating the materials as wastes instead 

of valuable commodities, and are 

inconsistent with the ABR decision. 

One commenter noted that generators 

already have incentives to prevent 

releases of hazardous secondary 

materials because of potential liability, 

corporate values of stewardship and 

environmental responsibility, and 

public relations. 

EPA’s Response: Authority for Proposed 

Changes 

The Agency has determined that the 

conditions proposed in our July 2011 

DSW proposal are needed in order to 

ensure that the exclusion operates as 

intended and does not result in 

discarded hazardous secondary material 

posing significant risk to human health 

and the environment. We agree that 

generators and reclaimers operating 

under the generator-controlled 

exclusion have incentives to ensure that 

the hazardous secondary materials are 

safely managed. Nevertheless, the 

conditions we proposed are needed to 

ensure that the generator-controlled 

exclusion will correctly function to 

exclude only hazardous secondary 

material that is not discarded. 

Specifically, the proposed 

‘‘contained’’ requirement is a key 

provision for determining whether a 

hazardous secondary material is being 

managed as a valuable commodity. Such 

materials that are not contained and are 

instead released to the environment are 

not destined for recycling and are 

clearly discarded. The proposed 

definition specifies factors which, if 

met, demonstrate that the hazardous 

secondary materials in a unit are 

handled as valuable raw materials, 

intermediates, or products and thus are 

not discarded. We note that the criteria 

in proposed 40 CFR 261.4(a)(23)(i) are 

all performance measures, as opposed to 

specific technical standards, suggested 

by commenters in response to the June 

2009 public meeting on the 2008 DSW 

final rule. These criteria also exemplify 

practices discussed in the preamble to 

the 2008 DSW final rule regarding 

containment of hazardous secondary 

materials, such as ways to prevent 

releases and operation and maintenance 

of the storage unit in the same manner 

as a production unit. 

The proposed recordkeeping 

requirement for speculative 

accumulation (which would require 

posting of accumulation start dates on 

the storage unit or in an inventory log) 

would allow inspectors and other 

regulatory authorities to quickly 

ascertain how long a facility has been 

storing an excluded hazardous 

secondary material, and whether the 

storage time exceeds existing limits 

under 40 CFR 261.1(c)(8). If such limits 

have been exceeded, the material would 

be discarded. The proposed 

recordkeeping requirement for the 

tolling exclusion (which would require 

records of shipments sent and received 

under tolling contracts) would also aid 

regulatory agencies in determining if 

tolling contractors and manufacturers 

are in compliance with the requirements 

for the exclusion and whether the 

hazardous secondary materials in 

question have been properly accounted 

for. A similar requirement to keep 

records of shipments sent and received 

under ‘‘same-company’’ recycling (for 

which the Agency solicited comment in 

the July 2011 DSW proposal) would 

serve the same purpose. Finally, 

submitting a notification to EPA is the 

only formal indication of a facility’s 

prospective intent to reclaim a 

hazardous secondary material under 

this exclusion. For these reasons, EPA 

has determined that its proposed 

changes to the generator-controlled 

exclusion are necessary to demonstrate 

that hazardous secondary materials have 

not been discarded. The changes are 

therefore within the Agency’s RCRA 

authority. 

Comments: Scope of Proposed Changes 

One commenter noted that the 

proposed rule would allow lead-acid 

battery recyclers to operate under the 

generator-controlled exclusion instead 

of the requirements in 40 CFR 266.80(b). 

This commenter believed that the latter 

requirements, specifically tailored to 

battery recyclers, are more appropriate 

for these facilities. 

EPA’s Response: Scope of Proposed 

Changes 

In response to this comment, it was 

not the Agency’s intent that spent leadacid batteries be managed under the 

generator-controlled exclusion. The 

2008 DSW final rule contained a 

provision (40 CFR 261.2(c)(4)(iv)) 

stating that spent lead-acid batteries 

were not eligible for the generatorcontrolled exclusion (nor were materials 

subject to material-specific standards 

under 261.4(a) or the listed hazardous 

wastes K171 or K172). The omission of 

this provision from the July 2011 DSW 

proposal as related to spent lead-acid 

batteries and material-specific standards 

was inadvertent, and EPA is therefore 

retaining it in this final rule (see 40 CFR 

261.4(a)(23)(ii)(E)). However, for reasons 

discussed in section XI of this preamble, 

listed hazardous wastes K171 and K172 

should be eligible for the generatorcontrolled exclusion; therefore, we are 

not including those wastes in this 

provision. 

Comments: Exports 

Another commenter noted that the 

text of proposed 40 CFR 

261.4(a)(23)(i)(B) could initially be read 

to suggest that hazardous secondary 

materials may be transferred to a 

location outside the United States or its 

territories as long as the foreign 

receiving facility is under the control of 

the generator. It is not until one reads 

proposed 40 CFR 261.4(a)(23)(ii)(A) that 

the reader learns that the receiving 

facility must be in the United States or 

its territories. This commenter suggested 

revising the introductory text of 40 CFR 

261.4(a)(23) to refer to recycling within 

the United States or its territories and 

deleting the subsequent condition. 

EPA’s Response: Exports 

EPA agrees with this commenter who 

suggested modifying the introductory 

text of the generator-controlled 

exclusion to include a reference to the 

requirement that hazardous secondary 

materials legitimately reclaimed under 

the exclusions must be recycled within 

the United States or its territories. We 

have therefore revised 40 CFR 

261.4(a)(23) to read as follows: 

‘‘Hazardous secondary material 

generated and legitimately reclaimed 

within the United States or its territories 

and under the control of the generator, 

provided that the material complies 

with paragraphs (a)(23)(i) and (ii) of this 

section.’’ We have also deleted the 

condition in proposed CFR 

261.4(a)(23)(ii)(A) and renumbered the 

following subparagraphs. 


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B. Exclusion for Materials Recycled OnSite 

Comments: On-Site Exclusion 

In the 2008 DSW final rule, EPA 

promulgated an exclusion from the 

definition of solid waste for hazardous 

secondary materials that are generated 

and legitimately reclaimed at the 

generating facility. In the July 2011 

DSW proposal, the Agency did not 

propose any changes to the scope of this 

exclusion. Commenters on the proposal 

generally supported excluding on-site 

recycling from the definition of solid 

waste, stating that such recycling did 

not involve discard and was not likely 

to pose environmental risks. However, 

one commenter argued that the 

exclusion for hazardous secondary 

materials recycled under the control of 

the generator was too broad and should 

be narrowed to materials recycled under 

a ‘‘continuous industrial process,’’ i.e., 

recycled in the same process of which 

they are a byproduct, by the same 

generator, and at the same generating 

facility. If the exclusion was narrowed 

to this extent, it would preclude ‘‘samecompany’’ or tolling recycling from 

being eligible for the exclusions. It 

would presumably also preclude certain 

types of on-site recycling that might 

involve different processes from being 

excluded under the definition of solid 

waste. 

EPA’s Response: On-Site Exclusion 

EPA has determined that if hazardous 

secondary materials are generated and 

legitimately reclaimed at the generating 

facility (as well as a facility within the 

same company) under the conditions 

specified in today’s rule, these materials 

have not been discarded. We do not 

agree with the comment that the 

exclusion should be limited to recycling 

of hazardous secondary materials under 

a ‘‘continuous industrial process,’’ i.e., 

it takes place in the same process of 

which the materials are a byproduct, by 

the same generator and at the same 

generating facility. If hazardous 

secondary materials are recycled on-site 

at the generating facility using different 

processes, this circumstance does not 

mean that the generator has 

relinquished control of the materials or 

that they have been discarded. We are 

therefore finalizing this provision as 

proposed at 40 CFR 261.4(23)(i)(A). 

C. Exclusion for Materials Recycled by 

the Same Company 

In the 2008 DSW final rule, EPA 

promulgated an exclusion from the 

definition of solid waste for hazardous 

secondary materials that were generated 

and legitimately reclaimed off-site by 

the same ‘‘person’’ as defined in 40 CFR 

260.10, if the generator performed one 

of two certifications. Under the first 

certification, the generating facility 

certified that it controlled the 

reclaiming facility; under the second 

certification, the generating facility 

certified that it was under common 

control with the reclaiming facility. In 

the July 2011 DSW proposal, the Agency 

solicited comment on whether to add a 

recordkeeping requirement to this 

exclusion that would require both the 

generating and reclaiming facilities to 

retain records for no less than three 

years of all hazardous secondary 

material shipped under the exclusion. 

The records would have to contain 

information which could be satisfied by 

routine business records (e.g., financial 

records, bills of lading, copies of DOT 

shipping papers, or electronic 

confirmations). There was general 

support for this condition from those 

commenters who addressed it. 

Comments: Same-Company Exclusion 

Some commenters supported this 

exclusion. They believed that generators 

using the exclusion have strong 

incentives to ensure that hazardous 

secondary materials are not discarded 

by maintaining control over, and 

potential liability for, the reclamation 

process. However, other commenters 

believed that any off-site transport of 

hazardous secondary materials involved 

environmental risks that should be 

addressed by (at the least) requiring a 

hazardous waste manifest or by 

subjecting ‘‘same-company’’ off-site 

recycling to the proposed alternative 

Subtitle C standards for hazardous 

secondary materials that are transferred 

for the purpose of reclamation. Some 

commenters said that when hazardous 

secondary materials are transported offsite, the generator has little de facto 

control over such materials. 

One commenter noted that proposed 

40 CFR 261.4(a)(23)(i)(B) omitted the 

alternative certification for samecompany recycling that occurs when the 

generating facility and the reclaiming 

facility are under common control. This 

certification was included in the 2008 

DSW final rule. 

EPA’s Response: Same-Company 

Exclusion 

The Agency continues to find that 

same-company recycling does not 

involve discard since it occurs under 

the control of the generator. Such 

control means that both the generating 

facility and the reclamation facility are 

familiar with the hazardous secondary 

materials and the company would be 

ultimately liable for any 

mismanagement of the hazardous 

secondary materials. Under these 

circumstances, the incentive to avoid 

such mismanagement would be 

sufficiently strong to greatly reduce the 

risks of transport, thus rendering 

unnecessary the use of the hazardous 

waste manifest or requiring the 

hazardous secondary materials to be 

reclaimed under the verified recycling 

exclusion. However, as noted above, the 

Agency solicited comment in its July 

2011 DSW proposal on a recordkeeping 

requirement that would require both the 

generating and reclaiming facilities to 

retain records for no less than three 

years of all hazardous secondary 

material shipped under the exclusion. 

The records would have to contain the 

name of the transporter, the date of the 

shipment, and the type and quantity of 

the hazardous secondary material 

shipped or received under the 

exclusion. This requirement could be 

satisfied by routine business records 

(e.g., financial records, bills of lading, 

copies of DOT shipping papers, or 

electronic confirmations). Such a 

provision would facilitate enforcement 

of the same-company exclusion and 

would allow tracking of all hazardous 

secondary materials recycled under the 

exclusion to ensure that such materials 

were properly accounted for. EPA agrees 

with the commenters who supported 

this requirement and finds that adding 

this recordkeeping requirement to the 

same-company exclusion is sufficient to 

address any risks involved in off-site 

transport of hazardous secondary 

materials. We are therefore finalizing 

the same company exclusion to include 

this requirement (see 40 CFR 

261.4(a)(23)(i)(B)). 

The Agency also agrees with the 

commenter who suggested that the 

alternative certification for facilities 

under common control that was 

included in the 2008 DSW final rule 

should be added to the exclusion. The 

omission of this provision from the July 

2011 DSW proposal was inadvertent 

and the Agency will therefore simply 

retain the alternative certification in the 

regulations (see 40 CFR 

261.4(a)(23)(i)(B)). 

D. Tolling Exclusion 

In its July 2011 DSW proposal, EPA 

proposed to add a recordkeeping 

requirement to the exclusion for 

hazardous secondary materials 

legitimately reclaimed under certain 

contractual tolling arrangements. 

Specifically, we proposed to require the 

tolling contractor to maintain at its 

facility for no less than three years 

records of all hazardous secondary 

materials received pursuant to the 


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written contract with the tolling 

manufacturer. It would also require the 

tolling manufacturer to maintain at its 

facility for no less than three years 

records of materials shipped pursuant to 

its written contract with the tolling 

contractor. In both cases, the records 

must contain the name of the 

transporter, the date of the shipment, 

and the type and quantity of the 

hazardous secondary material shipped 

or received pursuant to the written 

contract. These requirements may be 

satisfied by routine business records 

(e.g., financial records, bills of lading, 

copies of DOT shipping papers, or 

electronic confirmations). EPA solicited 

comment on whether the proposed 

requirement would make the exclusion 

easier to enforce. We also solicited 

comment on whether the tolling 

exclusion should be retained or 

eliminated. We noted that no facilities 

appeared to be operating under the 

tolling exclusion as of the date of the 

proposed rule, and that the definitions 

and certifications involved in this 

exclusion were complicated. However, 

we also noted that if the tolling 

exclusion were eliminated, the tolling 

contractor conducting the reclamation 

might need to obtain a RCRA storage 

permit. This necessity could discourage 

recycling under tolling arrangements 

and prevent sustainable reclamation 

practices. 

Comments: Tolling Exclusion 

Those commenters who addressed the 

proposed recordkeeping requirement 

generally supported it, but many 

commenters believed that the tolling 

exclusion should be eliminated and that 

tolling should be regulated under EPA’s 

proposed alternative Subtitle C 

regulatory standards for hazardous 

recyclable materials. Another 

commenter argued that if the Agency 

retained the tolling exclusion, we 

should require use of the hazardous 

waste manifest, financial assurance, and 

other Subtitle C requirements. Some of 

these commenters emphasized the 

absence of utilization of the tolling 

exclusion and said that federal 

regulations should address activities of 

national importance. One commenter 

noted that the exclusion could result in 

an inefficient use of enforcement 

resources as regulators would have to be 

trained and familiar with a regulatory 

concept with which they are not 

familiar. Another commenter argued 

that the assumption of liability for 

mismanagement by the tolling 

contractor was unlikely and could result 

in litigation. Other commenters 

emphasized environmental concerns 

with the tolling exclusion. These 

commenters doubted that recycling 

under tolling arrangements was actually 

under the ‘‘control’’ of the tolling 

contractor, given that a different 

corporate entity at a different physical 

location operates the production 

process. Some commenters raised 

similar concerns with the risks involved 

in off-site transportation of hazardous 

secondary materials that were raised in 

connection with ‘‘same-company’’ 

recycling. 

Some commenters, on the other hand, 

urged EPA to retain the exclusion for 

tolling contracts. These commenters 

argued that hazardous secondary 

materials legitimately reclaimed under 

the tolling exclusion are managed as 

valuable products and not discarded. 

They also said that utilization of the 

exclusion could increase with time, 

particularly if more states picked up 

EPA’s revisions to the definition of solid 

waste and if regulatory uncertainty were 

avoided. One commenter noted that the 

economic incentives under tolling 

contracts are such that there is no 

incentive for discard, since the tolling 

manufacturer is paid when it returns the 

hazardous secondary material to the 

contractor. Some commenters indicated 

that eliminating the tolling exclusion, 

by requiring tolling contractors to obtain 

RCRA storage permits, would operate as 

a severe disincentive to reclamation 

under tolling arrangements. 

EPA’s Response: Tolling Exclusion 

EPA generally agrees with the 

commenters who supported retention of 

the tolling exclusion. We find that 

hazardous secondary materials are not 

discarded if they are legitimately 

reclaimed under the conditions 

specified in our tolling exclusion, 

particularly since participants in tolling 

contracts have strong incentives to 

handle such materials as valuable 

commodities rather than mismanage 

them. We also have determined that the 

conditions of the generator-controlled 

tolling exclusion, including the 

recordkeeping requirement for 

hazardous secondary materials sent and 

received under tolling contracts, are 

sufficient to prevent discard, thus 

rendering unnecessary the use of the 

hazardous waste manifest or other 

RCRA permit requirements for 

reclaimers. We have also concluded that 

retention or elimination of this 

exclusion should not depend on how 

frequently the exclusion is currently 

utilized, because determining frequency 

of utilization in the future is necessarily 

speculative. Additional states could 

pick up EPA’s revisions to the definition 

of solid waste, and tolling arrangements 

could become more common due to 

increases in certain kinds of 

manufacturing or other technological 

developments. Regulatory authorities 

would then become more familiar with 

implementation of the provision. We are 

also concerned that eliminating the 

tolling exclusion could discourage the 

reclamation of valuable hazardous 

secondary materials that might 

otherwise be destroyed by incineration. 

This result would be inconsistent with 

our goal of encouraging the sustainable 

management of hazardous secondary 

materials. For these reasons, we are 

retaining the tolling exclusion in this 

final rule and finalizing the proposed 

recordkeeping requirement for this 

exclusion (see 40 CFR 

261.4(a)(23)(i)(C)). 

E. The Contained Standard 

In its July 2011 DSW proposal, EPA 

proposed a regulatory definition of the 

contained standard. Under this 

proposed definition, a unit storing 

hazardous secondary materials is 

‘‘contained’’ if it 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. Such releases 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. The unit must also be properly 

labeled or otherwise have a system 

(such as a log) to immediately identify 

the hazardous secondary materials in 

the unit. Finally, the unit must not hold 

incompatible materials and must 

address any potential risks of fires or 

explosions. Hazardous secondary 

materials stored in units that meet the 

applicable requirements of 40 CFR parts 

264 or 265 are considered to be 

contained. 

In addition, the Agency also proposed 

placing the requirements for land-based 

units and non-land-based units in one 

regulatory provision (40 CFR 

261.4(a)(23)), since the requirements for 

both types of units are the same. To 

clarify the regulatory status of units 

from which releases have occurred, the 

Agency also proposed a provision 

stating that: (1) A hazardous secondary 

material released to the environment is 

discarded and a solid waste unless it is 

immediately recovered for the purpose 

of reclamation and (2) hazardous 

secondary material managed in a unit 

with leaks or other continuing or 

intermittent releases of the hazardous 


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secondary material to the environment 

is discarded and a solid waste. 

Comments: Codification of the 

Contained Standard 

Many commenters (particularly states) 

supported the codification of the 

contained standard. Under the 2008 

DSW final rule, these commenters 

argued the only definitive way to 

determine whether a material was 

contained was an evaluation after a 

release had already occurred. They 

believed that codifying a definition of 

‘‘contained’’ would make it easier for 

regulatory authorities and the regulated 

community to decide whether a unit 

meets the standard. Some commenters, 

however, believed that a regulatory 

definition of ‘‘contained’’ was not 

needed because the concept of what is 

contained was self-evident: To the 

extent clarification is needed, it could 

be provided in guidance. 

EPA’s Response: Codification of the 

Contained Standard 

EPA agrees with those commenters 

who argued that codification of the 

contained standard is desirable. Based 

on comments and inquiries received 

from regulatory authorities and the 

regulated community after promulgation 

of the 2008 DSW final rule, we have 

determined that merely requiring that a 

unit be ‘‘contained’’ (without providing 

a regulatory definition) does not give 

regulatory certainty about how to 

comply with the standard. The number 

of comments and inquiries to this effect 

would seem to refute the idea that the 

concept of contained is self-evident. It 

was never the Agency’s intent that 

violation of the standard could be 

addressed only after a significant release 

and subsequent environmental damage 

had occurred. More detailed regulatory 

criteria, such as those proposed in our 

July 2011 DSW proposal, will help all 

affected parties determine whether a 

unit adequately controls the movement 

of hazardous secondary materials. Such 

determinations will be of great benefit to 

regulatory authorities and to facilities 

operating under the generator-controlled 

exclusion. We are therefore retaining the 

codification of contained in this final 

rule. 

Comments: Land-Based Storage 

Some commenters believed that 

storage in land-based units should be 

prohibited completely under the 

generator-controlled exclusion. Other 

commenters supported allowing landbased units, but only if the Agency 

required periodic inspections, 

groundwater monitoring, or other 

measures. Other commenters 

emphasized that the Agency had no 

jurisdiction over land-based production 

units, and requested that EPA clarify in 

the preamble that we do not regulate 

such units. 

EPA’s Response: Land-Based Storage 

EPA does not agree that land-based 

units should be categorically prohibited 

under the generator-controlled 

exclusion. We have determined that 

hazardous secondary materials, if they 

are stored in land-based units that meet 

the conditions specified in today’s rule, 

have not been discarded. That is, if they 

are legitimately reclaimed as specified 

in today’s rule, if they are contained and 

not speculatively accumulated, and if 

they have submitted the required 

notification, they are being managed as 

valuable commodities, rather than 

wastes. Indeed, the ABR decision 

expressed criticism of EPA for 

prohibiting any land placement, even 

‘‘for a few minutes’’. 208 F.3rd at 1051. 

EPA interprets the court’s discussion as 

a warning to the Agency to examine all 

factors, not just one (e.g., land 

placement), when deciding whether a 

material is a waste. For the same reason, 

we do not find that it is necessary or 

appropriate to require groundwater 

monitoring, inspections at specified 

intervals, or other Subtitle C controls for 

hazardous secondary materials that are 

legitimately reclaimed under the control 

of the generator under these conditions, 

even for land-based units. These 

hazardous secondary materials are being 

managed under the control of the 

generator; by maintaining control over, 

and potential liability for, the hazardous 

secondary materials and the reclamation 

process, the generator ensures that such 

materials have not been discarded. We 

also note that the definition of ‘‘landbased unit’’ in 40 CFR 260.10 means an 

area where hazardous secondary 

materials are placed in or on the land 

before recycling, but the definition 

explicitly excludes land-based 

production units. Examples of landbased units include surface 

impoundments and piles. 

Comments: Requirements for Non-LandBased Units 

Some commenters believed that the 

proposed standard was still too 

imprecise, or not sufficiently protective. 

These commenters generally suggested 

that EPA require storage units to meet 

the standards of 40 CFR 262.34(a)(1), or 

parts 264 or 265 for tanks, containers, or 

containment buildings. Some of these 

commenters argued that since 

hazardous secondary materials sent for 

reclamation were identical in 

composition to analogous materials sent 

for disposal, the storage standards 

should be the same for both disposal 

and recycling. Another commenter 

noted that EPA was considering tank 

standards for solvents under the 

proposed remanufacturing exclusion, 

and said that standards at least as 

stringent should be considered for other 

hazardous secondary materials sent for 

reclamation. Commenters also 

emphasized the ease of enforceability 

and implementation of standards with 

which the regulatory authorities and the 

regulated community are already 

familiar. 

EPA’s Response: Requirements for NonLand-Based Units 

In response to those commenters who 

suggested Subtitle C requirements for 

non-land-based units (such as tanks, 

containers and containment buildings) 

that store hazardous secondary 

materials under the generator-controlled 

exclusion, the Agency also finds that 

imposing these requirements is 

unnecessary for such materials meeting 

the conditions of the exclusion 

promulgated today. EPA is aware that 

implementation of program 

requirements would be simpler if units 

storing hazardous waste and those 

storing hazardous secondary materials 

were subject to the same requirements, 

and we are also aware that the chemical 

composition of hazardous secondary 

materials sent for disposal can be 

similar to that of hazardous secondary 

materials sent for legitimate recycling. 

Nevertheless, hazardous secondary 

materials that are legitimately reclaimed 

under the control of the generator have 

not been discarded, and such materials 

have value that provides generators with 

strong incentives to maintain safe 

management and handling. Imposing 

the Subtitle C requirements on these 

hazardous secondary materials could 

discourage legitimate reclamation, 

encourage disposal, and would be 

inconsistent with EPA’s goal of fostering 

sustainable materials management. In 

response to the commenter who 

suggested that such requirements 

should be imposed because the Agency 

was considering them for the 

remanufacturing exclusion, we note that 

the generator-controlled exclusion 

covers a wide variety of hazardous 

secondary materials, rather than the 

solvents covered by the remanufacturing 

exclusion, for which tanks or container 

standards are appropriate for reasons 

described in section VII of this 

preamble. 

Comments: Releases 

Some commenters believed that the 

proposed regulatory definition of 


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‘‘contained’’ constituted a ‘‘no-leak’’ 

standard (including storm water runoff 

or fugitive air emissions) and that even 

a single release that was immediately 

recovered could lead to the hazardous 

secondary material remaining in the 

unit being considered discarded and a 

solid waste. Other commenters, 

however, said that all units will suffer 

a release at some point and that it would 

be unreasonable to categorically classify 

any release of whatever nature as 

discard. 

In the preamble to the 2011 DSW 

proposal, EPA stated that certain units 

may be subject to occasional 

precipitation runoff that consists 

essentially of water, with trace amounts 

of hazardous constituents. The Agency 

noted that as long as such runoff does 

not contain hazardous secondary 

materials (e.g., it is essentially rainwater 

with trace amounts of metals), it would 

not be considered a ‘‘release of a 

hazardous secondary material.’’ On the 

other hand, if the hazardous secondary 

material itself is swept away by the 

runoff (e.g., if the hazardous secondary 

material consists of fine particulate 

matter, such as electric arc furnace 

dust), this transport via precipitation 

runoff could be considered a ‘‘release of 

a hazardous secondary material’’ and 

that pile may not be considered 

contained. Some commenters argued 

that even trace amounts of hazardous 

substances (such as through stormwater 

runoff) should be considered illegal 

releases from storage units. One of these 

commenters objected to our regulatory 

definition partly because it would allow 

releases that were not ‘‘continuing’’ or 

‘‘intermittent.’’ 

Another commenter, however, argued 

that the existence of stormwater runoff 

(regulated under the Clean Water Act) or 

fugitive air emissions and dust 

(regulated under the Clean Air Act) does 

not mean that materials are not being 

managed as a valuable commodity and 

so cannot be used to justify a 

determination that a hazardous 

secondary material is subject to the fully 

applicable Subtitle C RCRA 

requirements. This interpretation would 

amount to an illegal expansion of RCRA 

authority, according to the commenter. 

The commenter also noted that EPA’s 

distinction between runoff containing 

hazardous constituents and runoff 

containing the waste itself was 

irrelevant and that EPA should return to 

the ‘‘significant release’’ standard of the 

2008 DSW final rule. Another 

commenter suggested that the Agency 

specify what concentration of hazardous 

secondary material would need to be 

detected to constitute a release. 

EPA’s Response: Releases 

EPA does not agree with those 

commenters who argued that the 

proposed definition of ‘‘contained’’ 

imposed a strict, categorical, and 

impracticable ‘‘no leaks’’ standard, 

either for land-based units or non-landbased units. We note that the language 

of the proposed definition reads that the 

unit must be in good condition, ‘‘with 

no leaks or other continuing or 

intermittent unpermitted releases of 

hazardous secondary materials to the 

environment. . .’’ (emphasis added). 

This language clearly does not mean 

that any single release of whatever 

nature would automatically place the 

hazardous secondary materials 

remaining in the unit under Subtitle C 

regulation. In fact, we agree with those 

commenters who argue that most units 

will suffer a release at some point and 

that it would be unreasonable to 

categorically classify any release of 

whatever nature as discard. 

Nor does EPA agree with those 

commenters who appeared to believe 

that any release should lead to loss of 

the generator-controlled exclusion and 

full regulation under RCRA Subtitle C. 

A single release that is quickly cleaned 

up would not generally affect the 

regulatory status of the hazardous 

secondary materials still contained in 

the unit. For example, sometimes a 

hazardous secondary material may 

escape from primary containment and 

may be captured by secondary 

containment or some other mechanism 

that would prevent the hazardous 

secondary materials from being released 

to the environment or would allow 

immediate recovery of the materials. In 

that case, the unit would not be subject 

to the RCRA hazardous waste 

regulations and the hazardous 

secondary materials in the unit would 

still be excluded from the definition of 

solid waste, even though any such 

materials that had been released and not 

immediately recovered would be 

considered discarded. 

With respect to precipitation runoff, 

the Agency does not agree with those 

commenters who said that even trace 

amounts of hazardous substances (such 

as through stormwater runoff) should be 

considered illegal releases from storage 

units. Some units are inevitably subject 

to occasional precipitation runoff that 

consists essentially of water, with trace 

amounts of hazardous constituents. As 

long as the hazardous secondary 

material itself is not swept away by the 

runoff, this transport via precipitation 

runoff would not be a release of such a 

material and the unit could be 

considered contained. A contrary 

interpretation could place all such units 

under Subtitle C regulation and 

eliminate their eligibility for the 

generator-controlled exclusion, which is 

not the Agency’s intent. EPA has 

determined that hazardous secondary 

materials placed in such units that are 

destined for legitimate recycling have 

not been discarded if they meet the 

conditions of these exclusions. EPA also 

agrees with the commenter who said 

that the existence of stormwater runoff 

(regulated under the Clean Water Act) 

and fugitive air emissions and dust 

(regulated under the Clean Air Act) does 

not automatically mean that materials 

are not being managed as a valuable 

commodity. 

EPA also does not agree with the 

commenter who suggested that the 

Agency should return to the 

‘‘significance’’ criterion for determining 

whether a release has occurred (in part 

to distinguish between runoff 

containing hazardous constituents and 

runoff containing the hazardous 

secondary material itself). The Agency 

does not agree that using this criterion, 

without further definition, would clarify 

this distinction. We also do not find that 

it is practicable to establish a 

concentration of hazardous secondary 

materials that could be used to 

determine whether a release has 

occurred, since such appropriate 

concentrations would vary for different 

materials and a single concentration 

limit would not be flexible enough to 

allow an accurate determination of 

‘‘contained’’ for the wide variety of 

hazardous secondary materials. 

Comments: Other ‘‘Contained’’ Issues 

A few commenters suggested that EPA 

establish a petition process or a sitespecific variance for facilities to 

demonstrate the appropriateness of sitespecific alternative storage standards for 

their units (including land-based units). 

Some commenters believed that our 

reference to 40 CFR parts 264 and 265 

meant that units were required to 

comply with those provisions. One of 

these commenters suggested that we 

specify that units meeting the 

requirements of 40 CFR parts 264 or 265 

are ‘‘presumptively’’ contained. Other 

commenters said that the proposed 

definition of ‘‘contained’’ seemed more 

appropriate for hazardous secondary 

materials in flowable form, but not for 

solid materials such as scrap metal, for 

which a container is not necessarily 

needed. One of these commenters 

suggested that we clarify that a ‘‘unit’’ 

may include a designated location. 

A few commenters suggested editorial 

revisions to the definition of contained. 

One commenter said that EPA should 


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clarify this provision to better indicate 

that the unit must not contain materials 

that are incompatible with the other 

wastes or materials placed in the unit or 

the materials of construction that 

comprise the unit. Another commenter 

said the examples of release should 

include soil contamination because 

contamination should not be allowed to 

pass through the soil to the groundwater 

before it is considered a release. Two 

commenters said the proposed text at 40 

CFR 261.4(a)(23)(ii)(B) uses the word 

‘‘recycling’’ in place of ‘‘reclamation’’ 

and omits the phrase ‘‘or intermittent 

unpermitted,’’ which does not comport 

with the preamble language. 

EPA’s Response: Other ‘‘Contained’’ 

Issues 

In response to those commenters who 

suggested a mechanism (such as a 

petition process or variance) to provide 

alternative or site-specific containment 

requirements for certain facilities, such 

a mechanism is unnecessary because the 

definition of ‘‘contained’ in today’s rule 

establishes minimum requirements that 

all units storing hazardous secondary 

materials should be able to meet. We 

have designed the ‘‘contained’’ criteria 

to be flexible enough to cover a wide 

range of units. 

In response to comments that 

suggested the reference to 40 CFR parts 

264 and 265 means that units were 

required to comply with those 

provisions, EPA did not intend to imply 

that meeting such standards was 

required. In response to the commenter 

who suggested stating that units meeting 

the applicable requirements of 40 CFR 

parts 264 or 265 are ‘‘presumptively’’ 

contained, EPA agrees that this language 

better reflects EPA’s intent than the 

proposed language and is changing the 

proposed definition of ‘‘contained’’ 

accordingly. However, we do not agree 

with the commenter who suggested 

adding that solid hazardous secondary 

materials may be stored in ‘‘designated 

locations.’’ We have determined that our 

definition of ‘‘contained’’ (which 

includes land-based units) is 

sufficiently flexible to cover solid 

material, such as scrap metal or furnace 

bricks which are not stored in tanks, 

containers, or containment buildings. 

We have also made clear in the 

preamble the circumstances under 

which such materials could be 

considered ‘‘contained.’’ 

For the reasons stated above, EPA is 

finalizing the definition of ‘‘contained’’ 

as proposed, but replacing the statement 

that ‘‘hazardous secondary materials 

meeting the applicable requirements of 

40 CFR parts 264 or 265 are considered 

to be contained’’ with ‘‘hazardous 

secondary materials that meet the 

applicable requirements of 40 CFR parts 

264 or 265 are presumptively 

contained’’ (see 40 CFR 260.10). 

EPA agrees with commenters who 

suggested editorial changes to the 

definition of contained and has 

incorporated these changes into today’s 

rule. 

F. Notification as a Condition 

In the July 2011 proposal, EPA 

proposed to make the notification 

requirement in 40 CFR 260.42 a 

condition, rather than a requirement, of 

the generator-controlled exclusion in 40 

CFR 261.4(a)(23). At issue are the 

consequences an entity would face for 

failing to notify. Thus, notification as a 

requirement of the exclusion means that 

failure to notify would constitute a 

violation of the notification regulations. 

On the other hand, notification as a 

condition of the exclusion means failure 

to notify could potentially result in the 

loss of the exclusion for the hazardous 

secondary materials (i.e., the hazardous 

secondary materials would become 

solid and hazardous wastes and subject 

to full Subtitle C requirements). EPA 

also requested comment on whether 

notification should be a condition of the 

remanufacturing exclusion and of the 

pre-2008 recycling exclusions. (For 

EPA’s response to comments for 

notification as a condition of the pre2008 recycling exclusions, see section 

XIX.) 

Comments: Notification as a Condition 

Commenters were split on this issue. 

Many commenters supported EPA’s 

proposed change to make notification a 

condition of the exclusion. These 

commenters argued that notification as 

a condition would decrease the 

incentives for a facility to evade 

enforcement by not notifying. A few 

commenters agreed that states would 

use enforcement discretion to 

distinguish between facilities that failed 

to notify due to an inadvertent oversight 

or from a blatant disregard for the 

requirement. One commenter urged EPA 

to clarify that a facility submitting a 

notification does not need to wait for 

any response from the implementing 

agency prior to using exclusion. 

On the other hand, many commenters 

did not support this proposed change 

and argued that notification should 

remain a requirement of the exclusion, 

as it is currently. These commenters 

argued that notification, or the absence 

thereof, is not indicative of discard and 

that the information of who is using the 

exclusion should not impact the 

determination of whether a material is 

discarded. Some commenters argued 

that enforcement discretion is not 

exercised in a consistent and reasonable 

manner and that the proposed change 

would subject generators who are 

legitimately recycling their hazardous 

secondary materials to undue severe 

enforcement consequences. Other 

commenters argued that there are 

innocent reasons why a facility would 

not notify, for example, because of 

confusion surrounding the point when a 

virgin material becomes a secondary 

material. Still other commenters 

believed that it is highly unrealistic to 

believe that any facility operating under 

the provisions would intentionally fail 

to notify EPA in an attempt to evade 

enforcement. Other commenters argued 

that there is already sufficient incentive 

to notify because facilities’ would 

already incur significant penalties under 

RCRA 3007 for failing to notify. 

Additionally, one commenter noted that 

making notification a condition of the 

exclusion differs from how other 

paperwork violations are treated. 

EPA’s Response: Notification as a 

Condition 

EPA agrees with commenters who 

supported making notification a 

condition of the exclusion. The 

notification provision is the only formal 

indication of a facility’s intent to 

reclaim a hazardous secondary material 

under the conditional exclusion. For 

example, if during an inspection of a 

large quantity generator of hazardous 

waste, EPA were to discover a 

hazardous secondary material that had 

been stored on-site for more than 90 

days without a RCRA permit (an act that 

would typically be a violation of the 

hazardous waste regulations), a 

previously filed notification would be 

an indication that the facility was 

planning to reclaim the hazardous 

secondary material under the conditions 

of the exclusion. Absent such 

notification, it would be difficult for the 

facility to justify its true intentions for 

the hazardous secondary material. 

Failure to meet the notification 

provision is a strong indication that the 

facility either did not intend to comply 

with or was unaware of the provisions 

of the exclusion. In both cases, the lack 

of notification could indicate that the 

hazardous secondary material was being 

mismanaged. 

EPA agrees with commenters that 

making notification a condition of the 

rule would further discourage facilities 

from trying to evade enforcement by not 

notifying because, under the final rule, 

the costs and consequences of not 

notifying are significantly higher than if 

notification remains a requirement. 

Notification is essential to keep 


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regulators and the public informed 

about hazardous secondary materials 

activity and to enable effective 

compliance monitoring. Making 

notification a condition provides states 

and EPA the ability to properly enforce 

those that intentionally fail to notify in 

order to evade enforcement, while 

leaving the flexibility to tailor 

enforcement appropriately in those 

cases involving an unintentional 

oversight. Therefore, EPA is making the 

notification provision in 40 CFR 260.42 

a condition of the generator-controlled 

exclusion in 40 CFR 261.4(a)(23), as 

well as a condition of the 

remanufacturing exclusion in 40 CFR 

261.4(a)(27). 

In response to opposing comments, 

EPA does not agree that failing to notify 

is not indicative of discard. As noted, 

notification serves as a formal 

declaration that a facility is not 

managing a hazardous waste but, rather, 

an excluded hazardous secondary 

material under the conditions of the 

exclusion. Notification, thus, documents 

the generator’s decision to not discard 

its hazardous secondary materials, 

which is the inherent first step in any 

exclusion from the definition of solid 

waste. 

EPA also does not agree that the 

notification condition would be 

inappropriately enforced. EPA notes 

that notification as a condition subjects 

only those generators who failed to 

notify to enforcement consequences; 

generators who submit notifications as 

required, and meet the conditions of the 

final rule exclusions, would not face 

enforcement consequences. EPA does 

not find this to be unduly burdensome 

to the regulated community. 

EPA also finds that the commenter’s 

example of an innocent reason for 

failing to notify (because of confusion 

surrounding the point when a virgin 

material becomes a secondary material) 

as further reason to strengthen the 

notification provision. That is, in order 

to comply with the final rule, a 

generator must know which hazardous 

secondary materials are being managed 

according to the specific conditions of 

the exclusion. In other words, a 

generator has to make a choice to 

manage hazardous secondary materials 

under the conditions of the rule before 

they are considered ‘‘excluded.’’ 

(Notification, in fact, clearly documents 

this choice.) Therefore, EPA finds it 

difficult to believe that a generator 

could innocently fail to notify under the 

final rule because the generator is 

unclear about when a virgin material 

becomes a hazardous secondary 

material that it must manage under the 

exclusion. These ambiguities must be 

resolved prior to the facility availing 

itself of the exclusion. 

EPA also disagrees with commenters 

that argued it is highly unrealistic to 

believe that any facility operating under 

the provisions would intentionally fail 

to notify EPA, as well as commenters 

that argued that sufficient incentives to 

notify already exist. We note that there 

is likely an economic incentive for some 

facilities to fail to notify and simply 

consider the paperwork violation as a 

cost of doing business. Where an 

economic incentive exists, EPA 

maintains that regulation is appropriate 

in order to adequately discourage 

undesirable behavior. 

Finally, although notification as a 

condition may differ from how other 

paperwork requirements are applied in 

the hazardous waste regulations, it does 

not differ from how other paperwork 

requirements are applied in conditional 

exclusions from the definition of solid 

waste. For example, notification is a 

condition of the zinc fertilizer exclusion 

in 40 CFR 261.4(a)(20). Additionally, 

EPA confirms that the conditional 

exclusions at 40 CFR 261.4(a)(23) and 

40 CFR 261.4(a)(27) are selfimplementing and thus facilities do not 

need to wait for any response from the 

implementing agency prior to using 

exclusion. 

G. Recordkeeping for Speculative 

Accumulation 

In the July 2011 DSW proposal, EPA 

proposed to amend the generatorcontrolled exclusion to require persons 

operating under the exclusion to place 

a label on the storage unit indicating the 

first date that the excluded hazardous 

secondary material began to be 

accumulated. In cases where placing a 

label on the storage unit is not 

practicable (e.g., if the hazardous 

secondary materials are stored in a 

surface impoundment), we proposed as 

an alternative to require persons 

operating under the generator-controlled 

exclusion to document in an inventory 

log the first date that the excluded 

hazardous secondary material began to 

be accumulated. EPA noted that 

enforcement personnel had suggested 

that ease of enforcement would be 

greatly facilitated if persons subject to 

the speculative accumulation 

requirement were required to post a 

start date for the accumulation. In this 

way, inspectors and other regulatory 

authorities could quickly ascertain how 

long a facility has been storing an 

excluded hazardous secondary material, 

and, therefore, whether that facility was 

in compliance with the applicable 

storage time. The Agency also noted that 

placing labels on storage units or 

entering accumulation start dates in 

inventory logs is likely to be already 

part of normal business operations at 

many facilities. For this reason, the 

proposed requirement would not be 

unduly burdensome and would provide 

a greater degree of clarity both to the 

regulated community and to regulatory 

authorities who need to determine 

whether excluded hazardous secondary 

materials meet the speculative 

accumulation limits. 

Since the same arguments for tracking 

accumulation start dates could be made 

more broadly for all recycling subject to 

the speculative accumulation limits, 

EPA also requested comment on 

whether to add this recordkeeping 

requirement to the speculative 

accumulation provision in 40 CFR 

261.1(c)(8) itself. The Agency did not 

propose or solicit comment on changing 

the substantive requirements of the 

speculative accumulation provision, 

such as the time allowed for storage or 

the amount that is required to be 

recycled within a calendar year. 

Comments: Recordkeeping for 

Speculative Accumulation 

Many commenters, particularly states, 

supported the proposed recordkeeping 

requirement and also supported 

extending the requirement to all persons 

currently subject to the speculative 

accumulation requirements at 40 CFR 

261.1(c)(8). These commenters generally 

believed that posting accumulation start 

dates (or using some other mechanism, 

such as an inventory log) provides 

assurance both to generators and 

inspectors that the generator in question 

is in compliance with the speculative 

accumulation provision, and that the 

proposed requirement would not be 

burdensome to the regulated 

community. One commenter supported 

requiring accumulation start dates to be 

posted in storage areas within a 

specified number of feet from the 

storage unit, since reference to logs 

distant from storage units could make 

enforcement difficult. Facilities that 

prefer a centrally located log could 

maintain such a ‘‘master’’ log in 

addition to the record maintained near 

the actual storage unit, this commenter 

suggested. 

Some commenters, however, opposed 

the proposed recordkeeping provision 

for speculative accumulation, either for 

the generator-controlled exclusion or for 

other persons subject to 40 CFR 

261.1(c)(8). Some of these commenters 

argued that 40 CFR 261.2(f) already 

requires respondents in enforcement 

actions who are claiming that a material 

is not a solid waste to demonstrate that 

they meet the terms of an exclusion or 


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exemption, by, among other things, 

providing appropriate documentation. 

Some commenters apparently believed 

that the proposed requirement would 

mandate sending a notification to EPA, 

or posting the quantity of the hazardous 

secondary material and the precise time 

it was generated, or posting ‘‘finish’’ 

dates, as well as ‘‘start’’ dates for 

accumulation. In addition, some 

commenters expressed concern about 

the potential difficulty of posting 

accumulation start dates for hazardous 

secondary materials that are recycled 

rapidly in continuous processes with 

little or no prior storage. 

EPA’s Response: Recordkeeping for 

Speculative Accumulation 

After evaluating the comments 

received, EPA has concluded that the 

proposed recordkeeping requirements 

for speculative accumulation provide 

considerable benefits to both regulatory 

authorities and the regulated 

community and that the burden on the 

regulated community will be minimal. 

Posting accumulation start dates (or 

using another mechanism, such as an 

inventory log) is a simple and effective 

way to provide useful information about 

likely compliance with the speculative 

accumulation provision, and that the 

cost to facilities does not outweigh this 

benefit. We also find that all of the 

reasons for adopting this requirement 

for the generator-controlled exclusion 

apply equally to the question of whether 

to adopt it for all persons subject to 40 

CFR 261.1(c)(8). In response to the 

commenter who supported also 

requiring the posting of accumulation 

start dates in storage areas within a 

specified number of feet from the 

storage unit, EPA is not convinced that 

such a requirement would be necessary 

for all facilities, and the appropriate 

distance from the storage unit might 

also vary for different facilities. We are 

therefore not adopting this requirement. 

In response to those commenters who 

argued that the proposed recordkeeping 

requirement is redundant with 

§ 261.2(f), we note that that provision 

applies to respondents in enforcement 

actions and does not provide specific 

guidance on how to determine 

compliance with the speculative 

accumulation provisions in the case of 

routine inspections. We therefore do not 

agree that the proposed recordkeeping 

requirement is redundant with 40 CFR 

261.2(f). Today’s revision to the 

speculative accumulation provision at 

40 CFR 261.1(c)(8) does not entail 

submitting notifications to EPA, posting 

the quantity of the hazardous secondary 

material and the time it was generated, 

or posting finish dates. The final 

definition of ‘‘contained’’ specifies that 

a unit must be properly labeled or 

otherwise have a system (such as a log) 

to immediately identify the hazardous 

secondary materials in the unit. Neither 

such a label nor the posting of an 

accumulation start date requires 

detailed information. In response to the 

commenters who were concerned about 

hazardous secondary materials that 

were continuously recycled without 

prior storage, we agree with those 

commenters and are revising the 

proposed recordkeeping requirement to 

allow ‘‘other appropriate methods’’ to be 

used to document the accumulation 

period. 

For the reasons given above, EPA is 

amending 40 CFR 261.1(c)(8) to require 

that all persons subject to that provision 

must place materials in a storage unit 

with a label indicating the first date that 

the excluded hazardous secondary 

material began to be accumulated. 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. 

XV. Major Comments on the 

Replacement of the Exclusion for 

Hazardous Secondary Materials That 

Are Transferred for the Purpose of 

Reclamation 

Summary of Comments: Replacement of 

the Transfer-Based Exclusion With the 

Alternative Subtitle C Recycling 

Standards 

Environmental and community 

organizations, as well as many state 

commenters, supported withdrawing 

the transfer-based exclusion because 

this would remove the possibility of 

hazardous secondary materials being 

sent to unpermitted reclaimers without 

a manifest. These commenters agreed 

with EPA’s rationale that transfers of 

most types of hazardous secondary 

materials to other companies for 

reclamation involve discard, and that 

the 2008 DSW transfer-based exclusion 

could result in adverse impacts to 

human health and the environment 

from discarded material. Commenters 

noted that, prior to reclamation 

occurring, hazardous secondary 

materials have limited inherent value. 

Some commenters in particular were 

concerned about how the transfer-based 

exclusion made the generator 

responsible for verifying the safety and 

legitimacy of the recycler’s operations, 

when most generators would not have 

the expertise to make such a 

determination. One commenter 

examined the compliance history of the 

facilities currently operating under the 

2008 DSW exclusions and noted that a 

large percentage have been the subject 

of enforcement actions in the past five 

years, and many have been subject to 

clean-up authorities under either RCRA 

or CERCLA for past contamination. 

Most states supported the alternative 

hazardous waste standards as a 

replacement for the transfer-based 

exclusion as an approach that would 

help encourage recycling, while 

maintaining protection of human health 

and the environment. States generally 

supported the longer accumulation 

period, but some state commenters 

suggested replacing it with the 

speculative accumulation limits. 

Finally, while, as noted above, 

environmental groups supported 

removing the transfer-based exclusion 

because of the potential hazards from 

third-party recycling, they did not 

support the alternative standards 

because they believed that the longer 

accumulation times would not be as 

protective as full Subtitle C regulation. 

In contrast, most industry 

commenters and a few states opposed 

replacing the transfer-based exclusion 

with alternative hazardous waste 

standards. These commenters argued 

that the withdrawal would significantly 

hinder reclamation and therefore, the 

lifecycle environmental benefits from 

recycling, contrary to the resource 

conservation goals of RCRA. One 

commenter reported that retaining the 

generator-controlled exclusion but not 

allowing off-site transfers limits 

generator flexibility if, due to 

unforeseen circumstances (e.g., 

equipment malfunctions), the generator 

is not able to recycle on-site. Several 

industry commenters opposed the 

alternative standards, saying that the 

added compliance requirements (e.g., 

the reclamation plan) are likely to 

outweigh any benefit provided by the 

relaxed accumulation time limits. Two 

commenters suggested that EPA apply 

the alternative standards to the 

reclamation facility, but reduce the 

requirements that apply to the 

generator, given that the majority of the 

damage cases occurred at the recycling 

facility. 

Commenters also argued that EPA’s 

record does not support repealing the 

transfer-based exclusion, stating that 

EPA did not present any new data that 

the 2008 DSW transfer-based exclusion 

would cause environmental harm and 

noting that the 2011 DSW proposal 

stated that facilities currently operating 

under the exclusion do not appear to 

have any problems from hazardous 

materials recycling. Comments included 

discussions of the conditions of the 

2008 DSW transfer-based exclusion and 


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1750 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

44Some of these facilities are also managing 

hazardous secondary materials under the generatorcontrolled exclusion. 

45U.S. EPA, EPA’s Evaluation of Data Collected 

from Notifications Submitted under the 2008 

Definition of Solid Waste Exclusions, April 11, 

2014. 

why such conditions would be adequate 

to protect human health and the 

environment, and suggested if EPA was 

concerned about the conditions, the 

solution would be to strengthen the 

conditions, not withdraw the exclusion. 

In particular, the Pennsylvania 

Department of Environmental 

Protection, which oversees 27 of the 65 

facilities operating under the transferbased exclusion, commented strongly in 

favor of keeping the transfer-based 

exclusion and suggested that EPA add a 

condition that recyclers have a RCRA 

Subtitle C permit. 

EPA’s Response: EPA agrees with 

those comments stating that the 2008 

transfer-based exclusion could result in 

adverse impacts to human health and 

the environment from discarded 

material, but disagrees that all off-site 

transfers for reclamation requires 

Subtitle C hazardous waste regulation, 

because imposing Subtitle C hazardous 

waste regulation would result in 

regulating hazardous secondary material 

that is currently being legitimately 

recycled and not discarded as hazardous 

waste. Instead, EPA agrees with those 

commenters that support retaining an 

exclusion from the definition of solid 

waste for off-site recycling with 

additional conditions which will 

address the potential for discard 

happening in the future. 

As discussed in more detail in Section 

VI of this preamble, EPA has identified 

several regulatory gaps in the 2008 

transfer-based exclusion that could 

result in significant risk to human 

health and the environment from 

discarded material. Specifically, the 

conditions for the transfer-based 

exclusion for recyclers lack the ability to 

provide oversight before management 

begins and do not allow public 

participation in the environmental 

decision-making process, thereby 

decreasing the likelihood of compliance 

and increasing the potential for risk to 

human health and the environment 

from discarded hazardous secondary 

material. The evidence of past damage 

cases at third-party recycling facilities 

leading to significant risk to human 

health and the environment from 

hazardous secondary materials 

originally intended for recycling and the 

underlying perverse incentives of the 

recycling market to over-accumulate 

such hazardous secondary materials 

intended for recycling, resulting in 

discard of the material, demonstrates 

the need for such additional oversight 

and public participation. In other 

words, the transfer-based exclusion can 

exacerbate financial incentives for small 

and/or inexperienced businesses to take 

in more hazardous secondary materials 

than they actually can use, mishandle it, 

and even go out of business, as shown 

by the fact that bankruptcies or other 

types of business failures were 

associated with 66% of the recycling 

damage cases, resulting in multi-million 

dollar cleanups. 

At the same time, as EPA noted in the 

2011 DSW proposal and as was echoed 

in the public comments, EPA has also 

carefully monitored the implementation 

of the 2008 DSW final rule since it came 

into effect in December 2008, and to 

date, no environmental problems have 

been reported at facilities claiming the 

DSW exclusions. As of April 2014, a 

total of 65 facilities are operating under 

the transfer-based exclusion, 56 of 

which are generators transferring off-site 

and 7 which are reclamation facilities.44

All seven reclamation facilities are 

RCRA permitted. (There are no 

reclaimers without a Subtitle C permit 

currently operating under the transferbased exclusion). Of the 56 generators 

operating under the transfer-based 

exclusion, 32 generators appear to have 

either started or substantially increased 

their recycling as a result of the 2008 

DSW exclusions. These include 

generators that had previously reported 

in their 2007, 2009, or 2011 biennial 

report that they sent their solvents 

offsite for fuel blending, and then 

notified that they are sending their 

spent solvents for reclamation under the 

2008 DSW final rule. In addition, in at 

least five cases, facilities have switched 

from sending spent pickle liquor to 

landfilling or deep well injection to 

recycling under the 2008 DSW rule. In 

total, the 2008 DSW notifications 

document that over 57,000 tons of 

hazardous secondary material were 

reclaimed under the 2008 DSW rule 

during 2011.45 In addition, the fact that 

the Pennsylvania Department of 

Environmental Protection (PA DEP), 

which oversees 27 of the 65 facilities 

operating under the transfer-based 

exclusion, commented strongly in favor 

of keeping the transfer-based exclusion, 

supports the idea that an exclusion for 

off-site reclamation can be safely 

implemented. At the same time, given 

that the transfer-based exclusion has 

been achieving its intended purpose of 

encourage safe, legitimate recycling, 

withdrawing the transfer-based 

exclusion and replacing it with RCRA 

Subtitle C hazardous waste 

requirements is unnecessary and would 

result in hazardous secondary material 

that is currently being legitimately 

recycled and not discarded being 

regulated as hazardous waste. Because 

Subtitle C regulation would be more 

stringent than the current exclusion, if 

EPA were to finalize the alternative 

Subtitle C standards, Pennsylvania (and 

other states that have adopted the 2008 

DSW rule) would have to change their 

programs and regulate this material as 

hazardous waste, despite the fact that it 

is currently being legitimately recycled 

and not discarded. 

However, the fact that the comments 

from PA DEP went on to recommend 

that the transfer-based exclusion be 

limited to RCRA-permitted recycling 

facilities also supports EPA’s 

determination that the selfimplementing measures of the transferbased exclusion have the potential to 

result in significant risk to human 

health and the environment. Because all 

recycling under the transfer-based 

exclusion has been (to date) performed 

at RCRA permitted facilities, EPA is 

unable to extrapolate what would 

happen at facilities without a RCRA 

Subtitle C permit if the transfer-based 

exclusion were fully implemented. 

Given the evidence of past damage cases 

leading to significant risk to human 

health and the environment from 

hazardous secondary materials 

originally intended for recycling and the 

underlying perverse incentives of the 

recycling market to over-accumulate 

such hazardous secondary materials 

intended for recycling, resulting in 

discard of the material, additional 

oversight of recycling beyond the selfimplementing measures of the transferbased exclusion are needed to ensure 

that the hazardous secondary material is 

legitimately recycled and not discarded. 

EPA is therefore replacing the 

transfer-based exclusion currently found 

in 40 CFR 261.4(a)(24) and (25) with the 

verified recycler exclusion in 40 CFR 

261.4(a)(24). This replacement strikes an 

appropriate balance between 

encouraging the safe and legitimate 

recycling of hazardous secondary 

materials and allowing the appropriate 

oversight to ensure the exclusion works 

as intended. It also addresses the issue 

of allowing a generator flexibility to 

recycle on site or off site as 

circumstances require (as long as the 

generator notifies under both the 

generator-controlled exclusion and the 

verified recycler exclusion). As 

discussed in section VI. D of the 

preamble, the verified recycler 

exclusion retains the conditions from 

the transfer-based exclusion that were 

intended to help identify hazardous 

secondary material that is legitimate 


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Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 1751 

46Allen, D., Shonnard, D., Green Engineering: 

Environmentally Conscious Design of Chemical 

Processes, Risk Concepts, chapter 2, pgs 35–62, 

Austin, S., U.S. EPA Editor, Published by PrenticeHall, 2001. 

47For information on U.S. EPA’s Green Chemistry 

Program, see http://www.epa.gov/gcc/. 

48 Information on the American Chemical 

Society’s Green Chemistry Institute’s 

Pharmaceutical Roundtable is available via the ACS 

Web site http://portal.acs.org/portal/acs/corg/

content. 

recycled and not discarded, and adds 

conditions that address the regulatory 

gaps identified in the 2011 DSW 

proposal. 

XVI. Major Comments on the 

Remanufacturing Exclusion 

A. List of Eligible Solvents 

In the July 2011 DSW proposal, EPA 

requested comments on excluding 18 

spent solvents when they are 

remanufactured back into higher value 

commercial-grade solvents under the 

conditions of the exclusion. The 

solvents were: Toluene, xylenes, 

ethylbenzene, 1,2,4-trimethylbenzene, 

chlorobenzene, n-hexane, cyclohexane, 

methyl tert-butyl ether, acetonitrile, 

chloroform, chloromethane, 

dichloromethane, methyl isobutyl 

ketone, N,N-dimethylformamide, 

tetrahydrofuran, n-butyl alcohol, 

ethanol, and methanol. EPA chose these 

18 spent solvent chemicals to limit the 

exclusion to higher-value materials and 

processes that resemble manufacturing 

more than waste management. EPA also 

requested comment on whether there 

are other solvents, chemicals or other 

types of hazardous secondary materials 

that should be included in the 

remanufacturing exclusion. In 

particular, EPA requested comments on 

opportunities for remanufacturing other 

types of non-renewable hazardous 

secondary materials, such as metal 

catalysts or other types of metal-bearing 

hazardous secondary materials. 

Comments: List of Eligible Solvents 

Many commenters supported the 

current list of spent solvents and did not 

support expanding the list in any way. 

These commenters cautioned against 

expanding the list of chemicals until 

EPA could determine the effectiveness 

of this exclusion. Several other 

comments did not focus on adding 

solvents or other hazardous secondary 

materials, but focused on the toxicity or 

market structure of the 18 listed spent 

solvents. One commenter questioned 

the claim of ‘‘higher-value’’ for 

chloroform, chloromethane, ethyl 

benzene, xylene, methanol and MTBE. 

Another commenter stated they no 

longer use many of the 18 listed spent 

solvents because the solvents are 

defined as a toxic substance and a 

hazardous air pollutant under other 

environmental statutes. The commenter 

continued by saying that members of 

their association now use more 

‘‘environmentally friendly’’ solvents. 

The remaining commenters discussed 

adding solvents or other hazardous 

secondary materials. Some commenters 

suggested expanding the solvent list to 

include benzene, acetone, isopropyl 

alcohol, or all solvents used in reactors, 

extractors, purifiers or blending 

equipment in pharmaceutical, organic, 

chemical, or plastics and resins 

manufacturing. Finally other 

commenters suggested adding 

additional hazardous secondary 

materials that were not solvents. The 

hazardous secondary materials 

suggested for addition were metalbearing hazardous secondary material, 

F006 and spent hydroprocessing 

catalysts. 

EPA’s Response: List of Eligible 

Solvents 

EPA agrees with those commenters 

who supported the remanufacturing 

exclusion and limiting it to the list of 18 

spent solvents, at least at this point in 

time. EPA determined that these 18 

spent solvents are good candidates for 

remanufacturing because they are used 

in large volumes as processing aids and 

because there are existing markets for all 

these solvents to be remanufactured to 

serve similar purposes to those of the 

original commercial-grade materials. 

EPA does not agree with comments that 

suggested adding chemicals to the list, 

but did not provide specific data or 

information that would lead the Agency 

to add these chemicals to the list at this 

point in time. While EPA may expand 

the list of eligible hazardous secondary 

materials for the remanufacturing 

exclusion based on additional data (see 

section VII of this preamble), the 

currently available information only 

supports the inclusion of the proposed 

list of 18 spent solvents. 

EPA disagrees with those commenters 

who did not support including many of 

the identified solvents on the list 

because of their toxicity. In the 2011 

DSW proposal, EPA acknowledged that 

the eligible solvents have suspected or 

recognized hazardous health effects 

associated with their manufacture, 

processing, and use.46 Although EPA 

and industry have been working to find 

substitutes for the more hazardous of 

these solvents, or find ways to use less 

of them, this has not yet been widely 

achieved.47 48 With respect to the 

pharmaceutical sector in particular, 

complex chemical processes already 

registered with the Food and Drug 

Administration are involved, and EPA 

has found this a very challenging area 

to address in terms of chemical 

substitution and process changes. In 

addition, some of these solvents are 

building blocks and primary 

intermediate chemicals, making them 

difficult to replace. Until lower-risk 

substitutes for these solvents are found, 

it is helpful from a health risk 

standpoint to minimize the volume of 

solvents manufactured and to limit 

exposure to those already manufactured. 

This is something that the 

remanufacturing exclusion can achieve. 

B. List of Eligible Industry Sectors 

Under the 2011 DSW proposal, EPA 

identified the operations of four 

manufacturing sectors as candidates for 

the remanufacturing exclusion. The 

eligible sectors were pharmaceutical 

manufacturing (NAICS 325412), basic 

organic chemical manufacturing (NAICS 

325199), plastics and resins 

manufacturing (NAICS 325211), and the 

paints and coatings manufacturing 

sector (NAICS 325510). These four 

sectors were selected because their 

primary business is manufacturing 

rather than waste management. 

Furthermore, these sectors are closely 

associated with the chemical functions 

identified in the remanufacturing 

exclusion and currently use a high 

volume of the solvents identified for the 

functional purposes included in this 

exclusion. EPA also asked for comment 

on whether there were other industry 

sectors that should be included in the 

remanufacturing exclusion. 

Comments: List of Eligible Industry 

Sectors 

Several commenters suggested 

specific industries for EPA to add to the 

remanufacturing exclusion. The 

suggested industries were K061 

recyclers, the biofuels sector, recyclers 

with a part B permit like Safety-Kleen, 

petroleum refineries (NAICS 324110), 

petrochemical manufacturers (NAICS 

325110), synthetic rubber manufacturers 

(NAICS 325212), fiber glass 

manufacturers, and electronic 

manufacturers. K061 recyclers and the 

biofuels sector were suggested due to 

their active markets and potential 

impacts on the environment if 

hazardous secondary materials were 

managed improperly. Companies, such 

as Safety-Kleen, with a part B permit, 

were suggested because these recyclers 

encourage sustainable materials 

management through remanufacturing. 

Petroleum refineries (NAICS 324110), 

petrochemical manufacturers (NAICS 

325110) and synthetic rubber 


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manufacturers (NAICS 325212) were 

suggested due to their significant 

generation of spent solvents. The 

commenter believed these industry 

sectors’ spent solvents should be 

eligible just like the solvents from the 

proposed industry sectors. Another 

commenter suggested adding fiber glass 

manufacturers because they operate 

refractory recycling programs and 

refractories are higher-value hazardous 

secondary materials. Finally, the 

electronics sector was recommended for 

its recycling of precious metals. 

EPA’s Response: List of Eligible 

Industry Sectors 

EPA acknowledges that the industry 

sectors that were nominated for 

inclusion in the remanufacturing 

exclusion participate in recycling 

activities; however, these sectors’ 

recycling activities do not include the 

types of practices or functions that were 

within the scope of the remanufacturing 

exclusion. Under the remanufacturing 

exclusion, a manufacturer may send 

their hazardous secondary material to 

another manufacturer, from one of the 

permissible industry sectors, provided 

that the remanufacturer uses the 

hazardous secondary material in one of 

the four permissible functions. The 

commenters all suggested industries 

that send their hazardous secondary 

materials to a third party, who is not 

necessarily a manufacturer, but a facility 

that would recover the solvent or other 

hazardous secondary material and who 

would then sell the recycled product to 

another person. 

As discussed in the market forces 

study, it is generally in the best interest 

of commercial third party recyclers to 

maximize the amount of hazardous 

secondary material they can accept to 

increase profits. This market structure 

creates a perverse market incentive to 

over-accumulate hazardous secondary 

materials, which can result in discard, 

which the remanufacturing exclusion 

seeks to avoid. In contrast, the market 

forces study shows that facilities 

engaged in industrial intra-company 

recycling, where companies generate 

hazardous secondary materials as byproducts of their main production 

processes and recycle the hazardous 

secondary materials used in production, 

have more flexibility in waste 

management decisions than a 

commercial recycler does. When a 

commercial recycler’s primary or entire 

income is from accepting hazardous 

secondary materials for recycling and 

selling recycled products, there is no 

economic alternative if the market 

crashes to stay in business unless the 

company can afford the cost of a 

hazardous waste management permit 

and the cost of becoming a hazardous 

waste disposal facility. 

Remanufacturers, on the other hand, as 

a type of intra-industry recycler, profit 

primarily from the sale of their product 

and can switch their inputs between 

raw materials and hazardous secondary 

materials if market conditions shift. 

It is also not clear that the suggested 

industry sectors will know what 

function their hazardous secondary 

materials will be used for after 

remanufacturing. As discussed 

previously, the remanufacturing 

exclusion encourages higher-value 

materials to be remanufactured and then 

used in high-value processes again. 

Furthermore, this exclusion focuses on 

the functions of aiding chemical 

manufacturing and processing because 

the solvents performing these functions 

retain their original physical and 

chemical properties. In these functions, 

the solvents are not contaminated by 

substances, such as inks and greases, 

which are difficult to separate, but only 

mixed with pure product ingredients, 

from which they can be separated 

readily in a commercially feasible 

manner. Unfortunately, the suggested 

industry sectors provided by 

commenters do not appear to coincide 

with the intent of remanufacturing 

hazardous secondary materials that 

retain their original physical and 

chemical properties. Therefore, these 

additional sectors will not be included 

in the remanufacturing exclusion. 

However, EPA notes that these sectors 

would be eligible to participate in the 

verified recycler exclusion (40 CFR 

261.4(a)(24)) if they meet the conditions 

of that exclusion. 

C. Regulatory Language 

In the July 2011 DSW proposal, EPA 

did not specifically include regulatory 

language for the remanufacturing 

exclusion, but EPA did include a 

streamlined version of the scope, 

applicability and conditions of the 

exclusion followed by a very detailed 

explanation of the exclusion that 

included the reasoning for each 

condition. 

Comments: Regulatory Language 

Many commenters said they were 

unable to comment on the 

remanufacturing exclusion because 

there was no regulatory language 

included in the proposal. Almost all 

commenters supported the concept of 

the remanufacturing exclusion, but 

requested that EPA re-propose the 

remanufacturing exclusion in a separate 

rulemaking with regulatory text, so 

commenters could accurately comment 

on the exclusion. 

EPA’s Response: Regulatory Language 

The preamble language discussing the 

remanufacturing exclusion contained 

adequate detail and information to 

allow comment on the proposed 

remanufacturing exclusion. In the July 

2011 DSW proposal, the 

remanufacturing exclusion was 

presented in a narrative form that 

closely resembles the regulatory 

language being finalized today. The 

proposed rule also included a large 

amount of detail on the scope, 

applicability, and conditions of the 

remanufacturing exclusion. The 

proposal laid out exactly what solvents, 

industry sectors, and chemical functions 

were permissible in the remanufacturing 

exclusion. The proposal then clearly 

stated what was required for the 

notification, remanufacturing plan, 

records of shipments and confirmations 

of receipts, tanks and container 

management standards and the 

speculative accumulation requirement. 

EPA has determined that between the 

narrative and detailed explanation of 

the remanufacturing exclusion, 

commenters were provided more than 

enough information to comment on the 

remanufacturing exclusion, and thus, 

we are finalizing it in today’s final rule. 

XVII. Major Comments on Legitimacy 

A. Codifying Legitimacy for All 

Recycling 

Comments: Codification of Legitimacy 

Comments from industry across the 

board (including waste management 

companies) vehemently opposed 

codifying the legitimacy provision at 

§ 260.43 for the pre-2008 recycling 

exclusions and exemptions, arguing that 

this action, combined with making 

factor 3 and factor 4 mandatory, is a 

drastic change in policy and likely will 

end much of the current recycling that 

is occurring under RCRA. Industry 

commenters argued that this would be 

a huge administrative burden with little 

environmental benefit and that 

recycling has been taking place under 

these exclusions largely without 

problems for many years. Some industry 

commenters expressed their opinion 

that the codified legitimacy factors are 

significantly different than EPA’s 

existing legitimacy policy and therefore, 

the legitimacy analysis that would have 

to be undertaken is not substantively the 

same. Other commenters opined that 

applying the codified legitimacy 

standard to the pre-2008 exclusions and 

exemptions would function as a 

disincentive to recycling by adding 


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paperwork burden and increasing 

compliance difficulties, especially for 

generators who would be exposed to 

potential RCRA enforcement due to 

subsequent noncompliance by the 

recycler. One commenter stated that 

inspectors could miss the more obvious 

cases of sham recycling because Agency 

resources would be expended in 

reviewing the large amount of required 

documentation and inspecting the more 

frequently used pre-existing exclusions, 

such as the use/reuse exclusion in 

261.2(e) and the closed loop recycling 

exclusion in 261.4(a)(8) to the detriment 

of investigating other potentially more 

problematic recycling. 

Many of the specific industry 

commenters on this issue were scrap 

metal recyclers who argued that 

although they have been legitimately 

recycling for decades, expecting them to 

prove that their recycling operations 

were legitimate for the first time would 

be prohibitively expensive, timeconsuming and unworkable. The scrap 

metal recycling industry had particular 

issues with factor 4 as drafted in the 

2011 DSW proposal and had many 

questions on how to do the comparable 

demonstration. 

With respect to the states, a number 

of states were supportive of codifying 

one legitimacy standard for all 

hazardous secondary material recycling 

activities. They argued that codifying 

the legitimacy provision would give 

industry and states a definitive standard 

to evaluate recycling and that industries 

operating under the pre-2008 recycling 

exclusions and exemptions should not 

have any problems documenting 

compliance with the legitimate 

recycling provision of § 260.43, if their 

recycling is truly legitimate. On the 

other hand, a number of states, the 

Association of State and Territorial 

Solid Waste Management Officials 

(ASTSWMO), and the Northeast Waste 

Management Officials’ Association 

(NEWMOA) all expressed concerns over 

applying the codified legitimacy 

standard to certain long-standing 

recycling exclusions, including leadacid batteries, circuit boards, scrap 

metal, and closed loop recycling, with 

one state arguing that this additional 

regulatory burden was not necessary for 

the 2008 pre-existing exclusions and 

exemptions. 

Several environmental and 

community organizations supported 

codification of the legitimate recycling 

provision for all hazardous secondary 

materials recycling, but did not provide 

a detailed explanation of their position. 

In addition, whereas one environmental 

organization acknowledged that EPA 

did not solicit comment on the 

elimination of these exclusions, this 

organization stated that they believed a 

re-examination of all of the exclusions 

by the Agency, including the pre-2008 

exclusions and exemptions should be 

conducted as soon as possible. 

EPA’s Response: Codification of 

Legitimacy 

In response to the many comments 

that were submitted, the Agency is 

making a number of changes to the 2011 

DSW proposal. Specifically, EPA is 

codifying a general statement in 

§ 261.2(g) that makes it clear that a 

hazardous secondary material found to 

be sham recycled is discarded and thus, 

is a solid waste. However, we are not 

codifying a reference to the legitimacy 

provisions at 40 CFR 260.43 in each of 

the pre-2008 recycling exclusions/

exemptions, as we proposed to do in the 

2011 DSW proposal. On further 

reflection, we have determined that the 

sham recycling prohibition in § 261.2(g) 

more clearly defines the Agency’s view 

on legitimate recycling and the pre-2008 

recycling exclusions and exemptions. 

We also agree with those commenters 

who pointed out that we generally 

looked at the legitimacy of the recycling 

activity when we promulgated the 

material-specific or industry-specific 

exclusions and, therefore, we are not 

requiring facilities to revisit past 

legitimacy determinations. However, by 

codifying a prohibition on sham 

recycling that applies to all hazardous 

secondary materials being recycled, we 

are confirming that we expect anyone 

operating under a recycling exclusion or 

exemption to do so legitimately. (As we 

discuss later in this section and in 

section VIII, the Agency also has made 

a number of other revisions to the 

legitimacy standard to address the 

concerns raised in the comments.) 

Comments: Effect on Existing 

Legitimacy Determinations 

Many industry commenters argued 

that EPA or the states have already 

made legitimate recycling 

determinations for their specific 

recyclable materials. Some commenters 

also noted that EPA considered 

legitimacy at the time their materialspecific exclusion was promulgated and 

had already made legitimacy 

determinations for those recyclable 

materials (e.g., the zinc fertilizer 

exclusion, precious metal exclusion, 

etc.). These commenters also argued that 

as part of rulemaking for the materialspecific exclusions, the Agency had 

determined what conditions were 

necessary to ensure legitimacy. Some 

argued that overlaying the general 

legitimacy factors on the 2008 preexisting conditional exclusions and 

exemptions is unnecessary and 

duplicative and would create significant 

disincentives to recycling. 

EPA’s Response: Effect on Current 

Legitimacy Determinations 

In response to the concerns expressed 

that the codified legitimacy factors 

would lead to practices previously 

considered legitimate now being 

considered sham operations, in general, 

the Agency is clarifying that it does not 

intend for the current recycling 

legitimacy determinations to change due 

to the codification of the legitimacy 

factors. We consider the factors we are 

finalizing today to be consistent with 

the criteria in the Lowrance Memo and 

previous preamble statements on 

legitimate recycling. Therefore, we 

generally do not anticipate that 

implementing agencies will revisit past 

legitimacy determinations. If recycling 

was considered legitimate under the 

Lowrance Memo, its status should not 

change as a result of today’s rule. To 

make its intent more clear, the Agency 

is codifying a prohibition against sham 

recycling in § 261.2(g) instead of adding 

a provision in each of the pre-2008 

exclusions and exemptions referring to 

the legitimacy provision in § 260.43. 

This codification will give 

implementing agencies a clear 

regulatory statement that can be used to 

enforce against sham recyclers, yet not 

require the vast majority of recyclers 

that are performing legitimate recycling 

under the pre-2008 exclusions and 

exemptions to revisit previously-made 

legitimacy determinations. 

Any existing legitimate recycling 

determination should not change due to 

the codification of the legitimacy 

factors. In addition, examples that were 

provided in the public comments 

helped inform our decision-making and 

led us to revise factor 4 significantly to 

address this issue. The final regulatory 

text is consistent with the pre-existing 

legitimacy guidance and the manner in 

which legitimacy determinations have 

been made by the EPA Regions and 

authorized states. Thus, we do not 

expect implementing agencies to revisit 

past legitimacy determinations. 

Regarding the existing exclusions and 

exemptions in the regulations, EPA 

acknowledges that, in establishing a 

specific exclusion or exemption, we 

have already determined in the 

rulemaking record that the specific 

recycling practice is excluded from the 

definition of solid waste provided all 

the conditions of the rule are met. 

However, the Agency has always 

enforced its rules on the basis that any 

recycling must be legitimate (See U.S. v. 


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49 In addition, we are also finalizing in the 

regulatory language the additional flexibility that 

was proposed in factor 3 to the legitimacy 

provision. 

50As we discuss in Section VIII.B.6.c, the Agency 

has included a self-implementing process that 

would allow the person performing the recycling to 

document, certify, and notify the appropriate 

Regional Administrator that even though the 

hazardous secondary material does not meet factor 

4, the recycling is still considered legitimate. 

Self, 2 F.3d 1071, 1079 (10th Cir. 1993); 

U.S. v. Marine Shale Processors, 81 F.3d 

1361, 1366 (5th Cir. 1996); Marine Shale 

Processors v. EPA, 81 F.3d 1371, 1381– 

83 (5th Cir. 1996)). This is meant to 

prevent a company from claiming to be 

operating under an existing exclusion or 

exemption and simply using that as a 

way to avoid full RCRA Subtitle C 

regulation. Thus, since EPA is not 

modifying the existing exclusions and 

exemptions, there is no change 

regarding legitimacy determinations, 

except that the factors are now codified. 

A company’s ability to claim a recycling 

exclusion or exemption has always 

depended on the recycling being 

legitimate. 

B. Making All Four Legitimacy Factors 

Mandatory 

Comments: Mandatory Factors 

For the most part, states commenting 

on this part of the proposal supported 

all the legitimacy factors being 

mandatory (the exceptions being 

Tennessee and Louisiana), although 

several states went on to say that they 

either opposed the petition process or 

are concerned about it for the following 

reasons: (1) The resources necessary for 

addressing incoming petitions, (2) the 

possibility of using the petition process 

as a potential backdoor out of 

legitimacy, and/or (3) the potential for 

the petition process to lead to 

inconsistencies among states on 

legitimacy determinations. Most states 

have supported making all four factors 

mandatory in past proposals and 

continue to do so here, arguing that 

codifying the legitimacy factors in the 

rule (instead of only in rule preamble 

and in policy documents) will provide 

clearer instruction to the regulated 

community and will strengthen the 

ability of state programs to enforce the 

criteria in situations where recycling is 

not legitimate. This, the states claim, 

will reduce the potential risk to human 

health and the environment from 

mismanagement of hazardous secondary 

materials and from elevated 

concentrations of contaminants in 

recycled products. They also argue that 

making all four factors mandatory will 

remove a serious flaw in the 

enforceability of legitimacy. Other 

commenters noted that requiring all four 

legitimacy factors to be met is critical to 

ensure reclamation is being conducted 

at a qualified facility and to minimize 

the potential for creation of future 

damage cases. Most states found it hard 

to conceive of a legitimate recycler that 

would not be able to satisfy all four 

factors. 

Although some commenters 

representing the hazardous waste 

recycling industry did support making 

all the factors mandatory, the majority 

of industry commenters did not support 

this provision. Those commenters who 

did support a requirement that all four 

factors be met argued that this structure 

would be fairer and more enforceable. 

On the other hand, many of the 

commenters that argued against making 

all factors mandatory stated that this 

would discourage much of the current 

recycling and would be too hard to 

meet. Commenters particularly singled 

out factor 4 (toxics along for the ride) as 

problematic for implementation. 

Specifically, we got comments from 

multiple members of the mining and 

mineral processing industry arguing that 

factor 4 is not applicable to their 

industry and from scrap metal recyclers 

asking how factor 4 would apply at their 

facilities. 

Many commenters also argued that 

the petition process was not an adequate 

mechanism for those processes that do 

not meet all four factors because there 

will be too many petitions for the states 

and EPA to be able to process and 

because shutting down recycling 

operations during the time spent 

waiting for petitions to be processed 

would be very expensive and wasteful. 

Another important consideration is 

what the Agency has learned since 

implementing the 2008 DSW final rule, 

which finalized the legitimacy factors as 

a condition of the generator-controlled 

and transfer-based exclusions, with two 

factors that are mandatory and two 

factors that must be considered. Since 

that rule became effective, the Agency 

has become aware of a misconception 

regarding the ‘‘to be considered’’ factors. 

It has become clear that some industry 

stakeholders believe those factors to be 

less important, stating that they are 

optional or even can be ignored. This 

was not the Agency’s intention at all. 

The Agency tried to make it clear that 

they must be considered and could, in 

fact, indicate sham recycling on their 

own. However, through public comment 

and stakeholder meetings, we have 

repeatedly heard that industry views 

these factors as optional. 

Another argument against making all 

the factors mandatory requirements is 

that the overall determination is made 

on a case-by-case basis, which is often 

facility-specific, and not all legitimate 

recycling can fit into such a rigid 

system. Commenters argue that making 

all four factors mandatory removes the 

flexibility necessary for the broad 

universe of hazardous secondary 

materials being recycled. 

EPA’s Response: Mandatory Factors 

After much consideration and review 

of the public comments, the Agency has 

decided to make all four legitimacy 

factors mandatory with adjustments to 

the factors themselves to account for the 

variability and diversity of legitimate 

hazardous secondary material recycling. 

As explained above in sections VIII.B.5 

and VIII.B.6, we have adjusted the 

regulatory language of factor 4 to build 

in more flexibility for meeting this 

factor,49 but are also making it clear in 

the regulatory language that it is 

important that each factor be met, 

except as otherwise noted.50 Since 

finalizing the legitimacy factors in the 

2008 DSW final rule, our experience 

with implementation has made us 

realize the importance of requiring all 

factors be met. Even though we stressed 

the importance of considering each 

factor in the 2008 DSW final rule, many 

of the stakeholders are under the 

misimpression that the factors that were 

to be considered could actually be 

ignored. We did not mean to give the 

impression that factor 3 and factor 4 

were optional and thus, have decided 

that the best way to give the proper 

weight to these factors is to make them 

mandatory with additional flexibility to 

address the various recycling scenarios. 

In addition, instead of a petition 

process for those legitimate recycling 

scenarios that don’t meet factor 4, we 

are finalizing a documentation, 

certification, and notification process. 

We continue to find that legitimacy 

determinations are best made on a caseby-case basis, which has always been 

the case, with the facts of a specific 

recycling situation in hand. If a person 

has any questions as to the legitimacy of 

a particular recycling activity, he can 

always approach the appropriate 

regulatory agency for assistance in 

making a legitimacy determination. 

C. Documentation of Legitimate 

Recycling 

When the Agency codified the 

legitimacy standard in the 2008 DSW 

final rule, we did not require specific 

documentation regarding the legitimate 

recycling determination. In the 2011 

DSW proposal, in addition to proposing 

that the legitimacy standard apply to all 


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hazardous secondary material recycling 

and that all four legitimacy factors must 

be met, EPA proposed a new 

documentation requirement for persons 

performing the recycling. We proposed 

that the recyclers include a narrative 

description of how their hazardous 

secondary materials are legitimately 

recycled and that this documentation be 

maintained on-site for the duration of 

the recycling operations and for three 

years after the recycling operations 

cease. However, as explained above in 

section VIII.C.2, we are only finalizing 

the requirement to document a 

legitimate recycling determination for 

those recyclers operating under the 

generator-controlled exclusion and for 

those recyclers that are legitimately 

recycling, but do not meet factor 4—that 

is, they must document why the 

recycling operation is legitimate even if 

they do not meet factor 4. 

Comments: Documentation 

ASTSWMO, NEWMOA, and most 

other states supported requiring 

documentation of legitimate recycling 

for both the generator and recycler (with 

exceptions noted in their comments 

about certain long-standing recycling 

exclusions and exemptions, including 

lead-acid batteries, circuit boards, scrap 

metal, and closed loop recycling). Most 

state environmental agencies cited the 

ability to implement and enforce the 

RCRA recycling program as the primary 

reason why documentation is needed. 

However, a few states did not support 

requiring documentation for any of the 

pre-2008 recycling exclusions and 

exemptions. One state agreed that some 

documentation may be necessary for 

inspections, but also stated that 

common business records would likely 

suffice in most cases. An environmental 

organization coalition suggested we 

provide a consistent format and require 

documentation of both generators and 

recyclers. Industry generally opposed 

the documentation requirement and felt 

that it would pose significant practical 

challenges, especially for factor 4. Some 

industry commenters felt that ‘‘upfront’’ documentation is not necessary 

since EPA can rely on § 261.2(f) for 

documentation. Other commenters 

argued that for companies that rely 

heavily on the existing exclusions and 

exemptions, it would be easy to 

inadvertently miss documenting every 

instance (i.e., closed loop recycling) and 

the consequences could be severe. In 

fact, one industry association argued 

that documentation may actually cause 

more non-compliance due to the huge 

administrative burden, especially for 

large facilities that utilize many of the 

recycling exclusions and that the 

voluminous paperwork could result in 

inspectors missing more obvious sham 

recycling. 

Other commenters objected to any 

recordkeeping requirements 

documenting that a recycling activity is 

legitimate, arguing the policy is not new 

so, therefore, no new documentation 

should be required. They argued that 

since EPA already believes most 

recycling is legitimate, requiring 

documentation for all recycling is overly 

burdensome, expensive, and not 

necessary. Some industry commenters 

argued that EPA offered no evidence in 

the record that documenting the 

legitimacy of a recycling practice would 

have any additional environmental 

benefit. A few commenters asserted that 

requiring documentation for all 

recycling might actually cause more 

non-compliance, especially for the more 

frequently used recycling exclusions, 

such as the use/reuse and closed-loop 

recycling exclusions. 

Finally, there was ample confusion in 

the comments on who would be 

required to put together and provide the 

documentation. The Agency proposed 

that the requirement would apply to the 

‘‘persons performing the recycling.’’ 

That is, if the generator sent his 

hazardous secondary materials off-site 

to a recycler, then the recycler would be 

the one responsible for maintaining the 

documentation. If, on the other hand, 

the generator recycled his hazardous 

secondary materials on-site, then the 

generator would be responsible for 

documenting that the recycling activity 

was legitimate. However, some 

commenters still expressed confusion 

over who would be responsible for the 

documentation. 

EPA’s Response: Documentation 

As discussed previously, the Agency 

has determined that, for purposes of the 

existing pre-2008 recycling exclusions 

and exemptions, documentation is not 

required, unless the facility has 

determined it is legitimately recycling, 

but does not meet Factor 4. In the vast 

majority of cases, recycling under the 

existing exclusions is legitimate and 

documentation is not necessary. The 

Agency has previously acknowledged 

the legitimacy of these recycling 

practices when it first promulgated the 

material-specific and industry-specific 

exclusions and exemptions, when at 

that time it took into consideration the 

legitimacy of the recycling practices. 

After review of the public comment, the 

Agency has determined that routine 

documentation of legitimacy is an 

unnecessary burden for persons 

legitimately recycling under the pre2008 recycling exclusions and 

exemptions. 

However, the Agency is requiring 

documentation on legitimacy 

determinations under two 

circumstances: (1) Persons operating 

under the generator-controlled 

exclusion originally finalized in the 

2008 DSW final rule, and (2) persons 

legitimately recycling under any 

recycling exclusion or exemption where 

the hazardous constituents in the 

recycled products are not comparable or 

are unable to be compared to those in 

analogous products (unless the recycled 

product meets widely recognized 

commodity specifications or the 

hazardous secondary material is 

returned to the production process). In 

these cases, the persons recycling would 

be required to keep documentation of 

the legitimacy of their recycling. 

Specifically, the Agency has 

determined that requiring 

documentation under the generatorcontrolled exclusion is appropriate 

because this exclusion is generic and 

can be used by a wide variety of 

industries recycling any of a number of 

hazardous secondary materials. In 

addition, as explained above in section 

VIII.B.6.c, the Agency has also 

determined that documentation is 

necessary for those rare cases of 

legitimate recycling that has 

significantly higher levels of hazardous 

constituents in the recycled product 

than in an analogous product, or has no 

analogous product, has no widelyrecognized commodity specifications for 

the recycled product, and is not 

returned to the production process. In 

those cases, due to the selfimplementing nature of the legitimacy 

determinations, it is important that the 

recycler perform the proper assessment 

and document how the recycling is still 

legitimate. 

Finally we would note that 40 CFR 

261.2(f) applies whenever a person is 

claiming that a hazardous secondary 

material is not a solid waste, which 

oftentimes is because the material is 

being recycled. Section 261.2(f) states 

that, in the context of an enforcement 

action to implement Subtitle C of RCRA, 

a person claiming that a material is not 

a solid waste or is conditionally exempt 

from regulation is responsible for 

showing that they meet the terms of the 

exclusion or exemption and must 

provide appropriate documentation to 

show why they are eligible. For the 

legitimacy requirement finalized today, 

under § 261.2(f), in the event of an 

enforcement action, persons claiming 

that their recycling activity is legitimate 

would have the burden to provide 

documentation showing how the 


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recycling meets all four factors, except 

as otherwise noted. That is, they would 

need to show how the recyclable 

hazardous secondary materials provide 

a useful contribution to the recycling 

process and are stored as valuable 

commodities, and how the product of 

the recycling activity is valuable and 

comparable to a legitimate product. 

D. Factor 3: Language and 

Implementation 

Comments: Factor 3 

Many commenters supported the 

regulatory language revisions to factor 3, 

particularly the following additional 

italicized language: ‘‘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.’’ Some commenters argued, 

however, that the real change to factor 

3 was the proposed revision to the 

contained standard because the second 

part of factor 3 reads: ‘‘Where there is 

no analogous raw material, the 

hazardous secondary material must be 

contained.’’ These commenters 

expressed concern that by making factor 

3 mandatory and by revising the 

contained definition, the Agency was in 

effect making factor 3 more stringent. 

EPA’s Response: Factor 3 

The Agency disagrees with the 

comments that the revised contained 

standard is more stringent and thus, 

results in a more stringent factor 3. First, 

as noted by the commenters, the 

contained standard only applies in cases 

where there is no analogous raw 

material to compare the management of 

the hazardous secondary material to. 

More importantly, however, as 

explained in more detail is section V, 

while the revised contained standard is 

more clear and more definitive, it is not 

more stringent, but is consistent with 

the contained standard previously 

discussed and described in the 

preamble to the 2008 DSW final rule. 

Thus, EPA finds that overall the 

revisions to factor 3 are reasonable and 

consistent with the Agency’s previous 

positions on legitimacy. Therefore, the 

Agency is finalizing the regulatory 

language for factor 3 as proposed and 

has determined the added flexibility 

will allow existing legitimate recycling 

to continue without any negative impact 

on environmental protection. 

E. Factor 4: Language and 

Implementation 

In the 2011 DSW proposal, EPA 

proposed to change the wording within 

the regulatory language for factor 4 from 

‘‘significant’’ and ‘‘significantly 

elevated’’ to ‘‘comparable to or lower 

than’’ and explained that this language 

more clearly reflects the intent of this 

factor. In addition to this language 

change, other proposed changes to the 

legitimacy provision impact the design 

and implementation of factor 4. The 

proposal to make all four legitimacy 

factors mandatory led many 

commenters to discuss specific concerns 

they had about factor 4 and what 

problems they would have meeting the 

factor as it was proposed. In this 

section, EPA examines some of those 

comments, as well as provides the 

Agency’s responses and the changes that 

were made to the proposal in this final 

rule to make factor 4 more workable. 

In concert with many of the 

comments about the difficulties of 

meeting the proposed factor 4, EPA also 

received many comments about its 

proposed petition process for when a 

recycling process does not meet either 

factor 3 or factor 4. EPA is thus, also 

addressing those comments in this 

section of the preamble because the 

documentation, certification and 

notification process that will be 

replacing the proposed petition process 

is found within factor 4 of the 

legitimacy provision. 

Comments: ‘‘Comparable’’ 

EPA’s proposal to change the 

language within factor 4 that describes 

the comparison of levels of 

contaminants between products made 

from recycling of hazardous secondary 

materials and products using raw 

materials was supported by most of the 

states that commented on factor 4 and 

opposed by many of the industry 

commenters. The states that supported 

the change stated that the term 

‘‘comparable’’ is better because it is 

more specific, though several of these 

commenters also asked for further 

guidance on the language. 

Industry commenters who opposed 

this change to factor 4 stated that there 

was not a good reason in the preamble 

for the change in the language and that 

they do not think that ‘‘comparable’’ 

means the same thing as ‘‘not 

significantly higher,’’ arguing that if the 

terms mean the same thing there was no 

reason for EPA to change them. Several 

commenters argued that this change in 

language makes the factor more 

stringent and/or less flexible. 

EPA’s Response: ‘‘Comparable’’ 

EPA is finalizing the proposed 

language in this factor and using the 

term ‘‘comparable’’ in discussing levels 

of hazardous constituents. This term 

means any contaminants present in the 

product made from hazardous 

secondary materials are present at levels 

comparable to or lower than the levels 

in the analogous product, although 

levels can be slightly higher than those 

found in the analogous product, but 

must be within a small acceptable range. 

This change in language is not a change 

from its long-standing policy and it is 

also consistent with the legitimacy 

provisions in the Identification of NonHazardous Secondary Materials that are 

Solid Wastes final rule (76 FR 15456, 

March 21, 2011). 

In response to comments requesting 

further guidance and those that state 

that this language change is making 

factor 4 too stringent, first we have 

repeated in section VIII of the preamble 

the examples that we included in the 

2008 DSW final rule which explains 

how the Agency envisions this factor 

working. Moreover, the additional 

changes that it made to factor 4 in this 

final rule, describing several situations 

under which a product of a recycling 

process would be considered 

comparable to a legitimate product or 

intermediate, address both these 

concerns. As EPA determined in 

previous rulemakings, promulgating an 

exact numerical cut-off for what would 

be considered ‘‘comparable’’ is not 

practicable for the legitimacy provision 

because it applies to a wide variety of 

recycling scenarios. EPA may provide 

future guidance on the application of 

this provision if needed. 

Comments: Uncertainty About 

Compliance 

Many of the comments that EPA 

received from industry regarding factor 

4 stated that facilities are concerned 

about this factor, particularly if it were 

to become mandatory, because it would 

be difficult to determine if a given 

recycling process is in compliance. 

Many of these commenters stated the 

high cost of testing for 40 CFR part 261 

Appendix VIII constituents as one of 

their concerns. 

EPA’s Response: Uncertainty About 

Compliance 

First, we are reiterating in this final 

rule that testing of the recycled product 

is generally not required under factor 4 

of legitimacy. A generator can use its 

knowledge of the materials it uses and 

of the recycling process to make 

legitimacy determinations, although 

they may choose to test if they are 

uncertain if the product from their 

hazardous secondary materials contains 

elevated levels of hazardous 

constituents when compared to nonrecycled products. In addition, factor 4 


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as finalized today presents no greater 

compliance issues than it would under 

the 2008 DSW final rule, because under 

the 2008 legitimacy definition, a facility 

still had to consider the hazardous 

constituents in Appendix VIII of part 

261 in determining whether factor 4 is 

met, and be able to demonstrate why 

recycling was still legitimate even if it 

was not met. Furthermore, as we have 

noted elsewhere, we have made certain 

revisions to factor 4, in response to 

comments, for facilities to determine 

that they are in compliance with this 

factor. Specifically, the provisions in 

§ 260.43(a)(4) state that products that 

meet widely recognized commodity 

standards and specifications would be 

considered comparable and meet factor 

4 and hazardous secondary materials 

that are recycled back into the original 

generating process would be considered 

comparable and also meet factor 4, 

which is intended to make compliance 

with factor 4 simpler across many of the 

industries in which much industrial 

recycling takes place. 

Comments: No Analogous Product To 

Compare 

Many of the comments regarding 

factor 4, including many of the 

examples that were sent in to describe 

the difficulties of complying with factor 

4, described recycling situations in 

which there is no analogous product 

and argued that it would be very 

difficult to meet the proposed factor 4 

in a situation where there is no 

analogous product. 

EPA’s Response: No Analogous Product 

To Compare 

After examining the comments 

submitted, including the examples 

provided, EPA agrees with the 

commenters that the design of proposed 

factor 4 did not adequately take into 

consideration recycling scenarios that 

either always includes some form of 

recycled hazardous secondary material 

or that would be considered closed loop 

recycling. As a result of these 

comments, EPA modified the structure 

of factor 4 to include provisions 

specifically for the situation where there 

are no analogous products, (found in 

§ 260.43(a)(4)(ii)). The finalized 

provisions state that when there is no 

analogous product, the product of the 

recycling process is comparable to a 

legitimate product or intermediate when 

the product is a commodity meeting 

widely recognized commodity standards 

and specifications or when the 

hazardous secondary materials being 

recycling are returned to the original 

process or processes from which they 

were generated. 

This change to factor 4 provides the 

necessary flexibility to those persons 

who recycle hazardous secondary 

materials for which there is not an 

analogous product for comparison. 

However, EPA has also included a 

documentation, certification, and notice 

provision for cases that do not fit these 

two scenarios. Under this provision, the 

recycler can perform an assessment of 

the hazardous secondary material and 

still determine that its recycling is 

legitimate despite not meeting factor 4. 

This finding must be documented and 

certified by a responsible facility official 

and a copy kept on-site for as long as the 

recycling continues, and for 3 years after 

the recycling operations cease. Also, a 

notice of this finding must be sent to the 

appropriate Regional Administrator (or 

State Director, in an authorized state), 

using the Site ID form. 

Comments: Petition Process 

As stated above in this section, many 

commenters argued that the petition 

process was not an adequate mechanism 

for relief for those processes that do not 

meet all four factors and therefore, they 

opposed the proposed petition process. 

They argued that there would be too 

many petitions for the states and EPA to 

process efficiently, which could result 

in shutting down recycling operations 

during the time spent waiting for 

petitions to be processed, which would 

be very expensive and wasteful. States 

were particularly concerned about the 

amount of resources that would be 

needed to process the incoming 

petitions. 

EPA’s Response: Petition Process 

In response to the arguments 

presented by the commenters in 

opposition to the petition process and 

the concerns with how implementation 

of the petition process could impact 

recycling, EPA is not finalizing the 

petition process in this final rule. 

Instead, EPA has made two changes to 

its proposal to account for the situations 

that the petition process was meant to 

cover. The first is the additional 

provisions in factor 4 (already discussed 

above in this section) that describe the 

specific situations in which EPA 

considers a product of a recycling 

process to be comparable to an 

analogous product or intermediate. The 

second is the documentation, 

certification, and notice provision for 

products that have levels of hazardous 

constituents that are not comparable to 

or lower than an analogous product or 

intermediate or that are unable to be 

compared, but which are not covered by 

the new provisions. 

Under the documentation, 

certification, and notice process, a 

recycler must determine that its 

recycling is still legitimate despite the 

levels of hazardous constituents in the 

recycled product not being comparable 

to those in an analogous product or 

intermediate. This determination can 

take into account exposure of toxics in 

the product, bioavailability of toxics in 

the product or other relevant 

considerations that show the recycled 

product does not contain levels of 

hazardous constituents that pose a risk 

to human health or the environment. 

The facility then must prepare 

documentation explaining its 

assessment and include a certification 

that the recycling is legitimate. In 

addition, the facility would need to 

notify the appropriate Regional 

Administrator (or State Director, in an 

authorized state) of this finding. 

This provision is a less burdensome 

process for both recyclers and the states 

implementing the RCRA program 

because it maintains the selfimplementing nature of the legitimacy 

requirement. However, because facilities 

will still have to provide notice to the 

regulatory agency, it also allows 

implementing agencies to perform 

oversight and inspections of recycling 

facilities if they are concerned about the 

legitimacy of a specific recycling 

process. 

XVIII. Major Comments on the 

Revisions to Solid Waste Variances and 

Non-Waste Determinations 

In the July 2011 DSW proposed rule, 

EPA proposed several modifications to 

the existing regulations for solid waste 

variances and non-waste determinations 

in 40 CFR 260.31(c), 40 CFR 260.33 and 

40 CFR 260.34 to ensure protection of 

human health and the environment and 

foster greater consistency on the part of 

implementing agencies. 

A. Requiring Facilities To Re-Apply for 

a Variance or Non-Waste Determination 

In the July 2011 DSW proposal, EPA 

proposed to revise 40 CFR 260.33(c) to 

require facilities to re-apply for a 

variance in the event of a change in 

circumstances that affects how a 

material meets the criteria upon which 

a solid waste variance has been based, 

as is currently required for non-waste 

determinations. Additionally, EPA 

requested comment on whether to 

require variances and non-waste 

determinations to be renewed 

periodically, and, if so, what time 

period would be appropriate (e.g., two 

or five years as suggested in the 

preamble to the 2011 July DSW 

proposal). 


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Comments: Re-Apply for a Variance in 

the Event of a Change 

The majority of commenters 

supported EPA’s proposed change to 

require facilities to re-apply for a 

variance in the event of change in 

circumstances that affects how a 

hazardous secondary material meets the 

criteria upon which a solid waste 

variance has been based. The 

commenters believe the change 

promoted clarity and consistency in the 

regulations and that it made sense to 

ensure the hazardous secondary 

materials continued to meet the 

conditions of the exclusion over time. 

Other commenters, however, while 

supporting such a provision, urged EPA 

to require a re-certification rather than 

a full application process so as to reduce 

the burden on states and the regulated 

community. 

A few commenters disagreed with this 

provision, as they argued that 

administrative authorities already use 

discretion to review changes in 

circumstances. 

EPA’s Response: Re-Apply for a 

Variance in the Event of a Change 

EPA agrees with the majority of 

commenters that finalizing a 

requirement to require facilities to take 

action in the event of a change in 

circumstances will ensure the 

hazardous secondary material remains 

eligible for a variance and continues to 

meet the variance criteria over time. 

EPA also agrees with those commenters 

that suggested ways to reduce the 

administrative burden on states and the 

regulated community. Therefore, in 

today’s final rule, EPA is requiring that, 

in the event of a change, the facility 

must send a description of the change 

to the regulatory authority and the 

regulatory authority will determine 

whether the facility must re-apply for a 

variance. This change in procedure 

allows both the regulatory authority and 

regulated community to avoid spending 

unnecessary resources where the change 

in circumstances is found to be of no 

consequence to the original variance 

that the regulatory authority has 

granted. EPA notes that re-applying for 

a variance should be less burdensome 

than the initial application because a 

facility would only have to update its 

original application. 

EPA disagrees with those commenters 

who opposed this change on the basis 

that regulatory authorities already use 

discretion to review changes in 

circumstances. First, the changes that 

EPA made to the final rule would not 

automatically require a person to reapply for the variance, but make the 

regulatory authority aware of the change 

so that an informed decision could be 

made as to whether the variance is still 

appropriate. Moreover, relying on caseby-case discretion to require notice in 

the event of a change could allow 

certain hazardous secondary materials 

to remain excluded from regulation 

under Subtitle C of RCRA, even though 

based on the changed circumstances, 

the variance is no longer appropriate, 

and could present a risk to human 

health and the environment. It would 

also contradict the Agency’s goal to 

foster greater consistency on the part of 

implementing agencies. 

Comments: Periodic Renewal of 

Variances and Non-Waste 

Determinations 

A number of commenters did not 

support requiring periodic renewals of 

variances and non-waste 

determinations. Commenters opposed 

this change because of the additional 

burden on both the states and the 

regulated community and the fact that 

this would not be needed if EPA 

finalized its proposed change to require 

a renewal or recertification in the event 

of a change. Additionally, some 

commenters argued that the 

administrative authority already has 

discretion to set renewal timeframes as 

a condition of the variance. One 

commenter argued that facilities make 

significant business investments based 

on regulatory certainty and, thus, if 

variances are subject to repeal, this may 

prevent investment in recycling 

activities. 

A few commenters, however, 

supported a renewal requirement and 

argued that reapplying in the event of a 

change is not the same as a periodic 

renewal. This commenter argued that 

the requirement to re-apply in the event 

of a change relies almost entirely on the 

facility to self-report on a change in 

circumstances, of which the facility may 

have an economic incentive not to do. 

Other commenters suggested that 

generators ‘‘re-certify,’’ rather than reapply, on an annual or biennial basis 

that they continue to meet the 

conditions of a variance or non-waste 

determination in order to reduce 

administrative burden. 

EPA’s Response: Periodic Renewal of 

Variances and Non-Waste 

Determinations 

EPA agrees with the commenters that 

supported a renewal requirement for 

solid waste variances and non-waste 

determinations. Variances and nonwaste determinations are granted based 

on case-specific circumstances of a 

particular hazardous secondary material 

being recycled. Many of the variance 

and non-waste determination criteria 

specifically consider factors such as, the 

manner in which the hazardous 

secondary material is recycled, the 

market factors of the recycling process, 

the value of the hazardous secondary 

material, and contractual arrangements. 

However, these factors are not static 

and, instead, change and evolve over 

time. It is therefore prudent that 

regulatory authorities periodically 

review these case-specific situations to 

ensure that the hazardous secondary 

material continues to meet the criteria of 

the variance or non-waste 

determination. Therefore, EPA is adding 

a provision to 40 CFR 260.33(d) that 

solid waste variances and non-waste 

determinations shall be effective for a 

fixed term not to exceed 10 years, which 

is the same term limit for RCRA 

hazardous waste permits under 40 CFR 

270.50(a). 

EPA is establishing a time limit of 10 

years (rather than two or five years, as 

suggested in the July 2011 proposal) 

considering the need to provide 

regulatory certainty to support business 

investment, as well as the fact that 10 

years is the same as the duration of 

RCRA permits under 40 CFR 270.50(a). 

The 10-year time frame also ensures that 

renewals occur regularly enough in 

order to evaluate significant changes in 

recycling processes, technologies, and 

market factors that may affect the terms 

of a variance or non-waste 

determination. 

EPA disagrees with those commenters 

who argued that periodic renewals 

would not be needed if EPA finalized 

the proposed change to require notice in 

the event of a change in circumstances 

that affect how a hazardous secondary 

material meets the conditions of a 

variance or, as currently required for a 

non-waste determination. As one 

commenter noted, the requirement to 

provide notice in the event of a change 

relies on a facility self-reporting that 

change and thus, this requirement may 

not be consistently implemented. A 

periodic time limit, in this case 10 

years, however, triggers a re-review of 

the circumstances without relying on 

self-reporting by the facility. 

Furthermore, EPA disagrees with 

commenters who opposed this change 

on the basis that regulatory authorities 

already use discretion to review changes 

in circumstances. (See response to this 

comment in EPA’s Response to ‘‘ReApply for a Variance in the Event of a 

Change.) Regarding the commenter that 

argued that periodic renewals would 

disrupt business investment, EPA finds 

that a time limit of ten years (rather than 

two or five years, as suggested in the 


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July 2011 proposal) is a sufficient 

amount of time to provide regulatory 

certainty to support business 

investment, given that ten years is the 

same as the duration of RCRA permits. 

B. Requiring Notification for Facilities 

Operating Under Variances and NonWaste Determinations 

In the July 2011 DSW proposal, EPA 

proposed to add a provision under 40 

CFR 260.33 stating that facilities 

receiving a variance or non-waste 

determination must provide notification 

as required under 40 CFR 260.42. This 

would require facilities to send a 

notification prior to operating under the 

regulatory provision and by March 1 of 

each even-numbered year thereafter to 

the EPA or the State Director, if the state 

was authorized, using EPA Form 8700– 

12. 

Comments: Requiring Notification for 

Facilities Operating Under Variances 

and Non-Waste Determinations 

Commenters were split on this issue. 

Many commenters supported requiring 

facilities receiving a solid waste 

variance or non-waste determination to 

submit notifications in compliance with 

40 CFR 260.42. These commenters 

believed that the notification would 

provide updated information about a 

facility’s activities and would enable 

better compliance monitoring. These 

commenters also agreed that notification 

would improve transparency, because 

the notifications could be available 

online. 

However, many commenters opposed 

requiring facilities that receive a 

variance from being a solid waste or 

non-waste determination to submit 

notifications. These commenters argued 

that the act of applying for and receiving 

a variance or non-waste determination 

constitutes adequate notification for 

regulatory authorities. These 

commenters also argued that 

notification would increase the burden 

on facilities and was not necessary if 

EPA finalized its proposal to require 

facilities to re-apply in the event of a 

change. 

EPA’s Response: Requiring Notification 

for Facilities Operating Under Variances 

and Non-Waste Determinations 

Although EPA recognizes the 

arguments both for and against 

notification, EPA agrees with those 

commenters who support notification in 

order to enable better compliance 

monitoring and to improve 

transparency. Therefore, EPA is 

finalizing a requirement in 40 CFR 

260.33(e) that facilities receiving a 

variance or non-waste determination 

must provide notification as required by 

40 CFR 260.42. 

This requirement serves to meet 

EPA’s goal to foster greater consistency 

on the part of implementing agencies 

and to help ensure the proper 

implementation of the solid waste 

variances and non-waste 

determinations. The intent of the 

notification is to enable variances and 

non-waste determinations to be tracked 

nationally and over time, which 

facilitates state-to-state consistency in 

determinations. Additionally, 

notification enables effective oversight 

of facilities receiving solid waste 

variances and non-waste determinations 

because it provides regulatory 

authorities with a mechanism for 

receiving regularly updated information 

(such as information regarding 

quantities of hazardous secondary 

materials managed under the 

determination). Furthermore, this 

information can be used to identify 

facilities which may have undergone 

changes to their reclamation process 

significant enough to trigger a review of 

the determination under 40 CFR 

260.33(c). 

EPA does not agree that the solid 

waste variance or non-waste 

determination application itself 

constitutes adequate notification. 

Currently, individual facility 

applications are not tracked nationally 

and there exist no consolidated list of 

facilities operating under a solid waste 

variance or non-waste determination. 

Notification, using EPA Form 8700–12, 

ensures that standard information 

regarding facilities receiving solid waste 

variances and non-waste determinations 

can be collected, stored, and used to 

enable compliance monitoring and to 

foster consistency in implementing the 

regulations. 

We also do not agree that the 

notification requirement is duplicative 

of the requirement to send notice in the 

event of a change because the two 

requirements serve different purposes 

and require different information. In the 

event of a change, facilities must send 

a description of the change in 

circumstances to EPA or the authorized 

state, who then make an evaluation as 

to whether a facility should re-apply for 

a solid waste variance or non-waste 

determination. Under 40 CFR 260.42, 

facilities submit information, such as 

type and quantity of hazardous 

secondary material being managed, 

using EPA Form 8700–12, which 

enables the information to be entered 

into EPA’s database where it can be 

accessed by both EPA and state 

regulatory authorities. 

Furthermore, EPA does not agree that 

notification using EPA Form 8700–12 

poses an undue burden. The form is 

relatively simple to complete and is 

currently being used for facilities 

excluded from the definition of solid 

waste under 40 CFR 261.4(a)(23). 

Additionally, EPA is currently 

developing an electronic submission 

process, which will further reduce 

reporting burden. 

C. Revisions to the Partial Reclamation 

Variance 

In the July 2011 DSW proposal, EPA 

proposed to revise the partial 

reclamation variance provision of 40 

CFR 260.31(c) to clarify when partiallyreclaimed materials are not solid waste 

because they are commodity-like. 

Specifically, EPA proposed to: (1) 

Revise the introductory text to clarify 

when the variance applies; (2) revise the 

introductory text to require that all of 

the decision criteria must be met; (3) 

revise the language of all of the decision 

criteria; and (4) eliminate the sixth 

criterion, that is, ‘‘other relevant 

factors.’’ 

Comments: General Comments on 

Proposed Changes to Partial 

Reclamation Variance 

Many commenters supported EPA’s 

proposed changes to the partial 

reclamation variance. In fact, two of 

these commenters argued that existing 

variances that do not meet the new 

criteria should be rescinded or revised. 

A few commenters, however, did not 

support the proposed changes. These 

commenters argued that EPA does not 

have the record to support its finding 

that states are inconsistently and 

incorrectly applying the partial 

reclamation variance criteria and that 

variances granted by the states are not 

protective of human health and the 

environment. Additionally, one 

commenter argued that EPA provided 

no documentation for public review to 

substantiate how EPA intended the 

variance criteria to apply when it 

promulgated the variance in 1985. 

Another commenter argued that the 

proposed changes will restrict recycling. 

EPA’s Response: General Comments on 

Proposed Changes to Partial 

Reclamation Variance 

EPA agrees with commenters who 

supported the proposed changes. Not 

finalizing the proposed revisions to the 

partial reclamation variance would only 

result in a continuation of inconsistency 

among state determinations, which in 

some cases, allow partially-reclaimed 

materials to be excluded from the 

definition of solid waste when they are 


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1760 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

clearly not commodity-like, but rather 

hazardous wastes. EPA notes, however, 

that the final changes to the partial 

reclamation variance criteria only apply 

to facilities receiving variances after the 

effective date of today’s rule. The 

changes are not retroactive and thus 

would not apply to facilities currently 

operating under existing partial 

reclamation variances, unless and until 

the facility’s variance came up for 

renewal. Thus, the Agency does not 

agree with those commenters who 

suggested that any variance that does 

not meet the revised criteria should be 

rescinded or revised immediately. 

EPA estimates that the states have 

granted between 15 to 20 partial 

reclamation variances, including 

variances granted in Indiana, Louisiana, 

Ohio, Oregon, Pennsylvania, Texas and 

Washington. EPA itself has also issued 

a partial reclamation variance to World 

Resource Company (WRC) in Arizona. 

(See list of partial reclamation variances 

issues by the states in today’s docket.) 

Some of the partial reclamation 

variances were granted as the Agency 

intended and have required RCRA Part 

B storage and treatment permits for the 

incoming hazardous waste material. 

Other states, however, have issued 

partial reclamation variances which 

contradict the intention of the partial 

reclamation variance. For example, EPA 

publicly expressed its disagreement in a 

November 18, 2010, letter to Indiana’s 

Department of Environmental 

Management (IDEM) concerning the 

tentative approval of a facility’s request 

for a partial reclamation variance, a 

copy of which is found in today’s 

docket. In our letter, we made clear that 

we did not believe IDEM should grant 

a partial reclamation variance to 

incoming hazardous wastes that were 

not ‘‘sufficiently commodity-like to 

qualify for the variance.’’ 

EPA also disagrees with commenters 

who argued that EPA’s record does not 

provide adequate basis for how the 

Agency intended the partial reclamation 

variance to operate. In the preamble to 

the 1985 DSW final rule (January 4, 

1985; 50 FR 655), the Agency made 

clear that incoming materials to a partial 

reclamation facility were hazardous 

wastes and that the facility processing 

these incoming materials must obtain 

appropriate RCRA Part B storage and 

treatment permits. (Furthermore, these 

facilities are also subject to biennial 

reporting under 40 CFR 264.75.) 

Additionally, the Agency points to the 

partial reclamation variance it issued to 

WRC on August 13, 2002 (67 FR 52617) 

as a public example of the how the 

Agency intended for the partial 

reclamation variance to be 

implemented. In this case, the Agency’s 

partial reclamation variance to WRC for 

the partial reclamation of F006 

electroplating sludges required WRC to 

obtain RCRA Part B storage and 

treatment permits for the incoming 

hazardous waste. 

In addition, EPA disagrees that the 

final rule changes will unnecessarily 

restrict recycling. Today’s changes 

clarify how the partial reclamation 

variance has always been intended to 

operate; thus, any recycling that is 

consequentially restricted from the 

variance as a result of the changes was 

never intended to be excluded from 

hazardous waste requirements. EPA 

maintains that hazardous waste must be 

managed under appropriate hazardous 

waste requirements in order to ensure 

protection of human health and the 

environment. 

Comments: Revisions to Introductory 

Text 

Most commenters supported the 

proposed changes to the introductory 

text, including requiring that all criteria 

must be met and requiring compliance 

with the legitimacy criteria in 40 CFR 

260.43. One commenter, while 

supporting the proposed changes said 

that EPA should define vague words 

such as ‘‘commodity-like,’’ ‘‘sufficient 

economic value,’’ and ‘‘substantial.’’ 

Another commenter said that 

commodity-like partially-reclaimed 

material must be marketable to the 

general public, that is, it must be a 

material that could be marketed to more 

than one facility. 

Some commenters did not agree that 

all the criteria must be met. One 

commenter argued that this conflicts 

with EPA’s 1985 preamble in which 

EPA said the Regional Administrator 

can weigh factors and may rely on any 

or all of them to reach a decision. 

Additionally, the WRC variance that 

EPA issued acknowledged that the 

partial reclamation steps being 

performed were ‘‘not elaborate.’’ 

However, the partial reclamation 

involved by WRC was sufficiently 

substantial to produce a commodity-like 

material as verified by contracts, sales, 

and subsequent management of the 

commodity-like material. Other 

commenters believed EPA’s proposed 

changes to the introductory text 

imposed prescriptive conditions which 

conflict with the intent of the variance 

by restricting the administrative 

authority’s decision-making discretion. 

EPA’s Response: Revisions to 

Introductory Text 

EPA agrees with those commenters 

who supported the proposed changes to 

the introductory text, including 

requiring that all criteria must be met 

and requiring compliance with the 

legitimacy factors in 40 CFR 260.43. In 

response to the one commenter who 

believed that certain terms are vague, it 

is EPA’s intent with this final rule to 

clarify how the partial reclamation 

variance should be applied. Although, 

specific definitions would be difficult to 

promulgate given the broad 

applicability of the terms, EPA notes 

that today’s preamble discussion along 

with today’s regulatory revisions to the 

variance criteria serve to better define 

how EPA is using these terms in the 

partial reclamation variance, 

particularly when a material becomes 

commodity-like. For example, EPA 

notes in its preamble that criteria 2–5 

define the fundamental characteristics 

that indicate whether a partiallyreclaimed material is ‘‘commodity-like.’’ 

Regarding comments that argued 

against requiring all criteria to be met, 

EPA has determined that in order to 

reduce the inconsistency in state-tostate partial reclamation variances, the 

criteria must be made more prescriptive. 

Balancing the factors, as was EPA’s 

original direction in 1985, has resulted 

in subjective interpretations that differ 

across states and which, in some cases, 

do not align with the original intent of 

the partial reclamation variance. EPA 

finds that requiring all criteria to be met 

is a more effective framework for 

determining when a partially-reclaimed 

material is commodity-like and 

therefore not a solid waste. 

Comments: General Comments on 

Revisions to Variance Criteria 

Many commenters supported the 

changes to the criteria of the partial 

reclamation variance. However, a few 

commenters disagreed with inserting 

the word ‘‘whether’’ at the beginning of 

each criterion because it implied the 

criterion was more prescriptive. A few 

commenters also argued that EPA’s 

proposed insertion of the word 

‘‘partially’’ before ‘‘reclaimed’’ 

disregards the fact that EPA has 

acknowledged that more than one 

processing step may be necessary before 

the inherent value of a usable product 

is recovered. 

EPA’s Response: General Comments on 

Revisions to Variance Criteria 

EPA agrees with the many 

commenters that supported the 

proposed changes to the variance 

criteria. Regarding EPA’s proposed 

insertion of the word ‘‘whether’’ in each 

criterion, the intent of this change is to 

make the criteria more prescriptive in 

order to reduce the inconsistency of 


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51U.S. EPA, ‘‘Background Document: Providing 

Context—The Example of F006 Electroplating 

Sludges,’’ June 2011. Docket ID: EPA–HQ–RCRA– 

2010–0742–0016. 

partial reclamation variance 

determinations. EPA also disagrees that 

adding the word ‘‘partially’’ in front of 

‘‘reclaimed’’ disregards the fact that EPA 

has acknowledged that more than one 

processing step may be necessary before 

the inherent value of a usable product 

is recovered. EPA recognizes that 

reclamation of hazardous secondary 

materials may involve multiple steps 

and hazardous waste may be recycled in 

any number of steps in accordance with 

the hazardous waste regulations. 

However, EPA maintains that a variance 

from the definition of solid waste is 

appropriate only for partially-reclaimed 

material that is commodity-like, as 

demonstrated by satisfaction of the 

partial reclamation criteria. 

Comments: Proposed Criterion (1)— 

Whether the Degree of Partial 

Reclamation the Material Has 

Undergone Is Substantial 

For the first proposed criterion, two 

commenters argued that EPA’s use of 

‘‘partial reclamation’’ in place of 

‘‘processing’’ did not provide additional 

clarification. Another commenter stated 

the criterion should state EPA’s intent 

on 76 FR 44129 and read ‘‘whether the 

degree of partial reclamation the 

material has undergone is substantial 

and the material produced is not the 

original hazardous waste.’’ Other 

commenters were concerned regarding 

the term ‘‘substantial,’’ because it is 

subjective and needs a better definition. 

These commenters argued that EPA has 

not provided a standard regarding when 

a material is ‘‘no longer the original 

hazardous waste.’’ 

EPA’s Response: Proposed Criterion 

(1)—Whether the Degree of Partial 

Reclamation the Material Has 

Undergone Is Substantial 

EPA disagrees with those commenters 

who argued that EPA’s use of ‘‘partial 

reclamation’’ in place of ‘‘processing’’ 

did not provide additional clarification. 

The term ‘‘processing’’ is a broad, 

general term that can refer to a number 

of processes, such as the process used 

to generate the hazardous waste. 

However, the intention of the partial 

reclamation variance is to evaluate, 

specifically, the degree of partial 

reclamation and therefore it makes 

sense to use ‘‘partial reclamation’’ in 

criterion 1. Additionally, this revised 

language for the first criterion conforms 

to the revised changes in the 

introductory text of the partial 

reclamation variance. 

EPA agrees with commenters that 

adding a clarifying statement to 

criterion (1) is helpful and has added 

‘‘as demonstrated by using a partial 

reclamation process other than the 

process that generated the hazardous 

waste’’ after ‘‘substantial.’’ We believe 

this language clarifies (and responds to 

the comment regarding the term 

‘‘substantial’’) that the process used to 

generate the hazardous waste (such as 

dewatering of sludge) would not be 

considered ‘‘substantial’’ under this 

criterion. Therefore, by emphasizing 

that the partial reclamation process 

must be substantial in the first criterion, 

the Agency is reiterating that the 

material produced by the partial 

reclamation process must be 

commodity-like as supported by also 

meeting criteria (2)–(5). 

Under the final rule, EPA is finalizing 

the first criterion to read: ‘‘Whether the 

degree of partial reclamation the 

material has undergone is substantial as 

demonstrated by using a partial 

reclamation process other than the 

process that generated the hazardous 

waste.’’ 

Comments: Proposed Criterion (2)— 

Whether the Partially-Reclaimed 

Material Has Sufficient Economic Value 

That it Will Be Purchased for Final 

Reclamation 

For the second proposed criterion, 

one commenter supported EPA’s 

emphasis in the preamble on the 

existence of contracts for the sale of the 

partially-reclaimed material. This 

commenter argued that such emphasis 

is important to ensure that partial 

reclaimers do not accumulate significant 

quantities of material without assurance 

that a willing buyer actually exists. This 

commenter stated that an example of 

excess accumulation risk is shown by 

the variance recently granted by IDEM 

to the facility, ShoreMet, in which the 

variance was granted on the basis that 

a market for the partially-reclaimed 

material would exist solely because 

other reclaimers had sold fullyreclaimed F006 (wastewater treatment 

sludges from electroplating operations) 

and F019 (wastewater treatment sludges 

from aluminum coating processes). This 

commenter argued that such an analysis 

does not ensure that ShoreMet can 

market its partially-reclaimed material. 

Another commenter argued that 

reclamation may involve more than one 

processing step and that the proposed 

changes to this criterion limit the 

administrative authority’s ability to 

consider the value of the partiallyreclaimed material and the usable end 

products. This commenter also argued 

that the term ‘‘value’’ in 40 CFR 260.43 

means sold to a third party or used as 

an effective substitute, which may not 

apply here. Still another commenter 

noted the F006 reclamation guidance 51

allows the use of theoretical ‘‘on paper’’ 

value of precious metals present, 

despite that substantial processing 

might be needed before those precious 

metals realize market value. 

EPA’s Response: Proposed Criterion 

(2)—Whether the Partially-Reclaimed 

Material Has Sufficient Economic Value 

That it Will Be Purchased for Final 

Reclamation 

EPA agrees with the commenter that 

supported EPA’s emphasis in the 

preamble on the existence of contracts 

for the sale of the partially-reclaimed 

material as demonstrating the second 

criterion is being met. 

As we have stated previously, the 

partial reclamation variance is for those 

hazardous secondary materials that have 

been partially-reclaimed but, must be 

reclaimed further, as long as the partial 

reclamation has produced a commoditylike material. That is, if the partiallyreclaimed material is being purchased 

for further reclamation, the Agency 

considers the partially-reclaimed 

material to have sufficient economic 

value, regardless of how each party 

calculates the value to be paid. Evidence 

to support this criterion may include 

sales information; demand for the 

materials; and business contracts, such 

as contracts specifying quantities of 

material sold, details of the transaction, 

and the effective price paid for the 

partially reclaimed material by 

purchasers (i.e., after subtracting 

transportation costs and any other goods 

or services rendered in exchange for the 

material purchased). 

EPA is making one change to the 

proposed second criterion. As noted 

above, EPA understands that 

reclamation of hazardous waste may 

involve multiple steps and thus EPA 

finds it is more appropriate to ensure 

that the partially-reclaimed material is 

purchased for ‘‘further reclamation’’ 

rather than ‘‘final reclamation’’ to allow 

for processes that use more than one 

reclamation step in processing the 

partially-reclaimed material. Therefore, 

the final second criterion in today’s rule 

reads: ‘‘Whether the partially-reclaimed 

material has sufficient economic value 

that it will be purchased for further 

reclamation.’’ 


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1762 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

Comments: Proposed Criterion (3)— 

Whether the Partially-Reclaimed 

Material Is a Viable Substitute for a 

Product or Intermediate Produced From 

Virgin or Raw Materials Which Feeds 

Subsequent Production Steps 

For the third criterion, one 

commenter disagreed with the proposed 

wording change because it restricts the 

authority’s ability to consider the 

benefit provided by subsequent 

processing of the partially-reclaimed 

material and directs the authority only 

to consider whether it is immediately a 

substitute or product before further 

processing. Another commenter 

suggested replacing the phrase ‘‘which 

feed subsequent production steps’’ with 

the phrase ‘‘that is used in a subsequent 

manufacturing process’’ to be more 

clear. Still another commenter suggested 

that this criterion should state more 

plainly that ‘‘it is a substitute for 

ingredients, intermediates, or 

commercially available virgin/raw 

materials.’’ 

EPA’s Response: Proposed Criterion 

(3)—Whether the Partially-Reclaimed 

Material Is a Viable Substitute for a 

Product or Intermediate Produced From 

Virgin or Raw Materials Which Feeds 

Subsequent Production Steps 

EPA maintains that the partial 

reclamation variance is for those 

materials that have been partiallyreclaimed, but must be reclaimed 

further, as long as the partial 

reclamation has produced a commoditylike material. Thus, whether or not a 

material is produced at a later stage of 

reclamation as a viable substitute for a 

product or intermediate is not relevant 

in determining whether a partiallyreclaimed material produced earlier is 

commodity-like. 

EPA agrees with the commenter who 

suggested replacing the phrase ‘‘which 

feed subsequent production steps,’’ with 

the commenters suggested wording, 

with certain modifications, in order to 

improve clarity. Therefore, the Agency 

is modifying this criterion to read, 

‘‘whether the partially-reclaimed 

material is a viable substitute for a 

product or intermediate produced from 

virgin or raw materials, which is used 

in subsequent production steps.’’ With 

this clarification, the Agency is making 

clear that, while multiple steps may be 

involved in producing a commodity-like 

material, it is only when the partiallyreclaimed material is a viable substitute 

for a product or intermediate is it 

considered ‘‘commodity-like.’’ 

EPA is not making the suggested 

change to state that the partiallyreclaimed material ‘‘is a substitute for 

ingredients, intermediates, or 

commercially available virgin/raw 

materials’’ because EPA is concerned 

that this language may introduce 

confusion in distinguishing between 

when a partially-reclaimed material is 

‘‘commodity-like’’ as compared to raw 

or virgin material that would need to 

undergo substantial processing before 

meeting this definition. Therefore, EPA 

is maintaining the proposed language to 

read ‘‘is a viable substitute for a product 

or intermediate produced from virgin or 

raw materials.’’ 

Comments: Proposed Criterion (4)— 

Whether There Is a Guaranteed Market 

for the Partially-Reclaimed Material 

For the fourth proposed criterion, 

whether there is a guaranteed market for 

the partially-reclaimed material, a few 

commenters argued that EPA is not 

specific enough to meet its objective and 

suggested that the criterion should read 

‘‘whether there is a guaranteed and 

secure long-term market for the 

partially-reclaimed material.’’ These 

commenters also stated that EPA should 

include in the final rule more empirical 

and measurable ways to define this 

concept, for example including markets 

with consistent positive profit margins 

for a minimum of ten years. 

EPA’s Response: Proposed Criterion 

(4)—Whether There Is a Guaranteed 

Market for the Partially-Reclaimed 

Material 

EPA agrees that clarity is needed and 

has modified the fourth criterion to 

include examples of how a market for 

the partially-reclaimed material can be 

demonstrated. The fourth criterion now 

reads, ‘‘whether there is a market for the 

partially-reclaimed material as 

demonstrated by known customer(s) 

who are further reclaiming the material 

(e.g. record of sales and/or contracts, 

and evidence of subsequent use, such as 

bills of lading).’’ In response to the 

commenter who urged EPA to include 

more empirical and measurable ways to 

define this concept, the Agency has 

determined that examination of the 

contracts, record of sales, and bills of 

lading between the partial reclaimer and 

its customers will provide adequate 

evidence of whether this criterion is 

satisfied. 

Comments: Proposed Criterion (5)— 

Whether the Partially-Reclaimed 

Material Is Handled To Minimize Loss 

For the fifth proposed criterion, one 

commenter argued that ‘‘minimize loss’’ 

should be better defined and that, at a 

minimum, the partially-reclaimed 

material should meet the ‘‘contained’’ 

standard for hazardous secondary 

materials and be managed exactly like 

any other commodity. 

EPA’s Response: Proposed Criterion 

(5)—Whether the Partially-Reclaimed 

Material Is Handled To Minimize Loss 

EPA does not find that the phrase 

‘‘minimize loss’’ needs to be better 

defined. As we have discussed 

elsewhere and in the preamble to the 

2011 July DSW proposal, evidence to 

support this criterion may include 

documentation of facility procedures 

used to minimize loss (e.g., inspections, 

training) and storage and management 

equipment designed to minimize loss. 

Additionally, under today’s final rule, 

partially-reclaimed materials must meet 

the legitimate recycling standard in 40 

CFR 260.43, which requires that the 

hazardous secondary materials be 

managed as a valuable commodity. This 

criterion explains that, where there is an 

analogous raw material, the hazardous 

secondary materials 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 should be contained, as defined 

in 40 CFR 260.10. 

Comments: Revision To Eliminate Sixth 

Criterion 

Many commenters supported EPA’s 

proposal to eliminate the sixth criterion 

concerning other relevant factors. One 

commenter stated that criterion six has 

been and is currently being used as a 

primary basis for granting partial 

reclamation variances for hazardous 

secondary materials, and has led to the 

creation of unfair and illegal advantages 

for some reclaimers. 

A few commenters, however, 

disagreed with the proposed change. 

One commenter argued that removing 

criterion six conflicts with the intent of 

the partial reclamation variance by 

restricting the administrative authority’s 

discretion. Other commenters argued 

that the overall situation should be 

considered and that an applicant’s 

history of compliance would be an 

‘‘other relevant factor’’ that should be 

considered when evaluating an 

application for a partial reclamation 

variance. 

EPA’s Response: Revision To Eliminate 

Sixth Criterion 

EPA agrees with those commenters 

that supported the elimination of the 

sixth criterion. The sixth criterion has 

resulted in subjective interpretations 

which have led, in the Agency’s view, 

to incorrect application of the partial 

reclamation variance and therefore, EPA 


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is removing it from the list of criteria. 

We do not agree with the commenter 

who argued that removing this criterion 

would restrict the administrative 

authority’s discretion. For example, EPA 

agrees with those commenters who said 

that an applicant’s history of 

compliance could be considered as part 

of a partial reclamation variance 

determination. However, rather than 

requiring that compliance be considered 

under a sixth criterion, EPA notes that 

compliance would likely be a factor in 

determining how the facility is meeting 

the legitimate recycling factors in 40 

CFR 260.43 and the partial reclamation 

variance criteria (1)–(5). For example, 

regulatory compliance could be used 

regarding whether the partiallyreclaimed material is handled to 

minimize loss. 

D. Revision to the Criteria for NonWaste Determinations To Require 

Petitioners To Demonstrate Why Their 

Material Cannot Meet an Existing 

Exclusion 

EPA proposed to revise the criteria for 

the non-waste determination in 40 CFR 

260.34 to require that petitioners 

explain or demonstrate why their 

hazardous secondary materials cannot 

meet, or should not have to meet, the 

existing DSW exclusions under 40 CFR 

261.2 or 40 CFR 261.4. 

Comments: Non-Waste Determination 

Criteria To Require Petitioners To 

Demonstrate Why Their Material Cannot 

Meet an Existing Exclusion 

Many commenters agreed with this 

proposed change. These commenters 

noted that, as a practical matter, it 

would seem facilities seeking such a 

determination would have already 

evaluated the existing exclusions and 

thus, requiring this information should 

not be overly burdensome. 

A few commenters, however, 

disagreed with this proposed change. 

One commenter argued that petitioners 

will be unwilling to provide 

justification at the risk of 

disqualification of an accepted 

exclusion in another state or EPA region 

for the same process. Another 

commenter noted that there may be 

legitimate reasons where the use of an 

exclusion might be too close to call and 

the facility wants greater comfort in a 

determination. A third commenter 

argued it is unreasonable for EPA to 

place the burden of interpreting EPA’s 

regulations on those who are regulated 

prior to consenting to review a request 

for a non-waste determination. 

EPA’s Response: Non-Waste 

Determination Criteria To Require 

Petitioners To Demonstrate Why Their 

Material Cannot Meet an Existing 

Exclusion 

EPA agrees with those commenters 

who supported this proposed change to 

require that petitioners explain or 

demonstrate why their hazardous 

secondary materials cannot meet, or 

should not have to meet, the existing 

DSW exclusions under 40 CFR 261.2 or 

40 CFR 261.4. EPA agrees that this type 

of evaluation should already have been 

conducted by facilities that are formally 

petitioning the state or EPA for a nonwaste determination. This provision 

provides the regulatory authority with 

the information it needs, while helping 

to reduce the number of applications 

because facilities will be forced to 

evaluate whether an existing selfimplementing exclusion may be used. 

EPA does not agree with the opposing 

arguments presented by the commenters 

as a basis for not finalizing the proposed 

change. These arguments, including that 

a facility may want more comfort in a 

determination and that EPA shouldn’t 

put the burden on facilities to interpret 

regulations, are precisely why EPA and 

authorized states would benefit from 

receiving an explanation or 

demonstration from the facility why 

they cannot or should not have to meet 

an existing exclusion. This information 

would enable regulatory authorities to 

review and resolve questions regarding 

whether a non-waste determination may 

be warranted. Additionally, EPA does 

not find convincing the argument that a 

facility may be unwilling to provide 

justification at the risk of 

disqualification of an accepted 

exclusion in another state or EPA 

region. In fact, by finalizing this change, 

EPA is fostering greater consistency in 

state-to-state interpretations. 

E. Designation of the Regional 

Administrator as the EPA Recipient of 

Petitions for Variances and Non-Waste 

Determinations 

In the July 2011 DSW proposal, EPA 

proposed to change the word 

‘‘Administrator’’ to ‘‘Regional 

Administrator’’ in 40 CFR 260.30, 

260.31, 260.32, 260.33, and 260.34. Due 

to the case-specific nature of the 

variances and non-waste 

determinations, EPA believed that these 

decisions may be better made by the 

Regional Administrator. 

Comments: Designation of the Regional 

Administrator as the EPA Recipient of 

Petitions for Variance and Non-Waste 

Determinations 

Most of the comments on this issue 

opposed the proposed change arguing 

that there are significant differences in 

regional interpretations just as there are 

differences in state interpretations and 

that the change will lead to increased 

inconsistency in the implementation of 

variances and non-waste 

determinations. Other commenters 

urged EPA to clarify that petitions for 

solid waste variances and non-waste 

determinations may be sent to Directors 

of authorized states, just as the petition 

process works currently. These 

commenters argued that states are 

delegated by EPA to administer the 

hazardous waste regulations and, 

therefore, states have a role in reviewing 

solid waste variance and non-waste 

determination petitions. 

Only a few commenters supported the 

proposed change. 

EPA’s Response: Designation of the 

Regional Administrator as the EPA 

Recipient of Petitions for Variance and 

Non-Waste Determinations 

EPA recognizes the commenters’ 

concerns who argued that designating 

the Regional Administrator, rather than 

the Administrator, as the person 

responsible for evaluating such petitions 

and deciding whether to grant a solid 

waste variance or a non-waste 

determination may increase 

inconsistency by virtue of there being 

ten Regional Administrators as 

compared to the one Administrator. 

Because the Agency is striving for as 

much consistency as possible, we have 

decided not to finalize this proposed 

change. We would also note that the 

rule does not change in any way the 

delegation of authority to states 

authorized to administer the hazardous 

waste regulations and thus, authorized 

states that have adopted these 

provisions may continue to evaluate and 

decide whether to grant a solid waste 

variance or a non-waste determination, 

as they do currently. 

F. Requirement To Share Copies of 

Variances and Non-Waste 

Determinations 

In the July 2011 DSW proposal, EPA 

requested comment on whether to 

require states to share copies of any 

solid waste variance and non-waste 

determination petitions and the 

tentative decisions with EPA for review 

and comment in order to encourage 

collaboration and national consistency. 

Formalizing collaboration would have 


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52EPA also proposed additional recordkeeping 

requirements in the speculative accumulation 

standard in 40 CFR 261.1(c)(8). See section XIV for 

responses to these comments. 

53The original environmental problems study, 

published January 11, 2007, reviewed 208 damage 

cases. Based on information submitted by 

commenters to the 2007 DSW supplemental 

proposed rule, EPA reviewed an additional ten 

recycling damage cases in an addendum to the 

environmental problems study, published July 14, 

2008. A second addendum was published in June 

2011. As part of this DSW final rule, EPA updated 

the environmental problems study to combine all of 

the information compiled from the 2007 study, the 

2008 and 2011 addenda, and new information 

collected by EPA since June 2011. This 2014 

updated study includes information on 250 damage 

cases and can be found in the docket for today’s 

rule. 

54U.S. EPA Correlation of Recycling Damage 

Cases with Regulatory Exclusions, Exemptions or 

Alternative Standards. 

55The determination that the hazardous 

secondary materials were ‘‘likely’’ associated with 

pre-2008 recycling exclusions and exemptions was 

based on the waste description and the fact that 

most recyclers did not appear to have a RCRA 

permit. EPA did not specifically verify if the 

damage case facility was operating under an 

exclusion or exemption. 

the benefit of reinforcing existing 

working relationships between EPA and 

the states. 

Comments: Requirement To Share 

Copies of Variances and Non-Waste 

Determinations 

A number of comments did not 

support a requirement for states to share 

copies of solid waste variance and nonwaste determination petitions with EPA 

for comment. These commenters argued 

that another layer of bureaucracy would 

delay the process. One commenter was 

concerned with protecting a company’s 

confidential business information. 

Another commenter argued that EPA 

has not made an adequate case for the 

need for national approvals and that 

there may be legitimate reasons for 

arriving at different conclusions, for 

different variance petitions. 

Some commenters, however, 

supported EPA’s efforts to collect solid 

waste variance and non-waste 

determination decisions and to share 

the information with other states. 

EPA’s Response: Requirement To Share 

Copies of Variances and Non-Waste 

Determinations 

EPA recognizes commenters’ concerns 

who argued that requiring states to share 

copies of solid waste variance and nonwaste determination petitions with EPA 

for review and comment would likely 

increase the duration of the petition 

process. Therefore, EPA is not codifying 

this requirement in the final rule. EPA, 

however, will likely continue to work 

with the states in order to increase stateto-state consistency in such 

determinations and may pursue nonregulatory efforts to collect and share 

solid waste variances and non-waste 

determinations as part of implementing 

the final rule. 

XIX. Major Comments on the Proposed 

Revisions to Pre-2008 Recycling 

Exclusions 

In the 2011 DSW proposed rule, EPA 

considered whether additional 

requirements should be codified for 

recycling exclusions and exemptions 

that EPA promulgated prior to the 2008 

DSW final rule. Specifically, EPA 

requested comment on codifying the 

legitimate recycling standard in 40 CFR 

260.43, the contained standard in 40 

CFR 260.10, and the notification 

provision in 40 CFR 260.42 for 32 

regulatory provisions that exclude or 

exempt certain types of recycling from 

full Subtitle C regulations.52

However, EPA explicitly did not 

reopen comment on any substantive 

provisions of the regulatory exclusions 

or exemptions. The inclusion of 

requirements for legitimacy, 

containment, and notification were 

strictly meant as means to better enforce 

the regulations. 

The request for comment stemmed 

from EPA’s analysis of a report it 

developed as part of the DSW 

rulemaking, ‘‘An Assessment of 

Environmental Problems Associated 

with Recycling of Hazardous Secondary 

Materials’’ (environmental problems 

study), which analyzed 218 recycling 

damage cases.53 The goal of the 

environmental problems study was to 

identify and characterize environmental 

problems that have been attributed to 

hazardous secondary material recycling 

activities. EPA then used the findings 

from this study to craft a number of 

conditions for the 2008 DSW final rule, 

which were specifically designed to 

target the major causes of damage and 

thus help define ‘‘discard’’ of hazardous 

secondary materials. These conditions, 

however, were applied only to the 2008 

DSW exclusions. 

EPA reviewed and analyzed each 

damage case in the environmental 

problems study and determined the 

regulatory provision that likely, or 

potentially, governed the management 

of the hazardous secondary materials.54

This analysis was based on the type of 

hazardous secondary material and the 

date of the damage case related to the 

effective date of the regulatory 

provision. From this analysis, EPA had 

concluded that over half of the damage 

cases in the environmental problems 

study were associated with hazardous 

secondary materials that were likely 

excluded or exempted from Subtitle C 

regulation under an existing (pre-2008) 

regulatory provision.55 For example, 

EPA reported in the 2011 DSW 

proposed rule that 52 damage cases 

(23%) are associated with scrap metal 

that is likely excluded under 

§ 261.4(a)(13) and/or § 261.6(a)(3)(ii), 

while drum reconditioning accounted 

for 23 damage cases (10%), in which the 

residuals are likely excluded under 40 

CFR 261.7. Additionally, 35 damage 

cases (16%) were associated with 

batteries that are likely managed under 

40 CFR 273.2 and/or 40 CFR part 266 

subpart G. Based on these results, and 

given that many of the pre-2008 

recycling exclusions do not directly 

specify conditions that are necessary to 

ensure discard is not occurring, we 

concluded that these provisions may not 

be adequately enforceable in order to 

protect human health and the 

environment. Thus, in the 2011 DSW 

proposal, we requested comment on 

whether EPA should codify additional 

conditions for these recycling 

exclusions. 

Many comments in response to EPA’s 

request for comment on whether the 

Agency should codify additional 

conditions to the pre-2008 recycling 

provisions were unfavorable, although a 

number of comments indicated support 

for the codification. 

Comments: Potential Impact of 

Additional Requirements 

Industry commenters, and scrap metal 

recyclers in particular, strongly opposed 

adding conditions, arguing that the 

additional conditions will pose an 

undue burden on businesses without 

any environmental benefit and will 

discourage recycling. For example, 

commenters argued that scrap metal 

recyclers go to great lengths to ensure 

that they do not handle hazardous 

waste. These commenters said that, if 

EPA were to add conditions to the scrap 

metal exclusion, a scrap metal recycler 

would be required to obtain additional 

insurance, local licenses, training, new 

inspection procedures, lawyers, and 

consultants in order to maintain 

compliance and to prepare for an 

inadvertent loss of the exclusion, which 

would make it a handler of hazardous 

waste. Commenters argued that many 

scrap metal businesses are small and 

family-owned and cannot afford these 

new requirements and thus, these 

regulations will severely affect business 

and jobs. 

Many commenters also argued that 

the contained standard is not necessary 

or practical and would be expensive. 

Commenters believed that the one-sizeVerDate Sep<11>2014 18:13 Jan 12, 2015 Jkt 235001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4700 E:\FR\FM\13JAR2.SGM 13JAR2

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fits-all approach that EPA requested 

comment on fails to reflect EPA’s 

recognition over the years of the need to 

tailor any conditions for regulatory 

exclusions to the specific characteristics 

of the recycling activities. For example, 

one commenter argued that the 

contained standard is redundant for the 

spent wood preservatives exclusion 

under 40 CFR 261.4(a)(9), which already 

requires facilities to manage solutions 

and wastewater ‘‘to prevent release to 

either land or groundwater or both’’ and 

to construct recycling units so ‘‘prior to 

reuse they can be visually or otherwise 

determined to prevent such release.’’ 

This commenter also noted that drip 

pads must comply with 40 CFR part 265 

subpart W. Other commenters noted 

that applying the contained standard to 

lead-acid batteries is inappropriate and 

unnecessary because EPA, on several 

occasions, has recognized that 

individual lead-acid batteries qualify as 

‘‘containers,’’ citing a November 17, 

1989, memo from Sylvia Lowrance (RO 

13339). Furthermore, these commenters 

argued that the contained standard 

duplicates § 266.80(b). 

Regarding notification, many 

commenters did not support adding 

notification to the pre-2008 exclusions. 

These commenters argued that the EPA 

Form 8700–12 (Site Identification Form) 

and, in particular the Addendum to the 

Site Identification Form, which is used 

to notify under 40 CFR 260.42, is too 

burdensome for facilities operating 

under a pre-2008 exemption/exclusion. 

For example, the Addendum requires 

facilities to list their hazardous 

secondary materials using EPA 

hazardous waste codes. In some cases, 

particularly for scrap metal recyclers, 

facilities would be required to 

determine which secondary material 

would be considered a hazardous 

secondary material, which may involve 

extensive testing in order to determine 

which hazardous waste code to report 

on the form. Additionally, the 

Addendum also requires facilities to 

report quantities of hazardous 

secondary material managed under the 

exclusions, but commenters explained 

that facilities operating under a pre2008 exclusion have not generally 

determined which secondary material 

would be considered a hazardous 

secondary material, and therefore, any 

quantity estimates, which are required 

on the Addendum, would not be 

reliable for programmatic decisions. 

Moreover, commenters argued that 

notification would be difficult for 

facilities with multiple excluded 

processes. For example, one commenter 

explained that one facility in Tennessee 

has more than a hundred closed-loop 

recycling processes and thus it would be 

extremely onerous to report each 

process on a notification. 

Commenters also argued that it is 

difficult to estimate the number of 

facilities operating under the exclusions 

and thus the impact on the state 

implementers of the notification 

program is uncertain. For example, 

notification would impact all forms of 

scrap metal handling (junk yards, scrap 

dealers, steel-makers), generators and 

handlers managing lead-acid batteries 

(vehicle repair facilities, retailers) and 

precious metals destined for 

reclamation (x-ray facilities, dentists, 

vets, jewelers). These commenters 

argued that most states are already 

under resource constraints and will be 

unable to cope with the tens of 

thousands of new forms that would 

need processing if EPA were to codify 

notification as a condition of the 

exclusions. Some state commenters 

suggested ways to reduce the burden on 

states, including not requiring periodic 

notifications on the same day that 

biennial reports are due and by 

implementing a process whereby 

notifications could be submitted 

electronically. Commenters also noted 

that the re-notification requirement for 

excluded facilities would be more 

stringent than what is currently required 

for hazardous waste small quantity 

generators. 

EPA’s Response: Potential Impact of 

Additional Requirements 

EPA did not believe at the time of the 

proposal that the additional 

requirements—meeting the legitimate 

recycling standard, the contained 

standard, and the notification 

requirement—would present an undue 

burden on facilities. As discussed in 

more detail below, this is because EPA 

considers certain requirements, like 

legitimate recycling and containment, 

inherent in the definition of solid waste 

recycling exclusions and assumes that 

the regulated community already meets 

these standards. Notification was 

considered to be a simple reporting 

requirement that would pose minimal 

additional burden. 

However, upon reviewing the 

comments, EPA has determined that 

more study is needed before taking 

action. Therefore, EPA is not making 

any changes to the language of the 32 

recycling exclusions and exemptions at 

this time. In the case of the legitimacy 

provision, EPA is instead codifying a 

general prohibition against sham 

recycling. In the case of the contained 

standard and notification requirement, 

EPA is deferring any action until further 

study is conducted. EPA’s response to 

comments regarding burden 

implications of each of the provisions is 

discussed in more detail below. 

(1) Legitimacy. With respect to 

legitimacy, it has been EPA’s longstanding policy that all recycling of 

hazardous secondary materials must be 

legitimate. If a facility is engaged in 

sham recycling, this, by definition, is 

not real recycling and that material is 

being discarded. Additionally, EPA 

considers the four legitimacy factors 

codified in 40 CFR 260.43 to be 

substantively the same as the existing 

legitimacy policy, which has been 

articulated in the 1989 Lowrance Memo 

and in various DSW Federal Register 

notices. 

In proposing to codify the legitimate 

recycling standard for all exclusions, we 

did not intend to raise questions about 

the status of general legitimacy 

determinations that underlie these 

existing exclusions from the definition 

of solid waste, or about case-specific 

determinations that have already been 

made by EPA or the states. As noted in 

the comments, EPA generally 

considered the legitimacy of the 

recycling process when the original 

determinations were promulgated, and 

the Agency did not intend to force 

companies to have to reexamine long 

standing legitimate recycling practices. 

Therefore EPA is not revising the pre2008 exclusions and exemptions to 

include a legitimacy requirement. 

However, as discussed in section VIII, 

these material-specific exclusions from 

the definition of solid waste do not 

negate the basic requirement that the 

hazardous secondary material must be 

legitimately recycled. Therefore, EPA is 

codifying a general statement in 

§ 261.2(g) that makes it clear that a 

hazardous secondary material found to 

be sham recycled is discarded and thus, 

is a solid waste. By codifying a 

prohibition on sham recycling that 

applies to all hazardous secondary 

materials being recycled, we are 

confirming that we expect anyone 

operating under a recycling exclusion or 

exemption to be doing so legitimately. 

EPA finds that this will give 

implementing agencies a clear 

regulatory statement that can be used to 

enforce against sham recyclers, yet not 

require the vast majority of recyclers 

that are performing legitimate recycling 

under the pre-2008 exclusions and 

exemptions to revisit previously-made 

legitimacy determinations. 

Additionally, the Agency has, based 

on the public comments, made 

adjustments to the legitimacy factors to 

build in more flexibility for meeting 

each factor and thus, ease the use of the 


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standard. For example, EPA has 

modified factor 4 to rely on widelyrecognized commodity standards and 

specifications in the case where there is 

no analogous product as a way of 

recognizing industry standards that 

ensure their products are legitimate. 

EPA gives the example in the regulatory 

text of commodity specification grades 

for common metals, which would be 

relevant to scrap metal recyclers, among 

other metal recyclers. EPA has also 

included a provision that states that 

when ‘‘hazardous secondary materials 

being recycled are returned to the 

original process or processes from 

which they were generated to be reused, 

the product of the recycling process is 

comparable to a legitimate product or 

intermediate,’’ and thus would meet 

factor 4. This revision addresses 

concerns regarding the closed loop 

exemption at § 261.4(a)(8), as well as 

mineral processing to produce primary 

metals, because these processes always 

include materials looping back into the 

process to ensure that all the valuable 

metals that can be extracted from the ore 

are being collected for use. 

For more information and responses 

to comments on legitimacy, please see 

section XVII in today’s preamble. 

(2) Contained. With respect to the 

contained standard, EPA has long 

determined that hazardous secondary 

materials that are released to the 

environment and are not destined for 

recycling are clearly discarded. Based 

on the environmental problems study, 

the results of which showed 

mismanagement of hazardous secondary 

materials as one of the major causes of 

damage, EPA requested comment in the 

2011 DSW proposed rule on applying 

the proposed contained standard to all 

hazardous secondary materials. EPA 

assumes that the vast majority of 

recycling facilities ‘‘contain’’ their 

hazardous secondary materials and thus 

would already meet the contained 

standard. Therefore, EPA assumed that 

the contained standard would not 

present any additional burden to the 

regulated community, especially since 

the contained standard is ‘‘performancebased’’ and provides much flexibility, 

but could be used to enforce against 

those facilities that were mismanaging 

their materials. 

However, as the commenters’ noted, 

EPA has already promulgated certain 

management standards for some 

exclusions based on the case-specific 

characteristics of the hazardous 

secondary material or recycling process 

(e.g., drip pads used to manage 

wastewaters and/or spent wood 

preserving solutions under 40 CFR 

261.4(a)(9)). Thus, EPA understands that 

simply applying the contained standard 

wholesale across the 32 recycling 

provisions, may not be the most 

efficient or effective course of action as 

EPA would not be considering how the 

contained standard would work within 

each specific exclusion and its existing 

conditions. Therefore, EPA is deferring 

action on applying the contained 

standard to the pre-2008 exclusions and 

exemptions until we can more 

adequately address commenters’ 

concerns. 

(3) Notification. With respect to 

notification, EPA’s intent was to provide 

basic information to regulatory 

authorities in order to enable adequate 

compliance monitoring of the 

exclusions. EPA had requested 

comment on requiring notification 

under 40 CFR 260.42 using the Site ID 

Form (EPA Form 8700–12), which is the 

same provision used for the 2008 DSW 

final rule exclusions. Given that this 

form is familiar to the regulated 

community, we had not considered this 

requirement to pose an undue burden. 

However, based on comments we 

received, we understand that using the 

same notification requirement 

developed for hazardous secondary 

materials that were recently excluded in 

2008 presents challenges when used for 

hazardous secondary materials that have 

been excluded for many decades. For 

example, the notification provision in 

40 CFR 260.42 requires information on 

types of hazardous secondary materials 

(using hazardous waste codes) and 

quantities of these materials. However, 

as noted by commenters, this is 

difficult, for example, for scrap metal 

recyclers, because these facilities 

currently do not distinguish between 

non-hazardous scrap metal and scrap 

metal that would be hazardous waste 

were it not for the exclusion. Requiring 

notification in this instance may infer 

that scrap metal recyclers would be 

required to extensively test their 

hazardous secondary material in order 

to determine if the scrap metal was 

hazardous, and therefore excluded, and 

to determine which hazardous waste 

code to report on the form. 

Additionally, the notification presents 

challenges for facilities with numerous 

closed-loop recycling processes because 

the form would require these facilities 

to specifically list each process. We also 

understand commenters’ concerns 

regarding the burden on states that must 

review and process these forms. Because 

the majority of the pre-2008 exclusions 

and exemptions do not include 

notification requirements, EPA does not 

have precise data regarding how many 

facilities are recycling hazardous 

secondary materials under these 

exclusions and exemptions. This lack of 

data hinders EPA’s ability to more 

precisely estimate the burden on states 

and whether such a requirement would 

be environmentally beneficial. 

Therefore, EPA is deferring action on 

applying notification to the pre-2008 

exclusions and exemptions until we can 

more adequately address commenters’ 

concerns. 

Comments: EPA’s Authority To Add 

Requirements to Pre-2008 Exclusions 

Commenters stated that EPA lacks 

jurisdiction to add requirements to 

materials that are not solid wastes and, 

if EPA is changing its position on the 

waste status of these materials, the 

Agency must provide a reasoned 

explanation for disregarding facts and 

circumstances that underlay the prior 

policy. Some commenters argued that 

EPA had evaluated each of the 

hazardous secondary materials at the 

time it promulgated the exclusions and 

thus, EPA must demonstrate why 

management in compliance with the 

existing conditions constitutes discard. 

EPA’s Response: EPA’s Authority To 

Add Requirements to Pre-2008 

Exclusions 

EPA disagrees with comments that 

argue that EPA does not have the 

authority to require conditions for 

hazardous secondary materials being 

recycled. As noted in the Background 

section of this preamble, in the Safe 

Food court case, the D.C. Circuit upheld 

an EPA rule that excludes from the 

definition of solid waste hazardous 

secondary materials used to make zinc 

fertilizers, and the fertilizers 

themselves, as long as the recycled 

materials meet certain handling, storage, 

and reporting conditions and the 

resulting fertilizers have concentration 

levels for certain hazardous constituents 

that fall below specified thresholds. It is 

therefore within EPA’s discretion to 

determine conditions under which a 

hazardous secondary material is not 

being discarded and thus may be 

excluded from hazardous waste 

regulation. 

However, EPA agrees that more 

information is needed before 

determining whether adding 

requirements to the pre-2008 exclusions 

and exemptions is needed to make them 

more enforceable. EPA’s request for 

comment on this issue was based on 

conclusions drawn from the 

environmental problems study, which 

evaluated over 200 damage cases, and 

the Correlation of Recycling Damage 

Cases with Regulatory Exclusions, 

Exemptions or Alternative Standards, 

which analyzed which damage cases 


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were likely operating under a pre-2008 

exclusion and exemption. From these 

studies, EPA concluded that over half of 

the damage cases were likely operating 

under an existing exclusion and 

exemption. However, EPA did not 

examine the specific underlying causes 

of the damage cases (whether they were 

based on the lack of oversight of the pre2008 exclusions and exemptions or on 

other causes). Thus EPA has decided 

that additional information is needed to 

determine whether additional regulatory 

action is needed, or whether the 

problems should be addressed through 

some other method, such as outreach 

and compliance assistance. 

Comments: Record Support 

Many commenters argued that EPA’s 

record does not support this regulatory 

change and that EPA failed to conduct 

a thorough analysis. For example, 

commenters argued that EPA’s record 

needs to show that significant 

environmental problems have been 

caused by a meaningful number of 

facilities operating in compliance with 

the pre-2008 exclusions and 

exemptions. These commenters noted 

that many of the damage cases involve 

civil or criminal violations, indicating 

that the problem was non-compliance 

with the regulations, not from a lack of 

regulations. Thus, these commenters 

believed that EPA already has sufficient 

authority to enforce against bad actors. 

Additionally, EPA’s own analysis only 

links damage cases to just seven 

exclusions, yet EPA is considering 

adding conditions to 32 exclusions. 

EPA’s Response: Record Support 

EPA disagrees with comments that 

argue that since the environmental 

problems study includes cases with 

civil or criminal violations, this 

demonstrates existing regulations are 

adequately enforceable. On the contrary, 

the frequency of violations in the 

damage cases may demonstrate the need 

for greater, not less, oversight, 

particularly in the case of sham 

recycling, where discard via overaccumulation of material can become a 

major problem before the Agency can 

take action. 

For example, in one of the damage 

cases, a facility whose primary business 

was mixing electric arc furnace dust 

(K061) with agricultural lime for sale as 

a micronutrient lost its customers and 

could not sell its product. However, the 

facility continued to accept K061, and, 

after approximately seven months, the 

facility had accepted over 60,000 tons of 

this hazardous waste and stored it on 

the ground in piles up to 30 feet high, 

with no prospect of it being used to 

produce a product and, thus, 

legitimately recycled. While the initial 

recycling of the K061 hazardous waste 

was legitimate, when the facility failed 

to produce a product that was actually 

sold, the K061 could no longer be 

considered legitimately recycled, 

resulting in significant risk to human 

health and the environment from 

discarded material. Therefore EPA is 

codifying a general probation against 

sham recycling, in order to prevent such 

cases from occurring. 

However, in the case of containment 

and notification, EPA agrees with 

commenters and has determined that 

additional information about the 

underlying causes of the damage cases 

would be useful to determine whether 

additional regulatory action is needed, 

or whether the problems should be 

addressed through some other method, 

such as outreach and compliance 

assistance. 

EPA also understands commenters’ 

concerns regarding the limitations of the 

correlation analysis, including the fact 

that EPA could only correlate with 

confidence 7 of the 32 recycling 

exclusions and exemptions to damage 

cases in its environmental problems 

study. The analysis was hampered by a 

lack of precision in the data. For 

example, because notification is not 

required for the majority of pre-2008 

exclusions and exemptions, we can only 

conservatively identify damage case 

correlations where the type of 

hazardous secondary material very 

clearly matches to an exclusion (e.g., 

scrap metal). We lack information to 

make inferences for broadly applicable 

exclusions, (e.g., use/reuse) or for 

broadly defined hazardous secondary 

materials (e.g., metal-bearing wastes). 

Therefore, by virtue of some exclusions’ 

broad applicability, we were unable to 

correlate them to specific damage cases. 

Although it is difficult to assign 

specific damage cases to certain 

exclusions, we note that in the 

environmental problems study only 

nine of the damage cases were operating 

under a RCRA permit at the time of 

damage. Thus, EPA can generally 

conclude that the majority of the 

damage cases were operating outside of 

RCRA, inferring these facilities were 

either operating illegally or likely 

operating under an exclusion, 

exemption, alternate standard, or no 

standard at all. In the case of 

containment and notification, EPA has 

determined that additional information 

about the underlying causes of the 

damage cases would be useful to 

determine whether additional regulatory 

action is needed, or whether the 

problems should be addressed through 

some other method, such as outreach 

and compliance assistance. 

Comments: Time To Comment 

Industry commenters argued that they 

did not have adequate time to comment. 

Further, they had no forewarning of the 

changes EPA was considering before the 

proposal was issued. EPA’s request for 

comment did not involve prior 

discussions with stakeholders, as is 

typical when developing proposed 

rules. Moreover, this issue was not part 

of the 2008 DSW final rulemaking, 

Sierra Club’s petition, or part of EPA’s 

settlement agreement with the Sierra 

Club. Many commenters urged EPA to 

meet with industry representatives in 

order to better understand industry 

practices. 

Commenters also argued that if EPA 

codified a notification as a condition of 

the exclusions, thousands of facilities 

would be at risk of losing the exclusion 

due to failure to notify, which could 

result in civil fines and solid waste 

management fees for the facility. These 

commenters stated that notification as a 

condition in this instance presents acute 

risks to facilities operating under an 

exclusion, because, up to this point, 

these facilities have not been required to 

comply with the RCRA hazardous waste 

requirements. Thus, commenters said 

many facilities may fail to notify simply 

because they were unaware the 

regulations had changed. 

EPA’s Response: Time To Comment 

EPA understands commenters that 

argued they did not have adequate time 

to comment on applying the contained 

standard and notification for pre-2008 

recycling exclusions and exemptions. 

Contrary to the legitimate recycling 

standard, which has been EPA’s longstanding policy and has been articulated 

in the 1989 Lowrance memo and 

various Federal Register notices, EPA 

had not previously indicated it was 

considering the contained standard and 

notification for pre-2008 exclusions and 

exemptions prior to the 2011 DSW 

proposal. Although the 2011 proposed 

rule provided an opportunity for public 

comment, EPA understands 

commenters’ concerns, with notification 

in particular, as these provisions would 

impact thousands of businesses, many 

of which may not be closely following 

DSW rulemaking activity. EPA agrees 

that a more inclusive approach to a 

potential rulemaking that involves 

stakeholders in upfront discussions 

would likely result in gainful 

information, more effective strategies for 

addressing issues, and better 

communication with the regulated 

community. 


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1768 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

Comments: Support for Adding 

Requirements to Existing Exclusions 

Some commenters, including 

environmental organizations, supported 

adding conditions to the pre-2008 

exclusions and exemptions, arguing that 

EPA must adopt the regulatory 

conditions, including the legitimacy 

standard in light of the risks posed by 

the 32 recycling exclusions and the 

historical pattern of environmental 

contamination at facilities that are 

exempt from RCRA. These commenters 

believed that the prevention of one 

damage case every two years would 

more than offset the compliance costs. 

Some state commenters also supported 

adding conditions to the pre-2008 

exclusions and exemptions, although 

some argued that EPA should exempt 

certain types of hazardous secondary 

materials, like scrap metal, spent leadacid batteries, closed-loop recycling, 

and printed circuit boards, from the 

requirements. 

Other commenters supported adding 

notification to the pre-2008 recycling 

provisions. These commenters argued 

that states may not be aware of excluded 

activities unless they are occurring at 

facilities that are otherwise regulated or 

are the subject of a citizen complaint. 

These commenters said that 

notifications would allow states to 

periodically evaluate these facilities to 

ensure they are meeting the terms of the 

exclusion and that, while the initial 

burden on states might be quite heavy, 

the long-term benefit of knowing where 

these facilities are justifies this burden. 

EPA’s Response: Support for Adding 

Requirements to Existing Exclusions 

EPA acknowledges commenters who 

support additional requirements for the 

pre-2008 exclusions and exemptions in 

order to avoid potential damage cases 

and protect human health and the 

environment. However, based on the 

comments received, the EPA has 

determined that it does not have enough 

information to determine if adding 

requirements to the existing pre-2008 

recycling exclusions and exemptions 

would be the most effective method for 

addressing the damage cases or whether 

a more targeted approach would be 

more appropriate. 

Regarding legitimacy, in lieu of 

adding a legitimacy requirement to the 

specific recycling exclusions, EPA is 

instead codifying a general statement in 

§ 261.2(g) that makes it clear that a 

hazardous secondary material found to 

be sham recycled is discarded and thus, 

is a solid waste. EPA finds that this will 

give implementing agencies a clear 

regulatory statement that can be used to 

enforce against sham recyclers, yet not 

require the vast majority of recyclers 

that are performing legitimate recycling 

under the pre-2008 exclusions and 

exemptions to revisit previously-made 

legitimacy determinations. EPA also 

notes that today’s final legitimacy 

standard includes modifications that 

address implementation concerns for 

certain hazardous secondary materials 

and processes, such as scrap metal and 

closed-loop recycling. For more 

information on these modifications, 

please see the other sections on 

legitimacy in this preamble. 

Regarding the contained standard and 

notification, for reasons stated above, 

the Agency is deferring action on 

applying the contained standard and 

notification to the pre-2008 exclusions 

and exemptions in order to consider 

how best to implement these conditions 

in the context of the case-specific 

circumstances of the regulatory 

provisions. 

XX. State Authorization 

A. Applicability of Rules in Authorized 

States 

Under section 3006 of RCRA, EPA 

may authorize a qualified state to 

administer and enforce a hazardous 

waste program within the state in lieu 

of the federal program, and to issue and 

enforce permits in the state. A state may 

receive authorization by following the 

approval process described in 40 CFR 

271.21 (see 40 CFR part 271 for the 

overall standards and requirements for 

authorization). EPA continues to have 

independent authority to bring 

enforcement actions under RCRA 

sections 3007, 3008, 3013, and 7003. An 

authorized state also continues to have 

independent authority to bring 

enforcement actions under state law. 

After a state receives initial 

authorization, new federal requirements 

promulgated under RCRA authority 

existing prior to the 1984 Hazardous 

and Solid Waste Amendments (HSWA) 

do not apply in that state until the state 

adopts and receives authorization for 

equivalent state requirements. In 

contrast, under RCRA section 3006(g) 

(42 U.S.C. 6926(g)), new federal 

requirements and prohibitions 

promulgated pursuant to HSWA 

provisions take effect in authorized 

states at the same time that they take 

effect in unauthorized states. As such, 

EPA carries out the HSWA requirements 

and prohibitions in authorized states, 

including the issuance of new permits 

implementing those requirements, until 

EPA authorizes the state to do so. 

Authorized states are required to 

modify their programs only when EPA 

enacts federal requirements that are 

more stringent or broader in scope than 

the existing federal requirements. RCRA 

section 3009 allows the states to impose 

standards more stringent than those in 

the federal program (see also 40 FR 

271.1(i)). Therefore, authorized states 

are not required to adopt federal 

regulations, both HSWA and nonHSWA, that are considered less 

stringent than previous federal 

regulations or that narrow the scope of 

the RCRA program and Subtitle C 

hazardous waste regulations would 

continue to apply in those states. 

B. Effect on State Authorization of Final 

Rule 

The regulations finalized in today’s 

notice are not promulgated under the 

authority of HSWA. Thus, the standards 

will be applicable on the effective date 

only in those states that do not have 

final authorization of their base RCRA 

programs. Moreover, authorized states 

are required to modify their programs 

only when EPA promulgates federal 

regulations that are more stringent or 

broader in scope than the authorized 

state regulations. For those changes that 

are less stringent, states are not required 

to modify their program. This is a result 

of section 3009 of RCRA, which allows 

states to impose more stringent 

regulations than the federal program. 

The revisions to the definition of solid 

waste being finalized today are more 

stringent than those promulgated under 

the 2008 DSW final rule, so those states 

which have adopted the 2008 DSW final 

rule would be required to modify their 

programs. However, when compared to 

the federal program that was in place 

when the 2008 DSW final rule was 

finalized, many of today’s revisions 

would be considered less stringent (e.g., 

the revised generator-controlled 

exclusion, the verified recycler 

exclusion, and the remanufacturing 

exclusion). Therefore, authorized states 

that have not adopted the 2008 DSW 

final rule are not required to modify 

their programs to adopt these exclusions 

and the federally authorized state 

hazardous waste regulations applying 

the full subtitle C requirements will 

continue to apply in those states. As 

noted in footnote 58 of the proposed 

rule, final decisions regarding whether a 

state rule is more stringent under 40 

CFR 271.1(i)(1) or broader in scope than 

the federal program under 40 CFR 

271.1(i)(2) are made when the Agency 

authorizes state programs. However, the 

revisions to the definition of legitimacy 

and the prohibition of sham recycling, 

as discussed in section VIII of the 

preamble, are more stringent than the 

current federal hazardous waste 


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program because they codify implicit 

requirements that have been largely 

implemented through guidance. Also, 

the additional recordkeeping 

requirement in the speculative 

accumulation provision in 40 CFR 

261.1(c)(8), as discussed in section V of 

the preamble, is also more stringent 

than the current federal hazardous 

waste program. Finally, the changes to 

the standards and criteria for variances 

from classification as a solid waste 

discussed in section IX are more 

stringent than the current federal 

hazardous waste program. In these 

cases, all authorized states will be 

required to modify their programs to 

adopt equivalent, consistent and no less 

stringent requirements. 

XXI. Statutory and Executive Order 

(EO) Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is a 

‘‘significant regulatory action’’ because 

it is likely to ‘‘raise novel legal or policy 

issues’’ under section 3(f)(4) of 

Executive Order 12866. Accordingly, 

EPA submitted this action to the Office 

of Management and Budget (OMB) for 

review under Executive Orders 12866 

and 13563 (76 FR 3821, January 21, 

2011) and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

In addition, EPA prepared an analysis 

of the potential costs and benefits 

associated with this action. This 

analysis is contained in EPA’s 

background document for today’s action 

titled ‘‘Regulatory Impact Analysis’’ 

(RIA). A copy of the analysis is available 

in the docket for this action and the 

analysis is briefly summarized here. 

EPA estimates that the 2014 DSW rule 

will result in a future annual costs 

savings of $1.0 to $2.0 million per year, 

depending on discount rate used, as 

compared to a baseline of full 

implementation of the 2008 DSW rule. 

This cost savings is based on the 

assumption that same number of states 

would adopt the 2014 DSW rule as 

would adopt the 2008 DSW rule. 

However, because the 2014 DSW rule 

addresses many of the concerns states 

raised about the 2008 DSW rule, there 

is a potential that more states would 

adopt it, thus increasing the upper 

bound of annual cost savings to $17.5 

million to $59 million per year. 

In addition to estimating the cost 

savings of today’s action, the RIA also 

provides qualitative (i.e., nonmonetized) descriptions of three 

categories of expected future benefits for 

today’s action consisting of: (1) 

Reduction in future environmental 

damages associated with industrial 

recycling of hazardous secondary 

materials; (2) improved industry 

environmental compliance; (3) indirect 

legal & financial benefits to industry 

consisting of reduced liability, less 

uncertainty for regulated entities, and 

lower legal and financial credit costs. 

B. Paperwork Reduction Act 

(Information Collection Request) 

The information collection 

requirements in this rule will be 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

requirements are not enforceable until 

OMB approves them. The information 

collection request has been updated 

since the July 22 proposed rule to reflect 

the final rule requirements and to 

respond to public comments. The EPA 

ICR number for this next submission 

will be 2310.03 and the OMB control 

number will be 2050–0202. 

Several information requirements 

established for this action are voluntary 

to the extent that the conditional 

exclusions being finalized today are 

voluntary and represent an overall 

reduction in burden, as compared with 

the alternative information requirements 

associated with managing hazardous 

secondary materials as hazardous waste. 

The information requirements help 

ensure that: (1) Entities operating under 

today’s rule are held accountable to the 

applicable requirements; and (2) 

inspectors can verify compliance with 

the conditions of today’s rule when 

needed. 

EPA estimates the total annual burden 

to respondents under the new 

paperwork requirements as a result of 

the final rule changes to be 34,454 hours 

and $68,071 in operations and 

maintenance costs ($2,378,111, 

including labor costs), respectively. 

Burden and costs continuing from the 

2008 ICR No. 2310.02 include 2,034 

hours and $299 in operations and 

maintenance ($144,235, including labor 

costs), respectively. The total annual 

burden and operations and maintenance 

costs are estimated at 36,488 hours and 

$68,370 in operations and maintenance 

costs, or 109,464 hours and $205,110 in 

operations and maintenance over three 

years. Burden is defined at 5 CFR 

1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

this ICR is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in this final rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

based on small size standards defined 

by the Small Business Administration’s 

(SBA) regulations at 13 CFR 121.201 for 

27 NAICS codes with the largest number 

of affected entities; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

The small entities directly regulated by 

this final rule are primarily small 

businesses in the manufacturing sector 

(i.e., NAICS codes 32 and 33). We have 

determined that the average annual 

impact on small businesses is estimated 

to be significantly less than 1% of 

annual business sales for all small 

entities. 

Although this final rule will not have 

a significant economic impact on a 

substantial number of small entities, 

EPA nonetheless has tried to reduce the 

impact of this rule on small entities. 

Comments were requested, and the 

comment period was extended once 

until October 20, 2011. In September 

2011, EPA held two public meetings to 

accept public comment on the proposal 

in Philadelphia, PA and in Chicago, IL. 


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D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and Tribal governments, in the 

aggregate, or the private sector in any 

one year. EPA’s RIA for today’s action 

estimates the maximum state 

government share of future direct costs 

for complying with today’s action is 

$0.3 million per year. No impacts are 

expected for local or Tribal 

governments. Because these direct costs 

are well below the $100 million annual 

direct cost threshold, this rule is not 

subject to the requirements of sections 

202 or 205 of UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. 

The RIA estimates that the state 

government share of future annualized 

direct costs is $0.3 million per year. No 

added costs are expected for local or 

tribal governments. Because these direct 

costs are well below the $25 million 

Federalism test threshold, EPA 

concludes that Executive Order 13132 

does not apply to today’s action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to the Executive Order 13175 

(65 FR 67249, November 9, 2000), EPA 

may not issue a regulation that has tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by tribal governments, or 

EPA consults with tribal officials early 

in the process of developing the 

regulation and develops a tribal 

summary impact statement. 

EPA has concluded that this action 

may have tribal implications. However, 

it will neither impose substantial direct 

compliance costs on tribal governments, 

nor preempt tribal law. Under the RCRA 

statute, the federal government 

implements hazardous waste 

regulations directly in Indian Country. 

Thus, the changes to the hazardous 

waste regulations promulgated today 

would not impose any direct costs on 

tribal governments. In addition, 

currently there are no facilities 

operating on land controlled by tribal 

governments, but if such facilities did 

locate in such areas, then this action 

could have tribal implications, to the 

extent that the rule is intended to 

address potential adverse impacts of the 

2008 DSW final rule. 

EPA consulted with tribal officials 

early in the process of developing this 

regulation to ensure they had an 

opportunity for meaningful and timely 

input into its development. Specifically, 

tribal representatives participated in the 

public meetings EPA held on the draft 

environmental justice methodology and 

noted that the Bureau of Census data 

used as the basis for the demographic 

analysis may undercount indigenous 

populations. EPA also sent a 

consultation letter to all federally 

recognized tribes requesting a 

consultation on the 2011 DSW proposal 

and held a tribes-only live webinar on 

August 11, 2011 to allow tribal official 

the opportunity to ask questions and 

offer input into the proposed rule. EPA 

did not receive formal comments from 

tribal officials during the consultation 

process. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866, and because the 

Agency does not believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. This 

action’s health and risk assessments are 

contained in the Potential Adverse 

Impacts Under the Definition of Solid 

Waste Exclusions (Including Potential 

Disproportionate Adverse Impacts to 

Minority and Low-Income Populations) 

in the docket for today’s rule. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant 

energy action’’ as defined in Executive 

Order 13211 (66 FR 28355, May 22, 

2001), because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. EPA does 

not expect today’s final rule to adversely 

affect the supply, distribution, or use of 

energy. 

On the contrary, EPA expects that at 

least two elements of today’s final rule 

may provide future annual energy 

savings by (a) inducing under today’s 

solvent remanufacturing exclusion 

larger future annual quantities of 

industrial processing solvents which get 

recycled rather than disposed (i.e., 

incinerated) thereby reducing the 

relatively higher lifecycle energy and 

other lifecycle resource impacts 

associated with manufacturing virgin 

solvents, and (b) inducing more state 

governments to adopt the other DSW 

exclusions which are revised under 

today’s final rule, thereby generally 

stimulating other types of industrial 

recycling of hazardous secondary 

materials (HSM), which EPA also 

expects may reduce adverse lifecycle 

impacts on the economy and 

environment compared to the lifecycle 

impacts of producing virgin materials 

for which larger future annual quantities 

of recycled HSM may substitute. Thus, 

Executive Order 13211 does not apply 

to this rule. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: 

Environmental Justice 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and adverse human health or 


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Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 1771 

environmental effects on minority or 

low-income populations because it 

increases the level of environmental 

protection for all affected populations 

without having any disproportionately 

high and adverse human health or 

environmental effects on any 

population, including any minority or 

low-income population. The purpose of 

this final rule is to revise the 2008 DSW 

final rule in such a way that reduces 

potential adverse impacts, including 

potential disproportionate impacts to 

minority and low-impact communities. 

For further information on the potential 

for disproportionate impacts to minority 

and low-income populations, see the 

Potential Adverse Impacts Under the 

Definition of Solid Waste Exclusions 

(Including Potential Disproportionate 

Adverse Impacts to Minority and LowIncome Populations) in the docket for 

today’s rule. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective on July 13, 2015. 

List of Subjects 

40 CFR Part 260 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous waste, Reporting and 

recordkeeping requirements. 

40 CFR Part 261 

Environmental protection, Hazardous 

waste, Incorporation by reference, 

Recycling, Solid waste. 

Dated: December 10, 2014. 

Gina McCarthy, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 

PART 260—HAZARDOUS WASTE 

MANAGEMENT SYSTEM: GENERAL 

■ 1. The authority citation for part 260 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6921– 

6927, 6930, 6935, 6937, 6938, 6939 and 6974. 

Subpart B—Definitions 

■ 2. Section 260.10 is amended as 

follows: 

■ a. Add in alphabetical order the 

definition of ‘‘Contained;’’ 

■ b. Remove the definition of 

‘‘Hazardous secondary material 

generated and reclaimed under the 

control of the generator;’’ and 

■ c. Add in alphabetical order the 

definition of ‘‘Remanufacturing,’’ 

The additions read as follows: 

§ 260.10 Definitions 

* * * * * 

Contained means held in a unit 

(including a land-based unit as defined 

in this subpart) that meets the following 

criteria: 

(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, windblown dust, fugitive air emissions, and 

catastrophic unit failures; 

(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 

(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. 

(4) Hazardous secondary materials in 

units that meet the applicable 

requirements of 40 CFR parts 264 or 265 

are presumptively contained. 

* * * * * 

Remanufacturing means processing a 

higher-value hazardous secondary 

material in order to manufacture a 

product that serves a similar functional 

purpose as the original commercialgrade material. For the purpose of this 

definition, a hazardous secondary 

material is considered higher-value if it 

was generated from the use of a 

commercial-grade material in a 

manufacturing process and can be 

remanufactured into a similar 

commercial-grade material. 

* * * * * 

Subpart C—Rulemaking Petitions 

■ 3. Section 260.30 is amended by 

adding paragraph (f) to read as follows: 

§ 260.30 Non-waste determinations and 

variances from classification as a solid 

waste. 

* * * * * 

(f) Hazardous secondary materials that 

are transferred for reclamation under 

§ 261.4(a)(24) and are managed at a 

verified reclamation facility or 

intermediate facility where the 

management of the hazardous secondary 

materials is not addressed under a 

RCRA Part B permit or interim status 

standards. 

■ 4. Section 260.31 is amended by 

revising paragraph (c) and adding 

paragraph (d) to read as follows: 

§ 260.31 Standards and criteria for 

variances from classification as a solid 

waste. 

* * * * * 

(c) The Administrator may grant 

requests for a variance from classifying 

as a solid waste those hazardous 

secondary materials that have been 

partially reclaimed, but must be 

reclaimed further before recovery is 

completed, if the partial reclamation has 

produced a commodity-like material. A 

determination that a partially-reclaimed 

material for which the variance is 

sought is commodity-like will be based 

on whether the hazardous secondary 

material is legitimately recycled as 

specified in § 260.43 of this part and on 

whether all of the following decision 

criteria are satisfied: 

(1) Whether the degree of partial 

reclamation the material has undergone 

is substantial as demonstrated by using 

a partial reclamation process other than 

the process that generated the hazardous 

waste; 

(2) Whether the partially-reclaimed 

material has sufficient economic value 

that it will be purchased for further 

reclamation; 

(3) Whether the partially-reclaimed 

material is a viable substitute for a 

product or intermediate produced from 

virgin or raw materials which is used in 

subsequent production steps; 

(4) Whether there is a market for the 

partially-reclaimed material as 

demonstrated by known customer(s) 

who are further reclaiming the material 

(e.g., records of sales and/or contracts 


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and evidence of subsequent use, such as 

bills of lading); 

(5) Whether the partially-reclaimed 

material is handled to minimize loss. 

(d) The Administrator may grant 

requests for a variance from classifying 

as a solid waste those hazardous 

secondary materials that are transferred 

for reclamation under § 261.4(a)(24) and 

are managed at a verified reclamation 

facility or intermediate facility where 

the management of the hazardous 

secondary materials is not addressed 

under a RCRA Part B permit or interim 

status standards. The Administrator’s 

decision will be based on the following 

criteria: 

(1) The reclamation facility or 

intermediate facility must demonstrate 

that the reclamation process for the 

hazardous secondary materials is 

legitimate pursuant to § 260.43; 

(2) The reclamation facility or 

intermediate facility must satisfy the 

financial assurance condition in 

§ 261.4(a)(24)(vi)(F); 

(3) The reclamation facility or 

intermediate facility must not be subject 

to a formal enforcement action in the 

previous three years and not be 

classified as a significant non-complier 

under RCRA Subtitle C, or must provide 

credible evidence that the facility will 

manage the hazardous secondary 

materials properly. Credible evidence 

may include a demonstration that the 

facility has taken remedial steps to 

address the violations and prevent 

future violations, or that the violations 

are not relevant to the proper 

management of the hazardous secondary 

materials; 

(4) The intermediate or reclamation 

facility must have the equipment and 

trained personnel needed to safely 

manage the hazardous secondary 

material and must meet emergency 

preparedness and response 

requirements under 40 CFR part 261 

subpart M; 

(5) If residuals are generated from the 

reclamation of the excluded hazardous 

secondary materials, the reclamation 

facility must have the permits required 

(if any) to manage the residuals, have a 

contract with an appropriately 

permitted facility to dispose of the 

residuals or present credible evidence 

that the residuals will be managed in a 

manner that is protective of human 

health and the environment, and 

(6) The intermediate or reclamation 

facility must address the potential for 

risk to proximate populations from 

unpermitted releases of the hazardous 

secondary material to the environment 

(i.e., releases that are not covered by a 

permit, such as a permit to discharge to 

water or air), which may include, but 

are not limited to, potential releases 

through surface transport by 

precipitation runoff, releases to soil and 

groundwater, wind-blown dust, fugitive 

air emissions, and catastrophic unit 

failures), and must include 

consideration of potential cumulative 

risks from other nearby potential 

stressors. 

■ 5. Section 260.33 is amended by 

revising paragraph (c) and adding 

paragraphs (d) and (e) to read as follows: 

§ 260.33 Procedures for variances from 

classification as a solid waste, for variances 

to be classified as a boiler, or for non-waste 

determinations. 

* * * * * 

(c) In the event of a change in 

circumstances that affect how a 

hazardous secondary material meets the 

relevant criteria contained in § 260.31, 

§ 260.32, or § 260.34 upon which a 

variance or non-waste determination 

has been based, the applicant must send 

a description of the change in 

circumstances to the Administrator. The 

Administrator may issue a 

determination that the hazardous 

secondary material continues to meet 

the relevant criteria of the variance or 

non-waste determination or may require 

the facility to re-apply for the variance 

or non-waste determination. 

(d) Variances and non-waste 

determinations shall be effective for a 

fixed term not to exceed ten years. No 

later than six months prior to the end of 

this term, facilities must re-apply for a 

variance or non-waste determination. If 

a facility re-applies for a variance or 

non-waste determination within six 

months, the facility may continue to 

operate under an expired variance or 

non-waste determination until receiving 

a decision on their re-application from 

the Administrator. 

(e) Facilities receiving a variance or 

non-waste determination must provide 

notification as required by § 260.42 of 

this chapter. 

■ 6. Section 260.34 is amended by 

revising paragraphs (b)(4) and (c)(5) to 

read as follows: 

§ 260.34 Standards and criteria for nonwaste determinations. 

* * * * * 

(b) * * * 

(4) Other relevant factors that 

demonstrate the hazardous secondary 

material is not discarded, including why 

the hazardous secondary material 

cannot meet, or should not have to 

meet, the conditions of an exclusion 

under § 261.2 or § 261.4 of this chapter. 

(c) * * * 

(5) Other relevant factors that 

demonstrate the hazardous secondary 

material is not discarded, including why 

the hazardous secondary material 

cannot meet, or should not have to 

meet, the conditions of an exclusion 

under § 261.2 or § 261.4 of this chapter. 

■ 7. Section 260.42 is amended by 

revising paragraphs (a) introductory 

text, (a)(4) through (9), removing 

paragraph (a)(10), and revising 

paragraph (b). 

The revisions read as follows: 

§ 260.42 Notification requirement for 

hazardous secondary materials. 

(a) Facilities managing hazardous 

secondary materials under §§ 260.30, 

261.4(a)(23), 261.4(a)(24), or 261.4(a)(27) 

must send a notification prior to 

operating under the regulatory provision 

and by March 1 of each even-numbered 

year thereafter to the Regional 

Administrator using EPA Form 8700–12 

that includes the following information: 

* * * * * 

(4) The regulation under which the 

hazardous secondary materials will be 

managed; 

(5) When the facility began or expects 

to begin managing the hazardous 

secondary materials in accordance with 

the regulation; 

(6) A list of hazardous secondary 

materials that will be managed 

according to the regulation (reported as 

the EPA hazardous waste numbers that 

would apply if the hazardous secondary 

materials were managed as hazardous 

wastes); 

(7) For each hazardous secondary 

material, whether the hazardous 

secondary material, or any portion 

thereof, will be managed in a land-based 

unit; 

(8) The quantity of each hazardous 

secondary material to be managed 

annually; and 

(9) The certification (included in EPA 

Form 8700–12) signed and dated by an 

authorized representative of the facility. 

(b) If a facility managing hazardous 

secondary materials has submitted a 

notification, but then subsequently 

stops managing hazardous secondary 

materials in accordance with the 

regulation(s) listed above, the facility 

must notify the Regional Administrator 

within thirty (30) days using EPA Form 

8700–12. For purposes of this section, a 

facility has stopped managing 

hazardous secondary materials if the 

facility no longer generates, manages 

and/or reclaims hazardous secondary 

materials under the regulation(s) above 

and does not expect to manage any 

amount of hazardous secondary 

materials for at least 1 year. 

■ 8. Section 260.43 is amended by 

revising the section heading and 


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paragraph (a) and removing and 

reserving paragraphs (b) and (c). 

The revision reads as follows: 

§ 260.43 Legitimate recycling of hazardous 

secondary materials. 

(a) 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. 

(1) 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: 

(i) Contributes valuable ingredients to 

a product or intermediate; or 

(ii) Replaces a catalyst or carrier in the 

recycling process; or 

(iii) Is the source of a valuable 

constituent recovered in the recycling 

process; or 

(iv) Is recovered or regenerated by the 

recycling process; or 

(v) Is used as an effective substitute 

for a commercial product. 

(2) The recycling process must 

produce a valuable product or 

intermediate. The product or 

intermediate is valuable if it is: 

(i) Sold to a third party; or 

(ii) 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. 

(3) 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. 

(4) The product of the recycling 

process must be comparable to a 

legitimate product or intermediate: 

(i) Where there is an analogous 

product or intermediate, the product of 

the recycling process is comparable to a 

legitimate product or intermediate if: 

(A) The product of the recycling 

process does not exhibit a hazardous 

characteristic (as defined in part 261 

subpart C) that analogous products do 

not exhibit, and 

(B) The concentrations of any 

hazardous constituents found in 

appendix VIII of part 261 of this chapter 

that are in the product or intermediate 

are at levels that are comparable to or 

lower than those found in analogous 

products or at levels that meet widelyrecognized commodity standards and 

specifications, in the case where the 

commodity standards and specifications 

include levels that specifically address 

those hazardous constituents. 

(ii) Where there is no analogous 

product, the product of the recycling 

process is comparable to a legitimate 

product or intermediate if: 

(A) The product of the recycling 

process is a commodity that meets 

widely recognized commodity standards 

and specifications (e.g., commodity 

specification grades for common 

metals), or 

(B) The hazardous secondary 

materials being recycled are returned to 

the original process or processes from 

which they were generated to be reused 

(e.g., closed loop recycling). 

(iii) If the product of the recycling 

process has levels of hazardous 

constituents that are not comparable to 

or unable to be compared to a legitimate 

product or intermediate per paragraph 

(a)(4)(i) or (ii) of this section, the 

recycling still may be shown to be 

legitimate, if it meets the following 

specified requirements. The person 

performing the recycling must conduct 

the necessary assessment and prepare 

documentation showing why the 

recycling is, in fact, still legitimate. The 

recycling can be shown to be legitimate 

based on lack of exposure from toxics in 

the product, lack of the bioavailability 

of the toxics in the product, or other 

relevant considerations which show that 

the recycled product does not contain 

levels of hazardous constituents that 

pose a significant human health or 

environmental risk. The documentation 

must include a certification statement 

that the recycling is legitimate and must 

be maintained on-site for three years 

after the recycling operation has ceased. 

The person performing the recycling 

must notify the Regional Administrator 

of this activity using EPA Form 8700– 

12. 

* * * * * 

PART 261—IDENTIFICATION AND 

LISTING OF HAZARDOUS WASTE 

■ 9. The authority citation for part 261 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6921, 

6922, 6924(y) and 6938. 

Subpart A—General 

■ 10. Section 261.1 is amended by 

revising paragraphs (c)(4) and (8) to read 

as follows: 

§ 261.1 Purpose and scope. 

* * * * * 

(c) * * * 

(4) A material is ‘‘reclaimed’’ if it is 

processed to recover a usable product, 

or if it is regenerated. Examples are 

recovery of lead values from spent 

batteries and regeneration of spent 

solvents. In addition, for purposes of 

§ 261.4(a)(23) and (24), smelting, 

melting, and refining furnaces are 

considered to be solely engaged in 

metals reclamation if the metal recovery 

from the hazardous secondary materials 

meets the same requirements as those 

specified for metals recovery from 

hazardous waste found in 

§ 266.100(d)(1) through (3) of this 

chapter, and if the residuals meet the 

requirements specified in § 266.112 of 

this chapter. 

* * * * * 

(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 

that the material is potentially 

recyclable and has a feasible means of 

being recycled; and that—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. Materials 

must be placed in a storage unit with a 

label indicating the first date that the 

material began to be accumulated. 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. 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 recycled in 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 wastes 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, however. 

* * * * * 


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■ 11. Section 261.2 is amended as 

follows: 

■ a. Remove and reserve paragraph 

(a)(2)(ii); 

■ b. Revise paragraph (b)(3); 

■ c. Add paragraph (b)(4); 

■ d. Revise paragraph (c)(3) and table 1 

in paragraph (c)(4); and 

■ e. Add paragraph (g). 

The revisions and additions text reads 

as follows: 

§ 261.2 Definition of solid waste. 

* * * * * 

(b) * * * 

(3) Accumulated, stored, or treated 

(but not recycled) before or in lieu of 

being abandoned by being disposed of, 

burned or incinerated; or 

(4) Sham recycled, as explained in 

paragraph (g) of this section. 

* * * * * 

(c) * * * 

(3) Reclaimed. Materials noted with a 

‘‘–’’ in column 3 of Table 1 are not solid 

wastes when reclaimed. Materials noted 

with an ‘‘*’’ in column 3 of Table 1 are 

solid wastes when reclaimed unless 

they meet the requirements of 

§§ 261.4(a)(17), or 261.4(a)(23), 

261.4(a)(24), or 261.4(a)(27). 

(4) * * * 

TABLE 1 

Use 

constituting 

disposal 

(§ 261.2(c)(1)) 

Energy 

recovery/fuel 

(§ 261.2(c)(2)) 

Reclamation 

(§ 261.2(c)(3)), 

except as 

provided in 

§§ 261.4(a)(17), 

261.4(a)(23), 

261.4(a)(24) or 

261.4(a)(27) 

Speculative 

accumulation 

(§ 261.2(c)(4)) 

1 2 3 4 

Spent Materials .............................................................................................. (*) (*) (*) (*) 

Sludges (listed in 40 CFR Part 261.31 or 261.32) ........................................ (*) (*) (*) (*) 

Sludges exhibiting a characteristic of hazardous waste ................................ (*) (*) ......................... (*) 

By-products (listed in 40 CFR 261.31 or 261.32) .......................................... (*) (*) (*) (*) 

By-products exhibiting a characteristic of hazardous waste .......................... (*) (*) ......................... (*) 

Commercial chemical products listed in 40 CFR 261.33 ............................... (*) (*) ......................... ........................

Scrap metal that is not excluded under 40 CFR 261.4(a)(13) ...................... (*) (*) (*) (*) 

Note: The terms ‘‘spent materials,’’ ‘‘sludges,’’ ‘‘by-products,’’ and ‘‘scrap metal’’ and ‘‘processed scrap metal’’ are defined in § 261.1. 

* * * * * 

(g) 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. 

■ 12. Section 261.4 is amended as 

follows: 

■ a. Republish paragraph (a) 

introductory text; 

■ b. Revise paragraph (a)(23) and (24); 

■ c. Remove and reserve paragraph 

(a)(25); and 

■ d. Add paragraph (a)(27). 

The revisions and addition as follows: 

§ 261.4 Exclusions. 

(a) Materials which are not solid 

wastes. The following materials are not 

solid wastes for the purpose of this part: 

* * * * * 

(23) Hazardous secondary material 

generated and legitimately reclaimed 

within the United States or its territories 

and under the control of the generator, 

provided that the material complies 

with paragraphs (a)(23)(i) and (ii) of this 

section: 

(i)(A) The hazardous secondary 

material is generated and reclaimed at 

the generating facility (for purposes of 

this definition, generating facility means 

all contiguous property owned, leased, 

or otherwise controlled by the 

hazardous secondary material 

generator); or 

(B) The hazardous secondary material 

is generated and reclaimed at different 

facilities, if the reclaiming facility is 

controlled by the generator or if both the 

generating facility and the reclaiming 

facility are controlled by a person as 

defined in § 260.10 of this chapter, and 

if the generator provides one of the 

following certifications: ‘‘on behalf of 

[insert generator facility name], I certify 

that this facility will send the indicated 

hazardous secondary material to [insert 

reclaimer facility name], which is 

controlled by [insert generator facility 

name] and that [insert name of either 

facility] has acknowledged full 

responsibility for the safe management 

of the hazardous secondary material,’’ or 

‘‘on behalf of [insert generator facility 

name], I certify that this facility will 

send the indicated hazardous secondary 

material to [insert reclaimer facility 

name], that both facilities are under 

common control, and that [insert name 

of either facility] has acknowledged full 

responsibility for the safe management 

of the hazardous secondary material.’’ 

For purposes of this paragraph, 

‘‘control’’ means the power to direct the 

policies of the facility, whether by the 

ownership of stock, voting rights, or 

otherwise, except that contractors who 

operate facilities on behalf of a different 

person as defined in § 260.10 shall not 

be deemed to ‘‘control’’ such facilities. 

The generating and receiving facilities 

must both maintain at their facilities for 

no less than three years records of 

hazardous secondary materials sent or 

received under this exclusion. In both 

cases, the records must contain the 

name of the transporter, the date of the 

shipment, and the type and quantity of 

the hazardous secondary material 

shipped or received under the 

exclusion. These requirements may be 

satisfied by routine business records 

(e.g., financial records, bills of lading, 

copies of DOT shipping papers, or 

electronic confirmations); or 

(C) The hazardous secondary material 

is generated pursuant to a written 

contract between a tolling contractor 

and a toll manufacturer and is reclaimed 

by the tolling contractor, if the tolling 

contractor certifies the following: ‘‘On 

behalf of [insert tolling contractor 

name], I certify that [insert tolling 

contractor name] has a written contract 

with [insert toll manufacturer name] to 

manufacture [insert name of product or 

intermediate] which is made from 

specified unused materials, and that 

[insert tolling contractor name] will 

reclaim the hazardous secondary 

materials generated during this 

manufacture. On behalf of [insert tolling 

contractor name], I also certify that 

[insert tolling contractor name] retains 

ownership of, and responsibility for, the 


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hazardous secondary materials that are 

generated during the course of the 

manufacture, including any releases of 

hazardous secondary materials that 

occur during the manufacturing 

process’’. The tolling contractor must 

maintain at its facility for no less than 

three years records of hazardous 

secondary materials received pursuant 

to its written contract with the tolling 

manufacturer, and the tolling 

manufacturer must maintain at its 

facility for no less than three years 

records of hazardous secondary 

materials shipped pursuant to its 

written contract with the tolling 

contractor. In both cases, the records 

must contain the name of the 

transporter, the date of the shipment, 

and the type and quantity of the 

hazardous secondary material shipped 

or received pursuant to the written 

contract. These requirements may be 

satisfied by routine business records 

(e.g., financial records, bills of lading, 

copies of DOT shipping papers, or 

electronic confirmations). For purposes 

of this paragraph, tolling contractor 

means a person who arranges for the 

production of a product or intermediate 

made from specified unused materials 

through a written contract with a toll 

manufacturer. Toll manufacturer means 

a person who produces a product or 

intermediate made from specified 

unused materials pursuant to a written 

contract with a tolling contractor. 

(ii)(A) The hazardous secondary 

material is contained as defined in 

§ 260.10 of this chapter. A hazardous 

secondary material released to the 

environment is discarded and a solid 

waste unless it is immediately recovered 

for the purpose of reclamation. 

Hazardous secondary material managed 

in a unit with leaks or other continuing 

or intermittent unpermitted releases is 

discarded and a solid waste. 

(B) The hazardous secondary material 

is not speculatively accumulated, as 

defined in § 261.1(c)(8). 

(C) Notice is provided as required by 

§ 260.42 of this chapter. 

(D) The material is not otherwise 

subject to material-specific management 

conditions under paragraph (a) of this 

section when reclaimed, and it is not a 

spent lead-acid battery (see § 266.80 and 

§ 273.2 of this chapter). 

(E) Persons performing the recycling 

of hazardous secondary materials under 

this exclusion must maintain 

documentation of their legitimacy 

determination on-site. Documentation 

must be a written description of how the 

recycling meets all four factors in 

§ 260.43(a). Documentation must be 

maintained for three years after the 

recycling operation has ceased. 

(F) The emergency preparedness and 

response requirements found in subpart 

M of this part are met. 

(24) Hazardous secondary material 

that is generated and then transferred to 

a verified reclamation facility for the 

purpose of reclamation is not a solid 

waste, provided that: 

(i) The material is not speculatively 

accumulated, as defined in § 261.1(c)(8); 

(ii) The material is not handled by any 

person or facility other than the 

hazardous secondary material generator, 

the transporter, an intermediate facility 

or a reclaimer, and, while in transport, 

is not stored for more than 10 days at 

a transfer facility, as defined in § 260.10 

of this chapter, and is packaged 

according to applicable Department of 

Transportation regulations at 49 CFR 

parts 173, 178, and 179 while in 

transport; 

(iii) The material is not otherwise 

subject to material-specific management 

conditions under this paragraph (a) 

when reclaimed, and it is not a spent 

lead-acid battery (see §§ 266.80 and 

273.2 of this chapter); 

(iv) The reclamation of the material is 

legitimate, as specified under § 260.43 

of this chapter; 

(v) The hazardous secondary material 

generator satisfies all of the following 

conditions: 

(A) The material must be contained as 

defined in § 260.10. A hazardous 

secondary material released to the 

environment is discarded and a solid 

waste unless it is immediately recovered 

for the purpose of recycling. Hazardous 

secondary material managed in a unit 

with leaks or other continuing releases 

is discarded and a solid waste. 

(B) The hazardous secondary material 

generator must arrange for transport of 

hazardous secondary materials to a 

verified reclamation facility (or 

facilities) in the United States. A 

verified reclamation facility is a facility 

that has been granted a variance under 

§ 260.31(d), or a reclamation facility 

where the management of the hazardous 

secondary materials is addressed under 

a RCRA Part B permit or interim status 

standards. If the hazardous secondary 

material will be passing through an 

intermediate facility, the intermediate 

facility must have been granted a 

variance under § 260.31(d) or the 

management of the hazardous secondary 

materials at that facility must be 

addressed under a RCRA Part B permit 

or interim status standards, and the 

hazardous secondary material generator 

must make contractual arrangements 

with the intermediate facility to ensure 

that the hazardous secondary material is 

sent to the reclamation facility 

identified by the hazardous secondary 

material generator. 

(C) The hazardous secondary material 

generator must maintain at the 

generating facility for no less than three 

(3) years records of all off-site shipments 

of hazardous secondary materials. For 

each shipment, these records must, at a 

minimum, contain the following 

information: 

(1) Name of the transporter and date 

of the shipment; 

(2) Name and address of each 

reclaimer and, if applicable, the name 

and address of each intermediate facility 

to which the hazardous secondary 

material was sent; 

(3) The type and quantity of 

hazardous secondary material in the 

shipment. 

(D) The hazardous secondary material 

generator must maintain at the 

generating facility for no less than three 

(3) years confirmations of receipt from 

each reclaimer and, if applicable, each 

intermediate facility for all off-site 

shipments of hazardous secondary 

materials. Confirmations of receipt must 

include the name and address of the 

reclaimer (or intermediate facility), the 

type and quantity of the hazardous 

secondary materials received and the 

date which the hazardous secondary 

materials were received. This 

requirement may be satisfied by routine 

business records (e.g., financial records, 

bills of lading, copies of DOT shipping 

papers, or electronic confirmations of 

receipt); 

(E) The hazardous secondary material 

generator must comply with the 

emergency preparedness and response 

conditions in subpart M of this part. 

(vi) Reclaimers of hazardous 

secondary material excluded from 

regulation under this exclusion and 

intermediate facilities as defined in 

§ 260.10 of this chapter satisfy all of the 

following conditions: 

(A) The reclaimer and intermediate 

facility must maintain at its facility for 

no less than three (3) years records of all 

shipments of hazardous secondary 

material that were received at the 

facility and, if applicable, for all 

shipments of hazardous secondary 

materials that were received and 

subsequently sent off-site from the 

facility for further reclamation. For each 

shipment, these records must at a 

minimum contain the following 

information: 

(1) Name of the transporter and date 

of the shipment; 

(2) Name and address of the 

hazardous secondary material generator 

and, if applicable, the name and address 

of the reclaimer or intermediate facility 


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which the hazardous secondary 

materials were received from; 

(3) The type and quantity of 

hazardous secondary material in the 

shipment; and 

(4) For hazardous secondary materials 

that, after being received by the 

reclaimer or intermediate facility, were 

subsequently transferred off-site for 

further reclamation, the name and 

address of the (subsequent) reclaimer 

and, if applicable, the name and address 

of each intermediate facility to which 

the hazardous secondary material was 

sent. 

(B) The intermediate facility must 

send the hazardous secondary material 

to the reclaimer(s) designated by the 

hazardous secondary materials 

generator. 

(C) The reclaimer and intermediate 

facility must send to the hazardous 

secondary material generator 

confirmations of receipt for all off-site 

shipments of hazardous secondary 

materials. Confirmations of receipt must 

include the name and address of the 

reclaimer (or intermediate facility), the 

type and quantity of the hazardous 

secondary materials received and the 

date which the hazardous secondary 

materials were received. This 

requirement may be satisfied by routine 

business records (e.g., financial records, 

bills of lading, copies of DOT shipping 

papers, or electronic confirmations of 

receipt). 

(D) The reclaimer and intermediate 

facility must manage the hazardous 

secondary material in a manner that is 

at least as protective as that employed 

for analogous raw material and must be 

contained. An ‘‘analogous raw material’’ 

is a raw material for which a hazardous 

secondary material is a substitute and 

serves the same function and has similar 

physical and chemical properties as the 

hazardous secondary material. 

(E) Any residuals that are generated 

from reclamation processes will be 

managed in a manner that is protective 

of human health and the environment. 

If any residuals exhibit a hazardous 

characteristic according to subpart C of 

40 CFR part 261, or if they themselves 

are specifically listed in subpart D of 40 

CFR part 261, such residuals are 

hazardous wastes and must be managed 

in accordance with the applicable 

requirements of 40 CFR parts 260 

through 272. 

(F) The reclaimer and intermediate 

facility have financial assurance as 

required under subpart H of 40 CFR part 

261, 

(G) The reclaimer and intermediate 

facility have been granted a variance 

under § 260.31(d) or have a RCRA Part 

B permit or interim status standards that 

address the management of the 

hazardous secondary materials; and 

(vii) All persons claiming the 

exclusion under this paragraph (a)(24) 

of this section provide notification as 

required under § 260.42 of this chapter. 

* * * * * 

(27) Hazardous secondary material 

that is generated and then transferred to 

another person for the purpose of 

remanufacturing is not a solid waste, 

provided that: 

(i) The hazardous secondary material 

consists of one or more of the following 

spent solvents: Toluene, xylenes, 

ethylbenzene, 1,2,4-trimethylbenzene, 

chlorobenzene, n-hexane, cyclohexane, 

methyl tert-butyl ether, acetonitrile, 

chloroform, chloromethane, 

dichloromethane, methyl isobutyl 

ketone, NN-dimethylformamide, 

tetrahydrofuran, n-butyl alcohol, 

ethanol, and/or methanol; 

(ii) The hazardous secondary material 

originated from using one or more of the 

solvents listed in paragraph (a)(27)(i) of 

this section in a commercial grade for 

reacting, extracting, purifying, or 

blending chemicals (or for rinsing out 

the process lines associated with these 

functions) in the pharmaceutical 

manufacturing (NAICS 325412), basic 

organic chemical manufacturing (NAICS 

325199), plastics and resins 

manufacturing (NAICS 325211), and/or 

the paints and coatings manufacturing 

sectors (NAICS 325510). 

(iii) The hazardous secondary 

material generator sends the hazardous 

secondary material spent solvents listed 

in paragraph (a)(27)(i) of this section to 

a remanufacturer in the pharmaceutical 

manufacturing (NAICS 325412), basic 

organic chemical manufacturing (NAICS 

325199), plastics and resins 

manufacturing (NAICS 325211), and/or 

the paints and coatings manufacturing 

sectors (NAICS 325510). 

(iv) After remanufacturing one or 

more of the solvents listed in paragraph 

(a)(27)(i) of this section, the use of the 

remanufactured solvent shall be limited 

to reacting, extracting, purifying, or 

blending chemicals (or for rinsing out 

the process lines associated with these 

functions) in the pharmaceutical 

manufacturing (NAICS 325412), basic 

organic chemical manufacturing (NAICS 

325199), plastics and resins 

manufacturing (NAICS 325211), and the 

paints and coatings manufacturing 

sectors (NAICS 325510) or to using them 

as ingredients in a product. These 

allowed uses correspond to chemical 

functional uses enumerated under the 

Chemical Data Reporting Rule of the 

Toxic Substances Control Act (40 CFR 

parts 704, 710–711), including 

Industrial Function Codes U015 

(solvents consumed in a reaction to 

produce other chemicals) and U030 

(solvents become part of the mixture); 

(v) After remanufacturing one or more 

of the solvents listed in paragraph 

(a)(27)(i) of this section, the use of the 

remanufactured solvent does not 

involve cleaning or degreasing oil, 

grease, or similar material from textiles, 

glassware, metal surfaces, or other 

articles. (These disallowed continuing 

uses correspond to chemical functional 

uses in Industrial Function Code U029 

under the Chemical Data Reporting Rule 

of the Toxics Substances Control Act.); 

and 

(vi) Both the hazardous secondary 

material generator and the 

remanufacturer must: 

(A) Notify EPA or the State Director, 

if the state is authorized for the 

program, and update the notification 

every two years per 40 CFR 260.42; 

(B) Develop and maintain an up-todate remanufacturing plan which 

identifies: 

(1) The name, address and EPA ID 

number of the generator(s) and the 

remanufacturer(s), 

(2) The types and estimated annual 

volumes of spent solvents to be 

remanufactured, 

(3) The processes and industry sectors 

that generate the spent solvents, 

(4) The specific uses and industry 

sectors for the remanufactured solvents, 

and 

(5) A certification from the 

remanufacturer stating ‘‘on behalf of 

[insert remanufacturer facility name], I 

certify that this facility is a 

remanufacturer under pharmaceutical 

manufacturing (NAICS 325412), basic 

organic chemical manufacturing (NAICS 

325199), plastics and resins 

manufacturing (NAICS 325211), and/or 

the paints and coatings manufacturing 

sectors (NAICS 325510), and will accept 

the spent solvent(s) for the sole purpose 

of remanufacturing into commercialgrade solvent(s) that will be used for 

reacting, extracting, purifying, or 

blending chemicals (or for rinsing out 

the process lines associated with these 

functions) or for use as product 

ingredient(s). I also certify that the 

remanufacturing equipment, vents, and 

tanks are equipped with and are 

operating air emission controls in 

compliance with the appropriate Clean 

Air Act regulations under 40 CFR part 

60, part 61 or part 63, or, absent such 

Clean Air Act standards for the 

particular operation or piece of 

equipment covered by the 

remanufacturing exclusion, are in 

compliance with the appropriate 

standards in 40 CFR part 261, subparts 


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AA (vents), BB (equipment) and CC 

(tank storage),’’; 

(C) Maintain records of shipments and 

confirmations of receipts for a period of 

three years from the dates of the 

shipments; 

(D) Prior to remanufacturing, store the 

hazardous spent solvents in tanks or 

containers that meet technical standards 

found in subparts I and J of 40 CFR part 

261, with the tanks and containers being 

labeled or otherwise having an 

immediately available record of the 

material being stored; 

(E) During remanufacturing, and 

during storage of the hazardous 

secondary materials prior to 

remanufacturing, the remanufacturer 

certifies that the remanufacturing 

equipment, vents, and tanks are 

equipped with and are operating air 

emission controls in compliance with 

the appropriate Clean Air Act 

regulations under 40 CFR part 60, part 

61 or part 63; or, absent such Clean Air 

Act standards for the particular 

operation or piece of equipment covered 

by the remanufacturing exclusion, are in 

compliance with the appropriate 

standards in 40 CFR part 261 subparts 

AA (vents), BB (equipment) and CC 

(tank storage); and 

(F) Meet the requirements prohibiting 

speculative accumulation per 40 CFR 

261.1(c)(8). 

* * * * * 

■ 13. Part 261 is amended by: 

■ a. Adding Subparts I and J; 

■ b. Adding reserved Subparts K and L; 

■ c. Adding Subpart M; 

■ d. Adding reserved Subparts N 

through Z; and 

■ e. Adding Subparts AA through CC. 

The additions read as follows: 

Subpart I—Use and Management of 

Containers 

Sec. 

261.170 Applicability. 

261.171 Condition of containers. 

261.172 Compatibility of hazardous 

secondary materials with containers. 

261.173 Management of containers. 

261.175 Containment. 

261.176 Special requirements for ignitable 

or reactive hazardous secondary 

material. 

261.177 Special requirements for 

incompatible materials. 

261.179 Air emission standards. 

Subpart J—Tank Systems 

261.190 Applicability. 

261.191 Assessment of existing tank 

system’s integrity. 

261.192 [Reserved] 

261.193 Containment and detection of 

releases. 

261.194 General operating requirements. 

261.195 [Reserved] 

261.196 Response to leaks or spills and 

disposition of leaking or unfit-for-use 

tank systems. 

261.197 Termination of remanufacturing 

exclusion. 

261.198 Special requirements for ignitable 

or reactive materials. 

261.199 Special requirements for 

incompatible materials. 

261.200 Air emission standards. 

Subparts K–L [Reserved] 

Subpart M—Emergency Preparedness and 

Response for Management of Excluded 

Hazardous Secondary Materials 

261.400 Applicability. 

261.410 Preparedness and prevention 

261.411 Emergency procedures for facilities 

generating or accumulating of 6000 kg or 

less of hazardous secondary material. 

261.420 Contingency planning and 

emergency procedures for facilities 

generating or accumulating more than 

6000 kg of hazardous secondary material. 

Subparts N–Z [Reserved] 

Subpart AA—Air Emission Standards for 

Process Vents 

261.1030 Applicability. 

261.1031 Definitions. 

261.1032 Standards: Process vents. 

261.1033 Standards: Closed-vent systems 

and control devices. 

261.1034 Test methods and procedures. 

261.1035 Recordkeeping requirements. 

261.1036–261.1049 [Reserved] 

Subpart BB—Air Emission Standards for 

Equipment Leaks 

261.1050 Applicability. 

261.1051 Definitions. 

261.1052 Standards: Pumps in light liquid 

service. 

261.1053 Standards: Compressors. 

261.1054 Standards: Pressure relief devices 

in gas/vapor service. 

261.1055 Standards: Sampling connection 

systems. 

261.1056 Standards: Open-ended valves or 

lines. 

261.1057 Standards: Valves in gas/vapor 

service or in light liquid service. 

261.1058 Standards: Pumps and valves in 

heavy liquid service, pressure relief 

devices in light liquid or heavy liquid 

service, and flanges and other 

connectors. 

261.1059 Standards: Delay of repair. 

261.1060 Standards: Closed-vent systems 

and control devices. 

261.1061 Alternative standards for valves in 

gas/vapor service or in light liquid 

service: percentage of valves allowed to 

leak. 

261.1062 Alternative standards for valves in 

gas/vapor service or in light liquid 

service: skip period leak detection and 

repair. 

261.1063 Test methods and procedures. 

261.1064 Recordkeeping requirements. 

261.1065–261.1079 [Reserved] 

Subpart CC—Air Emission Standards for 

Tanks and Containers 

261.1080 Applicability. 

261.1081 Definitions. 

261.1082 Standards: General. 

261.1083 Material determination 

procedures. 

261.1084 Standards: Tanks. 

261.1085 [Reserved] 

261.1086 Standards: Containers. 

261.1087 Standards: Closed-vent systems 

and control devices. 

261.1088 Inspection and monitoring 

requirements. 

261.1089 Recordkeeping requirements. 

261.1090 [Reserved] 

Subpart I—Use and Management of 

Containers 

§ 261.170 Applicability. 

This subpart applies to hazardous 

secondary materials excluded under the 

remanufacturing exclusion at 

§ 261.4(a)(27) and stored in containers. 

§ 261.171 Condition of containers. 

If a container holding hazardous 

secondary material is not in good 

condition (e.g., severe rusting, apparent 

structural defects) or if it begins to leak, 

the hazardous secondary material must 

be transferred from this container to a 

container that is in good condition or 

managed in some other way that 

complies with the requirements of this 

part. 

§ 261.172 Compatibility of hazardous 

secondary materials with containers. 

The container must be made of or 

lined with materials which will not 

react with, and are otherwise 

compatible with, the hazardous 

secondary material to be stored, so that 

the ability of the container to contain 

the material is not impaired. 

§ 261.173 Management of containers. 

(a) A container holding hazardous 

secondary material must always be 

closed during storage, except when it is 

necessary to add or remove the 

hazardous secondary material. 

(b) A container holding hazardous 

secondary material must not be opened, 

handled, or stored in a manner which 

may rupture the container or cause it to 

leak. 

§ 261.175 Containment. 

(a) Container storage areas must have 

a containment system that is designed 

and operated in accordance with 

paragraph (b) of this section. 

(b) A containment system must be 

designed and operated as follows: 

(1) A base must underlie the 

containers which is free of cracks or 

gaps and is sufficiently impervious to 

contain leaks, spills, and accumulated 

precipitation until the collected material 

is detected and removed; 

(2) The base must be sloped or the 

containment system must be otherwise 


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designed and operated to drain and 

remove liquids resulting from leaks, 

spills, or precipitation, unless the 

containers are elevated or are otherwise 

protected from contact with 

accumulated liquids; 

(3) The containment system must 

have sufficient capacity to contain 10% 

of the volume of containers or the 

volume of the largest container, 

whichever is greater. 

(4) Run-on into the containment 

system must be prevented unless the 

collection system has sufficient excess 

capacity in addition to that required in 

paragraph (b)(3) of this section to 

contain any run-on which might enter 

the system; and 

(5) Spilled or leaked material and 

accumulated precipitation must be 

removed from the sump or collection 

area in as timely a manner as is 

necessary to prevent overflow of the 

collection system. 

§ 261.176 Special requirements for 

ignitable or reactive hazardous secondary 

material. 

Containers holding ignitable or 

reactive hazardous secondary material 

must be located at least 15 meters (50 

feet) from the facility’s property line. 

§ 261.177 Special requirements for 

incompatible materials. 

(a) Incompatible materials must not be 

placed in the same container. 

(b) Hazardous secondary material 

must not be placed in an unwashed 

container that previously held an 

incompatible material. 

(c) A storage container holding a 

hazardous secondary material that is 

incompatible with any other materials 

stored nearby must be separated from 

the other materials or protected from 

them by means of a dike, berm, wall, or 

other device. 

§ 261.179 Air emission standards. 

The remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall manage all 

hazardous secondary material placed in 

a container in accordance with the 

applicable requirements of subparts AA, 

BB, and CC of this part. 

Subpart J—Tank Systems 

§ 261.190 Applicability. 

(a) The requirements of this subpart 

apply to tank systems for storing or 

treating hazardous secondary material 

excluded under the remanufacturing 

exclusion at § 261.4(a)(27). 

(b) Tank systems, including sumps, as 

defined in § 260.10, that serve as part of 

a secondary containment system to 

collect or contain releases of hazardous 

secondary materials are exempted from 

the requirements in § 261.193(a). 

§ 261.191 Assessment of existing tank 

system’s integrity. 

(a) Tank systems must meet the 

secondary containment requirements of 

§ 261.193, or the remanufacturer or 

other person that handles the hazardous 

secondary material must determine that 

the tank system is not leaking or is unfit 

for use. Except as provided in paragraph 

(c) of this section, a written assessment 

reviewed and certified by a qualified 

Professional Engineer must be kept on 

file at the remanufacturer’s facility or 

other facility that stores or treats the 

hazardous secondary material that 

attests to the tank system’s integrity. 

(b) This assessment must determine 

that the tank system is adequately 

designed and has sufficient structural 

strength and compatibility with the 

material(s) to be stored or treated, to 

ensure that it will not collapse, rupture, 

or fail. At a minimum, this assessment 

must consider the following: 

(1) Design standard(s), if available, 

according to which the tank and 

ancillary equipment were constructed; 

(2) Hazardous characteristics of the 

material(s) that have been and will be 

handled; 

(3) Existing corrosion protection 

measures; 

(4) Documented age of the tank 

system, if available (otherwise, an 

estimate of the age); and 

(5) Results of a leak test, internal 

inspection, or other tank integrity 

examination such that: 

(i) For non-enterable underground 

tanks, the assessment must include a 

leak test that is capable of taking into 

account the effects of temperature 

variations, tank end deflection, vapor 

pockets, and high water table effects, 

and 

(ii) For other than non-enterable 

underground tanks and for ancillary 

equipment, this assessment must 

include either a leak test, as described 

above, or other integrity examination 

that is certified by a qualified 

Professional Engineer that addresses 

cracks, leaks, corrosion, and erosion. 

Note to paragraph (b)(5)(ii): The practices 

described in the American Petroleum 

Institute (API) Publication, Guide for 

Inspection of Refinery Equipment, Chapter 

XIII, ‘‘Atmospheric and Low-Pressure Storage 

Tanks,’’ 4th edition, 1981, may be used, 

where applicable, as guidelines in 

conducting other than a leak test. 

(c) If, as a result of the assessment 

conducted in accordance with 

paragraph (a) of this section, a tank 

system is found to be leaking or unfit for 

use, the remanufacturer or other person 

that stores or treats the hazardous 

secondary material must comply with 

the requirements of § 261.196. 

§ 261.192 [Reserved] 

§ 261.193 Containment and detection of 

releases. 

(a) Secondary containment systems 

must be: 

(1) Designed, installed, and operated 

to prevent any migration of materials or 

accumulated liquid out of the system to 

the soil, ground water, or surface water 

at any time during the use of the tank 

system; and 

(2) Capable of detecting and collecting 

releases and accumulated liquids until 

the collected material is removed. 

Note to paragraph (a): If the collected 

material is a hazardous waste under part 261 

of this chapter, it is subject to management 

as a hazardous waste in accordance with all 

applicable requirements of parts 262 through 

265, 266, and 268 of this chapter. If the 

collected material is discharged through a 

point source to waters of the United States, 

it is subject to the requirements of sections 

301, 304, and 402 of the Clean Water Act, as 

amended. If discharged to a Publicly Owned 

Treatment Works (POTW), it is subject to the 

requirements of section 307 of the Clean 

Water Act, as amended. If the collected 

material is released to the environment, it 

may be subject to the reporting requirements 

of 40 CFR part 302. 

(b) To meet the requirements of 

paragraph (a) of this section, secondary 

containment systems must be at a 

minimum: 

(1) Constructed of or lined with 

materials that are compatible with the 

materials(s) to be placed in the tank 

system and must have sufficient 

strength and thickness to prevent failure 

owing to pressure gradients (including 

static head and external hydrological 

forces), physical contact with the 

material to which it is exposed, climatic 

conditions, and the stress of daily 

operation (including stresses from 

nearby vehicular traffic); 

(2) Placed on a foundation or base 

capable of providing support to the 

secondary containment system, 

resistance to pressure gradients above 

and below the system, and capable of 

preventing failure due to settlement, 

compression, or uplift; 

(3) Provided with a leak-detection 

system that is designed and operated so 

that it will detect the failure of either 

the primary or secondary containment 

structure or the presence of any release 

of hazardous secondary material or 

accumulated liquid in the secondary 

containment system at the earliest 

practicable time; and 

(4) Sloped or otherwise designed or 

operated to drain and remove liquids 


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resulting from leaks, spills, or 

precipitation. Spilled or leaked material 

and accumulated precipitation must be 

removed from the secondary 

containment system within 24 hours, or 

in as timely a manner as is possible to 

prevent harm to human health and the 

environment. 

(c) Secondary containment for tanks 

must include one or more of the 

following devices: 

(1) A liner (external to the tank); 

(2) A vault; or 

(3) A double-walled tank. 

(d) In addition to the requirements of 

paragraphs (a), (b), and (c) of this 

section, secondary containment systems 

must satisfy the following requirements: 

(1) External liner systems must be: 

(i) Designed or operated to contain 

100 percent of the capacity of the largest 

tank within its boundary; 

(ii) Designed or operated to prevent 

run-on or infiltration of precipitation 

into the secondary containment system 

unless the collection system has 

sufficient excess capacity to contain 

run-on or infiltration. Such additional 

capacity must be sufficient to contain 

precipitation from a 25-year, 24-hour 

rainfall event. 

(iii) Free of cracks or gaps; and 

(iv) Designed and installed to 

surround the tank completely and to 

cover all surrounding earth likely to 

come into contact with the material if 

the material is released from the tank(s) 

(i.e., capable of preventing lateral as 

well as vertical migration of the 

material). 

(2) Vault systems must be: 

(i) Designed or operated to contain 

100 percent of the capacity of the largest 

tank within its boundary; 

(ii) Designed or operated to prevent 

run-on or infiltration of precipitation 

into the secondary containment system 

unless the collection system has 

sufficient excess capacity to contain 

run-on or infiltration. Such additional 

capacity must be sufficient to contain 

precipitation from a 25-year, 24-hour 

rainfall event; 

(iii) Constructed with chemicalresistant water stops in place at all 

joints (if any); 

(iv) Provided with an impermeable 

interior coating or lining that is 

compatible with the stored material and 

that will prevent migration of material 

into the concrete; 

(v) Provided with a means to protect 

against the formation of and ignition of 

vapors within the vault, if the material 

being stored or treated is ignitable or 

reactive; and 

(vi) Provided with an exterior 

moisture barrier or be otherwise 

designed or operated to prevent 

migration of moisture into the vault if 

the vault is subject to hydraulic 

pressure. 

(3) Double-walled tanks must be: 

(i) Designed as an integral structure 

(i.e., an inner tank completely 

enveloped within an outer shell) so that 

any release from the inner tank is 

contained by the outer shell; 

(ii) Protected, if constructed of metal, 

from both corrosion of the primary tank 

interior and of the external surface of 

the outer shell; and 

(iii) Provided with a built-in 

continuous leak detection system 

capable of detecting a release within 24 

hours, or at the earliest practicable time. 

Note to paragraph (d)(3): The provisions 

outlined in the Steel Tank Institute’s (STI) 

‘‘Standard for Dual Wall Underground Steel 

Storage Tanks’’ may be used as guidelines for 

aspects of the design of underground steel 

double-walled tanks. 

(e) [Reserved] 

(f) Ancillary equipment must be 

provided with secondary containment 

(e.g., trench, jacketing, double-walled 

piping) that meets the requirements of 

paragraphs (a) and (b) of this section 

except for: 

(1) Aboveground piping (exclusive of 

flanges, joints, valves, and other 

connections) that are visually inspected 

for leaks on a daily basis; 

(2) Welded flanges, welded joints, and 

welded connections that are visually 

inspected for leaks on a daily basis; 

(3) Sealless or magnetic coupling 

pumps and sealless valves that are 

visually inspected for leaks on a daily 

basis; and 

(4) Pressurized aboveground piping 

systems with automatic shut-off devices 

(e.g., excess flow check valves, flow 

metering shutdown devices, loss of 

pressure actuated shut-off devices) that 

are visually inspected for leaks on a 

daily basis. 

§ 261.194 General operating requirements. 

(a) Hazardous secondary materials or 

treatment reagents must not be placed in 

a tank system if they could cause the 

tank, its ancillary equipment, or the 

containment system to rupture, leak, 

corrode, or otherwise fail. 

(b) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material must use 

appropriate controls and practices to 

prevent spills and overflows from tank 

or containment systems. These include 

at a minimum: 

(1) Spill prevention controls (e.g., 

check valves, dry disconnect couplings); 

(2) Overfill prevention controls (e.g., 

level sensing devices, high level alarms, 

automatic feed cutoff, or bypass to a 

standby tank); and 

(3) Maintenance of sufficient 

freeboard in uncovered tanks to prevent 

overtopping by wave or wind action or 

by precipitation. 

(c) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material must 

comply with the requirements of 

§ 261.196 of this subpart if a leak or spill 

occurs in the tank system. 

§ 261.195 [Reserved] 

§ 261.196 Response to leaks or spills and 

disposition of leaking or unfit-for-use tank 

systems. 

A tank system or secondary 

containment system from which there 

has been a leak or spill, or which is 

unfit for use, must be removed from 

service immediately, and the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material must satisfy the following 

requirements: 

(a) Cessation of use; prevent flow or 

addition of materials. The 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material must immediately stop the flow 

of hazardous secondary material into 

the tank system or secondary 

containment system and inspect the 

system to determine the cause of the 

release. 

(b) Removal of material from tank 

system or secondary containment 

system. (1) If the release was from the 

tank system, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material must, 

within 24 hours after detection of the 

leak or, if the remanufacturer or other 

person that stores or treats the 

hazardous secondary material 

demonstrates that it is not possible, at 

the earliest practicable time, remove as 

much of the material as is necessary to 

prevent further release of hazardous 

secondary material to the environment 

and to allow inspection and repair of 

the tank system to be performed. 

(2) If the material released was to a 

secondary containment system, all 

released materials must be removed 

within 24 hours or in as timely a 

manner as is possible to prevent harm 

to human health and the environment. 

(c) Containment of visible releases to 

the environment. The remanufacturer or 

other person that stores or treats the 

hazardous secondary material must 

immediately conduct a visual 

inspection of the release and, based 

upon that inspection: 

(1) Prevent further migration of the 

leak or spill to soils or surface water; 

and 


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(2) Remove, and properly dispose of, 

any visible contamination of the soil or 

surface water. 

(d) Notifications, reports. (1) Any 

release to the environment, except as 

provided in paragraph (d)(2) of this 

section, must be reported to the 

Regional Administrator within 24 hours 

of its detection. If the release has been 

reported pursuant to 40 CFR part 302, 

that report will satisfy this requirement. 

(2) A leak or spill of hazardous 

secondary material is exempted from 

the requirements of this paragraph if it 

is: 

(i) Less than or equal to a quantity of 

1 pound, and 

(ii) Immediately contained and 

cleaned up. 

(3) Within 30 days of detection of a 

release to the environment, a report 

containing the following information 

must be submitted to the Regional 

Administrator: 

(i) Likely route of migration of the 

release; 

(ii) Characteristics of the surrounding 

soil (soil composition, geology, 

hydrogeology, climate); 

(iii) Results of any monitoring or 

sampling conducted in connection with 

the release (if available). If sampling or 

monitoring data relating to the release 

are not available within 30 days, these 

data must be submitted to the Regional 

Administrator as soon as they become 

available. 

(iv) Proximity to downgradient 

drinking water, surface water, and 

populated areas; and 

(v) Description of response actions 

taken or planned. 

(e) Provision of secondary 

containment, repair, or closure. (1) 

Unless the remanufacturer or other 

person that stores or treats the 

hazardous secondary material satisfies 

the requirements of paragraphs (e)(2) 

through (4) of this section, the tank 

system must cease to operate under the 

remanufacturing exclusion at 40 CFR 

261.4(a)(27). 

(2) If the cause of the release was a 

spill that has not damaged the integrity 

of the system, the remanufacturer or 

other person that stores or treats the 

hazardous secondary material may 

return the system to service as soon as 

the released material is removed and 

repairs, if necessary, are made. 

(3) If the cause of the release was a 

leak from the primary tank system into 

the secondary containment system, the 

system must be repaired prior to 

returning the tank system to service. 

(4) If the source of the release was a 

leak to the environment from a 

component of a tank system without 

secondary containment, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material must provide the component of 

the system from which the leak 

occurred with secondary containment 

that satisfies the requirements of 

§ 261.193 before it can be returned to 

service, unless the source of the leak is 

an aboveground portion of a tank system 

that can be inspected visually. If the 

source is an aboveground component 

that can be inspected visually, the 

component must be repaired and may 

be returned to service without 

secondary containment as long as the 

requirements of paragraph (f) of this 

section are satisfied. Additionally, if a 

leak has occurred in any portion of a 

tank system component that is not 

readily accessible for visual inspection 

(e.g., the bottom of an inground or 

onground tank), the entire component 

must be provided with secondary 

containment in accordance with 

§ 261.193 of this subpart prior to being 

returned to use. 

(f) Certification of major repairs. If the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material has repaired a tank system in 

accordance with paragraph (e) of this 

section, and the repair has been 

extensive (e.g., installation of an 

internal liner; repair of a ruptured 

primary containment or secondary 

containment vessel), the tank system 

must not be returned to service unless 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material has obtained a certification by 

a qualified Professional Engineer that 

the repaired system is capable of 

handling hazardous secondary materials 

without release for the intended life of 

the system. This certification must be 

kept on file at the facility and 

maintained until closure of the facility. 

Note 1 to § 261.196: The Regional 

Administrator may, on the basis of any 

information received that there is or has been 

a release of hazardous secondary material or 

hazardous constituents into the environment, 

issue an order under RCRA section 7003(a) 

requiring corrective action or such other 

response as deemed necessary to protect 

human health or the environment. 

Note 2 to § 261.196: 40 CFR part 302 may 

require the owner or operator to notify the 

National Response Center of certain releases. 

§ 261.197 Termination of remanufacturing 

exclusion. 

Hazardous secondary material stored 

in units more than 90 days after the unit 

ceases to operate under the 

remanufacturing exclusion at 40 CFR 

261.4(a)(27) or otherwise ceases to be 

operated for manufacturing, or for 

storage of a product or a raw material, 

then becomes subject to regulation as 

hazardous waste under parts 261 

through 266, 268, 270, 271, and 124 of 

this chapter, as applicable. 

§ 261.198 Special requirements for 

ignitable or reactive materials. 

(a) Ignitable or reactive material must 

not be placed in tank systems, unless 

the material is stored or treated in such 

a way that it is protected from any 

material or conditions that may cause 

the material to ignite or react. 

(b) The remanufacturer or other 

person that stores or treats hazardous 

secondary material which is ignitable or 

reactive must store or treat the 

hazardous secondary material in a tank 

that is in compliance with the 

requirements for the maintenance of 

protective distances between the 

material management area and any 

public ways, streets, alleys, or an 

adjoining property line that can be built 

upon as required in Tables 2–1 through 

2–6 of the National Fire Protection 

Association’s ‘‘Flammable and 

Combustible Liquids Code,’’ (1977 or 

1981), (incorporated by reference, see 

§ 260.11). 

§ 261.199 Special requirements for 

incompatible materials. 

(a) Incompatible materials must not be 

placed in the same tank system. 

(b) Hazardous secondary material 

must not be placed in a tank system that 

has not been decontaminated and that 

previously held an incompatible 

material. 

§ 261.200 Air emission standards. 

The remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall manage all 

hazardous secondary material placed in 

a tank in accordance with the applicable 

requirements of subparts AA, BB, and 

CC of this part. 

Subparts K–L [Reserved] 

Subpart M—Emergency Preparedness 

and Response for Management of 

Excluded Hazardous Secondary 

Materials 

§ 261.400 Applicability. 

The requirements of this subpart 

apply to those areas of an entity 

managing hazardous secondary 

materials excluded under § 261.4(a)(23) 

and/or (24) where hazardous secondary 

materials are generated or accumulated 

on site. 

(a) A generator of hazardous 

secondary material, or an intermediate 

or reclamation facility operating under a 

verified recycler variance under 

§ 260.31(d), that accumulates 6000 kg or 


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less of hazardous secondary material at 

any time must comply with §§ 261.410 

and 261.411. 

(b) A generator of hazardous 

secondary material, or an intermediate 

or reclamation facility operating under a 

verified recycler variance under 

§ 260.31(d) that accumulates more than 

6000 kg of hazardous secondary 

material at any time must comply with 

§§ 261.410 and 261.420. 

§ 261.410 Preparedness and prevention. 

(a) Maintenance and operation of 

facility. Facilities generating or 

accumulating hazardous secondary 

material must be maintained and 

operated to minimize the possibility of 

a fire, explosion, or any unplanned 

sudden or non-sudden release of 

hazardous secondary materials or 

hazardous secondary material 

constituents to air, soil, or surface water 

which could threaten human health or 

the environment. 

(b) Required equipment. All facilities 

generating or accumulating hazardous 

secondary material must be equipped 

with the following, unless none of the 

hazards posed by hazardous secondary 

material handled at the facility could 

require a particular kind of equipment 

specified below: 

(1) An internal communications or 

alarm system capable of providing 

immediate emergency instruction (voice 

or signal) to facility personnel; 

(2) A device, such as a telephone 

(immediately available at the scene of 

operations) or a hand-held two-way 

radio, capable of summoning emergency 

assistance from local police 

departments, fire departments, or state 

or local emergency response teams; 

(3) Portable fire extinguishers, fire 

control equipment (including special 

extinguishing equipment, such as that 

using foam, inert gas, or dry chemicals), 

spill control equipment, and 

decontamination equipment; and 

(4) Water at adequate volume and 

pressure to supply water hose streams, 

or foam producing equipment, or 

automatic sprinklers, or water spray 

systems. 

(c) Testing and maintenance of 

equipment. All facility communications 

or alarm systems, fire protection 

equipment, spill control equipment, and 

decontamination equipment, where 

required, must be tested and maintained 

as necessary to assure its proper 

operation in time of emergency. 

(d) Access to communications or 

alarm system. (1) Whenever hazardous 

secondary material is being poured, 

mixed, spread, or otherwise handled, all 

personnel involved in the operation 

must have immediate access to an 

internal alarm or emergency 

communication device, either directly 

or through visual or voice contact with 

another employee, unless such a device 

is not required under paragraph (b) of 

this section. 

(2) If there is ever just one employee 

on the premises while the facility is 

operating, he must have immediate 

access to a device, such as a telephone 

(immediately available at the scene of 

operation) or a hand-held two-way 

radio, capable of summoning external 

emergency assistance, unless such a 

device is not required under paragraph 

(b) of this section. 

(e) Required aisle space. The 

hazardous secondary material generator 

or intermediate or reclamation facility 

operating under a verified recycler 

variance under § 260.31(d) must 

maintain aisle space to allow the 

unobstructed movement of personnel, 

fire protection equipment, spill control 

equipment, and decontamination 

equipment to any area of facility 

operation in an emergency, unless aisle 

space is not needed for any of these 

purposes. 

(f) Arrangements with local 

authorities. (1) The hazardous 

secondary material generator or an 

intermediate or reclamation facility 

operating under a verified recycler 

variance under § 260.31(d) must attempt 

to make the following arrangements, as 

appropriate for the type of waste 

handled at his facility and the potential 

need for the services of these 

organizations: 

(i) Arrangements to familiarize police, 

fire departments, and emergency 

response teams with the layout of the 

facility, properties of hazardous 

secondary material handled at the 

facility and associated hazards, places 

where facility personnel would 

normally be working, entrances to roads 

inside the facility, and possible 

evacuation routes; 

(ii) Where more than one police and 

fire department might respond to an 

emergency, agreements designating 

primary emergency authority to a 

specific police and a specific fire 

department, and agreements with any 

others to provide support to the primary 

emergency authority; 

(iii) Agreements with state emergency 

response teams, emergency response 

contractors, and equipment suppliers; 

and 

(iv) Arrangements to familiarize local 

hospitals with the properties of 

hazardous waste handled at the facility 

and the types of injuries or illnesses 

which could result from fires, 

explosions, or releases at the facility. 

(2) Where state or local authorities 

decline to enter into such arrangements, 

the hazardous secondary material 

generator or an intermediate or 

reclamation facility operating under a 

verified recycler variance under 

§ 260.31(d) must document the refusal 

in the operating record. 

§ 261.411 Emergency procedures for 

facilities generating or accumulating 6000 

kg or less of hazardous secondary material. 

A generator or an intermediate or 

reclamation facility operating under a 

verified recycler variance under 

§ 260.31(d) that generates or 

accumulates 6000 kg or less of 

hazardous secondary material must 

comply with the following 

requirements: 

(a) At all times there must be at least 

one employee either on the premises or 

on call (i.e., available to respond to an 

emergency by reaching the facility 

within a short period of time) with the 

responsibility for coordinating all 

emergency response measures specified 

in paragraph (d) of this section. This 

employee is the emergency coordinator. 

(b) The generator or intermediate or 

reclamation facility operating under a 

verified recycler variance under 

§ 260.31(d) must post the following 

information next to the telephone: 

(1) The name and telephone number 

of the emergency coordinator; 

(2) Location of fire extinguishers and 

spill control material, and, if present, 

fire alarm; and 

(3) The telephone number of the fire 

department, unless the facility has a 

direct alarm. 

(c) The generator or an intermediate 

or reclamation facility operating under a 

verified recycler variance under 

§ 260.31(d) must ensure that all 

employees are thoroughly familiar with 

proper waste handling and emergency 

procedures, relevant to their 

responsibilities during normal facility 

operations and emergencies; 

(d) The emergency coordinator or his 

designee must respond to any 

emergencies that arise. The applicable 

responses are as follows: 

(1) In the event of a fire, call the fire 

department or attempt to extinguish it 

using a fire extinguisher; 

(2) In the event of a spill, contain the 

flow of hazardous waste to the extent 

possible, and as soon as is practicable, 

clean up the hazardous waste and any 

contaminated materials or soil; 

(3) In the event of a fire, explosion, or 

other release which could threaten 

human health outside the facility or 

when the generator or an intermediate 

or reclamation facility operating under a 

verified recycler variance under 


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§ 260.31(d) has knowledge that a spill 

has reached surface water, the generator 

or an intermediate or reclamation 

facility operating under a verified 

recycler variance under § 260.31(d) 

must immediately notify the National 

Response Center (using their 24-hour 

toll free number 800/424–8802). The 

report must include the following 

information: 

(i) The name, address, and U.S. EPA 

Identification Number of the facility; 

(ii) Date, time, and type of incident 

(e.g., spill or fire); 

(iii) Quantity and type of hazardous 

waste involved in the incident; 

(iv) Extent of injuries, if any; and 

(v) Estimated quantity and disposition 

of recovered materials, if any. 

§ 261.420 Contingency planning and 

emergency procedures for facilities 

generating or accumulating more than 6000 

kg of hazardous secondary material. 

A generator or an intermediate or 

reclamation facility operating under a 

verified recycler variance under 

§ 260.31(d) that generates or 

accumulates more than 6000 kg of 

hazardous secondary material must 

comply with the following 

requirements: 

(a) Purpose and implementation of 

contingency plan. (1) Each generator or 

an intermediate or reclamation facility 

operating under a verified recycler 

variance under § 260.31(d) that 

accumulates more than 6000 kg of 

hazardous secondary material must 

have a contingency plan for his facility. 

The contingency plan must be designed 

to minimize hazards to human health or 

the environment from fires, explosions, 

or any unplanned sudden or nonsudden release of hazardous secondary 

material or hazardous secondary 

material constituents to air, soil, or 

surface water. 

(2) The provisions of the plan must be 

carried out immediately whenever there 

is a fire, explosion, or release of 

hazardous secondary material or 

hazardous secondary material 

constituents which could threaten 

human health or the environment. 

(b) Content of contingency plan. (1) 

The contingency plan must describe the 

actions facility personnel must take to 

comply with paragraphs (a) and (f) in 

response to fires, explosions, or any 

unplanned sudden or non-sudden 

release of hazardous secondary material 

or hazardous secondary material 

constituents to air, soil, or surface water 

at the facility. 

(2) If the generator or an intermediate 

or reclamation facility operating under a 

verified recycler variance under 

§ 260.31(d) accumulating more than 

6000 kg of hazardous secondary 

material has already prepared a Spill 

Prevention, Control, and 

Countermeasures (SPCC) Plan in 

accordance with part 112 of this 

chapter, or some other emergency or 

contingency plan, he need only amend 

that plan to incorporate hazardous 

waste management provisions that are 

sufficient to comply with the 

requirements of this part. The hazardous 

secondary material generator or an 

intermediate or reclamation facility 

operating under a verified recycler 

variance under § 260.31(d) may develop 

one contingency plan which meets all 

regulatory requirements. EPA 

recommends that the plan be based on 

the National Response Team’s 

Integrated Contingency Plan Guidance 

(‘‘One Plan’’). When modifications are 

made to non-RCRA provisions in an 

integrated contingency plan, the 

changes do not trigger the need for a 

RCRA permit modification. 

(3) The plan must describe 

arrangements agreed to by local police 

departments, fire departments, 

hospitals, contractors, and State and 

local emergency response teams to 

coordinate emergency services, 

pursuant to § 262.410(f). 

(4) The plan must list names, 

addresses, and phone numbers (office 

and home) of all persons qualified to act 

as emergency coordinator (see 

paragraph (e) of this section), and this 

list must be kept up-to-date. Where 

more than one person is listed, one must 

be named as primary emergency 

coordinator and others must be listed in 

the order in which they will assume 

responsibility as alternates. 

(5) The plan must include a list of all 

emergency equipment at the facility 

(such as fire extinguishing systems, spill 

control equipment, communications 

and alarm systems (internal and 

external), and decontamination 

equipment), where this equipment is 

required. This list must be kept up to 

date. In addition, the plan must include 

the location and a physical description 

of each item on the list, and a brief 

outline of its capabilities. 

(6) The plan must include an 

evacuation plan for facility personnel 

where there is a possibility that 

evacuation could be necessary. This 

plan must describe signal(s) to be used 

to begin evacuation, evacuation routes, 

and alternate evacuation routes (in cases 

where the primary routes could be 

blocked by releases of hazardous waste 

or fires). 

(c) Copies of contingency plan. A 

copy of the contingency plan and all 

revisions to the plan must be: 

(1) Maintained at the facility; and 

(2) Submitted to all local police 

departments, fire departments, 

hospitals, and State and local 

emergency response teams that may be 

called upon to provide emergency 

services. 

(d) Amendment of contingency plan. 

The contingency plan must be reviewed, 

and immediately amended, if necessary, 

whenever: 

(1) Applicable regulations are revised; 

(2) The plan fails in an emergency; 

(3) The facility changes—in its design, 

construction, operation, maintenance, or 

other circumstances—in a way that 

materially increases the potential for 

fires, explosions, or releases of 

hazardous secondary material or 

hazardous secondary material 

constituents, or changes the response 

necessary in an emergency; 

(4) The list of emergency coordinators 

changes; or 

(5) The list of emergency equipment 

changes. 

(e) Emergency coordinator. At all 

times, there must be at least one 

employee either on the facility premises 

or on call (i.e., available to respond to 

an emergency by reaching the facility 

within a short period of time) with the 

responsibility for coordinating all 

emergency response measures. This 

emergency coordinator must be 

thoroughly familiar with all aspects of 

the facility’s contingency plan, all 

operations and activities at the facility, 

the location and characteristics of waste 

handled, the location of all records 

within the facility, and the facility 

layout. In addition, this person must 

have the authority to commit the 

resources needed to carry out the 

contingency plan. The emergency 

coordinator’s responsibilities are more 

fully spelled out in paragraph (f). 

Applicable responsibilities for the 

emergency coordinator vary, depending 

on factors such as type and variety of 

hazardous secondary material(s) 

handled by the facility, and type and 

complexity of the facility. 

(f) Emergency procedures. (1) 

Whenever there is an imminent or 

actual emergency situation, the 

emergency coordinator (or his designee 

when the emergency coordinator is on 

call) must immediately: 

(i) Activate internal facility alarms or 

communication systems, where 

applicable, to notify all facility 

personnel; and 

(ii) Notify appropriate State or local 

agencies with designated response roles 

if their help is needed. 

(2) Whenever there is a release, fire, 

or explosion, the emergency coordinator 

must immediately identify the 

character, exact source, amount, and 


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areal extent of any released materials. 

He may do this by observation or review 

of facility records or manifests and, if 

necessary, by chemical analysis. 

(3) Concurrently, the emergency 

coordinator must assess possible 

hazards to human health or the 

environment that may result from the 

release, fire, or explosion. This 

assessment must consider both direct 

and indirect effects of the release, fire, 

or explosion (e.g., the effects of any 

toxic, irritating, or asphyxiating gases 

that are generated, or the effects of any 

hazardous surface water run-offs from 

water or chemical agents used to control 

fire and heat-induced explosions). 

(4) If the emergency coordinator 

determines that the facility has had a 

release, fire, or explosion which could 

threaten human health, or the 

environment, outside the facility, he 

must report his findings as follows: 

(i) If his assessment indicates that 

evacuation of local areas may be 

advisable, he must immediately notify 

appropriate local authorities. He must 

be available to help appropriate officials 

decide whether local areas should be 

evacuated; and 

(ii) He must immediately notify either 

the government official designated as 

the on-scene coordinator for that 

geographical area, or the National 

Response Center (using their 24-hour 

toll free number 800/424–8802). The 

report must include: 

(A) Name and telephone number of 

reporter; 

(B) Name and address of facility; 

(C) Time and type of incident (e.g., 

release, fire); 

(D) Name and quantity of material(s) 

involved, to the extent known; 

(E) The extent of injuries, if any; and 

(F) The possible hazards to human 

health, or the environment, outside the 

facility. 

(5) During an emergency, the 

emergency coordinator must take all 

reasonable measures necessary to ensure 

that fires, explosions, and releases do 

not occur, recur, or spread to other 

hazardous secondary material at the 

facility. These measures must include, 

where applicable, stopping processes 

and operations, collecting and 

containing released material, and 

removing or isolating containers. 

(6) If the facility stops operations in 

response to a fire, explosion or release, 

the emergency coordinator must 

monitor for leaks, pressure buildup, gas 

generation, or ruptures in valves, pipes, 

or other equipment, wherever this is 

appropriate. 

(7) Immediately after an emergency, 

the emergency coordinator must provide 

for treating, storing, or disposing of 

recovered secondary material, 

contaminated soil or surface water, or 

any other material that results from a 

release, fire, or explosion at the facility. 

Unless the hazardous secondary 

material generator can demonstrate, in 

accordance with § 261.3(c) or (d) of this 

chapter, that the recovered material is 

not a hazardous waste, the owner or 

operator becomes a generator of 

hazardous waste and must manage it in 

accordance with all applicable 

requirements of parts 262, 263, and 265 

of this chapter. 

(8) The emergency coordinator must 

ensure that, in the affected area(s) of the 

facility: 

(i) No secondary material that may be 

incompatible with the released material 

is treated, stored, or disposed of until 

cleanup procedures are completed; and 

(ii) All emergency equipment listed in 

the contingency plan is cleaned and fit 

for its intended use before operations 

are resumed. 

(9) The hazardous secondary material 

generator must note in the operating 

record the time, date, and details of any 

incident that requires implementing the 

contingency plan. Within 15 days after 

the incident, he must submit a written 

report on the incident to the Regional 

Administrator. The report must include: 

(i) Name, address, and telephone 

number of the hazardous secondary 

material generator; 

(ii) Name, address, and telephone 

number of the facility; 

(iii) Date, time, and type of incident 

(e.g., fire, explosion); 

(iv) Name and quantity of material(s) 

involved; 

(v) The extent of injuries, if any; 

(vi) An assessment of actual or 

potential hazards to human health or 

the environment, where this is 

applicable; and 

(vii) Estimated quantity and 

disposition of recovered material that 

resulted from the incident. 

Subparts N–Z [Reserved] 

Subpart AA—Air Emission Standards 

for Process Vents 

§ 261.1030 Applicability. 

The regulations in this subpart apply 

to process vents associated with 

distillation, fractionation, thin-film 

evaporation, solvent extraction, or air or 

stream stripping operations that manage 

hazardous secondary materials excluded 

under the remanufacturing exclusion at 

§ 261.4(a)(27) with concentrations of at 

least 10 ppmw, unless the process vents 

are equipped with operating air 

emission controls in accordance with 

the requirements of an applicable Clean 

Air Act regulation codified under 40 

CFR part 60, part 61, or part 63. 

§ 261.1031 Definitions. 

As used in this subpart, all terms not 

defined herein shall have the meaning 

given them in the Resource 

Conservation and Recovery Act and 

parts 260–266. 

Air stripping operation is a desorption 

operation employed to transfer one or 

more volatile components from a liquid 

mixture into a gas (air) either with or 

without the application of heat to the 

liquid. Packed towers, spray towers, and 

bubble-cap, sieve, or valve-type plate 

towers are among the process 

configurations used for contacting the 

air and a liquid. 

Bottoms receiver means a container or 

tank used to receive and collect the 

heavier bottoms fractions of the 

distillation feed stream that remain in 

the liquid phase. 

Closed-vent system means a system 

that is not open to the atmosphere and 

that is composed of piping, connections, 

and, if necessary, flow-inducing devices 

that transport gas or vapor from a piece 

or pieces of equipment to a control 

device. 

Condenser means a heat-transfer 

device that reduces a thermodynamic 

fluid from its vapor phase to its liquid 

phase. 

Connector means flanged, screwed, 

welded, or other joined fittings used to 

connect two pipelines or a pipeline and 

a piece of equipment. For the purposes 

of reporting and recordkeeping, 

connector means flanged fittings that are 

not covered by insulation or other 

materials that prevent location of the 

fittings. 

Continuous recorder means a datarecording device recording an 

instantaneous data value at least once 

every 15 minutes. 

Control device means an enclosed 

combustion device, vapor recovery 

system, or flare. Any device the primary 

function of which is the recovery or 

capture of solvents or other organics for 

use, reuse, or sale (e.g., a primary 

condenser on a solvent recovery unit) is 

not a control device. 

Control device shutdown means the 

cessation of operation of a control 

device for any purpose. 

Distillate receiver means a container 

or tank used to receive and collect 

liquid material (condensed) from the 

overhead condenser of a distillation unit 

and from which the condensed liquid is 

pumped to larger storage tanks or other 

process units. 

Distillation operation means an 

operation, either batch or continuous, 

separating one or more feed stream(s) 


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into two or more exit streams, each exit 

stream having component 

concentrations different from those in 

the feed stream(s). The separation is 

achieved by the redistribution of the 

components between the liquid and 

vapor phase as they approach 

equilibrium within the distillation unit. 

Double block and bleed system means 

two block valves connected in series 

with a bleed valve or line that can vent 

the line between the two block valves. 

Equipment means each valve, pump, 

compressor, pressure relief device, 

sampling connection system, openended valve or line, or flange or other 

connector, and any control devices or 

systems required by this subpart. 

Flame zone means the portion of the 

combustion chamber in a boiler 

occupied by the flame envelope. 

Flow indicator means a device that 

indicates whether gas flow is present in 

a vent stream. 

First attempt at repair means to take 

rapid action for the purpose of stopping 

or reducing leakage of organic material 

to the atmosphere using best practices. 

Fractionation operation means a 

distillation operation or method used to 

separate a mixture of several volatile 

components of different boiling points 

in successive stages, each stage 

removing from the mixture some 

proportion of one of the components. 

Hazardous secondary material 

management unit shutdown means a 

work practice or operational procedure 

that stops operation of a hazardous 

secondary material management unit or 

part of a hazardous secondary material 

management unit. An unscheduled 

work practice or operational procedure 

that stops operation of a hazardous 

secondary material management unit or 

part of a hazardous secondary material 

management unit for less than 24 hours 

is not a hazardous secondary material 

management unit shutdown. The use of 

spare equipment and technically 

feasible bypassing of equipment without 

stopping operation are not hazardous 

secondary material management unit 

shutdowns. 

Hot well means a container for 

collecting condensate as in a steam 

condenser serving a vacuum-jet or 

steam-jet ejector. 

In gas/vapor service means that the 

piece of equipment contains or contacts 

a hazardous secondary material stream 

that is in the gaseous state at operating 

conditions. 

In heavy liquid service means that the 

piece of equipment is not in gas/vapor 

service or in light liquid service. 

In light liquid service means that the 

piece of equipment contains or contacts 

a material stream where the vapor 

pressure of one or more of the organic 

components in the stream is greater than 

0.3 kilopascals (kPa) at 20 °C, the total 

concentration of the pure organic 

components having a vapor pressure 

greater than 0.3 kilopascals (kPa) at 20 

°C is equal to or greater than 20 percent 

by weight, and the fluid is a liquid at 

operating conditions. 

In situ sampling systems means 

nonextractive samplers or in-line 

samplers. 

In vacuum service means that 

equipment is operating at an internal 

pressure that is at least 5 kPa below 

ambient pressure. 

Malfunction means any sudden 

failure of a control device or a 

hazardous secondary material 

management unit or failure of a 

hazardous secondary material 

management unit to operate in a normal 

or usual manner, so that organic 

emissions are increased. 

Open-ended valve or line means any 

valve, except pressure relief valves, 

having one side of the valve seat in 

contact with hazardous secondary 

material and one side open to the 

atmosphere, either directly or through 

open piping. 

Pressure release means the emission 

of materials resulting from the system 

pressure being greater than the set 

pressure of the pressure relief device. 

Process heater means a device that 

transfers heat liberated by burning fuel 

to fluids contained in tubes, including 

all fluids except water that are heated to 

produce steam. 

Process vent means any open-ended 

pipe or stack that is vented to the 

atmosphere either directly, through a 

vacuum-producing system, or through a 

tank (e.g., distillate receiver, condenser, 

bottoms receiver, surge control tank, 

separator tank, or hot well) associated 

with hazardous secondary material 

distillation, fractionation, thin-film 

evaporation, solvent extraction, or air or 

steam stripping operations. 

Repaired means that equipment is 

adjusted, or otherwise altered, to 

eliminate a leak. 

Sampling connection system means 

an assembly of equipment within a 

process or material management unit 

used during periods of representative 

operation to take samples of the process 

or material fluid. Equipment used to 

take non-routine grab samples is not 

considered a sampling connection 

system. 

Sensor means a device that measures 

a physical quantity or the change in a 

physical quantity, such as temperature, 

pressure, flow rate, pH, or liquid level. 

Separator tank means a device used 

for separation of two immiscible liquids. 

Solvent extraction operation means an 

operation or method of separation in 

which a solid or solution is contacted 

with a liquid solvent (the two being 

mutually insoluble) to preferentially 

dissolve and transfer one or more 

components into the solvent. 

Startup means the setting in operation 

of a hazardous secondary material 

management unit or control device for 

any purpose. 

Steam stripping operation means a 

distillation operation in which 

vaporization of the volatile constituents 

of a liquid mixture takes place by the 

introduction of steam directly into the 

charge. 

Surge control tank means a largesized pipe or storage reservoir sufficient 

to contain the surging liquid discharge 

of the process tank to which it is 

connected. 

Thin-film evaporation operation 

means a distillation operation that 

employs a heating surface consisting of 

a large diameter tube that may be either 

straight or tapered, horizontal or 

vertical. Liquid is spread on the tube 

wall by a rotating assembly of blades 

that maintain a close clearance from the 

wall or actually ride on the film of 

liquid on the wall. 

Vapor incinerator means any enclosed 

combustion device that is used for 

destroying organic compounds and does 

not extract energy in the form of steam 

or process heat. 

Vented means discharged through an 

opening, typically an open-ended pipe 

or stack, allowing the passage of a 

stream of liquids, gases, or fumes into 

the atmosphere. The passage of liquids, 

gases, or fumes is caused by mechanical 

means such as compressors or vacuumproducing systems or by process-related 

means such as evaporation produced by 

heating and not caused by tank loading 

and unloading (working losses) or by 

natural means such as diurnal 

temperature changes. 

§ 261.1032 Standards: Process vents. 

(a) The remanufacturer or other 

person that stores or treats hazardous 

secondary materials in hazardous 

secondary material management units 

with process vents associated with 

distillation, fractionation, thin-film 

evaporation, solvent extraction, or air or 

steam stripping operations managing 

hazardous secondary material with 

organic concentrations of at least 10 

ppmw shall either: 

(1) Reduce total organic emissions 

from all affected process vents at the 

facility below 1.4 kg/h (3 lb/h) and 2.8 

Mg/yr (3.1 tons/yr), or 

(2) Reduce, by use of a control device, 

total organic emissions from all affected 


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process vents at the facility by 95 weight 

percent. 

(b) If the remanufacturer or other 

person that stores or treats the 

hazardous secondary material installs a 

closed-vent system and control device 

to comply with the provisions of 

paragraph (a) of this section the closedvent system and control device must 

meet the requirements of § 261.1033. 

(c) Determinations of vent emissions 

and emission reductions or total organic 

compound concentrations achieved by 

add-on control devices may be based on 

engineering calculations or performance 

tests. If performance tests are used to 

determine vent emissions, emission 

reductions, or total organic compound 

concentrations achieved by add-on 

control devices, the performance tests 

must conform with the requirements of 

§ 261.1034(c). 

(d) When a remanufacturer or other 

person that stores or treats the 

hazardous secondary material and the 

Regional Administrator do not agree on 

determinations of vent emissions and/or 

emission reductions or total organic 

compound concentrations achieved by 

add-on control devices based on 

engineering calculations, the procedures 

in § 261.1034(c) shall be used to resolve 

the disagreement. 

§ 261.1033 Standards: Closed-vent 

systems and control devices. 

(a)(1) The remanufacturer or other 

person that stores or treats the 

hazardous secondary materials in 

hazardous secondary material 

management units using closed-vent 

systems and control devices used to 

comply with provisions of this part 

shall comply with the provisions of this 

section. 

(2) [Reserved] 

(b) A control device involving vapor 

recovery (e.g., a condenser or adsorber) 

shall be designed and operated to 

recover the organic vapors vented to it 

with an efficiency of 95 weight percent 

or greater unless the total organic 

emission limits of § 261.1032(a)(1) for 

all affected process vents can be 

attained at an efficiency less than 95 

weight percent. 

(c) An enclosed combustion device 

(e.g., a vapor incinerator, boiler, or 

process heater) shall be designed and 

operated to reduce the organic 

emissions vented to it by 95 weight 

percent or greater; to achieve a total 

organic compound concentration of 20 

ppmv, expressed as the sum of the 

actual compounds, not carbon 

equivalents, on a dry basis corrected to 

3 percent oxygen; or to provide a 

minimum residence time of 0.50 

seconds at a minimum temperature of 

760 °C. If a boiler or process heater is 

used as the control device, then the vent 

stream shall be introduced into the 

flame zone of the boiler or process 

heater. 

(d)(1) A flare shall be designed for and 

operated with no visible emissions as 

determined by the methods specified in 

paragraph (e)(1) of this section, except 

for periods not to exceed a total of 5 

minutes during any 2 consecutive 

hours. 

(2) A flare shall be operated with a 

flame present at all times, as determined 

by the methods specified in paragraph 

(f)(2)(iii) of this section. 

(3) A flare shall be used only if the net 

heating value of the gas being 

combusted is 11.2 MJ/scm (300 Btu/scf) 

or greater if the flare is steam-assisted or 

air-assisted; or if the net heating value 

of the gas being combusted is 7.45 MJ/ 

scm (200 Btu/scf) or greater if the flare 

is nonassisted. The net heating value of 

the gas being combusted shall be 

determined by the methods specified in 

paragraph (e)(2) of this section. 

(4)(i) A steam-assisted or nonassisted 

flare shall be designed for and operated 

with an exit velocity, as determined by 

the methods specified in paragraph 

(e)(3) of this section, less than 18.3 m/ 

s (60 ft/s), except as provided in 

paragraphs (d)(4)(ii) and (iii) of this 

section. 

(ii) A steam-assisted or nonassisted 

flare designed for and operated with an 

exit velocity, as determined by the 

methods specified in paragraph (e)(3) of 

this section, equal to or greater than 18.3 

m/s (60 ft/s) but less than 122 m/s (400 

ft/s) is allowed if the net heating value 

of the gas being combusted is greater 

than 37.3 MJ/scm (1,000 Btu/scf). 

(iii) A steam-assisted or nonassisted 

flare designed for and operated with an 

exit velocity, as determined by the 

methods specified in paragraph (e)(3) of 

this section, less than the velocity, Vmax, 

as determined by the method specified 

in paragraph (e)(4) of this section and 

less than 122 m/s (400 ft/s) is allowed. 

(5) An air-assisted flare shall be 

designed and operated with an exit 

velocity less than the velocity, Vmax, as 

determined by the method specified in 

paragraph (e)(5) of this section. 

(6) A flare used to comply with this 

section shall be steam-assisted, airassisted, or nonassisted. 

(e)(1) Reference Method 22 in 40 CFR 

part 60 shall be used to determine the 

compliance of a flare with the visible 

emission provisions of this subpart. The 

observation period is 2 hours and shall 

be used according to Method 22. 

(2) The net heating value of the gas 

being combusted in a flare shall be 

calculated using the following equation: 

Where: 

HT = Net heating value of the sample, MJ/

scm; where the net enthalpy per mole of 

offgas is based on combustion at 25 °C 

and 760 mm Hg, but the standard 

temperature for determining the volume 

corresponding to 1 mol is 20 °C; 

K = Constant, 1.74 × 10¥7 (1/ppm) (g mol/ 

scm) (MJ/kcal) where standard 

temperature for (g mol/scm) is 20 °C; 

Ci = Concentration of sample component i in 

ppm on a wet basis, as measured for 

organics by Reference Method 18 in 40 

CFR part 60 and measured for hydrogen 

and carbon monoxide by ASTM D 1946– 

82 (incorporated by reference as 

specified in § 260.11); and 

Hi = Net heat of combustion of sample 

component i, kcal/9 mol at 25 °C and 760 

mm Hg. The heats of combustion may be 

determined using ASTM D 2382–83 

(incorporated by reference as specified in 

§ 260.11) if published values are not 

available or cannot be calculated. 

(3) The actual exit velocity of a flare 

shall be determined by dividing the 

volumetric flow rate (in units of 

standard temperature and pressure), as 

determined by Reference Methods 2, 

2A, 2C, or 2D in 40 CFR part 60 as 

appropriate, by the unobstructed (free) 

cross-sectional area of the flare tip. 

(4) The maximum allowed velocity in 

m/s, Vmax, for a flare complying with 

paragraph (d)(4)(iii) of this section shall 

be determined by the following 

equation: 

Log10(Vmax) = (HT + 28.8)/31.7 

Where: 

28.8 = Constant, 

31.7 = Constant, 

HT = The net heating value as determined in 

paragraph (e)(2) of this section. 

(5) The maximum allowed velocity in 

m/s, Vmax, for an air-assisted flare shall 

be determined by the following 

equation: 

Vmax = 8.706 + 0.7084 (HT) 

Where: 

8.706 = Constant, 

0.7084 = Constant, 

HT = The net heating value as determined in 

paragraph (e)(2) of this section. 

(f) The remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall monitor and 

inspect each control device required to 

comply with this section to ensure 

proper operation and maintenance of 

the control device by implementing the 

following requirements: 

(1) Install, calibrate, maintain, and 

operate according to the manufacturer’s 

specifications a flow indicator that 

provides a record of vent stream flow 


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from each affected process vent to the 

control device at least once every hour. 

The flow indicator sensor shall be 

installed in the vent stream at the 

nearest feasible point to the control 

device inlet but before the point at 

which the vent streams are combined. 

(2) Install, calibrate, maintain, and 

operate according to the manufacturer’s 

specifications a device to continuously 

monitor control device operation as 

specified below: 

(i) For a thermal vapor incinerator, a 

temperature monitoring device 

equipped with a continuous recorder. 

The device shall have an accuracy of ±1 

percent of the temperature being 

monitored in °C or ±0.5 °C, whichever 

is greater. The temperature sensor shall 

be installed at a location in the 

combustion chamber downstream of the 

combustion zone. 

(ii) For a catalytic vapor incinerator, 

a temperature monitoring device 

equipped with a continuous recorder. 

The device shall be capable of 

monitoring temperature at two locations 

and have an accuracy of ±1 percent of 

the temperature being monitored in °C 

or ±0.5 °C, whichever is greater. One 

temperature sensor shall be installed in 

the vent stream at the nearest feasible 

point to the catalyst bed inlet and a 

second temperature sensor shall be 

installed in the vent stream at the 

nearest feasible point to the catalyst bed 

outlet. 

(iii) For a flare, a heat sensing 

monitoring device equipped with a 

continuous recorder that indicates the 

continuous ignition of the pilot flame. 

(iv) For a boiler or process heater 

having a design heat input capacity less 

than 44 MW, a temperature monitoring 

device equipped with a continuous 

recorder. The device shall have an 

accuracy of ±1 percent of the 

temperature being monitored in °C or 

±0.5 °C, whichever is greater. The 

temperature sensor shall be installed at 

a location in the furnace downstream of 

the combustion zone. 

(v) For a boiler or process heater 

having a design heat input capacity 

greater than or equal to 44 MW, a 

monitoring device equipped with a 

continuous recorder to measure a 

parameter(s) that indicates good 

combustion operating practices are 

being used. 

(vi) For a condenser, either: 

(A) A monitoring device equipped 

with a continuous recorder to measure 

the concentration level of the organic 

compounds in the exhaust vent stream 

from the condenser, or 

(B) A temperature monitoring device 

equipped with a continuous recorder. 

The device shall be capable of 

monitoring temperature with an 

accuracy of ±1 percent of the 

temperature being monitored in degrees 

Celsius (°C) or ±0.5 °C, whichever is 

greater. The temperature sensor shall be 

installed at a location in the exhaust 

vent stream from the condenser exit 

(i.e., product side). 

(vii) For a carbon adsorption system 

that regenerates the carbon bed directly 

in the control device such as a fixed-bed 

carbon adsorber, either: 

(A) A monitoring device equipped 

with a continuous recorder to measure 

the concentration level of the organic 

compounds in the exhaust vent stream 

from the carbon bed, or 

(B) A monitoring device equipped 

with a continuous recorder to measure 

a parameter that indicates the carbon 

bed is regenerated on a regular, 

predetermined time cycle. 

(3) Inspect the readings from each 

monitoring device required by 

paragraphs (f)(1) and (2) of this section 

at least once each operating day to 

check control device operation and, if 

necessary, immediately implement the 

corrective measures necessary to ensure 

the control device operates in 

compliance with the requirements of 

this section. 

(g) A remanufacturer or other person 

that stores or treats hazardous secondary 

material in a hazardous secondary 

material management unit using a 

carbon adsorption system such as a 

fixed-bed carbon adsorber that 

regenerates the carbon bed directly 

onsite in the control device shall replace 

the existing carbon in the control device 

with fresh carbon at a regular, 

predetermined time interval that is no 

longer than the carbon service life 

established as a requirement of 

§ 261.1035(b)(4)(iii)(F). 

(h) A remanufacturer or other person 

that stores or treats hazardous secondary 

material in a hazardous secondary 

material management unit using a 

carbon adsorption system such as a 

carbon canister that does not regenerate 

the carbon bed directly onsite in the 

control device shall replace the existing 

carbon in the control device with fresh 

carbon on a regular basis by using one 

of the following procedures: 

(1) Monitor the concentration level of 

the organic compounds in the exhaust 

vent stream from the carbon adsorption 

system on a regular schedule, and 

replace the existing carbon with fresh 

carbon immediately when carbon 

breakthrough is indicated. The 

monitoring frequency shall be daily or 

at an interval no greater than 20 percent 

of the time required to consume the 

total carbon working capacity 

established as a requirement of 

§ 261.1035(b)(4)(iii)(G), whichever is 

longer. 

(2) Replace the existing carbon with 

fresh carbon at a regular, predetermined 

time interval that is less than the design 

carbon replacement interval established 

as a requirement of 

§ 261.1035(b)(4)(iii)(G). 

(i) An alternative operational or 

process parameter may be monitored if 

it can be demonstrated that another 

parameter will ensure that the control 

device is operated in conformance with 

these standards and the control device’s 

design specifications. 

(j) A remanufacturer or other person 

that stores or treats hazardous secondary 

material at an affected facility seeking to 

comply with the provisions of this part 

by using a control device other than a 

thermal vapor incinerator, catalytic 

vapor incinerator, flare, boiler, process 

heater, condenser, or carbon adsorption 

system is required to develop 

documentation including sufficient 

information to describe the control 

device operation and identify the 

process parameter or parameters that 

indicate proper operation and 

maintenance of the control device. 

(k) A closed-vent system shall meet 

either of the following design 

requirements: 

(1) A closed-vent system shall be 

designed to operate with no detectable 

emissions, as indicated by an 

instrument reading of less than 500 

ppmv above background as determined 

by the procedure in § 261.1034(b) of this 

subpart, and by visual inspections; or 

(2) A closed-vent system shall be 

designed to operate at a pressure below 

atmospheric pressure. The system shall 

be equipped with at least one pressure 

gauge or other pressure measurement 

device that can be read from a readily 

accessible location to verify that 

negative pressure is being maintained in 

the closed-vent system when the control 

device is operating. 

(l) The remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall monitor and 

inspect each closed-vent system 

required to comply with this section to 

ensure proper operation and 

maintenance of the closed-vent system 

by implementing the following 

requirements: 

(1) Each closed-vent system that is 

used to comply with paragraph (k)(1) of 

this section shall be inspected and 

monitored in accordance with the 

following requirements: 

(i) An initial leak detection 

monitoring of the closed-vent system 

shall be conducted by the 

remanufacturer or other person that 

stores or treats the hazardous secondary 


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material on or before the date that the 

system becomes subject to this section. 

The remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall monitor the closed-vent 

system components and connections 

using the procedures specified in 

§ 261.1034(b) of this subpart to 

demonstrate that the closed-vent system 

operates with no detectable emissions, 

as indicated by an instrument reading of 

less than 500 ppmv above background. 

(ii) After initial leak detection 

monitoring required in paragraph 

(l)(1)(i) of this section, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall inspect and monitor the 

closed-vent system as follows: 

(A) Closed-vent system joints, seams, 

or other connections that are 

permanently or semi-permanently 

sealed (e.g., a welded joint between two 

sections of hard piping or a bolted and 

gasketed ducting flange) shall be 

visually inspected at least once per year 

to check for defects that could result in 

air pollutant emissions. The 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall monitor a component or 

connection using the procedures 

specified in § 261.1034(b) of this subpart 

to demonstrate that it operates with no 

detectable emissions following any time 

the component is repaired or replaced 

(e.g., a section of damaged hard piping 

is replaced with new hard piping) or the 

connection is unsealed (e.g., a flange is 

unbolted). 

(B) Closed-vent system components or 

connections other than those specified 

in paragraph (l)(1)(ii)(A) of this section 

shall be monitored annually and at 

other times as requested by the Regional 

Administrator, except as provided for in 

paragraph (o) of this section, using the 

procedures specified in § 261.1034(b) of 

this subpart to demonstrate that the 

components or connections operate 

with no detectable emissions. 

(iii) In the event that a defect or leak 

is detected, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

repair the defect or leak in accordance 

with the requirements of paragraph 

(l)(3) of this section. 

(iv) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

maintain a record of the inspection and 

monitoring in accordance with the 

requirements specified in § 261.1035 of 

this subpart. 

(2) Each closed-vent system that is 

used to comply with paragraph (k)(2) of 

this section shall be inspected and 

monitored in accordance with the 

following requirements: 

(i) The closed-vent system shall be 

visually inspected by the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material to check for defects that could 

result in air pollutant emissions. Defects 

include, but are not limited to, visible 

cracks, holes, or gaps in ductwork or 

piping or loose connections. 

(ii) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

perform an initial inspection of the 

closed-vent system on or before the date 

that the system becomes subject to this 

section. Thereafter, the remanufacturer 

or other person that stores or treats the 

hazardous secondary material shall 

perform the inspections at least once 

every year. 

(iii) In the event that a defect or leak 

is detected, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

repair the defect in accordance with the 

requirements of paragraph (l)(3) of this 

section. 

(iv) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

maintain a record of the inspection and 

monitoring in accordance with the 

requirements specified in § 261.1035 of 

this subpart. 

(3) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

repair all detected defects as follows: 

(i) Detectable emissions, as indicated 

by visual inspection, or by an 

instrument reading greater than 500 

ppmv above background, shall be 

controlled as soon as practicable, but 

not later than 15 calendar days after the 

emission is detected, except as provided 

for in paragraph (l)(3)(iii) of this section. 

(ii) A first attempt at repair shall be 

made no later than 5 calendar days after 

the emission is detected. 

(iii) Delay of repair of a closed-vent 

system for which leaks have been 

detected is allowed if the repair is 

technically infeasible without a process 

unit shutdown, or if the remanufacturer 

or other person that stores or treats the 

hazardous secondary material 

determines that emissions resulting 

from immediate repair would be greater 

than the fugitive emissions likely to 

result from delay of repair. Repair of 

such equipment shall be completed by 

the end of the next process unit 

shutdown. 

(iv) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

maintain a record of the defect repair in 

accordance with the requirements 

specified in § 261.1035 of this subpart. 

(m) Closed-vent systems and control 

devices used to comply with provisions 

of this subpart shall be operated at all 

times when emissions may be vented to 

them. 

(n) The owner or operator using a 

carbon adsorption system to control air 

pollutant emissions shall document that 

all carbon that is a hazardous waste and 

that is removed from the control device 

is managed in one of the following 

manners, regardless of the average 

volatile organic concentration of the 

carbon: 

(1) Regenerated or reactivated in a 

thermal treatment unit that meets one of 

the following: 

(i) The owner or operator of the unit 

has been issued a final permit under 40 

CFR part 270 which implements the 

requirements of subpart X of this part; 

or 

(ii) The unit is equipped with and 

operating air emission controls in 

accordance with the applicable 

requirements of subparts AA and CC of 

either this part or of 40 CFR part 265; 

or 

(iii) The unit is equipped with and 

operating air emission controls in 

accordance with a national emission 

standard for hazardous air pollutants 

under 40 CFR part 61 or 40 CFR part 63. 

(2) Incinerated in a hazardous waste 

incinerator for which the owner or 

operator either: 

(i) Has been issued a final permit 

under 40 CFR part 270 which 

implements the requirements of subpart 

O of this part; or 

(ii) Has designed and operates the 

incinerator in accordance with the 

interim status requirements of 40 CFR 

part 265, subpart O. 

(3) Burned in a boiler or industrial 

furnace for which the owner or operator 

either: 

(i) Has been issued a final permit 

under 40 CFR part 270 which 

implements the requirements of 40 CFR 

part 266, subpart H; or 

(ii) Has designed and operates the 

boiler or industrial furnace in 

accordance with the interim status 

requirements of 40 CFR part 266, 

subpart H. 

(o) Any components of a closed-vent 

system that are designated, as described 

in § 261.1035(c)(9) of this subpart, as 

unsafe to monitor are exempt from the 

requirements of paragraph (l)(1)(ii)(B) of 

this section if: 

(1) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material in a 

hazardous secondary material 

management unit using a closed-vent 


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system determines that the components 

of the closed-vent system are unsafe to 

monitor because monitoring personnel 

would be exposed to an immediate 

danger as a consequence of complying 

with paragraph (l)(1)(ii)(B) of this 

section; and 

(2) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material in a 

hazardous secondary material 

management unit using a closed-vent 

system adheres to a written plan that 

requires monitoring the closed-vent 

system components using the procedure 

specified in paragraph (l)(1)(ii)(B) of this 

section as frequently as practicable 

during safe-to-monitor times. 

§ 261.1034 Test methods and procedures. 

(a) Each remanufacturer or other 

person that stores or treats the 

hazardous secondary material subject to 

the provisions of this subpart shall 

comply with the test methods and 

procedural requirements provided in 

this section. 

(b) When a closed-vent system is 

tested for compliance with no detectable 

emissions, as required in § 261.1033(l) 

of this subpart, the test shall comply 

with the following requirements: 

(1) Monitoring shall comply with 

Reference Method 21 in 40 CFR part 60. 

(2) The detection instrument shall 

meet the performance criteria of 

Reference Method 21. 

(3) The instrument shall be calibrated 

before use on each day of its use by the 

procedures specified in Reference 

Method 21. 

(4) Calibration gases shall be: 

(i) Zero air (less than 10 ppm of 

hydrocarbon in air). 

(ii) A mixture of methane or n-hexane 

and air at a concentration of 

approximately, but less than, 10,000 

ppm methane or n-hexane. 

(5) The background level shall be 

determined as set forth in Reference 

Method 21. 

(6) The instrument probe shall be 

traversed around all potential leak 

interfaces as close to the interface as 

possible as described in Reference 

Method 21. 

(7) The arithmetic difference between 

the maximum concentration indicated 

by the instrument and the background 

level is compared with 500 ppm for 

determining compliance. 

(c) Performance tests to determine 

compliance with § 261.1032(a) and with 

the total organic compound 

concentration limit of § 261.1033(c) 

shall comply with the following: 

(1) Performance tests to determine 

total organic compound concentrations 

and mass flow rates entering and exiting 

control devices shall be conducted and 

data reduced in accordance with the 

following reference methods and 

calculation procedures: 

(i) Method 2 in 40 CFR part 60 for 

velocity and volumetric flow rate. 

(ii) Method 18 or Method 25A in 40 

CFR part 60, appendix A, for organic 

content. If Method 25A is used, the 

organic HAP used as the calibration gas 

must be the single organic HAP 

representing the largest percent by 

volume of the emissions. The use of 

Method 25A is acceptable if the 

response from the high-level calibration 

gas is at least 20 times the standard 

deviation of the response from the zero 

calibration gas when the instrument is 

zeroed on the most sensitive scale. 

(iii) Each performance test shall 

consist of three separate runs; each run 

conducted for at least 1 hour under the 

conditions that exist when the 

hazardous secondary material 

management unit is operating at the 

highest load or capacity level reasonably 

expected to occur. For the purpose of 

determining total organic compound 

concentrations and mass flow rates, the 

average of results of all runs shall apply. 

The average shall be computed on a 

time-weighted basis. 

(iv) Total organic mass flow rates 

shall be determined by the following 

equation: 

(A) For sources utilizing Method 18. 

Where: 

Eh= Total organic mass flow rate, kg/h; 

Q2sd= Volumetric flow rate of gases entering 

or exiting control device, as determined 

by Method 2, dscm/h; 

n = Number of organic compounds in the 

vent gas; 

Ci= Organic concentration in ppm, dry basis, 

of compound i in the vent gas, as 

determined by Method 18; 

MWi= Molecular weight of organic 

compound i in the vent gas, kg/kg-mol; 

0.0416 = Conversion factor for molar volume, 

kg-mol/m3 (@293 K and 760 mm Hg); 

10¥6 = Conversion from ppm 

(B) For sources utilizing Method 25A. 

Eh= (Q)(C)(MW)(0.0416)(10¥6) 

Where: 

Eh= Total organic mass flow rate, kg/h; 

Q = Volumetric flow rate of gases entering or 

exiting control device, as determined by 

Method 2, dscm/h; 

C = Organic concentration in ppm, dry basis, 

as determined by Method 25A; 

MW = Molecular weight of propane, 44; 

0.0416 = Conversion factor for molar volume, 

kg-mol/m3 (@293 K and 760 mm Hg); 

10¥6 = Conversion from ppm. 

(v) The annual total organic emission 

rate shall be determined by the 

following equation: 

EA=(Eh)(H) 

Where: 

EA=Total organic mass emission rate, kg/y; 

Eh=Total organic mass flow rate for the 

process vent, kg/h; 

H=Total annual hours of operations for the 

affected unit, h. 

(vi) Total organic emissions from all 

affected process vents at the facility 

shall be determined by summing the 

hourly total organic mass emission rates 

(Eh, as determined in paragraph 

(c)(1)(iv) of this section) and by 

summing the annual total organic mass 

emission rates (EA, as determined in 

paragraph (c)(1)(v) of this section) for all 

affected process vents at the facility. 

(2) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

record such process information as may 

be necessary to determine the 

conditions of the performance tests. 

Operations during periods of startup, 

shutdown, and malfunction shall not 

constitute representative conditions for 

the purpose of a performance test. 

(3) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material at an 

affected facility shall provide, or cause 

to be provided, performance testing 

facilities as follows: 

(i) Sampling ports adequate for the 

test methods specified in paragraph 

(c)(1) of this section. 

(ii) Safe sampling platform(s). 

(iii) Safe access to sampling 

platform(s). 

(iv) Utilities for sampling and testing 

equipment. 

(4) For the purpose of making 

compliance determinations, the timeweighted average of the results of the 

three runs shall apply. In the event that 

a sample is accidentally lost or 

conditions occur in which one of the 


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three runs must be discontinued 

because of forced shutdown, failure of 

an irreplaceable portion of the sample 

train, extreme meteorological 

conditions, or other circumstances 

beyond the remanufacturer’s or other 

person’s that stores or treats the 

hazardous secondary material control, 

compliance may, upon the Regional 

Administrator’s approval, be 

determined using the average of the 

results of the two other runs. 

(d) To show that a process vent 

associated with a hazardous secondary 

material distillation, fractionation, thinfilm evaporation, solvent extraction, or 

air or steam stripping operation is not 

subject to the requirements of this 

subpart, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material must 

make an initial determination that the 

time-weighted, annual average total 

organic concentration of the material 

managed by the hazardous secondary 

material management unit is less than 

10 ppmw using one of the following two 

methods: 

(1) Direct measurement of the organic 

concentration of the material using the 

following procedures: 

(i) The remanufacturer or other person 

that stores or treats the hazardous 

secondary material must take a 

minimum of four grab samples of 

material for each material stream 

managed in the affected unit under 

process conditions expected to cause 

the maximum material organic 

concentration. 

(ii) For material generated onsite, the 

grab samples must be collected at a 

point before the material is exposed to 

the atmosphere such as in an enclosed 

pipe or other closed system that is used 

to transfer the material after generation 

to the first affected distillation, 

fractionation, thin-film evaporation, 

solvent extraction, or air or steam 

stripping operation. For material 

generated offsite, the grab samples must 

be collected at the inlet to the first 

material management unit that receives 

the material provided the material has 

been transferred to the facility in a 

closed system such as a tank truck and 

the material is not diluted or mixed 

with other material. 

(iii) Each sample shall be analyzed 

and the total organic concentration of 

the sample shall be computed using 

Method 9060A (incorporated by 

reference under 40 CFR 260.11) of ‘‘Test 

Methods for Evaluating Solid Waste, 

Physical/Chemical Methods,’’ EPA 

Publication SW–846, or analyzed for its 

individual organic constituents. 

(iv) The arithmetic mean of the results 

of the analyses of the four samples shall 

apply for each material stream managed 

in the unit in determining the timeweighted, annual average total organic 

concentration of the material. The timeweighted average is to be calculated 

using the annual quantity of each 

material stream processed and the mean 

organic concentration of each material 

stream managed in the unit. 

(2) Using knowledge of the material to 

determine that its total organic 

concentration is less than 10 ppmw. 

Documentation of the material 

determination is required. Examples of 

documentation that shall be used to 

support a determination under this 

provision include production process 

information documenting that no 

organic compounds are used, 

information that the material is 

generated by a process that is identical 

to a process at the same or another 

facility that has previously been 

demonstrated by direct measurement to 

generate a material stream having a total 

organic content less than 10 ppmw, or 

prior speciation analysis results on the 

same material stream where it can also 

be documented that no process changes 

have occurred since that analysis that 

could affect the material total organic 

concentration. 

(e) The determination that distillation, 

fractionation, thin-film evaporation, 

solvent extraction, or air or steam 

stripping operations manage hazardous 

secondary materials with timeweighted, annual average total organic 

concentrations less than 10 ppmw shall 

be made as follows: 

(1) By the effective date that the 

facility becomes subject to the 

provisions of this subpart or by the date 

when the material is first managed in a 

hazardous secondary material 

management unit, whichever is later, 

and 

(2) For continuously generated 

material, annually, or 

(3) Whenever there is a change in the 

material being managed or a change in 

the process that generates or treats the 

material. 

(f) When a remanufacturer or other 

person that stores or treats the 

hazardous secondary material and the 

Regional Administrator do not agree on 

whether a distillation, fractionation, 

thin-film evaporation, solvent 

extraction, or air or steam stripping 

operation manages a hazardous 

secondary material with organic 

concentrations of at least 10 ppmw 

based on knowledge of the material, the 

dispute may be resolved by using direct 

measurement as specified at paragraph 

(d)(1) of this section. 

§ 261.1035 Recordkeeping requirements. 

(a)(1) Each remanufacturer or other 

person that stores or treats the 

hazardous secondary material subject to 

the provisions of this subpart shall 

comply with the recordkeeping 

requirements of this section. 

(2) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material of more than one 

hazardous secondary material 

management unit subject to the 

provisions of this subpart may comply 

with the recordkeeping requirements for 

these hazardous secondary material 

management units in one recordkeeping 

system if the system identifies each 

record by each hazardous secondary 

material management unit. 

(b) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material must 

keep the following records on-site: 

(1) For facilities that comply with the 

provisions of § 261.1033(a)(2), an 

implementation schedule that includes 

dates by which the closed-vent system 

and control device will be installed and 

in operation. The schedule must also 

include a rationale of why the 

installation cannot be completed at an 

earlier date. The implementation 

schedule must be kept on-site at the 

facility by the effective date that the 

facility becomes subject to the 

provisions of this subpart. 

(2) Up-to-date documentation of 

compliance with the process vent 

standards in § 261.1032, including: 

(i) Information and data identifying 

all affected process vents, annual 

throughput and operating hours of each 

affected unit, estimated emission rates 

for each affected vent and for the overall 

facility (i.e., the total emissions for all 

affected vents at the facility), and the 

approximate location within the facility 

of each affected unit (e.g., identify the 

hazardous secondary material 

management units on a facility plot 

plan). 

(ii) Information and data supporting 

determinations of vent emissions and 

emission reductions achieved by add-on 

control devices based on engineering 

calculations or source tests. For the 

purpose of determining compliance, 

determinations of vent emissions and 

emission reductions must be made 

using operating parameter values (e.g., 

temperatures, flow rates, or vent stream 

organic compounds and concentrations) 

that represent the conditions that result 

in maximum organic emissions, such as 

when the hazardous secondary material 

management unit is operating at the 

highest load or capacity level reasonably 

expected to occur. If the remanufacturer 

or other person that stores or treats the 


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hazardous secondary material takes any 

action (e.g., managing a material of 

different composition or increasing 

operating hours of affected hazardous 

secondary material management units) 

that would result in an increase in total 

organic emissions from affected process 

vents at the facility, then a new 

determination is required. 

(3) Where a remanufacturer or other 

person that stores or treats the 

hazardous secondary material chooses 

to use test data to determine the organic 

removal efficiency or total organic 

compound concentration achieved by 

the control device, a performance test 

plan must be developed and include: 

(i) A description of how it is 

determined that the planned test is 

going to be conducted when the 

hazardous secondary material 

management unit is operating at the 

highest load or capacity level reasonably 

expected to occur. This shall include 

the estimated or design flow rate and 

organic content of each vent stream and 

define the acceptable operating ranges 

of key process and control device 

parameters during the test program. 

(ii) A detailed engineering description 

of the closed-vent system and control 

device including: 

(A) Manufacturer’s name and model 

number of control device. 

(B) Type of control device. 

(C) Dimensions of the control device. 

(D) Capacity. 

(E) Construction materials. 

(iii) A detailed description of 

sampling and monitoring procedures, 

including sampling and monitoring 

locations in the system, the equipment 

to be used, sampling and monitoring 

frequency, and planned analytical 

procedures for sample analysis. 

(4) Documentation of compliance 

with § 261.1033 shall include the 

following information: 

(i) A list of all information references 

and sources used in preparing the 

documentation. 

(ii) Records, including the dates, of 

each compliance test required by 

§ 261.1033(k). 

(iii) If engineering calculations are 

used, a design analysis, specifications, 

drawings, schematics, and piping and 

instrumentation diagrams based on the 

appropriate sections of ‘‘APTI Course 

415: Control of Gaseous Emissions’’ 

(incorporated by reference as specified 

in § 260.11) or other engineering texts 

acceptable to the Regional 

Administrator that present basic control 

device design information. 

Documentation provided by the control 

device manufacturer or vendor that 

describes the control device design in 

accordance with paragraphs 

(b)(4)(iii)(A) through (G) of this section 

may be used to comply with this 

requirement. The design analysis shall 

address the vent stream characteristics 

and control device operation parameters 

as specified below. 

(A) For a thermal vapor incinerator, 

the design analysis shall consider the 

vent stream composition, constituent 

concentrations, and flow rate. The 

design analysis shall also establish the 

design minimum and average 

temperature in the combustion zone and 

the combustion zone residence time. 

(B) For a catalytic vapor incinerator, 

the design analysis shall consider the 

vent stream composition, constituent 

concentrations, and flow rate. The 

design analysis shall also establish the 

design minimum and average 

temperatures across the catalyst bed 

inlet and outlet. 

(C) For a boiler or process heater, the 

design analysis shall consider the vent 

stream composition, constituent 

concentrations, and flow rate. The 

design analysis shall also establish the 

design minimum and average flame 

zone temperatures, combustion zone 

residence time, and description of 

method and location where the vent 

stream is introduced into the 

combustion zone. 

(D) For a flare, the design analysis 

shall consider the vent stream 

composition, constituent 

concentrations, and flow rate. The 

design analysis shall also consider the 

requirements specified in § 261.1033(d). 

(E) For a condenser, the design 

analysis shall consider the vent stream 

composition, constituent 

concentrations, flow rate, relative 

humidity, and temperature. The design 

analysis shall also establish the design 

outlet organic compound concentration 

level, design average temperature of the 

condenser exhaust vent stream, and 

design average temperatures of the 

coolant fluid at the condenser inlet and 

outlet. 

(F) For a carbon adsorption system 

such as a fixed-bed adsorber that 

regenerates the carbon bed directly 

onsite in the control device, the design 

analysis shall consider the vent stream 

composition, constituent 

concentrations, flow rate, relative 

humidity, and temperature. The design 

analysis shall also establish the design 

exhaust vent stream organic compound 

concentration level, number and 

capacity of carbon beds, type and 

working capacity of activated carbon 

used for carbon beds, design total steam 

flow over the period of each complete 

carbon bed regeneration cycle, duration 

of the carbon bed steaming and cooling/ 

drying cycles, design carbon bed 

temperature after regeneration, design 

carbon bed regeneration time, and 

design service life of carbon. 

(G) For a carbon adsorption system 

such as a carbon canister that does not 

regenerate the carbon bed directly onsite 

in the control device, the design 

analysis shall consider the vent stream 

composition, constituent 

concentrations, flow rate, relative 

humidity, and temperature. The design 

analysis shall also establish the design 

outlet organic concentration level, 

capacity of carbon bed, type and 

working capacity of activated carbon 

used for carbon bed, and design carbon 

replacement interval based on the total 

carbon working capacity of the control 

device and source operating schedule. 

(iv) A statement signed and dated by 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material certifying that the operating 

parameters used in the design analysis 

reasonably represent the conditions that 

exist when the hazardous secondary 

material management unit is or would 

be operating at the highest load or 

capacity level reasonably expected to 

occur. 

(v) A statement signed and dated by 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material certifying that the control 

device is designed to operate at an 

efficiency of 95 percent or greater unless 

the total organic concentration limit of 

§ 261.1032(a) is achieved at an 

efficiency less than 95 weight percent or 

the total organic emission limits of 

§ 261.1032(a) for affected process vents 

at the facility can be attained by a 

control device involving vapor recovery 

at an efficiency less than 95 weight 

percent. A statement provided by the 

control device manufacturer or vendor 

certifying that the control equipment 

meets the design specifications may be 

used to comply with this requirement. 

(vi) If performance tests are used to 

demonstrate compliance, all test results. 

(c) Design documentation and 

monitoring, operating, and inspection 

information for each closed-vent system 

and control device required to comply 

with the provisions of this part shall be 

recorded and kept up-to-date at the 

facility. The information shall include: 

(1) Description and date of each 

modification that is made to the closedvent system or control device design. 

(2) Identification of operating 

parameter, description of monitoring 

device, and diagram of monitoring 

sensor location or locations used to 

comply with § 261.1033 (f)(1) and (2). 

(3) Monitoring, operating, and 

inspection information required by 

§ 261.1033(f) through (k). 


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(4) Date, time, and duration of each 

period that occurs while the control 

device is operating when any monitored 

parameter exceeds the value established 

in the control device design analysis as 

specified below: 

(i) For a thermal vapor incinerator 

designed to operate with a minimum 

residence time of 0.50 second at a 

minimum temperature of 760 °C, period 

when the combustion temperature is 

below 760 °C. 

(ii) For a thermal vapor incinerator 

designed to operate with an organic 

emission reduction efficiency of 95 

weight percent or greater, period when 

the combustion zone temperature is 

more than 28 °C below the design 

average combustion zone temperature 

established as a requirement of 

paragraph (b)(4)(iii)(A) of this section. 

(iii) For a catalytic vapor incinerator, 

period when: 

(A) Temperature of the vent stream at 

the catalyst bed inlet is more than 28 °C 

below the average temperature of the 

inlet vent stream established as a 

requirement of paragraph (b)(4)(iii)(B) of 

this section, or 

(B) Temperature difference across the 

catalyst bed is less than 80 percent of 

the design average temperature 

difference established as a requirement 

of paragraph (b)(4)(iii)(B) of this section. 

(iv) For a boiler or process heater, 

period when: 

(A) Flame zone temperature is more 

than 28 °C below the design average 

flame zone temperature established as a 

requirement of paragraph (b)(4)(iii)(C) of 

this section, or 

(B) Position changes where the vent 

stream is introduced to the combustion 

zone from the location established as a 

requirement of paragraph (b)(4)(iii)(C) of 

this section. 

(v) For a flare, period when the pilot 

flame is not ignited. 

(vi) For a condenser that complies 

with § 261.1033(f)(2)(vi)(A), period 

when the organic compound 

concentration level or readings of 

organic compounds in the exhaust vent 

stream from the condenser are more 

than 20 percent greater than the design 

outlet organic compound concentration 

level established as a requirement of 

paragraph (b)(4)(iii)(E) of this section. 

(vii) For a condenser that complies 

with § 261.1033(f)(2)(vi)(B), period 

when: 

(A) Temperature of the exhaust vent 

stream from the condenser is more than 

6 °C above the design average exhaust 

vent stream temperature established as 

a requirement of paragraph (b)(4)(iii)(E) 

of this section; or 

(B) Temperature of the coolant fluid 

exiting the condenser is more than 6 °C 

above the design average coolant fluid 

temperature at the condenser outlet 

established as a requirement of 

paragraph (b)(4)(iii)(E) of this section. 

(viii) For a carbon adsorption system 

such as a fixed-bed carbon adsorber that 

regenerates the carbon bed directly onsite in the control device and complies 

with § 261.1033(f)(2)(vii)(A), period 

when the organic compound 

concentration level or readings of 

organic compounds in the exhaust vent 

stream from the carbon bed are more 

than 20 percent greater than the design 

exhaust vent stream organic compound 

concentration level established as a 

requirement of paragraph (b)(4)(iii)(F) of 

this section. 

(ix) For a carbon adsorption system 

such as a fixed-bed carbon adsorber that 

regenerates the carbon bed directly onsite in the control device and complies 

with § 261.1033(f)(2)(vii)(B), period 

when the vent stream continues to flow 

through the control device beyond the 

predetermined carbon bed regeneration 

time established as a requirement of 

paragraph (b)(4)(iii)(F) of this section. 

(5) Explanation for each period 

recorded under paragraph (c)(4) of the 

cause for control device operating 

parameter exceeding the design value 

and the measures implemented to 

correct the control device operation. 

(6) For a carbon adsorption system 

operated subject to requirements 

specified in § 261.1033(g) or (h)(2), date 

when existing carbon in the control 

device is replaced with fresh carbon. 

(7) For a carbon adsorption system 

operated subject to requirements 

specified in § 261.1033(h)(1), a log that 

records: 

(i) Date and time when control device 

is monitored for carbon breakthrough 

and the monitoring device reading. 

(ii) Date when existing carbon in the 

control device is replaced with fresh 

carbon. 

(8) Date of each control device startup 

and shutdown. 

(9) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material designating any 

components of a closed-vent system as 

unsafe to monitor pursuant to 

§ 261.1033(o) of this subpart shall 

record in a log that is kept at the facility 

the identification of closed-vent system 

components that are designated as 

unsafe to monitor in accordance with 

the requirements of § 261.1033(o) of this 

subpart, an explanation for each closedvent system component stating why the 

closed-vent system component is unsafe 

to monitor, and the plan for monitoring 

each closed-vent system component. 

(10) When each leak is detected as 

specified in § 261.1033(l) of this 

subpart, the following information shall 

be recorded: 

(i) The instrument identification 

number, the closed-vent system 

component identification number, and 

the operator name, initials, or 

identification number. 

(ii) The date the leak was detected 

and the date of first attempt to repair the 

leak. 

(iii) The date of successful repair of 

the leak. 

(iv) Maximum instrument reading 

measured by Method 21 of 40 CFR part 

60, appendix A after it is successfully 

repaired or determined to be 

nonrepairable. 

(v) ‘‘Repair delayed’’ and the reason 

for the delay if a leak is not repaired 

within 15 calendar days after discovery 

of the leak. 

(A) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material may 

develop a written procedure that 

identifies the conditions that justify a 

delay of repair. In such cases, reasons 

for delay of repair may be documented 

by citing the relevant sections of the 

written procedure. 

(B) If delay of repair was caused by 

depletion of stocked parts, there must be 

documentation that the spare parts were 

sufficiently stocked on-site before 

depletion and the reason for depletion. 

(d) Records of the monitoring, 

operating, and inspection information 

required by paragraphs (c)(3) through 

(10) of this section shall be maintained 

by the owner or operator for at least 3 

years following the date of each 

occurrence, measurement, maintenance, 

corrective action, or record. 

(e) For a control device other than a 

thermal vapor incinerator, catalytic 

vapor incinerator, flare, boiler, process 

heater, condenser, or carbon adsorption 

system, the Regional Administrator will 

specify the appropriate recordkeeping 

requirements. 

(f) Up-to-date information and data 

used to determine whether or not a 

process vent is subject to the 

requirements in § 261.1032 including 

supporting documentation as required 

by § 261.1034(d)(2) when application of 

the knowledge of the nature of the 

hazardous secondary material stream or 

the process by which it was produced 

is used, shall be recorded in a log that 

is kept at the facility. 

§§ 261.1036–261.1049 [Reserved] 

Subpart BB—Air Emission Standards 

for Equipment Leaks 

§ 261.1050 Applicability. 

(a) The regulations in this subpart 

apply to equipment that contains 


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hazardous secondary materials excluded 

under the remanufacturing exclusion at 

§ 261.4(a)(27), unless the equipment 

operations are subject to the 

requirements of an applicable Clean Air 

Act regulation codified under 40 CFR 

part 60, part 61, or part 63. 

§ 261.1051 Definitions. 

As used in this subpart, all terms shall 

have the meaning given them in 

§ 261.1031, the Resource Conservation 

and Recovery Act, and 40 CFR parts 

260–266. 

§ 261.1052 Standards: Pumps in light 

liquid service. 

(a)(1) Each pump in light liquid 

service shall be monitored monthly to 

detect leaks by the methods specified in 

§ 261.1063(b), except as provided in 

paragraphs (d), (e), and (f) of this 

section. 

(2) Each pump in light liquid service 

shall be checked by visual inspection 

each calendar week for indications of 

liquids dripping from the pump seal. 

(b)(1) If an instrument reading of 

10,000 ppm or greater is measured, a 

leak is detected. 

(2) If there are indications of liquids 

dripping from the pump seal, a leak is 

detected. 

(c)(1) When a leak is detected, it shall 

be repaired as soon as practicable, but 

not later than 15 calendar days after it 

is detected, except as provided in 

§ 261.1059. 

(2) A first attempt at repair (e.g., 

tightening the packing gland) shall be 

made no later than five calendar days 

after each leak is detected. 

(d) Each pump equipped with a dual 

mechanical seal system that includes a 

barrier fluid system is exempt from the 

requirements of paragraph (a) of this 

section, provided the following 

requirements are met: 

(1) Each dual mechanical seal system 

must be: 

(i) Operated with the barrier fluid at 

a pressure that is at all times greater 

than the pump stuffing box pressure, or 

(ii) Equipped with a barrier fluid 

degassing reservoir that is connected by 

a closed-vent system to a control device 

that complies with the requirements of 

§ 261.1060, or 

(iii) Equipped with a system that 

purges the barrier fluid into a hazardous 

secondary material stream with no 

detectable emissions to the atmosphere. 

(2) The barrier fluid system must not 

be a hazardous secondary material with 

organic concentrations 10 percent or 

greater by weight. 

(3) Each barrier fluid system must be 

equipped with a sensor that will detect 

failure of the seal system, the barrier 

fluid system, or both. 

(4) Each pump must be checked by 

visual inspection, each calendar week, 

for indications of liquids dripping from 

the pump seals. 

(5)(i) Each sensor as described in 

paragraph (d)(3) of this section must be 

checked daily or be equipped with an 

audible alarm that must be checked 

monthly to ensure that it is functioning 

properly. 

(ii) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material must 

determine, based on design 

considerations and operating 

experience, a criterion that indicates 

failure of the seal system, the barrier 

fluid system, or both. 

(6)(i) If there are indications of liquids 

dripping from the pump seal or the 

sensor indicates failure of the seal 

system, the barrier fluid system, or both 

based on the criterion determined in 

paragraph (d)(5)(ii) of this section, a leak 

is detected. 

(ii) When a leak is detected, it shall 

be repaired as soon as practicable, but 

not later than 15 calendar days after it 

is detected, except as provided in 

§ 261.1059. 

(iii) A first attempt at repair (e.g., 

relapping the seal) shall be made no 

later than five calendar days after each 

leak is detected. 

(e) Any pump that is designated, as 

described in § 261.1064(g)(2), for no 

detectable emissions, as indicated by an 

instrument reading of less than 500 ppm 

above background, is exempt from the 

requirements of paragraphs (a), (c), and 

(d) of this section if the pump meets the 

following requirements: 

(1) Must have no externally actuated 

shaft penetrating the pump housing. 

(2) Must operate with no detectable 

emissions as indicated by an instrument 

reading of less than 500 ppm above 

background as measured by the methods 

specified in § 261.1063(c). 

(3) Must be tested for compliance 

with paragraph (e)(2) of this section 

initially upon designation, annually, 

and at other times as requested by the 

Regional Administrator. 

(f) If any pump is equipped with a 

closed-vent system capable of capturing 

and transporting any leakage from the 

seal or seals to a control device that 

complies with the requirements of 

§ 261.1060, it is exempt from the 

requirements of paragraphs (a) through 

(e) of this section. 

§ 261.1053 Standards: Compressors. 

(a) Each compressor shall be equipped 

with a seal system that includes a 

barrier fluid system and that prevents 

leakage of total organic emissions to the 

atmosphere, except as provided in 

paragraphs (h) and (i) of this section. 

(b) Each compressor seal system as 

required in paragraph (a) of this section 

shall be: 

(1) Operated with the barrier fluid at 

a pressure that is at all times greater 

than the compressor stuffing box 

pressure, or 

(2) Equipped with a barrier fluid 

system that is connected by a closedvent system to a control device that 

complies with the requirements of 

§ 261.1060, or 

(3) Equipped with a system that 

purges the barrier fluid into a hazardous 

secondary material stream with no 

detectable emissions to atmosphere. 

(c) The barrier fluid must not be a 

hazardous secondary material with 

organic concentrations 10 percent or 

greater by weight. 

(d) Each barrier fluid system as 

described in paragraphs (a) through (c) 

of this section shall be equipped with a 

sensor that will detect failure of the seal 

system, barrier fluid system, or both. 

(e)(1) Each sensor as required in 

paragraph (d) of this section shall be 

checked daily or shall be equipped with 

an audible alarm that must be checked 

monthly to ensure that it is functioning 

properly unless the compressor is 

located within the boundary of an 

unmanned plant site, in which case the 

sensor must be checked daily. 

(2) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

determine, based on design 

considerations and operating 

experience, a criterion that indicates 

failure of the seal system, the barrier 

fluid system, or both. 

(f) If the sensor indicates failure of the 

seal system, the barrier fluid system, or 

both based on the criterion determined 

under paragraph (e)(2) of this section, a 

leak is detected. 

(g)(1) When a leak is detected, it shall 

be repaired as soon as practicable, but 

not later than 15 calendar days after it 

is detected, except as provided in 

§ 261.1059. 

(2) A first attempt at repair (e.g., 

tightening the packing gland) shall be 

made no later than 5 calendar days after 

each leak is detected. 

(h) A compressor is exempt from the 

requirements of paragraphs (a) and (b) of 

this section if it is equipped with a 

closed-vent system capable of capturing 

and transporting any leakage from the 

seal to a control device that complies 

with the requirements of § 261.1060, 

except as provided in paragraph (i) of 

this section. 

(i) Any compressor that is designated, 

as described in § 261.1064(g)(2), for no 


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detectable emissions as indicated by an 

instrument reading of less than 500 ppm 

above background is exempt from the 

requirements of paragraphs (a) through 

(h) of this section if the compressor: 

(1) Is determined to be operating with 

no detectable emissions, as indicated by 

an instrument reading of less than 500 

ppm above background, as measured by 

the method specified in § 261.1063(c). 

(2) Is tested for compliance with 

paragraph (i)(1) of this section initially 

upon designation, annually, and at other 

times as requested by the Regional 

Administrator. 

§ 261.1054 Standards: Pressure relief 

devices in gas/vapor service. 

(a) Except during pressure releases, 

each pressure relief device in gas/vapor 

service shall be operated with no 

detectable emissions, as indicated by an 

instrument reading of less than 500 ppm 

above background, as measured by the 

method specified in § 261.1063(c). 

(b)(1) After each pressure release, the 

pressure relief device shall be returned 

to a condition of no detectable 

emissions, as indicated by an 

instrument reading of less than 500 ppm 

above background, as soon as 

practicable, but no later than 5 calendar 

days after each pressure release, except 

as provided in § 261.1059. 

(2) No later than 5 calendar days after 

the pressure release, the pressure relief 

device shall be monitored to confirm the 

condition of no detectable emissions, as 

indicated by an instrument reading of 

less than 500 ppm above background, as 

measured by the method specified in 

§ 261.1063(c). 

(c) Any pressure relief device that is 

equipped with a closed-vent system 

capable of capturing and transporting 

leakage from the pressure relief device 

to a control device as described in 

§ 261.1060 is exempt from the 

requirements of paragraphs (a) and (b) of 

this section. 

§ 261.1055 Standards: Sampling 

connection systems. 

(a) Each sampling connection system 

shall be equipped with a closed-purge, 

closed-loop, or closed-vent system. This 

system shall collect the sample purge 

for return to the process or for routing 

to the appropriate treatment system. 

Gases displaced during filling of the 

sample container are not required to be 

collected or captured. 

(b) Each closed-purge, closed-loop, or 

closed-vent system as required in 

paragraph (a) of this section shall meet 

one of the following requirements: 

(1) Return the purged process fluid 

directly to the process line; 

(2) Collect and recycle the purged 

process fluid; or 

(3) Be designed and operated to 

capture and transport all the purged 

process fluid to a material management 

unit that complies with the applicable 

requirements of §§ 261.1084 through 

264.1086 of this subpart or a control 

device that complies with the 

requirements of § 261.1060 of this 

subpart. 

(c) In-situ sampling systems and 

sampling systems without purges are 

exempt from the requirements of 

paragraphs (a) and (b) of this section. 

§ 261.1056 Standards: Open-ended valves 

or lines. 

(a)(1) Each open-ended valve or line 

shall be equipped with a cap, blind 

flange, plug, or a second valve. 

(2) The cap, blind flange, plug, or 

second valve shall seal the open end at 

all times except during operations 

requiring hazardous secondary material 

stream flow through the open-ended 

valve or line. 

(b) Each open-ended valve or line 

equipped with a second valve shall be 

operated in a manner such that the 

valve on the hazardous secondary 

material stream end is closed before the 

second valve is closed. 

(c) When a double block and bleed 

system is being used, the bleed valve or 

line may remain open during operations 

that require venting the line between the 

block valves but shall comply with 

paragraph (a) of this section at all other 

times. 

§ 261.1057 Standards: Valves in gas/vapor 

service or in light liquid service. 

(a) Each valve in gas/vapor or light 

liquid service shall be monitored 

monthly to detect leaks by the methods 

specified in § 261.1063(b) and shall 

comply with paragraphs (b) through (e) 

of this section, except as provided in 

paragraphs (f), (g), and (h) of this section 

and §§ 261.1061 and 261.1062. 

(b) If an instrument reading of 10,000 

ppm or greater is measured, a leak is 

detected. 

(c)(1) Any valve for which a leak is 

not detected for two successive months 

may be monitored the first month of 

every succeeding quarter, beginning 

with the next quarter, until a leak is 

detected. 

(2) If a leak is detected, the valve shall 

be monitored monthly until a leak is not 

detected for two successive months, 

(d)(1) When a leak is detected, it shall 

be repaired as soon as practicable, but 

no later than 15 calendar days after the 

leak is detected, except as provided in 

§ 261.1059. 

(2) A first attempt at repair shall be 

made no later than 5 calendar days after 

each leak is detected. 

(e) First attempts at repair include, 

but are not limited to, the following best 

practices where practicable: 

(1) Tightening of bonnet bolts. 

(2) Replacement of bonnet bolts. 

(3) Tightening of packing gland nuts. 

(4) Injection of lubricant into 

lubricated packing. 

(f) Any valve that is designated, as 

described in § 261.1064(g)(2), for no 

detectable emissions, as indicated by an 

instrument reading of less than 500 ppm 

above background, is exempt from the 

requirements of paragraph (a) of this 

section if the valve: 

(1) Has no external actuating 

mechanism in contact with the 

hazardous secondary material stream. 

(2) Is operated with emissions less 

than 500 ppm above background as 

determined by the method specified in 

§ 261.1063(c). 

(3) Is tested for compliance with 

paragraph (f)(2) of this section initially 

upon designation, annually, and at other 

times as requested by the Regional 

Administrator. 

(g) Any valve that is designated, as 

described in § 261.1064(h)(1), as an 

unsafe-to-monitor valve is exempt from 

the requirements of paragraph (a) of this 

section if: 

(1) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material 

determines that the valve is unsafe to 

monitor because monitoring personnel 

would be exposed to an immediate 

danger as a consequence of complying 

with paragraph (a) of this section. 

(2) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material adheres 

to a written plan that requires 

monitoring of the valve as frequently as 

practicable during safe-to-monitor 

times. 

(h) Any valve that is designated, as 

described in § 261.1064(h)(2), as a 

difficult-to-monitor valve is exempt 

from the requirements of paragraph (a) 

of this section if: 

(1) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material 

determines that the valve cannot be 

monitored without elevating the 

monitoring personnel more than 2 

meters above a support surface. 

(2) The hazardous secondary material 

management unit within which the 

valve is located was in operation before 

January 13, 2015. 

(3) The owner or operator of the valve 

follows a written plan that requires 

monitoring of the valve at least once per 

calendar year. 


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§ 261.1058 Standards: Pumps and valves 

in heavy liquid service, pressure relief 

devices in light liquid or heavy liquid 

service, and flanges and other connectors. 

(a) Pumps and valves in heavy liquid 

service, pressure relief devices in light 

liquid or heavy liquid service, and 

flanges and other connectors shall be 

monitored within five days by the 

method specified in § 261.1063(b) if 

evidence of a potential leak is found by 

visual, audible, olfactory, or any other 

detection method. 

(b) If an instrument reading of 10,000 

ppm or greater is measured, a leak is 

detected. 

(c)(1) When a leak is detected, it shall 

be repaired as soon as practicable, but 

not later than 15 calendar days after it 

is detected, except as provided in 

§ 261.1059. 

(2) The first attempt at repair shall be 

made no later than 5 calendar days after 

each leak is detected. 

(d) First attempts at repair include, 

but are not limited to, the best practices 

described under § 261.1057(e). 

(e) Any connector that is inaccessible 

or is ceramic or ceramic-lined (e.g., 

porcelain, glass, or glass-lined) is 

exempt from the monitoring 

requirements of paragraph (a) of this 

section and from the recordkeeping 

requirements of § 261.1064 of this 

subpart. 

§ 261.1059 Standards: Delay of repair. 

(a) Delay of repair of equipment for 

which leaks have been detected will be 

allowed if the repair is technically 

infeasible without a hazardous 

secondary material management unit 

shutdown. In such a case, repair of this 

equipment shall occur before the end of 

the next hazardous secondary material 

management unit shutdown. 

(b) Delay of repair of equipment for 

which leaks have been detected will be 

allowed for equipment that is isolated 

from the hazardous secondary material 

management unit and that does not 

continue to contain or contact 

hazardous secondary material with 

organic concentrations at least 10 

percent by weight. 

(c) Delay of repair for valves will be 

allowed if: 

(1) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material 

determines that emissions of purged 

material resulting from immediate 

repair are greater than the emissions 

likely to result from delay of repair. 

(2) When repair procedures are 

effected, the purged material is collected 

and destroyed or recovered in a control 

device complying with § 261.1060. 

(d) Delay of repair for pumps will be 

allowed if: 

(1) Repair requires the use of a dual 

mechanical seal system that includes a 

barrier fluid system. 

(2) Repair is completed as soon as 

practicable, but not later than 6 months 

after the leak was detected. 

(e) Delay of repair beyond a hazardous 

secondary material management unit 

shutdown will be allowed for a valve if 

valve assembly replacement is necessary 

during the hazardous secondary 

material management unit shutdown, 

valve assembly supplies have been 

depleted, and valve assembly supplies 

had been sufficiently stocked before the 

supplies were depleted. Delay of repair 

beyond the next hazardous secondary 

material management unit shutdown 

will not be allowed unless the next 

hazardous secondary material 

management unit shutdown occurs 

sooner than 6 months after the first 

hazardous secondary material 

management unit shutdown. 

§ 261.1060 Standards: Closed-vent 

systems and control devices. 

(a) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material in a 

hazardous secondary material 

management units using closed-vent 

systems and control devices subject to 

this subpart shall comply with the 

provisions of § 261.1033 of this part. 

(b)(1) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material at an 

existing facility who cannot install a 

closed-vent system and control device 

to comply with the provisions of this 

subpart on the effective date that the 

facility becomes subject to the 

provisions of this subpart must prepare 

an implementation schedule that 

includes dates by which the closed-vent 

system and control device will be 

installed and in operation. The controls 

must be installed as soon as possible, 

but the implementation schedule may 

allow up to 30 months after the effective 

date that the facility becomes subject to 

this subpart for installation and startup. 

(2) Any unit that begins operation 

after July 13, 2015 and is subject to the 

provisions of this subpart when 

operation begins, must comply with the 

rules immediately (i.e., must have 

control devices installed and operating 

on startup of the affected unit); the 30- 

month implementation schedule does 

not apply. 

(3) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material at any 

facility in existence on the effective date 

of a statutory or regulatory amendment 

that renders the facility subject to this 

subpart shall comply with all 

requirements of this subpart as soon as 

practicable but no later than 30 months 

after the amendment’s effective date. 

When control equipment required by 

this subpart cannot be installed and 

begin operation by the effective date of 

the amendment, the facility owner or 

operator shall prepare an 

implementation schedule that includes 

the following information: Specific 

calendar dates for award of contracts or 

issuance of purchase orders for the 

control equipment, initiation of on-site 

installation of the control equipment, 

completion of the control equipment 

installation, and performance of any 

testing to demonstrate that the installed 

equipment meets the applicable 

standards of this subpart. The 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall keep a copy of the 

implementation schedule at the facility. 

(4) Remanufacturers or other persons 

that store or treat the hazardous 

secondary materials at facilities and 

units that become newly subject to the 

requirements of this subpart after 

January 13, 2015, due to an action other 

than those described in paragraph (b)(3) 

of this section must comply with all 

applicable requirements immediately 

(i.e., must have control devices installed 

and operating on the date the facility or 

unit becomes subject to this subpart; the 

30-month implementation schedule 

does not apply). 

§ 261.1061 Alternative standards for 

valves in gas/vapor service or in light liquid 

service: percentage of valves allowed to 

leak. 

(a) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material subject to the 

requirements of § 261.1057 may elect to 

have all valves within a hazardous 

secondary material management unit 

comply with an alternative standard 

that allows no greater than 2 percent of 

the valves to leak. 

(b) The following requirements shall 

be met if a remanufacturer or other 

person that stores or treats the 

hazardous secondary material decides to 

comply with the alternative standard of 

allowing 2 percent of valves to leak: 

(1) A performance test as specified in 

paragraph (c) of this section shall be 

conducted initially upon designation, 

annually, and at other times requested 

by the Regional Administrator. 

(2) If a valve leak is detected, it shall 

be repaired in accordance with 

§ 261.1057(d) and (e). 

(c) Performance tests shall be 

conducted in the following manner: 

(1) All valves subject to the 

requirements in § 261.1057 within the 


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Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 1795 

hazardous secondary material 

management unit shall be monitored 

within 1 week by the methods specified 

in § 261.1063(b). 

(2) If an instrument reading of 10,000 

ppm or greater is measured, a leak is 

detected. 

(3) The leak percentage shall be 

determined by dividing the number of 

valves subject to the requirements in 

§ 261.1057 for which leaks are detected 

by the total number of valves subject to 

the requirements in § 261.1057 within 

the hazardous secondary material 

management unit. 

§ 261.1062 Alternative standards for 

valves in gas/vapor service or in light liquid 

service: skip period leak detection and 

repair. 

(a) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material subject to the 

requirements of § 261.1057 may elect for 

all valves within a hazardous secondary 

material management unit to comply 

with one of the alternative work 

practices specified in paragraphs (b)(2) 

and (3) of this section. 

(b)(1) A remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

comply with the requirements for 

valves, as described in § 261.1057, 

except as described in paragraphs (b)(2) 

and (3) of this section. 

(2) After two consecutive quarterly 

leak detection periods with the 

percentage of valves leaking equal to or 

less than two percent, a remanufacturer 

or other person that stores or treats the 

hazardous secondary material may 

begin to skip one of the quarterly leak 

detection periods (i.e., monitor for leaks 

once every six months) for the valves 

subject to the requirements in 

§ 261.1057 of this subpart. 

(3) After five consecutive quarterly 

leak detection periods with the 

percentage of valves leaking equal to or 

less than two percent, a remanufacturer 

or other person that stores or treats the 

hazardous secondary material may 

begin to skip three of the quarterly leak 

detection periods (i.e., monitor for leaks 

once every year) for the valves subject 

to the requirements in § 261.1057 of this 

subpart. 

(4) If the percentage of valves leaking 

is greater than two percent, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall monitor monthly in 

compliance with the requirements in 

§ 261.1057, but may again elect to use 

this section after meeting the 

requirements of § 261.1057(c)(1). 

§ 261.1063 Test methods and procedures. 

(a) Each remanufacturer or other 

person that stores or treats the 

hazardous secondary material subject to 

the provisions of this subpart shall 

comply with the test methods and 

procedures requirements provided in 

this section. 

(b) Leak detection monitoring, as 

required in §§ 261.1052–261.1062, shall 

comply with the following 

requirements: 

(1) Monitoring shall comply with 

Reference Method 21 in 40 CFR part 60. 

(2) The detection instrument shall 

meet the performance criteria of 

Reference Method 21. 

(3) The instrument shall be calibrated 

before use on each day of its use by the 

procedures specified in Reference 

Method 21. 

(4) Calibration gases shall be: 

(i) Zero air (less than 10 ppm of 

hydrocarbon in air). 

(ii) A mixture of methane or n-hexane 

and air at a concentration of 

approximately, but less than, 10,000 

ppm methane or n-hexane. 

(5) The instrument probe shall be 

traversed around all potential leak 

interfaces as close to the interface as 

possible as described in Reference 

Method 21. 

(c) When equipment is tested for 

compliance with no detectable 

emissions, as required in §§ 261.1052(e), 

261.1053(i), 261.1054, and 261.1057(f), 

the test shall comply with the following 

requirements: 

(1) The requirements of paragraphs 

(b)(1) through (4) of this section shall 

apply. 

(2) The background level shall be 

determined as set forth in Reference 

Method 21. 

(3) The instrument probe shall be 

traversed around all potential leak 

interfaces as close to the interface as 

possible as described in Reference 

Method 21. 

(4) The arithmetic difference between 

the maximum concentration indicated 

by the instrument and the background 

level is compared with 500 ppm for 

determining compliance. 

(d) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material must determine, for 

each piece of equipment, whether the 

equipment contains or contacts a 

hazardous secondary material with 

organic concentration that equals or 

exceeds 10 percent by weight using the 

following: 

(1) Methods described in ASTM 

Methods D 2267–88, E 169–87, E 168– 

88, E 260–85 (incorporated by reference 

under § 260.11); 

(2) Method 9060A (incorporated by 

reference under 40 CFR 260.11) of ‘‘Test 

Methods for Evaluating Solid Waste,’’ 

EPA Publication SW–846, for 

computing total organic concentration 

of the sample, or analyzed for its 

individual organic constituents; or 

(3) Application of the knowledge of 

the nature of the hazardous secondary 

material stream or the process by which 

it was produced. Documentation of a 

material determination by knowledge is 

required. Examples of documentation 

that shall be used to support a 

determination under this provision 

include production process information 

documenting that no organic 

compounds are used, information that 

the material is generated by a process 

that is identical to a process at the same 

or another facility that has previously 

been demonstrated by direct 

measurement to have a total organic 

content less than 10 percent, or prior 

speciation analysis results on the same 

material stream where it can also be 

documented that no process changes 

have occurred since that analysis that 

could affect the material total organic 

concentration. 

(e) If a remanufacturer or other person 

that stores or treats the hazardous 

secondary material determines that a 

piece of equipment contains or contacts 

a hazardous secondary material with 

organic concentrations at least 10 

percent by weight, the determination 

can be revised only after following the 

procedures in paragraph (d)(1) or (2) of 

this section. 

(f) When a remanufacturer or other 

person that stores or treats the 

hazardous secondary material and the 

Regional Administrator do not agree on 

whether a piece of equipment contains 

or contacts a hazardous secondary 

material with organic concentrations at 

least 10 percent by weight, the 

procedures in paragraph (d)(1) or (2) of 

this section can be used to resolve the 

dispute. 

(g) Samples used in determining the 

percent organic content shall be 

representative of the highest total 

organic content hazardous secondary 

material that is expected to be contained 

in or contact the equipment. 

(h) To determine if pumps or valves 

are in light liquid service, the vapor 

pressures of constituents may be 

obtained from standard reference texts 

or may be determined by ASTM D– 

2879–86 (incorporated by reference 

under § 260.11). 

(i) Performance tests to determine if a 

control device achieves 95 weight 

percent organic emission reduction 

shall comply with the procedures of 

§ 261.1034(c)(1) through (4). 


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1796 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

§ 261.1064 Recordkeeping requirements. 

(a)(1) Each remanufacturer or other 

person that stores or treats the 

hazardous secondary material subject to 

the provisions of this subpart shall 

comply with the recordkeeping 

requirements of this section. 

(2) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material in more than one 

hazardous secondary material 

management unit subject to the 

provisions of this subpart may comply 

with the recordkeeping requirements for 

these hazardous secondary material 

management units in one recordkeeping 

system if the system identifies each 

record by each hazardous secondary 

material management unit. 

(b) Remanufacturer’s and other 

person’s that store or treat the hazardous 

secondary material must record and 

keep the following information at the 

facility: 

(1) For each piece of equipment to 

which subpart BB of part 261 applies: 

(i) Equipment identification number 

and hazardous secondary material 

management unit identification. 

(ii) Approximate locations within the 

facility (e.g., identify the hazardous 

secondary material management unit on 

a facility plot plan). 

(iii) Type of equipment (e.g., a pump 

or pipeline valve). 

(iv) Percent-by-weight total organics 

in the hazardous secondary material 

stream at the equipment. 

(v) Hazardous secondary material 

state at the equipment (e.g., gas/vapor or 

liquid). 

(vi) Method of compliance with the 

standard (e.g., ‘‘monthly leak detection 

and repair’’ or ‘‘equipped with dual 

mechanical seals’’). 

(2) For facilities that comply with the 

provisions of § 261.1033(a)(2), an 

implementation schedule as specified in 

§ 261.1033(a)(2). 

(3) Where a remanufacturer or other 

person that stores or treats the 

hazardous secondary material chooses 

to use test data to demonstrate the 

organic removal efficiency or total 

organic compound concentration 

achieved by the control device, a 

performance test plan as specified in 

§ 261.1035(b)(3). 

(4) Documentation of compliance 

with § 261.1060, including the detailed 

design documentation or performance 

test results specified in § 261.1035(b)(4). 

(c) When each leak is detected as 

specified in §§ 261.1052, 261.1053, 

261.1057, and 261.1058, the following 

requirements apply: 

(1) A weatherproof and readily visible 

identification, marked with the 

equipment identification number, the 

date evidence of a potential leak was 

found in accordance with § 261.1058(a), 

and the date the leak was detected, shall 

be attached to the leaking equipment. 

(2) The identification on equipment, 

except on a valve, may be removed after 

it has been repaired. 

(3) The identification on a valve may 

be removed after it has been monitored 

for two successive months as specified 

in § 261.1057(c) and no leak has been 

detected during those two months. 

(d) When each leak is detected as 

specified in §§ 261.1052, 261.1053, 

261.1057, and 261.1058, the following 

information shall be recorded in an 

inspection log and shall be kept at the 

facility: 

(1) The instrument and operator 

identification numbers and the 

equipment identification number. 

(2) The date evidence of a potential 

leak was found in accordance with 

§ 261.1058(a). 

(3) The date the leak was detected and 

the dates of each attempt to repair the 

leak. 

(4) Repair methods applied in each 

attempt to repair the leak. 

(5) ‘‘Above 10,000’’ if the maximum 

instrument reading measured by the 

methods specified in § 261.1063(b) after 

each repair attempt is equal to or greater 

than 10,000 ppm. 

(6) ‘‘Repair delayed’’ and the reason 

for the delay if a leak is not repaired 

within 15 calendar days after discovery 

of the leak. 

(7) Documentation supporting the 

delay of repair of a valve in compliance 

with § 261.1059(c). 

(8) The signature of the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material (or designate) whose decision it 

was that repair could not be effected 

without a hazardous secondary material 

management unit shutdown. 

(9) The expected date of successful 

repair of the leak if a leak is not repaired 

within 15 calendar days. 

(10) The date of successful repair of 

the leak. 

(e) Design documentation and 

monitoring, operating, and inspection 

information for each closed-vent system 

and control device required to comply 

with the provisions of § 261.1060 shall 

be recorded and kept up-to-date at the 

facility as specified in § 261.1035(c). 

Design documentation is specified in 

§ 261.1035(c)(1) and (2) and monitoring, 

operating, and inspection information in 

§ 261.1035(c)(3) through (8). 

(f) For a control device other than a 

thermal vapor incinerator, catalytic 

vapor incinerator, flare, boiler, process 

heater, condenser, or carbon adsorption 

system, the Regional Administrator will 

specify the appropriate recordkeeping 

requirements. 

(g) The following information 

pertaining to all equipment subject to 

the requirements in §§ 261.1052 through 

261.1060 shall be recorded in a log that 

is kept at the facility: 

(1) A list of identification numbers for 

equipment (except welded fittings) 

subject to the requirements of this 

subpart. 

(2)(i) A list of identification numbers 

for equipment that the remanufacturer 

or other person that stores or treats the 

hazardous secondary material elects to 

designate for no detectable emissions, as 

indicated by an instrument reading of 

less than 500 ppm above background, 

under the provisions of §§ 261.1052(e), 

261.1053(i), and 261.1057(f). 

(ii) The designation of this equipment 

as subject to the requirements of 

§§ 261.1052(e), 261.1053(i), or 

261.1057(f) shall be signed by the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material. 

(3) A list of equipment identification 

numbers for pressure relief devices 

required to comply with § 261.1054(a). 

(4)(i) The dates of each compliance 

test required in §§ 261.1052(e), 

261.1053(i), 261.1054, and 261.1057(f). 

(ii) The background level measured 

during each compliance test. 

(iii) The maximum instrument 

reading measured at the equipment 

during each compliance test. 

(5) A list of identification numbers for 

equipment in vacuum service. 

(6) Identification, either by list or 

location (area or group) of equipment 

that contains or contacts hazardous 

secondary material with an organic 

concentration of at least 10 percent by 

weight for less than 300 hours per 

calendar year. 

(h) The following information 

pertaining to all valves subject to the 

requirements of § 261.1057(g) and (h) 

shall be recorded in a log that is kept at 

the facility: 

(1) A list of identification numbers for 

valves that are designated as unsafe to 

monitor, an explanation for each valve 

stating why the valve is unsafe to 

monitor, and the plan for monitoring 

each valve. 

(2) A list of identification numbers for 

valves that are designated as difficult to 

monitor, an explanation for each valve 

stating why the valve is difficult to 

monitor, and the planned schedule for 

monitoring each valve. 

(i) The following information shall be 

recorded in a log that is kept at the 

facility for valves complying with 

§ 261.1062: 

(1) A schedule of monitoring. 


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(2) The percent of valves found 

leaking during each monitoring period. 

(j) The following information shall be 

recorded in a log that is kept at in the 

facility: 

(1) Criteria required in 

§§ 261.1052(d)(5)(ii) and 261.1053(e)(2) 

and an explanation of the design 

criteria. 

(2) Any changes to these criteria and 

the reasons for the changes. 

(k) The following information shall be 

recorded in a log that is kept at the 

facility for use in determining 

exemptions as provided in the 

applicability section of this subpart and 

other specific subparts: 

(1) An analysis determining the 

design capacity of the hazardous 

secondary material management unit. 

(2) A statement listing the hazardous 

secondary material influent to and 

effluent from each hazardous secondary 

material management unit subject to the 

requirements in §§ 261.1052 through 

261.1060 and an analysis determining 

whether these hazardous secondary 

materials are heavy liquids. 

(3) An up-to-date analysis and the 

supporting information and data used to 

determine whether or not equipment is 

subject to the requirements in 

§§ 261.1052 through 261.1060. The 

record shall include supporting 

documentation as required by 

§ 261.1063(d)(3) when application of the 

knowledge of the nature of the 

hazardous secondary material stream or 

the process by which it was produced 

is used. If the remanufacturer or other 

person that stores or treats the 

hazardous secondary material takes any 

action (e.g., changing the process that 

produced the material) that could result 

in an increase in the total organic 

content of the material contained in or 

contacted by equipment determined not 

to be subject to the requirements in 

§§ 261.1052 through 261.1060, then a 

new determination is required. 

(l) Records of the equipment leak 

information required by paragraph (d) of 

this section and the operating 

information required by paragraph (e) of 

this section need be kept only three 

years. 

(m) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material at a 

facility with equipment that is subject to 

this subpart and to regulations at 40 

CFR part 60, part 61, or part 63 may 

elect to determine compliance with this 

subpart either by documentation 

pursuant to § 261.1064 of this subpart, 

or by documentation of compliance 

with the regulations at 40 CFR part 60, 

part 61, or part 63 pursuant to the 

relevant provisions of the regulations at 

40 part 60, part 61, or part 63. The 

documentation of compliance under 

regulations at 40 CFR part 60, part 61, 

or part 63 shall be kept with or made 

readily available at the facility. 

§§ 261.1065–261.1079 [Reserved] 

Subpart CC—Air Emission Standards 

for Tanks and Containers 

§ 261.1080 Applicability. 

(a) The regulations in this subpart 

apply to tanks and containers that 

contain hazardous secondary materials 

excluded under the remanufacturing 

exclusion at § 261.4(a)(27), unless the 

tanks and containers are equipped with 

and operating air emission controls in 

accordance with the requirements of an 

applicable Clean Air Act regulations 

codified under 40 CFR part 60, part 61, 

or part 63. 

(b) [Reserved] 

§ 261.1081 Definitions. 

As used in this subpart, all terms not 

defined herein shall have the meaning 

given to them in the Resource 

Conservation and Recovery Act and 

parts 260 through 266 of this chapter. 

Average volatile organic 

concentration or average VO 

concentration means the mass-weighted 

average volatile organic concentration of 

a hazardous secondary material as 

determined in accordance with the 

requirements of § 261.1084 of this 

subpart. 

Closure device means a cap, hatch, 

lid, plug, seal, valve, or other type of 

fitting that blocks an opening in a cover 

such that when the device is secured in 

the closed position it prevents or 

reduces air pollutant emissions to the 

atmosphere. Closure devices include 

devices that are detachable from the 

cover (e.g., a sampling port cap), 

manually operated (e.g., a hinged access 

lid or hatch), or automatically operated 

(e.g., a spring-loaded pressure relief 

valve). 

Continuous seal means a seal that 

forms a continuous closure that 

completely covers the space between 

the edge of the floating roof and the wall 

of a tank. A continuous seal may be a 

vapor-mounted seal, liquid-mounted 

seal, or metallic shoe seal. A continuous 

seal may be constructed of fastened 

segments so as to form a continuous 

seal. 

Cover means a device that provides a 

continuous barrier over the hazardous 

secondary material managed in a unit to 

prevent or reduce air pollutant 

emissions to the atmosphere. A cover 

may have openings (such as access 

hatches, sampling ports, gauge wells) 

that are necessary for operation, 

inspection, maintenance, and repair of 

the unit on which the cover is used. A 

cover may be a separate piece of 

equipment which can be detached and 

removed from the unit or a cover may 

be formed by structural features 

permanently integrated into the design 

of the unit. 

Empty hazardous secondary material 

container means: 

(1) A container from which all 

hazardous secondary materials have 

been removed that can be removed 

using the practices commonly employed 

to remove materials from that type of 

container, e.g., pouring, pumping, and 

aspirating, and no more than 2.5 

centimeters (one inch) of residue remain 

on the bottom of the container or inner 

liner; 

(2) A container that is less than or 

equal to 119 gallons in size and no more 

than 3 percent by weight of the total 

capacity of the container remains in the 

container or inner liner; or 

(3) A container that is greater than 119 

gallons in size and no more than 0.3 

percent by weight of the total capacity 

of the container remains in the 

container or inner liner. 

Enclosure means a structure that 

surrounds a tank or container, captures 

organic vapors emitted from the tank or 

container, and vents the captured 

vapors through a closed-vent system to 

a control device. 

External floating roof means a 

pontoon-type or double-deck type cover 

that rests on the surface of the material 

managed in a tank with no fixed roof. 

Fixed roof means a cover that is 

mounted on a unit in a stationary 

position and does not move with 

fluctuations in the level of the material 

managed in the unit. 

Floating membrane cover means a 

cover consisting of a synthetic flexible 

membrane material that rests upon and 

is supported by the hazardous 

secondary material being managed in a 

surface impoundment. 

Floating roof means a cover consisting 

of a double deck, pontoon single deck, 

or internal floating cover which rests 

upon and is supported by the material 

being contained, and is equipped with 

a continuous seal. 

Hard-piping means pipe or tubing that 

is manufactured and properly installed 

in accordance with relevant standards 

and good engineering practices. 

In light material service means the 

container is used to manage a material 

for which both of the following 

conditions apply: The vapor pressure of 

one or more of the organic constituents 

in the material is greater than 0.3 

kilopascals (kPa) at 20 °C; and the total 

concentration of the pure organic 


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constituents having a vapor pressure 

greater than 0.3 kPa at 20 °C is equal to 

or greater than 20 percent by weight. 

Internal floating roof means a cover 

that rests or floats on the material 

surface (but not necessarily in complete 

contact with it) inside a tank that has a 

fixed roof. 

Liquid-mounted seal means a foam or 

liquid-filled primary seal mounted in 

contact with the hazardous secondary 

material between the tank wall and the 

floating roof continuously around the 

circumference of the tank. 

Malfunction means any sudden, 

infrequent, and not reasonably 

preventable failure of air pollution 

control equipment, process equipment, 

or a process to operate in a normal or 

usual manner. Failures that are caused 

in part by poor maintenance or careless 

operation are not malfunctions. 

Material determination means 

performing all applicable procedures in 

accordance with the requirements of 

§ 261.1084 of this subpart to determine 

whether a hazardous secondary material 

meets standards specified in this 

subpart. Examples of a material 

determination include performing the 

procedures in accordance with the 

requirements of § 261.1084 of this 

subpart to determine the average VO 

concentration of a hazardous secondary 

material at the point of material 

origination; the average VO 

concentration of a hazardous secondary 

material at the point of material 

treatment and comparing the results to 

the exit concentration limit specified for 

the process used to treat the hazardous 

secondary material; the organic 

reduction efficiency and the organic 

biodegradation efficiency for a 

biological process used to treat a 

hazardous secondary material and 

comparing the results to the applicable 

standards; or the maximum volatile 

organic vapor pressure for a hazardous 

secondary material in a tank and 

comparing the results to the applicable 

standards. 

Maximum organic vapor pressure 

means the sum of the individual organic 

constituent partial pressures exerted by 

the material contained in a tank, at the 

maximum vapor pressure-causing 

conditions (i.e., temperature, agitation, 

pH effects of combining materials, etc.) 

reasonably expected to occur in the 

tank. For the purpose of this subpart, 

maximum organic vapor pressure is 

determined using the procedures 

specified in § 261.1084(c) of this 

subpart. 

Metallic shoe seal means a continuous 

seal that is constructed of metal sheets 

which are held vertically against the 

wall of the tank by springs, weighted 

levers, or other mechanisms and is 

connected to the floating roof by braces 

or other means. A flexible coated fabric 

(envelope) spans the annular space 

between the metal sheet and the floating 

roof. 

No detectable organic emissions 

means no escape of organics to the 

atmosphere as determined using the 

procedure specified in § 261.1084(d) of 

this subpart. 

Point of material origination means as 

follows: 

(1) When the remanufacturer or other 

person that stores or treats the 

hazardous secondary material is the 

generator of the hazardous secondary 

material, the point of material 

origination means the point where a 

material produced by a system, process, 

or material management unit is 

determined to be a hazardous secondary 

material excluded under § 261.4(a)(27). 

Note to paragraph (1) of the definition 

of Point of material origination: In this 

case, this term is being used in a manner 

similar to the use of the term ‘‘point of 

generation’’ in air standards established 

under authority of the Clean Air Act in 

40 CFR parts 60, 61, and 63. 

(2) When the remanufacturer or other 

person that stores or treats the 

hazardous secondary material is not the 

generator of the hazardous secondary 

material, point of material origination 

means the point where the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material accepts delivery or takes 

possession of the hazardous secondary 

material. 

Safety device means a closure device 

such as a pressure relief valve, frangible 

disc, fusible plug, or any other type of 

device which functions exclusively to 

prevent physical damage or permanent 

deformation to a unit or its air emission 

control equipment by venting gases or 

vapors directly to the atmosphere 

during unsafe conditions resulting from 

an unplanned, accidental, or emergency 

event. For the purpose of this subpart, 

a safety device is not used for routine 

venting of gases or vapors from the 

vapor headspace underneath a cover 

such as during filling of the unit or to 

adjust the pressure in this vapor 

headspace in response to normal daily 

diurnal ambient temperature 

fluctuations. A safety device is designed 

to remain in a closed position during 

normal operations and open only when 

the internal pressure, or another 

relevant parameter, exceeds the device 

threshold setting applicable to the air 

emission control equipment as 

determined by the remanufacturer or 

other person that stores or treats the 

hazardous secondary material based on 

manufacturer recommendations, 

applicable regulations, fire protection 

and prevention codes, standard 

engineering codes and practices, or 

other requirements for the safe handling 

of flammable, ignitable, explosive, 

reactive, or hazardous materials. 

Single-seal system means a floating 

roof having one continuous seal. This 

seal may be vapor-mounted, liquidmounted, or a metallic shoe seal. 

Vapor-mounted seal means a 

continuous seal that is mounted such 

that there is a vapor space between the 

hazardous secondary material in the 

unit and the bottom of the seal. 

Volatile organic concentration or VO 

concentration means the fraction by 

weight of the volatile organic 

compounds contained in a hazardous 

secondary material expressed in terms 

of parts per million (ppmw) as 

determined by direct measurement or by 

knowledge of the material in accordance 

with the requirements of § 261.1084 of 

this subpart. For the purpose of 

determining the VO concentration of a 

hazardous secondary material, organic 

compounds with a Henry’s law constant 

value of at least 0.1 mole-fraction-in-thegas-phase/mole-fraction-in the liquidphase (0.1 Y/X) (which can also be 

expressed as 1.8 × 10¥6atmospheres/

gram-mole/m3) at 25 degrees Celsius 

must be included. 

§ 261.1082 Standards: General. 

(a) This section applies to the 

management of hazardous secondary 

material in tanks and containers subject 

to this subpart. 

(b) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

control air pollutant emissions from 

each hazardous secondary material 

management unit in accordance with 

standards specified in §§ 261.1084 

through 261.1087 of this subpart, as 

applicable to the hazardous secondary 

material management unit, except as 

provided for in paragraph (c) of this 

section. 

(c) A tank or container is exempt from 

standards specified in §§ 261.1084 

through 261.1087 of this subpart, as 

applicable, provided that the hazardous 

secondary material management unit is 

a tank or container for which all 

hazardous secondary material entering 

the unit has an average VO 

concentration at the point of material 

origination of less than 500 parts per 

million by weight (ppmw). The average 

VO concentration shall be determined 

using the procedures specified in 

§ 261.1083(a) of this subpart. The 

remanufacturer or other person that 

stores or treats the hazardous secondary 


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material shall review and update, as 

necessary, this determination at least 

once every 12 months following the date 

of the initial determination for the 

hazardous secondary material streams 

entering the unit. 

§ 261.1083 Material determination 

procedures. 

(a) Material determination procedure 

to determine average volatile organic 

(VO) concentration of a hazardous 

secondary material at the point of 

material origination. (1) Determining 

average VO concentration at the point 

of material origination. A 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall determine the average VO 

concentration at the point of material 

origination for each hazardous 

secondary material placed in a 

hazardous secondary material 

management unit exempted under the 

provisions of § 261.1082(c)(1) of this 

subpart from using air emission controls 

in accordance with standards specified 

in §§ 261.1084 through 261.1087 of this 

subpart, as applicable to the hazardous 

secondary material management unit. 

(i) An initial determination of the 

average VO concentration of the 

material stream shall be made before the 

first time any portion of the material in 

the hazardous secondary material 

stream is placed in a hazardous 

secondary material management unit 

exempted under the provisions of 

§ 261.1082(c)(1) of this subpart from 

using air emission controls, and 

thereafter an initial determination of the 

average VO concentration of the 

material stream shall be made for each 

averaging period that a hazardous 

secondary material is managed in the 

unit; and 

(ii) Perform a new material 

determination whenever changes to the 

source generating the material stream 

are reasonably likely to cause the 

average VO concentration of the 

hazardous secondary material to 

increase to a level that is equal to or 

greater than the applicable VO 

concentration limits specified in 

§ 261.1082 of this subpart. 

(2) Determination of average VO 

concentration using direct measurement 

or knowledge. For a material 

determination that is required by 

paragraph (a)(1) of this section, the 

average VO concentration of a 

hazardous secondary material at the 

point of material origination shall be 

determined using either direct 

measurement as specified in paragraph 

(a)(3) of this section or by knowledge as 

specified in paragraph (a)(4) of this 

section. 

(3) Direct measurement to determine 

average VO concentration of a 

hazardous secondary material at the 

point of material origination—(i) 

Identification. The remanufacturer or 

other person that stores or treats the 

hazardous secondary material shall 

identify and record in a log that is kept 

at the facility the point of material 

origination for the hazardous secondary 

material. 

(ii) Sampling. Samples of the 

hazardous secondary material stream 

shall be collected at the point of 

material origination in a manner such 

that volatilization of organics contained 

in the material and in the subsequent 

sample is minimized and an adequately 

representative sample is collected and 

maintained for analysis by the selected 

method. 

(A) The averaging period to be used 

for determining the average VO 

concentration for the hazardous 

secondary material stream on a massweighted average basis shall be 

designated and recorded. The averaging 

period can represent any time interval 

that the remanufacturer or other person 

that stores or treats the hazardous 

secondary material determines is 

appropriate for the hazardous secondary 

material stream but shall not exceed 1 

year. 

(B) A sufficient number of samples, 

but no less than four samples, shall be 

collected and analyzed for a hazardous 

secondary material determination. All of 

the samples for a given material 

determination shall be collected within 

a one-hour period. The average of the 

four or more sample results constitutes 

a material determination for the material 

stream. One or more material 

determinations may be required to 

represent the complete range of material 

compositions and quantities that occur 

during the entire averaging period due 

to normal variations in the operating 

conditions for the source or process 

generating the hazardous secondary 

material stream. Examples of such 

normal variations are seasonal 

variations in material quantity or 

fluctuations in ambient temperature. 

(C) All samples shall be collected and 

handled in accordance with written 

procedures prepared by the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material and documented in a site 

sampling plan. This plan shall describe 

the procedure by which representative 

samples of the hazardous secondary 

material stream are collected such that 

a minimum loss of organics occurs 

throughout the sample collection and 

handling process, and by which sample 

integrity is maintained. A copy of the 

written sampling plan shall be 

maintained at the facility. An example 

of acceptable sample collection and 

handling procedures for a total volatile 

organic constituent concentration may 

be found in Method 25D in 40 CFR part 

60, appendix A. 

(D) Sufficient information, as 

specified in the ‘‘site sampling plan’’ 

required under paragraph (a)(3)(ii)(C) of 

this section, shall be prepared and 

recorded to document the material 

quantity represented by the samples 

and, as applicable, the operating 

conditions for the source or process 

generating the hazardous secondary 

material represented by the samples. 

(iii) Analysis. Each collected sample 

shall be prepared and analyzed in 

accordance with Method 25D in 40 CFR 

part 60, appendix A for the total 

concentration of volatile organic 

constituents, or using one or more 

methods when the individual organic 

compound concentrations are identified 

and summed and the summed material 

concentration accounts for and reflects 

all organic compounds in the material 

with Henry’s law constant values at 

least 0.1 mole-fraction-in-the-gas-phase/ 

mole-fraction-in-the-liquid-phase (0.1 

Y/X) [which can also be expressed as 

1.8 × 10¥6atmospheres/gram-mole/m3] 

at 25 degrees Celsius. At the discretion 

of the remanufacturer or other person 

that stores or treats the hazardous 

secondary material, the test data 

obtained may be adjusted by any 

appropriate method to discount any 

contribution to the total volatile organic 

concentration that is a result of 

including a compound with a Henry’s 

law constant value of less than 0.1 Y/X 

at 25 degrees Celsius. To adjust these 

data, the measured concentration of 

each individual chemical constituent 

contained in the material is multiplied 

by the appropriate constituent-specific 

adjustment factor (fm25D). If the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material elects to adjust the test data, 

the adjustment must be made to all 

individual chemical constituents with a 

Henry’s law constant value greater than 

or equal to 0.1 Y/X at 25 degrees Celsius 

contained in the material. Constituentspecific adjustment factors (fm25D) can 

be obtained by contacting the Waste and 

Chemical Processes Group, Office of Air 

Quality Planning and Standards, 

Research Triangle Park, NC 27711. 

Other test methods may be used if they 

meet the requirements in paragraph 

(a)(3)(iii)(A) or (B) of this section and 

provided the requirement to reflect all 

organic compounds in the material with 

Henry’s law constant values greater than 

or equal to 0.1 Y/X [which can also be 


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expressed as 1.8 × 10¥6atmospheres/

gram-mole/m3] at 25 degrees Celsius, is 

met. 

(A) Any EPA standard method that 

has been validated in accordance with 

‘‘Alternative Validation Procedure for 

EPA Waste and Wastewater Methods,’’ 

40 CFR part 63, appendix D. 

(B) Any other analysis method that 

has been validated in accordance with 

the procedures specified in Section 5.1 

or Section 5.3, and the corresponding 

calculations in Section 6.1 or Section 

6.3, of Method 301 in 40 CFR part 63, 

appendix A. The data are acceptable if 

they meet the criteria specified in 

Section 6.1.5 or Section 6.3.3 of Method 

301. If correction is required under 

section 6.3.3 of Method 301, the data are 

acceptable if the correction factor is 

within the range 0.7 to 1.30. Other 

sections of Method 301 are not required. 

(iv) Calculations. (A) The average VO 

concentration (C) on a mass-weighted 

basis shall be calculated by using the 

results for all material determinations 

conducted in accordance with 

paragraphs (a)(3)(ii) and (iii) of this 

section and the following equation: 

Where: 

C = Average VO concentration of the 

hazardous secondary material at the 

point of material origination on a massweighted basis, ppmw. 

i = Individual material determination ‘‘i’’ of 

the hazardous secondary material. 

n = Total number of material determinations 

of the hazardous secondary material 

conducted for the averaging period (not 

to exceed 1 year). 

Qi = Mass quantity of hazardous secondary 

material stream represented by Ci, kg/hr. 

QT = Total mass quantity of hazardous 

secondary material during the averaging 

period, kg/hr. 

Ci = Measured VO concentration of material 

determination ‘‘i’’ as determined in 

accordance with the requirements of 

paragraph (a)(3)(iii) of this section (i.e. 

the average of the four or more samples 

specified in paragraph (a)(3)(ii)(B) of this 

section), ppmw. 

(B) For the purpose of determining Ci, 

for individual material samples 

analyzed in accordance with paragraph 

(a)(3)(iii) of this section, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall account for VO 

concentrations determined to be below 

the limit of detection of the analytical 

method by using the following VO 

concentration: 

(1) If Method 25D in 40 CFR part 60, 

appendix A is used for the analysis, 

one-half the blank value determined in 

the method at section 4.4 of Method 25D 

in 40 CFR part 60, appendix A. 

(2) If any other analytical method is 

used, one-half the sum of the limits of 

detection established for each organic 

constituent in the material that has a 

Henry’s law constant values at least 0.1 

mole-fraction-in-the-gas-phase/molefraction-in-the-liquid-phase (0.1 Y/X) 

[which can also be expressed as 1.8 × 

10¥6atmospheres/gram-mole/m3] at 25 

degrees Celsius. 

(4) Use of knowledge by the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material to determine average VO 

concentration of a hazardous secondary 

material at the point of material 

origination. (i) Documentation shall be 

prepared that presents the information 

used as the basis for the knowledge by 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material of the hazardous secondary 

material stream’s average VO 

concentration. Examples of information 

that may be used as the basis for 

knowledge include: Material balances 

for the source or process generating the 

hazardous secondary material stream; 

constituent-specific chemical test data 

for the hazardous secondary material 

stream from previous testing that are 

still applicable to the current material 

stream; previous test data for other 

locations managing the same type of 

material stream; or other knowledge 

based on information included in 

shipping papers or material certification 

notices. 

(ii) If test data are used as the basis 

for knowledge, then the remanufacturer 

or other person that stores or treats the 

hazardous secondary material shall 

document the test method, sampling 

protocol, and the means by which 

sampling variability and analytical 

variability are accounted for in the 

determination of the average VO 

concentration. For example, a 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material may use organic concentration 

test data for the hazardous secondary 

material stream that are validated in 

accordance with Method 301 in 40 CFR 

part 63, appendix A as the basis for 

knowledge of the material. 

(iii) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material using chemical 

constituent-specific concentration test 

data as the basis for knowledge of the 

hazardous secondary material may 

adjust the test data to the corresponding 

average VO concentration value which 

would have been obtained had the 

material samples been analyzed using 

Method 25D in 40 CFR part 60, 

appendix A. To adjust these data, the 

measured concentration for each 

individual chemical constituent 

contained in the material is multiplied 

by the appropriate constituent-specific 

adjustment factor (fm25D). 

(iv) In the event that the Regional 

Administrator and the remanufacture or 

other person that stores or treats the 

hazardous secondary material disagree 

on a determination of the average VO 

concentration for a hazardous secondary 

material stream using knowledge, then 

the results from a determination of 

average VO concentration using direct 

measurement as specified in paragraph 

(a)(3) of this section shall be used to 

establish compliance with the 

applicable requirements of this subpart. 

The Regional Administrator may 

perform or request that the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material perform this determination 

using direct measurement. The 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material may choose one or more 

appropriate methods to analyze each 

collected sample in accordance with the 

requirements of paragraph (a)(3)(iii) of 

this section. 

(b) [Reserved] 

(c) Procedure to determine the 

maximum organic vapor pressure of a 

hazardous secondary material in a tank. 

(1) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall determine the 

maximum organic vapor pressure for 

each hazardous secondary material 

placed in a tank using Tank Level 1 

controls in accordance with standards 

specified in § 261.1084(c) of this 

subpart. 

(2) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall use either 

direct measurement as specified in 

paragraph (c)(3) of this section or 

knowledge of the waste as specified by 

paragraph (c)(4) of this section to 

determine the maximum organic vapor 

pressure which is representative of the 

hazardous secondary material 

composition stored or treated in the 

tank. 

(3) Direct measurement to determine 

the maximum organic vapor pressure of 

a hazardous secondary material. 

(i) Sampling. A sufficient number of 

samples shall be collected to be 

representative of the hazardous 

secondary material contained in the 

tank. All samples shall be collected and 

handled in accordance with written 

procedures prepared by the 

remanufacturer or other person that 

stores or treats the hazardous secondary 


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material and documented in a site 

sampling plan. This plan shall describe 

the procedure by which representative 

samples of the hazardous secondary 

material are collected such that a 

minimum loss of organics occurs 

throughout the sample collection and 

handling process and by which sample 

integrity is maintained. A copy of the 

written sampling plan shall be 

maintained at the facility. An example 

of acceptable sample collection and 

handling procedures may be found in 

Method 25D in 40 CFR part 60, 

appendix A. 

(ii) Analysis. Any appropriate one of 

the following methods may be used to 

analyze the samples and compute the 

maximum organic vapor pressure of the 

hazardous secondary material: 

(A) Method 25E in 40 CFR part 60 

appendix A; 

(B) Methods described in American 

Petroleum Institute Publication 2517, 

Third Edition, February 1989, 

‘‘Evaporative Loss from External 

Floating-Roof Tanks,’’ (incorporated by 

reference—refer to § 260.11 of this 

chapter); 

(C) Methods obtained from standard 

reference texts; 

(D) ASTM Method 2879–92 

(incorporated by reference—refer to 

§ 260.11 of this chapter); and 

(E) Any other method approved by the 

Regional Administrator. 

(4) Use of knowledge to determine the 

maximum organic vapor pressure of the 

hazardous secondary material. 

Documentation shall be prepared and 

recorded that presents the information 

used as the basis for the knowledge by 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material that the maximum organic 

vapor pressure of the hazardous 

secondary material is less than the 

maximum vapor pressure limit listed in 

§ 261.1085(b)(1)(i) of this subpart for the 

applicable tank design capacity 

category. An example of information 

that may be used is documentation that 

the hazardous secondary material is 

generated by a process for which at 

other locations it previously has been 

determined by direct measurement that 

the hazardous secondary material’s 

waste maximum organic vapor pressure 

is less than the maximum vapor 

pressure limit for the appropriate tank 

design capacity category. 

(d) Procedure for determining no 

detectable organic emissions for the 

purpose of complying with this subpart: 

(1) The test shall be conducted in 

accordance with the procedures 

specified in Method 21 of 40 CFR part 

60, appendix A. Each potential leak 

interface (i.e., a location where organic 

vapor leakage could occur) on the cover 

and associated closure devices shall be 

checked. Potential leak interfaces that 

are associated with covers and closure 

devices include, but are not limited to: 

The interface of the cover and its 

foundation mounting; the periphery of 

any opening on the cover and its 

associated closure device; and the 

sealing seat interface on a spring-loaded 

pressure relief valve. 

(2) The test shall be performed when 

the unit contains a hazardous secondary 

material having an organic 

concentration representative of the 

range of concentrations for the 

hazardous secondary material expected 

to be managed in the unit. During the 

test, the cover and closure devices shall 

be secured in the closed position. 

(3) The detection instrument shall 

meet the performance criteria of Method 

21 of 40 CFR part 60, appendix A, 

except the instrument response factor 

criteria in section 3.1.2(a) of Method 21 

shall be for the average composition of 

the organic constituents in the 

hazardous secondary material placed in 

the hazardous secondary management 

unit, not for each individual organic 

constituent. 

(4) The detection instrument shall be 

calibrated before use on each day of its 

use by the procedures specified in 

Method 21 of 40 CFR part 60, appendix 

A. 

(5) Calibration gases shall be as 

follows: 

(i) Zero air (less than 10 ppmv 

hydrocarbon in air), and 

(ii) A mixture of methane or n-hexane 

and air at a concentration of 

approximately, but less than, 10,000 

ppmv methane or n-hexane. 

(6) The background level shall be 

determined according to the procedures 

in Method 21 of 40 CFR part 60, 

appendix A. 

(7) Each potential leak interface shall 

be checked by traversing the instrument 

probe around the potential leak 

interface as close to the interface as 

possible, as described in Method 21 of 

40 CFR part 60, appendix A. In the case 

when the configuration of the cover or 

closure device prevents a complete 

traverse of the interface, all accessible 

portions of the interface shall be 

sampled. In the case when the 

configuration of the closure device 

prevents any sampling at the interface 

and the device is equipped with an 

enclosed extension or horn (e.g., some 

pressure relief devices), the instrument 

probe inlet shall be placed at 

approximately the center of the exhaust 

area to the atmosphere. 

(8) The arithmetic difference between 

the maximum organic concentration 

indicated by the instrument and the 

background level shall be compared 

with the value of 500 ppmv except 

when monitoring a seal around a 

rotating shaft that passes through a 

cover opening, in which case the 

comparison shall be as specified in 

paragraph (d)(9) of this section. If the 

difference is less than 500 ppmv, then 

the potential leak interface is 

determined to operate with no 

detectable organic emissions. 

(9) For the seals around a rotating 

shaft that passes through a cover 

opening, the arithmetic difference 

between the maximum organic 

concentration indicated by the 

instrument and the background level 

shall be compared with the value of 

10,000 ppmw. If the difference is less 

than 10,000 ppmw, then the potential 

leak interface is determined to operate 

with no detectable organic emissions. 

§ 261.1084 Standards: tanks. 

(a) The provisions of this section 

apply to the control of air pollutant 

emissions from tanks for which 

§ 261.1082(b) of this subpart references 

the use of this section for such air 

emission control. 

(b) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

control air pollutant emissions from 

each tank subject to this section in 

accordance with the following 

requirements as applicable: 

(1) For a tank that manages hazardous 

secondary material that meets all of the 

conditions specified in paragraphs 

(b)(1)(i) through (iii) of this section, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall control air pollutant 

emissions from the tank in accordance 

with the Tank Level 1 controls specified 

in paragraph (c) of this section or the 

Tank Level 2 controls specified in 

paragraph (d) of this section. 

(i) The hazardous secondary material 

in the tank has a maximum organic 

vapor pressure which is less than the 

maximum organic vapor pressure limit 

for the tank’s design capacity category 

as follows: 

(A) For a tank design capacity equal 

to or greater than 151 m3, the maximum 

organic vapor pressure limit for the tank 

is 5.2 kPa. 

(B) For a tank design capacity equal 

to or greater than 75 m3 but less than 

151 m3, the maximum organic vapor 

pressure limit for the tank is 27.6 kPa. 

(C) For a tank design capacity less 

than 75 m3, the maximum organic vapor 

pressure limit for the tank is 76.6 kPa. 

(ii) The hazardous secondary material 

in the tank is not heated by the 


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remanufacturer or other person that 

stores or treats the hazardous secondary 

material to a temperature that is greater 

than the temperature at which the 

maximum organic vapor pressure of the 

hazardous secondary material is 

determined for the purpose of 

complying with paragraph (b)(1)(i) of 

this section. 

(2) For a tank that manages hazardous 

secondary material that does not meet 

all of the conditions specified in 

paragraphs (b)(1)(i) through (iii) of this 

section, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

control air pollutant emissions from the 

tank by using Tank Level 2 controls in 

accordance with the requirements of 

paragraph (d) of this section. An 

example of tanks required to use Tank 

Level 2 controls is a tank for which the 

hazardous secondary material in the 

tank has a maximum organic vapor 

pressure that is equal to or greater than 

the maximum organic vapor pressure 

limit for the tank’s design capacity 

category as specified in paragraph 

(b)(1)(i) of this section. 

(c) Remanufacturers or other persons 

that store or treats the hazardous 

secondary material controlling air 

pollutant emissions from a tank using 

Tank Level 1 controls shall meet the 

requirements specified in paragraphs 

(c)(1) through (4) of this section: 

(1) The remanufacturer or other 

person that stores or treats that 

hazardous secondary material shall 

determine the maximum organic vapor 

pressure for a hazardous secondary 

material to be managed in the tank using 

Tank Level 1 controls before the first 

time the hazardous secondary material 

is placed in the tank. The maximum 

organic vapor pressure shall be 

determined using the procedures 

specified in § 261.1083(c) of this 

subpart. Thereafter, the remanufacturer 

or other person that stores or treats the 

hazardous secondary material shall 

perform a new determination whenever 

changes to the hazardous secondary 

material managed in the tank could 

potentially cause the maximum organic 

vapor pressure to increase to a level that 

is equal to or greater than the maximum 

organic vapor pressure limit for the tank 

design capacity category specified in 

paragraph (b)(1)(i) of this section, as 

applicable to the tank. 

(2) The tank shall be equipped with 

a fixed roof designed to meet the 

following specifications: 

(i) The fixed roof and its closure 

devices shall be designed to form a 

continuous barrier over the entire 

surface area of the hazardous secondary 

material in the tank. The fixed roof may 

be a separate cover installed on the tank 

(e.g., a removable cover mounted on an 

open-top tank) or may be an integral 

part of the tank structural design (e.g., 

a horizontal cylindrical tank equipped 

with a hatch). 

(ii) The fixed roof shall be installed in 

a manner such that there are no visible 

cracks, holes, gaps, or other open spaces 

between roof section joints or between 

the interface of the roof edge and the 

tank wall. 

(iii) Each opening in the fixed roof, 

and any manifold system associated 

with the fixed roof, shall be either: 

(A) Equipped with a closure device 

designed to operate such that when the 

closure device is secured in the closed 

position there are no visible cracks, 

holes, gaps, or other open spaces in the 

closure device or between the perimeter 

of the opening and the closure device; 

or 

(B) Connected by a closed-vent system 

that is vented to a control device. The 

control device shall remove or destroy 

organics in the vent stream, and shall be 

operating whenever hazardous 

secondary material is managed in the 

tank, except as provided for in 

paragraphs (c)(2)(iii)(B)(1) and (2) of this 

section. 

(1) During periods when it is 

necessary to provide access to the tank 

for performing the activities of 

paragraph (c)(2)(iii)(B)(2) of this section, 

venting of the vapor headspace 

underneath the fixed roof to the control 

device is not required, opening of 

closure devices is allowed, and removal 

of the fixed roof is allowed. Following 

completion of the activity, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall promptly secure the 

closure device in the closed position or 

reinstall the cover, as applicable, and 

resume operation of the control device. 

(2) During periods of routine 

inspection, maintenance, or other 

activities needed for normal operations, 

and for removal of accumulated sludge 

or other residues from the bottom of the 

tank. 

(iv) The fixed roof and its closure 

devices shall be made of suitable 

materials that will minimize exposure of 

the hazardous secondary material to the 

atmosphere, to the extent practical, and 

will maintain the integrity of the fixed 

roof and closure devices throughout 

their intended service life. Factors to be 

considered when selecting the materials 

for and designing the fixed roof and 

closure devices shall include: organic 

vapor permeability, the effects of any 

contact with the hazardous secondary 

material or its vapors managed in the 

tank; the effects of outdoor exposure to 

wind, moisture, and sunlight; and the 

operating practices used for the tank on 

which the fixed roof is installed. 

(3) Whenever a hazardous secondary 

material is in the tank, the fixed roof 

shall be installed with each closure 

device secured in the closed position 

except as follows: 

(i) Opening of closure devices or 

removal of the fixed roof is allowed at 

the following times: 

(A) To provide access to the tank for 

performing routine inspection, 

maintenance, or other activities needed 

for normal operations. Examples of such 

activities include those times when a 

worker needs to open a port to sample 

the liquid in the tank, or when a worker 

needs to open a hatch to maintain or 

repair equipment. Following completion 

of the activity, the remanufacturer or 

other person that stores or treats the 

hazardous secondary material shall 

promptly secure the closure device in 

the closed position or reinstall the 

cover, as applicable, to the tank. 

(B) To remove accumulated sludge or 

other residues from the bottom of tank. 

(ii) Opening of a spring-loaded 

pressure-vacuum relief valve, 

conservation vent, or similar type of 

pressure relief device which vents to the 

atmosphere is allowed during normal 

operations for the purpose of 

maintaining the tank internal pressure 

in accordance with the tank design 

specifications. The device shall be 

designed to operate with no detectable 

organic emissions when the device is 

secured in the closed position. The 

settings at which the device opens shall 

be established such that the device 

remains in the closed position whenever 

the tank internal pressure is within the 

internal pressure operating range 

determined by the remanufacturer or 

other person that stores or treats the 

hazardous secondary material based on 

the tank manufacturer 

recommendations, applicable 

regulations, fire protection and 

prevention codes, standard engineering 

codes and practices, or other 

requirements for the safe handling of 

flammable, ignitable, explosive, 

reactive, or hazardous materials. 

Examples of normal operating 

conditions that may require these 

devices to open are during those times 

when the tank internal pressure exceeds 

the internal pressure operating range for 

the tank as a result of loading operations 

or diurnal ambient temperature 

fluctuations. 

(iii) Opening of a safety device, as 

defined in § 261.1081, is allowed at any 

time conditions require doing so to 

avoid an unsafe condition. 


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(4) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

inspect the air emission control 

equipment in accordance with the 

following requirements. 

(i) The fixed roof and its closure 

devices shall be visually inspected by 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material to check for defects that could 

result in air pollutant emissions. Defects 

include, but are not limited to, visible 

cracks, holes, or gaps in the roof 

sections or between the roof and the 

tank wall; broken, cracked, or otherwise 

damaged seals or gaskets on closure 

devices; and broken or missing hatches, 

access covers, caps, or other closure 

devices. 

(ii) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

perform an initial inspection of the 

fixed roof and its closure devices on or 

before the date that the tank becomes 

subject to this section. Thereafter, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall perform the inspections at 

least once every year except under the 

special conditions provided for in 

paragraph (l) of this section. 

(iii) In the event that a defect is 

detected, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

repair the defect in accordance with the 

requirements of paragraph (k) of this 

section. 

(iv) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

maintain a record of the inspection in 

accordance with the requirements 

specified in § 261.1089(b) of this 

subpart. 

(d) Remanufacturers or other persons 

that store or treat the hazardous 

secondary material controlling air 

pollutant emissions from a tank using 

Tank Level 2 controls shall use one of 

the following tanks: 

(1) A fixed-roof tank equipped with 

an internal floating roof in accordance 

with the requirements specified in 

paragraph (e) of this section; 

(2) A tank equipped with an external 

floating roof in accordance with the 

requirements specified in paragraph (f) 

of this section; 

(3) A tank vented through a closedvent system to a control device in 

accordance with the requirements 

specified in paragraph (g) of this 

section; 

(4) A pressure tank designed and 

operated in accordance with the 

requirements specified in paragraph (h) 

of this section; or 

(5) A tank located inside an enclosure 

that is vented through a closed-vent 

system to an enclosed combustion 

control device in accordance with the 

requirements specified in paragraph (i) 

of this section. 

(e) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material who 

controls air pollutant emissions from a 

tank using a fixed roof with an internal 

floating roof shall meet the requirements 

specified in paragraphs (e)(1) through 

(3) of this section. 

(1) The tank shall be equipped with 

a fixed roof and an internal floating roof 

in accordance with the following 

requirements: 

(i) The internal floating roof shall be 

designed to float on the liquid surface 

except when the floating roof must be 

supported by the leg supports. 

(ii) The internal floating roof shall be 

equipped with a continuous seal 

between the wall of the tank and the 

floating roof edge that meets either of 

the following requirements: 

(A) A single continuous seal that is 

either a liquid-mounted seal or a 

metallic shoe seal, as defined in 

§ 261.1081; or 

(B) Two continuous seals mounted 

one above the other. The lower seal may 

be a vapor-mounted seal. 

(iii) The internal floating roof shall 

meet the following specifications: 

(A) Each opening in a noncontact 

internal floating roof except for 

automatic bleeder vents (vacuum 

breaker vents) and the rim space vents 

is to provide a projection below the 

liquid surface. 

(B) Each opening in the internal 

floating roof shall be equipped with a 

gasketed cover or a gasketed lid except 

for leg sleeves, automatic bleeder vents, 

rim space vents, column wells, ladder 

wells, sample wells, and stub drains. 

(C) Each penetration of the internal 

floating roof for the purpose of sampling 

shall have a slit fabric cover that covers 

at least 90 percent of the opening. 

(D) Each automatic bleeder vent and 

rim space vent shall be gasketed. 

(E) Each penetration of the internal 

floating roof that allows for passage of 

a ladder shall have a gasketed sliding 

cover. 

(F) Each penetration of the internal 

floating roof that allows for passage of 

a column supporting the fixed roof shall 

have a flexible fabric sleeve seal or a 

gasketed sliding cover. 

(2) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

operate the tank in accordance with the 

following requirements: 

(i) When the floating roof is resting on 

the leg supports, the process of filling, 

emptying, or refilling shall be 

continuous and shall be completed as 

soon as practical. 

(ii) Automatic bleeder vents are to be 

set closed at all times when the roof is 

floating, except when the roof is being 

floated off or is being landed on the leg 

supports. 

(iii) Prior to filling the tank, each 

cover, access hatch, gauge float well or 

lid on any opening in the internal 

floating roof shall be bolted or fastened 

closed (i.e., no visible gaps). Rim space 

vents are to be set to open only when 

the internal floating roof is not floating 

or when the pressure beneath the rim 

exceeds the manufacturer’s 

recommended setting. 

(3) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

inspect the internal floating roof in 

accordance with the procedures 

specified as follows: 

(i) The floating roof and its closure 

devices shall be visually inspected by 

the remanufacture or other person that 

stores or treats the hazardous secondary 

material to check for defects that could 

result in air pollutant emissions. Defects 

include, but are not limited to: The 

internal floating roof is not floating on 

the surface of the liquid inside the tank; 

liquid has accumulated on top of the 

internal floating roof; any portion of the 

roof seals have detached from the roof 

rim; holes, tears, or other openings are 

visible in the seal fabric; the gaskets no 

longer close off the hazardous secondary 

material surface from the atmosphere; or 

the slotted membrane has more than 10 

percent open area. 

(ii) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

inspect the internal floating roof 

components as follows except as 

provided in paragraph (e)(3)(iii) of this 

section: 

(A) Visually inspect the internal 

floating roof components through 

openings on the fixed-roof (e.g., 

manholes and roof hatches) at least once 

every 12 months after initial fill, and 

(B) Visually inspect the internal 

floating roof, primary seal, secondary 

seal (if one is in service), gaskets, slotted 

membranes, and sleeve seals (if any) 

each time the tank is emptied and 

degassed and at least every 10 years. 

(iii) As an alternative to performing 

the inspections specified in paragraph 

(e)(3)(ii) of this section for an internal 

floating roof equipped with two 

continuous seals mounted one above the 


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other, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material may 

visually inspect the internal floating 

roof, primary and secondary seals, 

gaskets, slotted membranes, and sleeve 

seals (if any) each time the tank is 

emptied and degassed and at least every 

five years. 

(iv) Prior to each inspection required 

by paragraph (e)(3)(ii) or (iii) of this 

section, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

notify the Regional Administrator in 

advance of each inspection to provide 

the Regional Administrator with the 

opportunity to have an observer present 

during the inspection. The 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall notify the Regional 

Administrator of the date and location 

of the inspection as follows: 

(A) Prior to each visual inspection of 

an internal floating roof in a tank that 

has been emptied and degassed, written 

notification shall be prepared and sent 

by the remanufacturer or other person 

that stores or treats the hazardous 

secondary material so that it is received 

by the Regional Administrator at least 

30 calendar days before refilling the 

tank except when an inspection is not 

planned as provided for in paragraph 

(e)(3)(iv)(B) of this section. 

(B) When a visual inspection is not 

planned and the remanufacturer or 

other person that stores or treats the 

hazardous secondary material could not 

have known about the inspection 30 

calendar days before refilling the tank, 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall notify the Regional 

Administrator as soon as possible, but 

no later than seven calendar days before 

refilling of the tank. This notification 

may be made by telephone and 

immediately followed by a written 

explanation for why the inspection is 

unplanned. Alternatively, written 

notification, including the explanation 

for the unplanned inspection, may be 

sent so that it is received by the 

Regional Administrator at least seven 

calendar days before refilling the tank. 

(v) In the event that a defect is 

detected, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

repair the defect in accordance with the 

requirements of paragraph (k) of this 

section. 

(vi) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

maintain a record of the inspection in 

accordance with the requirements 

specified in § 261.1089(b) of this 

subpart. 

(4) Safety devices, as defined in 

§ 261.1081, may be installed and 

operated as necessary on any tank 

complying with the requirements of 

paragraph (e) of this section. 

(f) The remanufacturer or other person 

that stores or treats the hazardous 

secondary material who controls air 

pollutant emissions from a tank using 

an external floating roof shall meet the 

requirements specified in paragraphs 

(f)(1) through (3) of this section. 

(1) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

design the external floating roof in 

accordance with the following 

requirements: 

(i) The external floating roof shall be 

designed to float on the liquid surface 

except when the floating roof must be 

supported by the leg supports. 

(ii) The floating roof shall be 

equipped with two continuous seals, 

one above the other, between the wall 

of the tank and the roof edge. The lower 

seal is referred to as the primary seal, 

and the upper seal is referred to as the 

secondary seal. 

(A) The primary seal shall be a liquidmounted seal or a metallic shoe seal, as 

defined in 40 CFR 261.1081. The total 

area of the gaps between the tank wall 

and the primary seal shall not exceed 

212 square centimeters (cm2) per meter 

of tank diameter, and the width of any 

portion of these gaps shall not exceed 

3.8 centimeters (cm). If a metallic shoe 

seal is used for the primary seal, the 

metallic shoe seal shall be designed so 

that one end extends into the liquid in 

the tank and the other end extends a 

vertical distance of at least 61 

centimeters above the liquid surface. 

(B) The secondary seal shall be 

mounted above the primary seal and 

cover the annular space between the 

floating roof and the wall of the tank. 

The total area of the gaps between the 

tank wall and the secondary seal shall 

not exceed 21.2 square centimeters 

(cm2) per meter of tank diameter, and 

the width of any portion of these gaps 

shall not exceed 1.3 centimeters (cm). 

(iii) The external floating roof shall 

meet the following specifications: 

(A) Except for automatic bleeder vents 

(vacuum breaker vents) and rim space 

vents, each opening in a noncontact 

external floating roof shall provide a 

projection below the liquid surface. 

(B) Except for automatic bleeder 

vents, rim space vents, roof drains, and 

leg sleeves, each opening in the roof 

shall be equipped with a gasketed cover, 

seal, or lid. 

(C) Each access hatch and each gauge 

float well shall be equipped with a 

cover designed to be bolted or fastened 

when the cover is secured in the closed 

position. 

(D) Each automatic bleeder vent and 

each rim space vent shall be equipped 

with a gasket. 

(E) Each roof drain that empties into 

the liquid managed in the tank shall be 

equipped with a slotted membrane 

fabric cover that covers at least 90 

percent of the area of the opening. 

(F) Each unslotted and slotted guide 

pole well shall be equipped with a 

gasketed sliding cover or a flexible 

fabric sleeve seal. 

(G) Each unslotted guide pole shall be 

equipped with a gasketed cap on the 

end of the pole. 

(H) Each slotted guide pole shall be 

equipped with a gasketed float or other 

device which closes off the liquid 

surface from the atmosphere. 

(I) Each gauge hatch and each sample 

well shall be equipped with a gasketed 

cover. 

(2) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

operate the tank in accordance with the 

following requirements: 

(i) When the floating roof is resting on 

the leg supports, the process of filling, 

emptying, or refilling shall be 

continuous and shall be completed as 

soon as practical. 

(ii) Except for automatic bleeder 

vents, rim space vents, roof drains, and 

leg sleeves, each opening in the roof 

shall be secured and maintained in a 

closed position at all times except when 

the closure device must be open for 

access. 

(iii) Covers on each access hatch and 

each gauge float well shall be bolted or 

fastened when secured in the closed 

position. 

(iv) Automatic bleeder vents shall be 

set closed at all times when the roof is 

floating, except when the roof is being 

floated off or is being landed on the leg 

supports. 

(v) Rim space vents shall be set to 

open only at those times that the roof is 

being floated off the roof leg supports or 

when the pressure beneath the rim seal 

exceeds the manufacturer’s 

recommended setting. 

(vi) The cap on the end of each 

unslotted guide pole shall be secured in 

the closed position at all times except 

when measuring the level or collecting 

samples of the liquid in the tank. 

(vii) The cover on each gauge hatch or 

sample well shall be secured in the 

closed position at all times except when 

the hatch or well must be opened for 

access. 


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(viii) Both the primary seal and the 

secondary seal shall completely cover 

the annular space between the external 

floating roof and the wall of the tank in 

a continuous fashion except during 

inspections. 

(3) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

inspect the external floating roof in 

accordance with the procedures 

specified as follows: 

(i) The remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall measure the 

external floating roof seal gaps in 

accordance with the following 

requirements: 

(A) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

perform measurements of gaps between 

the tank wall and the primary seal 

within 60 calendar days after initial 

operation of the tank following 

installation of the floating roof and, 

thereafter, at least once every 5 years. 

(B) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

perform measurements of gaps between 

the tank wall and the secondary seal 

within 60 calendar days after initial 

operation of the tank following 

installation of the floating roof and, 

thereafter, at least once every year. 

(C) If a tank ceases to hold hazardous 

secondary material for a period of 1 year 

or more, subsequent introduction of 

hazardous secondary material into the 

tank shall be considered an initial 

operation for the purposes of paragraphs 

(f)(3)(i)(A) and (B) of this section. 

(D) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

determine the total surface area of gaps 

in the primary seal and in the secondary 

seal individually using the following 

procedure: 

(1) The seal gap measurements shall 

be performed at one or more floating 

roof levels when the roof is floating off 

the roof supports. 

(2) Seal gaps, if any, shall be 

measured around the entire perimeter of 

the floating roof in each place where a 

0.32-centimeter (cm) diameter uniform 

probe passes freely (without forcing or 

binding against the seal) between the 

seal and the wall of the tank and 

measure the circumferential distance of 

each such location. 

(3) For a seal gap measured under 

paragraph (f)(3) of this section, the gap 

surface area shall be determined by 

using probes of various widths to 

measure accurately the actual distance 

from the tank wall to the seal and 

multiplying each such width by its 

respective circumferential distance. 

(4) The total gap area shall be 

calculated by adding the gap surface 

areas determined for each identified gap 

location for the primary seal and the 

secondary seal individually, and then 

dividing the sum for each seal type by 

the nominal diameter of the tank. These 

total gap areas for the primary seal and 

secondary seal are then compared to the 

respective standards for the seal type as 

specified in paragraph (f)(1)(ii) of this 

section. 

(E) In the event that the seal gap 

measurements do not conform to the 

specifications in paragraph (f)(1)(ii) of 

this section, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

repair the defect in accordance with the 

requirements of paragraph (k) of this 

section. 

(F) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

maintain a record of the inspection in 

accordance with the requirements 

specified in § 261.1089(b) of this 

subpart. 

(ii) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

visually inspect the external floating 

roof in accordance with the following 

requirements: 

(A) The floating roof and its closure 

devices shall be visually inspected by 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material to check for defects that could 

result in air pollutant emissions. Defects 

include, but are not limited to: Holes, 

tears, or other openings in the rim seal 

or seal fabric of the floating roof; a rim 

seal detached from the floating roof; all 

or a portion of the floating roof deck 

being submerged below the surface of 

the liquid in the tank; broken, cracked, 

or otherwise damaged seals or gaskets 

on closure devices; and broken or 

missing hatches, access covers, caps, or 

other closure devices. 

(B) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

perform an initial inspection of the 

external floating roof and its closure 

devices on or before the date that the 

tank becomes subject to this section. 

Thereafter, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

perform the inspections at least once 

every year except for the special 

conditions provided for in paragraph (l) 

of this section. 

(C) In the event that a defect is 

detected, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

repair the defect in accordance with the 

requirements of paragraph (k) of this 

section. 

(D) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

maintain a record of the inspection in 

accordance with the requirements 

specified in § 261.1089(b) of this 

subpart. 

(iii) Prior to each inspection required 

by paragraph (f)(3)(i) or (ii) of this 

section, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

notify the Regional Administrator in 

advance of each inspection to provide 

the Regional Administrator with the 

opportunity to have an observer present 

during the inspection. The 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall notify the Regional 

Administrator of the date and location 

of the inspection as follows: 

(A) Prior to each inspection to 

measure external floating roof seal gaps 

as required under paragraph (f)(3)(i) of 

this section, written notification shall be 

prepared and sent by the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material so that it is received by the 

Regional Administrator at least 30 

calendar days before the date the 

measurements are scheduled to be 

performed. 

(B) Prior to each visual inspection of 

an external floating roof in a tank that 

has been emptied and degassed, written 

notification shall be prepared and sent 

by the remanufacturer or other person 

that stores or treats the hazardous 

secondary material so that it is received 

by the Regional Administrator at least 

30 calendar days before refilling the 

tank except when an inspection is not 

planned as provided for in paragraph 

(f)(3)(iii)(C) of this section. 

(C) When a visual inspection is not 

planned and the remanufacturer or 

other person that stores or treats the 

hazardous secondary material could not 

have known about the inspection 30 

calendar days before refilling the tank, 

the owner or operator shall notify the 

Regional Administrator as soon as 

possible, but no later than seven 

calendar days before refilling of the 

tank. This notification may be made by 

telephone and immediately followed by 

a written explanation for why the 

inspection is unplanned. Alternatively, 

written notification, including the 

explanation for the unplanned 

inspection, may be sent so that it is 

received by the Regional Administrator 


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at least seven calendar days before 

refilling the tank. 

(4) Safety devices, as defined in 

§ 261.1081, may be installed and 

operated as necessary on any tank 

complying with the requirements of 

paragraph (f) of this section. 

(g) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material who 

controls air pollutant emissions from a 

tank by venting the tank to a control 

device shall meet the requirements 

specified in paragraphs (g)(1) through 

(3) of this section. 

(1) The tank shall be covered by a 

fixed roof and vented directly through a 

closed-vent system to a control device 

in accordance with the following 

requirements: 

(i) The fixed roof and its closure 

devices shall be designed to form a 

continuous barrier over the entire 

surface area of the liquid in the tank. 

(ii) Each opening in the fixed roof not 

vented to the control device shall be 

equipped with a closure device. If the 

pressure in the vapor headspace 

underneath the fixed roof is less than 

atmospheric pressure when the control 

device is operating, the closure devices 

shall be designed to operate such that 

when the closure device is secured in 

the closed position there are no visible 

cracks, holes, gaps, or other open spaces 

in the closure device or between the 

perimeter of the cover opening and the 

closure device. If the pressure in the 

vapor headspace underneath the fixed 

roof is equal to or greater than 

atmospheric pressure when the control 

device is operating, the closure device 

shall be designed to operate with no 

detectable organic emissions. 

(iii) The fixed roof and its closure 

devices shall be made of suitable 

materials that will minimize exposure of 

the hazardous secondary material to the 

atmosphere, to the extent practical, and 

will maintain the integrity of the fixed 

roof and closure devices throughout 

their intended service life. Factors to be 

considered when selecting the materials 

for and designing the fixed roof and 

closure devices shall include: Organic 

vapor permeability, the effects of any 

contact with the liquid and its vapor 

managed in the tank; the effects of 

outdoor exposure to wind, moisture, 

and sunlight; and the operating 

practices used for the tank on which the 

fixed roof is installed. 

(iv) The closed-vent system and 

control device shall be designed and 

operated in accordance with the 

requirements of § 261.1087 of this 

subpart. 

(2) Whenever a hazardous secondary 

material is in the tank, the fixed roof 

shall be installed with each closure 

device secured in the closed position 

and the vapor headspace underneath the 

fixed roof vented to the control device 

except as follows: 

(i) Venting to the control device is not 

required, and opening of closure devices 

or removal of the fixed roof is allowed 

at the following times: 

(A) To provide access to the tank for 

performing routine inspection, 

maintenance, or other activities needed 

for normal operations. Examples of such 

activities include those times when a 

worker needs to open a port to sample 

liquid in the tank, or when a worker 

needs to open a hatch to maintain or 

repair equipment. Following completion 

of the activity, the remanufacturer or 

other person that stores or treats the 

hazardous secondary material shall 

promptly secure the closure device in 

the closed position or reinstall the 

cover, as applicable, to the tank. 

(B) To remove accumulated sludge or 

other residues from the bottom of a tank. 

(ii) Opening of a safety device, as 

defined in § 261.1081, is allowed at any 

time conditions require doing so to 

avoid an unsafe condition. 

(3) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

inspect and monitor the air emission 

control equipment in accordance with 

the following procedures: 

(i) The fixed roof and its closure 

devices shall be visually inspected by 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material to check for defects that could 

result in air pollutant emissions. Defects 

include, but are not limited to, visible 

cracks, holes, or gaps in the roof 

sections or between the roof and the 

tank wall; broken, cracked, or otherwise 

damaged seals or gaskets on closure 

devices; and broken or missing hatches, 

access covers, caps, or other closure 

devices. 

(ii) The closed-vent system and 

control device shall be inspected and 

monitored by the remanufacturer or 

other person that stores or treats the 

hazardous secondary material in 

accordance with the procedures 

specified in § 261.1087 of this subpart. 

(iii) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

perform an initial inspection of the air 

emission control equipment on or before 

the date that the tank becomes subject 

to this section. Thereafter, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall perform the inspections at 

least once every year except for the 

special conditions provided for in 

paragraph (l) of this section. 

(iv) In the event that a defect is 

detected, the remanufacture or other 

person that stores or treats the 

hazardous secondary material shall 

repair the defect in accordance with the 

requirements of paragraph (k) of this 

section. 

(v) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

maintain a record of the inspection in 

accordance with the requirements 

specified in § 261.1089(b) of this 

subpart. 

(h) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material who 

controls air pollutant emissions by 

using a pressure tank shall meet the 

following requirements. 

(1) The tank shall be designed not to 

vent to the atmosphere as a result of 

compression of the vapor headspace in 

the tank during filling of the tank to its 

design capacity. 

(2) All tank openings shall be 

equipped with closure devices designed 

to operate with no detectable organic 

emissions as determined using the 

procedure specified in § 261.1083(d) of 

this subpart. 

(3) Whenever a hazardous secondary 

material is in the tank, the tank shall be 

operated as a closed system that does 

not vent to the atmosphere except under 

either or the following conditions as 

specified in paragraph (h)(3)(i) or 

(h)(3)(ii) of this section. 

(i) At those times when opening of a 

safety device, as defined in § 261.1081 

of this subpart, is required to avoid an 

unsafe condition. 

(ii) At those times when purging of 

inerts from the tank is required and the 

purge stream is routed to a closed-vent 

system and control device designed and 

operated in accordance with the 

requirements of § 261.1087 of this 

subpart. 

(i) The remanufacturer or other person 

that stores or treats the hazardous 

secondary material who controls air 

pollutant emissions by using an 

enclosure vented through a closed-vent 

system to an enclosed combustion 

control device shall meet the 

requirements specified in paragraphs 

(i)(1) through (4) of this section. 

(1) The tank shall be located inside an 

enclosure. The enclosure shall be 

designed and operated in accordance 

with the criteria for a permanent total 

enclosure as specified in ‘‘Procedure 

T—Criteria for and Verification of a 

Permanent or Temporary Total 

Enclosure’’ under 40 CFR 52.741, 

appendix B. The enclosure may have 


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permanent or temporary openings to 

allow worker access; passage of material 

into or out of the enclosure by conveyor, 

vehicles, or other mechanical means; 

entry of permanent mechanical or 

electrical equipment; or direct airflow 

into the enclosure. The remanufacturer 

or other person that stores or treats the 

hazardous secondary material shall 

perform the verification procedure for 

the enclosure as specified in Section 5.0 

to ‘‘Procedure T—Criteria for and 

Verification of a Permanent or 

Temporary Total Enclosure’’ initially 

when the enclosure is first installed 

and, thereafter, annually. 

(2) The enclosure shall be vented 

through a closed-vent system to an 

enclosed combustion control device that 

is designed and operated in accordance 

with the standards for either a vapor 

incinerator, boiler, or process heater 

specified in § 261.1087 of this subpart. 

(3) Safety devices, as defined in 

§ 261.1081, may be installed and 

operated as necessary on any enclosure, 

closed-vent system, or control device 

used to comply with the requirements of 

paragraphs (i)(1) and (2) of this section. 

(4) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

inspect and monitor the closed-vent 

system and control device as specified 

in § 261.1087 of this subpart. 

(j) The remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall transfer 

hazardous secondary material to a tank 

subject to this section in accordance 

with the following requirements: 

(1) Transfer of hazardous secondary 

material, except as provided in 

paragraph (j)(2) of this section, to the 

tank from another tank subject to this 

section shall be conducted using 

continuous hard-piping or another 

closed system that does not allow 

exposure of the hazardous secondary 

material to the atmosphere. For the 

purpose of complying with this 

provision, an individual drain system is 

considered to be a closed system when 

it meets the requirements of 40 CFR part 

63, subpart RR—National Emission 

Standards for Individual Drain Systems. 

(2) The requirements of paragraph 

(j)(1) of this section do not apply when 

transferring a hazardous secondary 

material to the tank under any of the 

following conditions: 

(i) The hazardous secondary material 

meets the average VO concentration 

conditions specified in § 261.1082(c)(1) 

of this subpart at the point of material 

origination. 

(ii) The hazardous secondary material 

has been treated by an organic 

destruction or removal process to meet 

the requirements in § 261.1082(c)(2) of 

this subpart. 

(iii) The hazardous secondary 

material meets the requirements of 

§ 261.1082(c)(4) of this subpart. 

(k) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

repair each defect detected during an 

inspection performed in accordance 

with the requirements of paragraph 

(c)(4), (e)(3), (f)(3), or (g)(3) of this 

section as follows: 

(1) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

make first efforts at repair of the defect 

no later than 5 calendar days after 

detection, and repair shall be completed 

as soon as possible but no later than 45 

calendar days after detection except as 

provided in paragraph (k)(2) of this 

section. 

(2) Repair of a defect may be delayed 

beyond 45 calendar days if the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material determines that repair of the 

defect requires emptying or temporary 

removal from service of the tank and no 

alternative tank capacity is available at 

the site to accept the hazardous 

secondary material normally managed 

in the tank. In this case, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall repair the defect the next 

time the process or unit that is 

generating the hazardous secondary 

material managed in the tank stops 

operation. Repair of the defect shall be 

completed before the process or unit 

resumes operation. 

(l) Following the initial inspection 

and monitoring of the cover as required 

by the applicable provisions of this 

subpart, subsequent inspection and 

monitoring may be performed at 

intervals longer than 1 year under the 

following special conditions: 

(1) In the case when inspecting or 

monitoring the cover would expose a 

worker to dangerous, hazardous, or 

other unsafe conditions, then the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material may designate a cover as an 

‘‘unsafe to inspect and monitor cover’’ 

and comply with all of the following 

requirements: 

(i) Prepare a written explanation for 

the cover stating the reasons why the 

cover is unsafe to visually inspect or to 

monitor, if required. 

(ii) Develop and implement a written 

plan and schedule to inspect and 

monitor the cover, using the procedures 

specified in the applicable section of 

this subpart, as frequently as practicable 

during those times when a worker can 

safely access the cover. 

(2) In the case when a tank is buried 

partially or entirely underground, a 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material is required to inspect and 

monitor, as required by the applicable 

provisions of this section, only those 

portions of the tank cover and those 

connections to the tank (e.g., fill ports, 

access hatches, gauge wells, etc.) that 

are located on or above the ground 

surface. 

§ 261.1085 [Reserved] 

§ 261.1086 Standards: containers. 

(a) Applicability. The provisions of 

this section apply to the control of air 

pollutant emissions from containers for 

which § 261.1082(b) of this subpart 

references the use of this section for 

such air emission control. 

(b) General requirements. (1) The 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall control air pollutant 

emissions from each container subject to 

this section in accordance with the 

following requirements, as applicable to 

the container. 

(i) For a container having a design 

capacity greater than 0.1 m3 and less 

than or equal to 0.46 m3, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall control air pollutant 

emissions from the container in 

accordance with the Container Level 1 

standards specified in paragraph (c) of 

this section. 

(ii) For a container having a design 

capacity greater than 0.46 m3 that is not 

in light material service, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall control air pollutant 

emissions from the container in 

accordance with the Container Level 1 

standards specified in paragraph (c) of 

this section. 

(iii) For a container having a design 

capacity greater than 0.46 m3 that is in 

light material service, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall control air pollutant 

emissions from the container in 

accordance with the Container Level 2 

standards specified in paragraph (d) of 

this section. 

(2) [Reserved] 

(c) Container Level 1 standards. (1) A 

container using Container Level 1 

controls is one of the following: 

(i) A container that meets the 

applicable U.S. Department of 

Transportation (DOT) regulations on 


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packaging hazardous materials for 

transportation as specified in paragraph 

(f) of this section. 

(ii) A container equipped with a cover 

and closure devices that form a 

continuous barrier over the container 

openings such that when the cover and 

closure devices are secured in the 

closed position there are no visible 

holes, gaps, or other open spaces into 

the interior of the container. The cover 

may be a separate cover installed on the 

container (e.g., a lid on a drum or a 

suitably secured tarp on a roll-off box) 

or may be an integral part of the 

container structural design (e.g., a 

‘‘portable tank’’ or bulk cargo container 

equipped with a screw-type cap). 

(iii) An open-top container in which 

an organic-vapor suppressing barrier is 

placed on or over the hazardous 

secondary material in the container 

such that no hazardous secondary 

material is exposed to the atmosphere. 

One example of such a barrier is 

application of a suitable organic-vapor 

suppressing foam. 

(2) A container used to meet the 

requirements of paragraph (c)(1)(ii) or 

(iii) of this section shall be equipped 

with covers and closure devices, as 

applicable to the container, that are 

composed of suitable materials to 

minimize exposure of the hazardous 

secondary material to the atmosphere 

and to maintain the equipment integrity, 

for as long as the container is in service. 

Factors to be considered in selecting the 

materials of construction and designing 

the cover and closure devices shall 

include: Organic vapor permeability; the 

effects of contact with the hazardous 

secondary material or its vapor managed 

in the container; the effects of outdoor 

exposure of the closure device or cover 

material to wind, moisture, and 

sunlight; and the operating practices for 

which the container is intended to be 

used. 

(3) Whenever a hazardous secondary 

material is in a container using 

Container Level 1 controls, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall install all covers and 

closure devices for the container, as 

applicable to the container, and secure 

and maintain each closure device in the 

closed position except as follows: 

(i) Opening of a closure device or 

cover is allowed for the purpose of 

adding hazardous secondary material or 

other material to the container as 

follows: 

(A) In the case when the container is 

filled to the intended final level in one 

continuous operation, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall promptly secure the 

closure devices in the closed position 

and install the covers, as applicable to 

the container, upon conclusion of the 

filling operation. 

(B) In the case when discrete 

quantities or batches of material 

intermittently are added to the container 

over a period of time, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall promptly secure the 

closure devices in the closed position 

and install covers, as applicable to the 

container, upon either the container 

being filled to the intended final level; 

the completion of a batch loading after 

which no additional material will be 

added to the container within 15 

minutes; the person performing the 

loading operation leaving the immediate 

vicinity of the container; or the 

shutdown of the process generating the 

hazardous secondary material being 

added to the container, whichever 

condition occurs first. 

(ii) Opening of a closure device or 

cover is allowed for the purpose of 

removing hazardous secondary material 

from the container as follows: 

(A) For the purpose of meeting the 

requirements of this section, an empty 

hazardous secondary material container 

may be open to the atmosphere at any 

time (i.e., covers and closure devices on 

such a container are not required to be 

secured in the closed position). 

(B) In the case when discrete 

quantities or batches of material are 

removed from the container, but the 

container is not an empty hazardous 

secondary material container, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall promptly secure the 

closure devices in the closed position 

and install covers, as applicable to the 

container, upon the completion of a 

batch removal after which no additional 

material will be removed from the 

container within 15 minutes or the 

person performing the unloading 

operation leaves the immediate vicinity 

of the container, whichever condition 

occurs first. 

(iii) Opening of a closure device or 

cover is allowed when access inside the 

container is needed to perform routine 

activities other than transfer of 

hazardous secondary material. 

Examples of such activities include 

those times when a worker needs to 

open a port to measure the depth of or 

sample the material in the container, or 

when a worker needs to open a manhole 

hatch to access equipment inside the 

container. Following completion of the 

activity, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

promptly secure the closure device in 

the closed position or reinstall the 

cover, as applicable to the container. 

(iv) Opening of a spring-loaded 

pressure-vacuum relief valve, 

conservation vent, or similar type of 

pressure relief device which vents to the 

atmosphere is allowed during normal 

operations for the purpose of 

maintaining the internal pressure of the 

container in accordance with the 

container design specifications. The 

device shall be designed to operate with 

no detectable organic emissions when 

the device is secured in the closed 

position. The settings at which the 

device opens shall be established such 

that the device remains in the closed 

position whenever the internal pressure 

of the container is within the internal 

pressure operating range determined by 

the remanufacturer or other persons that 

stores or treats the hazardous secondary 

material based on container 

manufacturer recommendations, 

applicable regulations, fire protection 

and prevention codes, standard 

engineering codes and practices, or 

other requirements for the safe handling 

of flammable, ignitable, explosive, 

reactive, or hazardous materials. 

Examples of normal operating 

conditions that may require these 

devices to open are during those times 

when the internal pressure of the 

container exceeds the internal pressure 

operating range for the container as a 

result of loading operations or diurnal 

ambient temperature fluctuations. 

(v) Opening of a safety device, as 

defined in 40 CFR 261.1081, is allowed 

at any time conditions require doing so 

to avoid an unsafe condition. 

(4) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material using 

containers with Container Level 1 

controls shall inspect the containers and 

their covers and closure devices as 

follows: 

(i) In the case when a hazardous 

secondary material already is in the 

container at the time the remanufacturer 

or other person that stores or treats the 

hazardous secondary material first 

accepts possession of the container at 

the facility and the container is not 

emptied within 24 hours after the 

container is accepted at the facility (i.e., 

is not an empty hazardous secondary 

material container) the remanufacturer 

or other person that stores or treats the 

hazardous secondary material shall 

visually inspect the container and its 

cover and closure devices to check for 

visible cracks, holes, gaps, or other open 

spaces into the interior of the container 

when the cover and closure devices are 


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secured in the closed position. The 

container visual inspection shall be 

conducted on or before the date that the 

container is accepted at the facility (i.e., 

the date the container becomes subject 

to the subpart CC container standards). 

(ii) In the case when a container used 

for managing hazardous secondary 

material remains at the facility for a 

period of 1 year or more, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall visually inspect the 

container and its cover and closure 

devices initially and thereafter, at least 

once every 12 months, to check for 

visible cracks, holes, gaps, or other open 

spaces into the interior of the container 

when the cover and closure devices are 

secured in the closed position. If a 

defect is detected, the remanufacturer or 

other person that stores or treats the 

hazardous secondary material shall 

repair the defect in accordance with the 

requirements of paragraph (c)(4)(iii) of 

this section. 

(iii) When a defect is detected for the 

container, cover, or closure devices, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall make first efforts at repair 

of the defect no later than 24 hours after 

detection and repair shall be completed 

as soon as possible but no later than 5 

calendar days after detection. If repair of 

a defect cannot be completed within 5 

calendar days, then the hazardous 

secondary material shall be removed 

from the container and the container 

shall not be used to manage hazardous 

secondary material until the defect is 

repaired. 

(5) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

maintain at the facility a copy of the 

procedure used to determine that 

containers with capacity of 0.46 m3 or 

greater, which do not meet applicable 

DOT regulations as specified in 

paragraph (f) of this section, are not 

managing hazardous secondary material 

in light material service. 

(d) Container Level 2 standards. (1) A 

container using Container Level 2 

controls is one of the following: 

(i) A container that meets the 

applicable U.S. Department of 

Transportation (DOT) regulations on 

packaging hazardous materials for 

transportation as specified in paragraph 

(f) of this section. 

(ii) A container that operates with no 

detectable organic emissions as defined 

in § 261.1081 and determined in 

accordance with the procedure specified 

in paragraph (g) of this section. 

(iii) A container that has been 

demonstrated within the preceding 12 

months to be vapor-tight by using 40 

CFR part 60, appendix A, Method 27 in 

accordance with the procedure specified 

in paragraph (h) of this section. 

(2) Transfer of hazardous secondary 

material in or out of a container using 

Container Level 2 controls shall be 

conducted in such a manner as to 

minimize exposure of the hazardous 

secondary material to the atmosphere, to 

the extent practical, considering the 

physical properties of the hazardous 

secondary material and good 

engineering and safety practices for 

handling flammable, ignitable, 

explosive, reactive, or other hazardous 

materials. Examples of container 

loading procedures that the EPA 

considers to meet the requirements of 

this paragraph include using any one of 

the following: a submerged-fill pipe or 

other submerged-fill method to load 

liquids into the container; a vaporbalancing system or a vapor-recovery 

system to collect and control the vapors 

displaced from the container during 

filling operations; or a fitted opening in 

the top of a container through which the 

hazardous secondary material is filled 

and subsequently purging the transfer 

line before removing it from the 

container opening. 

(3) Whenever a hazardous secondary 

material is in a container using 

Container Level 2 controls, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall install all covers and 

closure devices for the container, and 

secure and maintain each closure device 

in the closed position except as follows: 

(i) Opening of a closure device or 

cover is allowed for the purpose of 

adding hazardous secondary material or 

other material to the container as 

follows: 

(A) In the case when the container is 

filled to the intended final level in one 

continuous operation, the 

remanufacture or other person that 

stores or treats the hazardous secondary 

material shall promptly secure the 

closure devices in the closed position 

and install the covers, as applicable to 

the container, upon conclusion of the 

filling operation. 

(B) In the case when discrete 

quantities or batches of material 

intermittently are added to the container 

over a period of time, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall promptly secure the 

closure devices in the closed position 

and install covers, as applicable to the 

container, upon either the container 

being filled to the intended final level; 

the completion of a batch loading after 

which no additional material will be 

added to the container within 15 

minutes; the person performing the 

loading operation leaving the immediate 

vicinity of the container; or the 

shutdown of the process generating the 

material being added to the container, 

whichever condition occurs first. 

(ii) Opening of a closure device or 

cover is allowed for the purpose of 

removing hazardous secondary material 

from the container as follows: 

(A) For the purpose of meeting the 

requirements of this section, an empty 

hazardous secondary material container 

may be open to the atmosphere at any 

time (i.e., covers and closure devices are 

not required to be secured in the closed 

position on an empty container). 

(B) In the case when discrete 

quantities or batches of material are 

removed from the container, but the 

container is not an empty hazardous 

secondary materials container, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall promptly secure the 

closure devices in the closed position 

and install covers, as applicable to the 

container, upon the completion of a 

batch removal after which no additional 

material will be removed from the 

container within 15 minutes or the 

person performing the unloading 

operation leaves the immediate vicinity 

of the container, whichever condition 

occurs first. 

(iii) Opening of a closure device or 

cover is allowed when access inside the 

container is needed to perform routine 

activities other than transfer of 

hazardous secondary material. 

Examples of such activities include 

those times when a worker needs to 

open a port to measure the depth of or 

sample the material in the container, or 

when a worker needs to open a manhole 

hatch to access equipment inside the 

container. Following completion of the 

activity, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

promptly secure the closure device in 

the closed position or reinstall the 

cover, as applicable to the container. 

(iv) Opening of a spring-loaded, 

pressure-vacuum relief valve, 

conservation vent, or similar type of 

pressure relief device which vents to the 

atmosphere is allowed during normal 

operations for the purpose of 

maintaining the internal pressure of the 

container in accordance with the 

container design specifications. The 

device shall be designed to operate with 

no detectable organic emission when 

the device is secured in the closed 

position. The settings at which the 

device opens shall be established such 

that the device remains in the closed 


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position whenever the internal pressure 

of the container is within the internal 

pressure operating range determined by 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material based on container 

manufacturer recommendations, 

applicable regulations, fire protection 

and prevention codes, standard 

engineering codes and practices, or 

other requirements for the safe handling 

of flammable, ignitable, explosive, 

reactive, or hazardous materials. 

Examples of normal operating 

conditions that may require these 

devices to open are during those times 

when the internal pressure of the 

container exceeds the internal pressure 

operating range for the container as a 

result of loading operations or diurnal 

ambient temperature fluctuations. 

(v) Opening of a safety device, as 

defined in § 261.1081, is allowed at any 

time conditions require doing so to 

avoid an unsafe condition. 

(4) The remanufacture or other person 

that stores or treats the hazardous 

secondary material using containers 

with Container Level 2 controls shall 

inspect the containers and their covers 

and closure devices as follows: 

(i) In the case when a hazardous 

secondary material already is in the 

container at the time the remanufacturer 

or other person that stores or treats the 

hazardous secondary material first 

accepts possession of the container at 

the facility and the container is not 

emptied within 24 hours after the 

container is accepted at the facility (i.e., 

is not an empty hazardous secondary 

material container), the remanufacturer 

or other person that stores or treats the 

hazardous secondary material shall 

visually inspect the container and its 

cover and closure devices to check for 

visible cracks, holes, gaps, or other open 

spaces into the interior of the container 

when the cover and closure devices are 

secured in the closed position. The 

container visual inspection shall be 

conducted on or before the date that the 

container is accepted at the facility (i.e., 

the date the container becomes subject 

to the subpart CC container standards). 

(ii) In the case when a container used 

for managing hazardous secondary 

material remains at the facility for a 

period of 1 year or more, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall visually inspect the 

container and its cover and closure 

devices initially and thereafter, at least 

once every 12 months, to check for 

visible cracks, holes, gaps, or other open 

spaces into the interior of the container 

when the cover and closure devices are 

secured in the closed position. If a 

defect is detected, the remanufacturer or 

other person that stores or treats the 

hazardous secondary material shall 

repair the defect in accordance with the 

requirements of paragraph (d)(4)(iii) of 

this section. 

(iii) When a defect is detected for the 

container, cover, or closure devices, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall make first efforts at repair 

of the defect no later than 24 hours after 

detection, and repair shall be completed 

as soon as possible but no later than 5 

calendar days after detection. If repair of 

a defect cannot be completed within 5 

calendar days, then the hazardous 

secondary material shall be removed 

from the container and the container 

shall not be used to manage hazardous 

secondary material until the defect is 

repaired. 

(e) Container Level 3 standards. (1) A 

container using Container Level 3 

controls is one of the following: 

(i) A container that is vented directly 

through a closed-vent system to a 

control device in accordance with the 

requirements of paragraph (e)(2)(ii) of 

this section. 

(ii) A container that is vented inside 

an enclosure which is exhausted 

through a closed-vent system to a 

control device in accordance with the 

requirements of paragraphs (e)(2)(i) and 

(ii) of this section. 

(2) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

meet the following requirements, as 

applicable to the type of air emission 

control equipment selected by the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material: 

(i) The container enclosure shall be 

designed and operated in accordance 

with the criteria for a permanent total 

enclosure as specified in ‘‘Procedure 

T—Criteria for and Verification of a 

Permanent or Temporary Total 

Enclosure’’ under 40 CFR 52.741, 

appendix B. The enclosure may have 

permanent or temporary openings to 

allow worker access; passage of 

containers through the enclosure by 

conveyor or other mechanical means; 

entry of permanent mechanical or 

electrical equipment; or direct airflow 

into the enclosure. The remanufacturer 

or other person that stores or treats the 

hazardous secondary material shall 

perform the verification procedure for 

the enclosure as specified in Section 5.0 

to ‘‘Procedure T—Criteria for and 

Verification of a Permanent or 

Temporary Total Enclosure’’ initially 

when the enclosure is first installed 

and, thereafter, annually. 

(ii) The closed-vent system and 

control device shall be designed and 

operated in accordance with the 

requirements of § 261.1087 of this 

subpart. 

(3) Safety devices, as defined in 

§ 261.1081, may be installed and 

operated as necessary on any container, 

enclosure, closed-vent system, or 

control device used to comply with the 

requirements of paragraph (e)(1) of this 

section. 

(4) Remanufacturers or other persons 

that store or treat the hazardous 

secondary material using Container 

Level 3 controls in accordance with the 

provisions of this subpart shall inspect 

and monitor the closed-vent systems 

and control devices as specified in 

§ 261.1087 of this subpart. 

(5) Remanufacturers or other persons 

that store or treat the hazardous 

secondary material that use Container 

Level 3 controls in accordance with the 

provisions of this subpart shall prepare 

and maintain the records specified in 

§ 261.1089(d) of this subpart. 

(6) Transfer of hazardous secondary 

material in or out of a container using 

Container Level 3 controls shall be 

conducted in such a manner as to 

minimize exposure of the hazardous 

secondary material to the atmosphere, to 

the extent practical, considering the 

physical properties of the hazardous 

secondary material and good 

engineering and safety practices for 

handling flammable, ignitable, 

explosive, reactive, or other hazardous 

materials. Examples of container 

loading procedures that the EPA 

considers to meet the requirements of 

this paragraph include using any one of 

the following: a submerged-fill pipe or 

other submerged-fill method to load 

liquids into the container; a vaporbalancing system or a vapor-recovery 

system to collect and control the vapors 

displaced from the container during 

filling operations; or a fitted opening in 

the top of a container through which the 

hazardous secondary material is filled 

and subsequently purging the transfer 

line before removing it from the 

container opening. 

(f) For the purpose of compliance 

with paragraph (c)(1)(i) or (d)(1)(i) of 

this section, containers shall be used 

that meet the applicable U.S. 

Department of Transportation (DOT) 

regulations on packaging hazardous 

materials for transportation as follows: 

(1) The container meets the applicable 

requirements specified in 49 CFR part 

178 or part 179. 

(2) Hazardous secondary material is 

managed in the container in accordance 

with the applicable requirements 


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specified in 49 CFR part 107, subpart B 

and 49 CFR parts 172, 173, and 180. 

(3) For the purpose of complying with 

this subpart, no exceptions to the 49 

CFR part 178 or part 179 regulations are 

allowed. 

(g) To determine compliance with the 

no detectable organic emissions 

requirement of paragraph (d)(1)(ii) of 

this section, the procedure specified in 

§ 261.1083(d) of this subpart shall be 

used. 

(1) Each potential leak interface (i.e., 

a location where organic vapor leakage 

could occur) on the container, its cover, 

and associated closure devices, as 

applicable to the container, shall be 

checked. Potential leak interfaces that 

are associated with containers include, 

but are not limited to: the interface of 

the cover rim and the container wall; 

the periphery of any opening on the 

container or container cover and its 

associated closure device; and the 

sealing seat interface on a spring-loaded 

pressure-relief valve. 

(2) The test shall be performed when 

the container is filled with a material 

having a volatile organic concentration 

representative of the range of volatile 

organic concentrations for the 

hazardous secondary materials expected 

to be managed in this type of container. 

During the test, the container cover and 

closure devices shall be secured in the 

closed position. 

(h) Procedure for determining a 

container to be vapor-tight using 

Method 27 of 40 CFR part 60, appendix 

A for the purpose of complying with 

paragraph (d)(1)(iii) of this section. 

(1) The test shall be performed in 

accordance with Method 27 of 40 CFR 

part 60, appendix A of this chapter. 

(2) A pressure measurement device 

shall be used that has a precision of ±2.5 

mm water and that is capable of 

measuring above the pressure at which 

the container is to be tested for vapor 

tightness. 

(3) If the test results determined by 

Method 27 indicate that the container 

sustains a pressure change less than or 

equal to 750 Pascals within 5 minutes 

after it is pressurized to a minimum of 

4,500 Pascals, then the container is 

determined to be vapor-tight. 

§ 261.1087 Standards: Closed-vent 

systems and control devices. 

(a) This section applies to each 

closed-vent system and control device 

installed and operated by the 

remanufacturer or other person who 

stores or treats the hazardous secondary 

material to control air emissions in 

accordance with standards of this 

subpart. 

(b) The closed-vent system shall meet 

the following requirements: 

(1) The closed-vent system shall route 

the gases, vapors, and fumes emitted 

from the hazardous secondary material 

in the hazardous secondary material 

management unit to a control device 

that meets the requirements specified in 

paragraph (c) of this section. 

(2) The closed-vent system shall be 

designed and operated in accordance 

with the requirements specified in 

§ 261.1033(k) of this part. 

(3) In the case when the closed-vent 

system includes bypass devices that 

could be used to divert the gas or vapor 

stream to the atmosphere before 

entering the control device, each bypass 

device shall be equipped with either a 

flow indicator as specified in paragraph 

(b)(3)(i) of this section or a seal or 

locking device as specified in paragraph 

(b)(3)(ii) of this section. For the purpose 

of complying with this paragraph, low 

leg drains, high point bleeds, analyzer 

vents, open-ended valves or lines, 

spring loaded pressure relief valves, and 

other fittings used for safety purposes 

are not considered to be bypass devices. 

(i) If a flow indicator is used to 

comply with paragraph (b)(3) of this 

section, the indicator shall be installed 

at the inlet to the bypass line used to 

divert gases and vapors from the closedvent system to the atmosphere at a point 

upstream of the control device inlet. For 

this paragraph, a flow indicator means 

a device which indicates the presence of 

either gas or vapor flow in the bypass 

line. 

(ii) If a seal or locking device is used 

to comply with paragraph (b)(3) of this 

section, the device shall be placed on 

the mechanism by which the bypass 

device position is controlled (e.g., valve 

handle, damper lever) when the bypass 

device is in the closed position such 

that the bypass device cannot be opened 

without breaking the seal or removing 

the lock. Examples of such devices 

include, but are not limited to, a car-seal 

or a lock-and-key configuration valve. 

The remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall visually inspect the seal 

or closure mechanism at least once 

every month to verify that the bypass 

mechanism is maintained in the closed 

position. 

(4) The closed-vent system shall be 

inspected and monitored by the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material in accordance with the 

procedure specified in § 261.1033(l). 

(c) The control device shall meet the 

following requirements: 

(1) The control device shall be one of 

the following devices: 

(i) A control device designed and 

operated to reduce the total organic 

content of the inlet vapor stream vented 

to the control device by at least 95 

percent by weight; 

(ii) An enclosed combustion device 

designed and operated in accordance 

with the requirements of § 261.1033(c) 

of this part; or 

(iii) A flare designed and operated in 

accordance with the requirements of 

§ 261.1033(d) of this part. 

(2) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material who 

elects to use a closed-vent system and 

control device to comply with the 

requirements of this section shall 

comply with the requirements specified 

in paragraphs (c)(2)(i) through (vi) of 

this section. 

(i) Periods of planned routine 

maintenance of the control device, 

during which the control device does 

not meet the specifications of paragraph 

(c)(1)(i), (ii), or (iii) of this section, as 

applicable, shall not exceed 240 hours 

per year. 

(ii) The specifications and 

requirements in paragraphs (c)(1)(i) 

through (iii) of this section for control 

devices do not apply during periods of 

planned routine maintenance. 

(iii) The specifications and 

requirements in paragraphs (c)(1)(i) 

through (iii) of this section for control 

devices do not apply during a control 

device system malfunction. 

(iv) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

demonstrate compliance with the 

requirements of paragraph (c)(2)(i) of 

this section (i.e., planned routine 

maintenance of a control device, during 

which the control device does not meet 

the specifications of paragraph (c)(1)(i), 

(ii), or (iii) of this section, as applicable, 

shall not exceed 240 hours per year) by 

recording the information specified in 

§ 261.1089(e)(1)(v) of this subpart. 

(v) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

correct control device system 

malfunctions as soon as practicable after 

their occurrence in order to minimize 

excess emissions of air pollutants. 

(vi) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

operate the closed-vent system such that 

gases, vapors, or fumes are not actively 

vented to the control device during 

periods of planned maintenance or 

control device system malfunction (i.e., 

periods when the control device is not 

operating or not operating normally) 

except in cases when it is necessary to 


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vent the gases, vapors, and/or fumes to 

avoid an unsafe condition or to 

implement malfunction corrective 

actions or planned maintenance actions. 

(3) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material using a 

carbon adsorption system to comply 

with paragraph (c)(1) of this section 

shall operate and maintain the control 

device in accordance with the following 

requirements: 

(i) Following the initial startup of the 

control device, all activated carbon in 

the control device shall be replaced 

with fresh carbon on a regular basis in 

accordance with the requirements of 

§ 261.1033(g) or (h) of this part. 

(ii) All carbon that is hazardous waste 

and that is removed from the control 

device shall be managed in accordance 

with the requirements of § 261.1033(n), 

regardless of the average volatile organic 

concentration of the carbon. 

(4) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material using a control 

device other than a thermal vapor 

incinerator, flare, boiler, process heater, 

condenser, or carbon adsorption system 

to comply with paragraph (c)(1) of this 

section shall operate and maintain the 

control device in accordance with the 

requirements of § 261.1033(j) of this 

part. 

(5) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

demonstrate that a control device 

achieves the performance requirements 

of paragraph (c)(1) of this section as 

follows: 

(i) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall demonstrate 

using either a performance test as 

specified in paragraph (c)(5)(iii) of this 

section or a design analysis as specified 

in paragraph (c)(5)(iv) of this section the 

performance of each control device 

except for the following: 

(A) A flare; 

(B) A boiler or process heater with a 

design heat input capacity of 44 

megawatts or greater; 

(C) A boiler or process heater into 

which the vent stream is introduced 

with the primary fuel; 

(ii) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall demonstrate 

the performance of each flare in 

accordance with the requirements 

specified in § 261.1033(e). 

(iii) For a performance test conducted 

to meet the requirements of paragraph 

(c)(5)(i) of this section, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall use the test methods and 

procedures specified in § 261.1034(c)(1) 

through (4). 

(iv) For a design analysis conducted 

to meet the requirements of paragraph 

(c)(5)(i) of this section, the design 

analysis shall meet the requirements 

specified in § 261.1035(b)(4)(iii). 

(v) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

demonstrate that a carbon adsorption 

system achieves the performance 

requirements of paragraph (c)(1) of this 

section based on the total quantity of 

organics vented to the atmosphere from 

all carbon adsorption system equipment 

that is used for organic adsorption, 

organic desorption or carbon 

regeneration, organic recovery, and 

carbon disposal. 

(6) If the remanufacturer or other 

person that stores or treats the 

hazardous secondary material and the 

Regional Administrator do not agree on 

a demonstration of control device 

performance using a design analysis 

then the disagreement shall be resolved 

using the results of a performance test 

performed by the remanufacturer or 

other person that stores or treats the 

hazardous secondary material in 

accordance with the requirements of 

paragraph (c)(5)(iii) of this section. The 

Regional Administrator may choose to 

have an authorized representative 

observe the performance test. 

(7) The closed-vent system and 

control device shall be inspected and 

monitored by the remanufacture or 

other person that stores or treats the 

hazardous secondary material in 

accordance with the procedures 

specified in § 261.1033(f)(2) and (l). The 

readings from each monitoring device 

required by § 261.1033(f)(2) shall be 

inspected at least once each operating 

day to check control device operation. 

Any necessary corrective measures shall 

be immediately implemented to ensure 

the control device is operated in 

compliance with the requirements of 

this section. 

§ 261.1088 Inspection and monitoring 

requirements. 

(a) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

inspect and monitor air emission 

control equipment used to comply with 

this subpart in accordance with the 

applicable requirements specified in 

§§ 261.1084 through 261.1087 of this 

subpart. 

(b) The remanufacture or other person 

that stores or treats the hazardous 

secondary material shall develop and 

implement a written plan and schedule 

to perform the inspections and 

monitoring required by paragraph (a) of 

this section. The remanufacturer or 

other person that stores or treats the 

hazardous secondary material shall keep 

the plan and schedule at the facility. 

§ 261.1089 Recordkeeping requirements. 

(a) Each remanufacturer or other 

person that stores or treats the 

hazardous secondary material subject to 

requirements of this subpart shall record 

and maintain the information specified 

in paragraphs (b) through (j) of this 

section, as applicable to the facility. 

Except for air emission control 

equipment design documentation and 

information required by paragraphs (i) 

and (j) of this section, records required 

by this section shall be maintained at 

the facility for a minimum of 3 years. 

Air emission control equipment design 

documentation shall be maintained at 

the facility until the air emission control 

equipment is replaced or otherwise no 

longer in service. Information required 

by paragraphs (i) and (j) of this section 

shall be maintained at the facility for as 

long as the hazardous secondary 

material management unit is not using 

air emission controls specified in 

§§ 261.1084 through 261.1087 of this 

subpart in accordance with the 

conditions specified in § 261.1080(b)(7) 

or (d) of this subpart, respectively. 

(b) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material using a 

tank with air emission controls in 

accordance with the requirements of 

§ 261.1084 of this subpart shall prepare 

and maintain records for the tank that 

include the following information: 

(1) For each tank using air emission 

controls in accordance with the 

requirements of § 261.1084 of this 

subpart, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

record: 

(i) A tank identification number (or 

other unique identification description 

as selected by the remanufacturer or 

other person that stores or treats the 

hazardous secondary material). 

(ii) A record for each inspection 

required by § 261.1084 of this subpart 

that includes the following information: 

(A) Date inspection was conducted. 

(B) For each defect detected during 

the inspection: The location of the 

defect, a description of the defect, the 

date of detection, and corrective action 

taken to repair the defect. In the event 

that repair of the defect is delayed in 

accordance with the requirements of 

§ 261.1084 of this subpart, the 

remanufacturer or other person that 

stores or treats the hazardous secondary 


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material shall also record the reason for 

the delay and the date that completion 

of repair of the defect is expected. 

(2) In addition to the information 

required by paragraph (b)(1) of this 

section, the remanufacturer or other 

person that stores or treats the 

hazardous secondary material shall 

record the following information, as 

applicable to the tank: 

(i) The remanufacturer or other person 

that stores or treats the hazardous 

secondary material using a fixed roof to 

comply with the Tank Level 1 control 

requirements specified in § 261.1084(c) 

of this subpart shall prepare and 

maintain records for each determination 

for the maximum organic vapor pressure 

of the hazardous secondary material in 

the tank performed in accordance with 

the requirements of § 261.1084(c) of this 

subpart. The records shall include the 

date and time the samples were 

collected, the analysis method used, and 

the analysis results. 

(ii) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material using an 

internal floating roof to comply with the 

Tank Level 2 control requirements 

specified in § 261.1084(e) of this subpart 

shall prepare and maintain 

documentation describing the floating 

roof design. 

(iii) Remanufacturer or other persons 

that store or treat the hazardous 

secondary material using an external 

floating roof to comply with the Tank 

Level 2 control requirements specified 

in § 261.1084(f) of this subpart shall 

prepare and maintain the following 

records: 

(A) Documentation describing the 

floating roof design and the dimensions 

of the tank. 

(B) Records for each seal gap 

inspection required by § 261.1084(f)(3) 

of this subpart describing the results of 

the seal gap measurements. The records 

shall include the date that the 

measurements were performed, the raw 

data obtained for the measurements, and 

the calculations of the total gap surface 

area. In the event that the seal gap 

measurements do not conform to the 

specifications in § 261.1084(f)(1) of this 

subpart, the records shall include a 

description of the repairs that were 

made, the date the repairs were made, 

and the date the tank was emptied, if 

necessary. 

(iv) Each remanufacturer or other 

person that stores or treats the 

hazardous secondary material using an 

enclosure to comply with the Tank 

Level 2 control requirements specified 

in § 261.1084(i) of this subpart shall 

prepare and maintain the following 

records: 

(A) Records for the most recent set of 

calculations and measurements 

performed by the remanufacturer or 

other person that stores or treats the 

hazardous secondary material to verify 

that the enclosure meets the criteria of 

a permanent total enclosure as specified 

in ‘‘Procedure T—Criteria for and 

Verification of a Permanent or 

Temporary Total Enclosure’’ under 40 

CFR 52.741, appendix B. 

(B) Records required for the closedvent system and control device in 

accordance with the requirements of 

paragraph (e) of this section. 

(c) [Reserved] 

(d) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material using 

containers with Container Level 3 air 

emission controls in accordance with 

the requirements of § 261.1086 of this 

subpart shall prepare and maintain 

records that include the following 

information: 

(1) Records for the most recent set of 

calculations and measurements 

performed by the remanufacturer or 

other person that stores or treats the 

hazardous secondary material to verify 

that the enclosure meets the criteria of 

a permanent total enclosure as specified 

in ‘‘Procedure T—Criteria for and 

Verification of a Permanent or 

Temporary Total Enclosure’’ under 40 

CFR 52.741, appendix B. 

(2) Records required for the closedvent system and control device in 

accordance with the requirements of 

paragraph (e) of this section. 

(e) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material using a 

closed-vent system and control device 

in accordance with the requirements of 

§ 261.1087 of this subpart shall prepare 

and maintain records that include the 

following information: 

(1) Documentation for the closed-vent 

system and control device that includes: 

(i) Certification that is signed and 

dated by the remanufacturer or other 

person that stores or treats the 

hazardous secondary material stating 

that the control device is designed to 

operate at the performance level 

documented by a design analysis as 

specified in paragraph (e)(1)(ii) of this 

section or by performance tests as 

specified in paragraph (e)(1)(iii) of this 

section when the tank or container is or 

would be operating at capacity or the 

highest level reasonably expected to 

occur. 

(ii) If a design analysis is used, then 

design documentation as specified in 

§ 261.1035(b)(4). The documentation 

shall include information prepared by 

the remanufacturer or other person that 

stores or treats the hazardous secondary 

material or provided by the control 

device manufacturer or vendor that 

describes the control device design in 

accordance with § 261.1035(b)(4)(iii) 

and certification by the remanufacturer 

or other person that stores or treats the 

hazardous secondary material that the 

control equipment meets the applicable 

specifications. 

(iii) If performance tests are used, 

then a performance test plan as 

specified in § 261.1035(b)(3) and all test 

results. 

(iv) Information as required by 

§§ 261.1035(c)(1) and 261.1035(c)(2), as 

applicable. 

(v) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall record, on a 

semiannual basis, the information 

specified in paragraphs (e)(1)(v)(A) and 

(B) of this section for those planned 

routine maintenance operations that 

would require the control device not to 

meet the requirements of 

§ 261.1087(c)(1)(i), (ii), or (iii) of this 

subpart, as applicable. 

(A) A description of the planned 

routine maintenance that is anticipated 

to be performed for the control device 

during the next 6-month period. This 

description shall include the type of 

maintenance necessary, planned 

frequency of maintenance, and lengths 

of maintenance periods. 

(B) A description of the planned 

routine maintenance that was performed 

for the control device during the 

previous 6-month period. This 

description shall include the type of 

maintenance performed and the total 

number of hours during those 6 months 

that the control device did not meet the 

requirements of § 261.1087(c)(1)(i), (ii), 

or (iii) of this subpart, as applicable, due 

to planned routine maintenance. 

(vi) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material shall record the 

information specified in paragraphs 

(e)(1)(vi)(A) through (C) of this section 

for those unexpected control device 

system malfunctions that would require 

the control device not to meet the 

requirements of § 261.1087(c)(1)(i), (ii), 

or (iii) of this subpart, as applicable. 

(A) The occurrence and duration of 

each malfunction of the control device 

system. 

(B) The duration of each period 

during a malfunction when gases, 

vapors, or fumes are vented from the 

hazardous secondary material 

management unit through the closedvent system to the control device while 

the control device is not properly 

functioning. 


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1814 Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations 

(C) Actions taken during periods of 

malfunction to restore a malfunctioning 

control device to its normal or usual 

manner of operation. 

(vii) Records of the management of 

carbon removed from a carbon 

adsorption system conducted in 

accordance with § 261.1087(c)(3)(ii) of 

this subpart. 

(f) The remanufacturer or other person 

that stores or treats the hazardous 

secondary material using a tank or 

container exempted under the 

hazardous secondary material organic 

concentration conditions specified in 

§ 261.1082(c)(1) or (c)(2)(i) through (vi) 

of this subpart, shall prepare and 

maintain at the facility records 

documenting the information used for 

each material determination (e.g., test 

results, measurements, calculations, and 

other documentation). If analysis results 

for material samples are used for the 

material determination, then the 

remanufacturer or other person that 

stores or treats the hazardous secondary 

material shall record the date, time, and 

location that each material sample is 

collected in accordance with applicable 

requirements of § 261.1083 of this 

subpart. 

(2) [Reserved] 

(g) A remanufacturer or other person 

that stores or treats the hazardous 

secondary material designating a cover 

as ‘‘unsafe to inspect and monitor’’ 

pursuant to § 261.1084(l) or 

§ 261.1085(g) of this subpart shall record 

and keep at facility the following 

information: The identification numbers 

for hazardous secondary material 

management units with covers that are 

designated as ‘‘unsafe to inspect and 

monitor,’’ the explanation for each cover 

stating why the cover is unsafe to 

inspect and monitor, and the plan and 

schedule for inspecting and monitoring 

each cover. 

(h) The remanufacturer or other 

person that stores or treats the 

hazardous secondary material that is 

subject to this subpart and to the control 

device standards in 40 CFR part 60, 

subpart VV, or 40 CFR part 61, subpart 

V, may elect to demonstrate compliance 

with the applicable sections of this 

subpart by documentation either 

pursuant to this subpart, or pursuant to 

the provisions of 40 CFR part 60, 

subpart VV or 40 CFR part 61, subpart 

V, to the extent that the documentation 

required by 40 CFR parts 60 or 61 

duplicates the documentation required 

by this section. 

§ 261.1090 [Reserved] 

[FR Doc. 2014–30382 Filed 1–12–15; 8:45 am] 

BILLING CODE 6560–50–P 


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