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EO12866_DSW 2050-AG62 NPRM Preamble_20110225

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, and 270

[EPA-HQ-RCRA-2010-0742; FRL-]

RIN 2050-AG62

Rulemaking on the Definition of Solid Waste

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

SUMMARY: The Environmental Protection Agency (EPA or the Agency) is proposing to revise 

certain exclusions from the definition of solid waste under Subtitle C of the Resource 

Conservation and Recovery Act (RCRA) for hazardous secondary materials intended for 

reclamation. The purpose of these proposed revisions is to ensure that the 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: Comments must be received on or before [Insert date 60 days after publication in the 

Federal Register]

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2010-

0742 by one of the following methods:

 www.regulations.gov: Follow the on-line instructions for submitting comments.

 Email: Comments may be sent by electronic mail (email) to RCRA-docket@epa.gov, 

Attention Docket ID No. EPA-HQ-RCRA-2010-0742.

 Fax: Fax comments to: 202-566-0270, Attention Docket ID No. EPA-HQ-RCRA-2010-

0742
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 Mail: Send comments to: OSWER Docket, EPA Docket Center, Mail Code 5305T, 

Environmental Protection Agency, 1200 Pennsylvania Avenue N.W. Washington D.C. 

20460, Attention Docket ID No. EPA-HQ-RCRA-2010-0742. Please include two copies 

of your comments. In addition, please mail a copy of your comments on the information 

collection provisions to the Office of Information and Regulatory Affairs, Office of 

Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., Washington 

D.C. 20503.

 Hand delivery: Deliver two copies of your comments to: Environmental Protection 

Agency, EPA Docket Center, Room 3334, 1301 Constitution Avenue, N.W., Washington 

D.C., Attention Docket ID No. EPA-HQ-RCRA-2010- 0742. Such deliveries are only 

accepted during the docket’s normal hours of operation and special arrangements should 

be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID Number EPA- HQ-RCRA-2010-0742. EPA’s 

policy is that all comments received will be included in the public docket without change and 

may be made available online at www.regulations.gov, including any personal information 

provided, unless the comment includes information claimed to be Confidential Business 

Information (CBI) or other information whose disclosure is restricted by statute. Do not submit 

information that you consider to be CBI or otherwise protected through www.regulations.gov or 

email. The www.regulations.gov website is an “anonymous access” system, which means EPA

will not know your identity or contact information unless you provide it in the body of your 

comment. If you send an email comment directly to EPA without going through 

www.regulations.gov, your email address will be automatically captured and included as part of 

the comment that is placed in the public docket and made available on the Internet. If you submit 
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an electronic comment, EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CD-ROM you submit. If EPA 

cannot read your comment due to technical difficulties and cannot contact you for clarification, 

EPA may not be able to consider your comment. Electronic files should avoid the use of special 

characters, any form of encryption, and be free of any defects or viruses.

Docket: 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 CBI or other information 

whose disclosure is restricted by statute. Certain other material, such as copyrighted material, 

will be publicly available only in hard copy. Publicly available docket materials are available 

either electronically at www.regulations.gov or in hard copy at the OSWER Docket, EPA/DC, 

EPA West, Room 3334, 1301 Constitution Ave., N.W., 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 OSWER Docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: For more detailed information on specific 

aspects of this rulemaking, contact Marilyn Goode, Office of Resource Conservation and 

Recovery, Materials Recovery and Waste Management Division, MC 5304P, Environmental 

Protection Agency, 1200 Pennsylvania Ave. N.W., Washington DC 20460, (703) 308-8800, 

(goode.marilyn@epa.gov) or Tracy Atagi, Office of Resource Conservation and Recovery, 

Materials Recovery and Waste Management Division, MC 5304P, Environmental Protection 

Agency, 1200 Pennsylvania Ave. N.W., Washington DC 20460, at (703) 308-8672 

(atagi.tracy@epa.gov).

SUPPLEMENTARY INFORMATION: 
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A. Regulated Entities 

Entities potentially affected by today's action include approximately between 1,100 to 

11,500 facilities (depending on the regulatory option(s) selected) in 280 industry sectors that 

generate or recycle hazardous secondary materials that are (1) currently regulated as RCRA 

Subtitle C hazardous wastes, (2) hazardous secondary materials currently excluded under the 

2008 DSW rule, or (3) hazardous secondary materials currently excluded from RCRA Subtitle C 

under other solid waste exclusions. In aggregate, the Regulatory Impact Analysis estimates the 

future average annualized costs to industry to comply with the eight proposed revisions at 

between $3.8 million to $11.3 million per year under a lower-bound state adoption scenario, 

which presumes 11 percent of the recycling facilities implementing the revisions, and between 

$6.5 million to $61.8 million per year under an upper-bound state adoption scenario, which 

presumes 67 percent of recycling facilities implement the revisions. More detailed information 

on the potentially affected entities, industries, and industrial materials, as well as the economic 

impacts of this proposed rule, is presented in Section XVII.A of this preamble and in the 

Regulatory Impact Analysis available in the docket for this final rule.

B. What to Consider When Preparing Comments for EPA.

1. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or 

email. Clearly mark all information that you claim to be CBI. For CBI information in a disk or 

CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then 

identify electronically within the disk or CD-ROM the specific information that is claimed as 

CBI. In addition to one complete version of the comment that includes information claimed as 

CBI, a copy of the comment that does not contain the information claimed as CBI must be 

submitted for inclusion in the public docket. Information so marked will not be disclosed, except 
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in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

 Identify the rulemaking by docket number and other identifying information (subject 

heading, Federal Register date and page number).

 Follow directions. The Agency may ask for commenters to respond to specific questions 

or organize comments by referencing a Code of Federal Regulations (CFR) part or 

section number.

 Explain why you agree or disagree; suggest alternatives and substitute language for your 

requested changes.

 Describe any assumptions and provide any technical information and/or data that you 

used.

 If estimating burden or costs, explain methods used to arrive at the estimate in sufficient 

detail to allow for it to be reproduced.

 Provide specific examples to illustrate any concerns and suggest alternatives. 

 Make sure to submit comments by the comment period deadline identified above.

Preamble Outline

I. Statutory Authority

II. List of Abbreviations and Acronyms 

III. What is the Intent of this Proposal? 

IV. What is the Scope of this Proposal? 

V. History of the Definition of Solid Waste

VI. Definition of Solid Waste Environmental Justice Analysis

VII. Withdrawal of the Exclusion For Hazardous Secondary Materials That Are Transferred 
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For The Purpose Of Legitimate Reclamation

VIII. Alternative Subtitle C Regulation for Hazardous Recyclable Materials

IX. Revisions to the Exclusion for Hazardous Secondary Materials that are Legitimately

Reclaimed Under the Control of the Generator

X. Revisions to the Definition of Legitimacy

XI. Revisions to Solid Waste Variances and Non-Waste Determinations

XII. Request for Comment on Re-Manufacturing Exclusion 

XIII. Request for Comment on Revisions to Other Recycling Exclusions and Exemptions

XIV. Effect of this Proposal on Other Programs 

XV. Implementation Issues with 2008 DSW Final Rule

XVI. State Authorization 

XVII. Administrative Requirements for This Rulemaking 

I. Statutory Authority

These regulations are proposed 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. List of Abbreviations and Acronyms

CERCLA – Comprehensive Environmental Response, Compensation, and Liability Act

CFR – Code of Federal Regulations

DOT – Department of Transportation

DSW – Definition of Solid Waste
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EPA – Environmental Protection Agency

HSWA – Hazardous and Solid Waste Amendments of 1984

LDR – Land Disposal Restrictions

NAICS – North American Industry Classification System

NPL – National Priority List

RCRA – Resource Conservation and Recovery Act of 1976

RIA – Regulatory Impact Analysis

III. What is the Intent of this Proposal? 

Today’s proposal would revise and clarify the RCRA definition of solid waste (DSW) for 

certain types of hazardous secondary materials that are currently conditionally excluded from the 

definition of solid waste. 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, EPA is proposing to revise the 

2008 DSW rule in order to ensure that the rule, as implemented, encourages reclamation in a way

that protects human health and the environment from the mismanagement of hazardous 

secondary materials.

IV. What is the Scope of this Proposal? 

In today’s notice, EPA is proposing to revise the definition of solid waste regulations that 

were promulgated in October 2008 and that deal with the regulatory status of certain types of 

hazardous secondary materials sent for reclamation. The 2008 DSW final rule does not apply to 
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recycling of “inherently waste-like” materials (40 CFR 261.2(d)); recycling of hazardous 

secondary materials that are “used in a manner constituting disposal,” or “used to produce 

products that are applied to or placed on the land”(40 CFR 261.2(c)(1)); or for “burning of 

hazardous secondary materials for energy recovery” or “used to produce a fuel or otherwise 

contained in fuels” (40 CFR 261.2(c)(2)).

The regulatory changes being proposed today are summarized below. The intent of this 

summary is to give a brief overview of the proposed changes. More detailed discussions, 

including the Agency’s rationale for the changes, are discussed in later sections. In addition, to 

aid commenters in their review, EPA has also included in the docket for today’s proposal an 

informational redline/strikeout version of the proposed revised regulations as compared to the 

current Code of Federal Regulations.

A. Withdrawal of The Exclusion For Hazardous Secondary Materials That Are Transferred For 

The Purpose of Reclamation

EPA is proposing to withdraw the exclusion 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.

1

EPA’s analyses of potential hazards posed by the 2008 DSW rule 

indicate that, when implemented, the transfer-based exclusion may pose significant risk to 

human health and the environment from hazardous secondary material that may become 

discarded. While the transfer of materials is inherent in ordinary commerce and does not 

automatically indicate discard has occurred, in the case of hazardous secondary materials 

transferred for reclamation, EPA has determined that only a specific set of hazardous secondary

materials and reclamation practices clearly do not involve discard. EPA believes that in most 

 

1A hazardous secondary material is a secondary material (e.g., spent material, by-product, or sludge) that, when 

discarded, would be identified as hazardous waste under 40 CFR part 261.
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cases, hazardous secondary materials transferred to another party for reclamation are discarded 

and are best regulated under RCRA Subtitle C. Further discussion of this proposed withdrawal 

can be found in Section VII of this preamble.

B. Alternative Subtitle C Regulation for Hazardous Recyclable Materials

EPA is requesting comment on an alternative Subtitle C regulation in 40 CFR 266.30 for 

hazardous recyclable materials, with the intention of promoting the safe and sustainable 

reclamation of these materials.2 Under these alternative requirements, the hazardous recyclable 

materials must be managed according to the current RCRA Subtitle C requirements, including 

manifesting and hazardous waste permits for storage, except that generators may accumulate 

hazardous recyclable materials for up to a year without a RCRA permit if the generator makes 

advance arrangements for legitimate reclamation and documents those arrangements in a 

reclamation plan. EPA also requests comment on setting an upper limit on the amount of 

hazardous recyclable material accumulated at the generator at any one time. Further discussion 

of these proposed alternative standards can be found in Section VIII of this preamble.

C. Revisions to the Exclusion for Hazardous Secondary Materials Reclaimed Under the Control 

of the Generator

EPA is proposing to retain the exclusion for hazardous secondary materials reclaimed 

under the control of the generator with certain revisions, including (1) adding a regulatory

definition of “contained” to 40 CFR 260.10; (2) making notification a condition of the exclusion;

(3) adding a recordkeeping requirement for speculative accumulation in 40 CFR 261.1(c)(8); and 

(4) adding a recordkeeping requirement for reclamation under toll manufacturing agreements in 

40 CFR 261.4(a)(23)(i)(C). EPA is also requesting comment on whether to withdraw the toll 

 

2 Hazardous recyclable materials are hazardous wastes that are recycled. Unlike hazardous secondary materials, 

hazardous recyclable materials have clearly been discarded and therefore are always solid wastes.
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manufacturing provision of the exclusion. Further discussion of these proposed revisions can be 

found in Section IX of this preamble. 

D. Legitimacy

EPA is also proposing revisions to the definition of legitimacy in 40 CFR 260.43, 

including (1) applying the codified definition to all recycling activities regulated under 40 CFR 

260–266; (2) making all legitimacy factors mandatory, with a petition process for the rare 

instance that a factor is not met, but the recycling is still legitimate; and (3) requiring 

documentation of legitimacy. Further discussion of these proposed revisions can be found in 

Section X of this preamble.

E. Revisions to Solid Waste Variances and Non-Waste Determinations

EPA is also proposing revisions to the solid waste variances and non-waste 

determinations found in 40 CFR 260.30–260.34 in order to foster greater consistency on the part 

of implementing agencies and help ensure the protectiveness of the implementation of the solid 

waste variances and non-waste determinations. Proposed revisions include (1) requiring 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; (2) requiring facilities to renotify every two years with updated information; (3) revising the criteria for the partial

reclamation variance to more clearly explain when the variance applies and to require, among 

other things, that the criteria for this variance must be reviewed and evaluated collectively; (4) 

revising the criteria for the non-waste determination in 40 CFR 260.34 and requiring 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. Further discussion of these 
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proposed revisions can be found in Section XI of this preamble. 

F. Request for Comment on Re-Manufacturing Exclusion

EPA is also requesting comment on an exclusion from the definition of solid waste for 

specific types of higher-value hazardous secondary materials sent for re-manufacturing into 

similar products and on a petition process for higher-value hazardous secondary materials that 

are not included within this exclusion, but that are destined to be re-manufactured into similar

products. This exclusion would help promote sustainable materials management by extending the 

productive use of these materials and thus minimizing the amount of raw materials used overall

and all the associated environmental impacts of production. Further discussion of this possible 

exclusion can be found in Section XII of this preamble.

G. Request for Comment on Revisions to Other Recycling Exclusions and Exemptions 

EPA is also requesting comment on revisions that would affect other definition of solid 

waste exclusions and hazardous waste exemptions for recyclable materials. These possible 

revisions include (1) recordkeeping for speculative accumulation in all cases; (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 material. Further discussion of these possible revisions can be found in Section XIII of 

this preamble. 

V. History of the Definition of Solid Waste

A. Background

RCRA gives EPA the authority to regulate hazardous wastes (see, e.g., 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 
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program. Subtitle C is codified at 42 USC 6921 through 6939e. “Subtitle C” regulations are 

found at 40 CFR parts 260 through 279. “Hazardous wastes” are those that, because of their 

quantity, concentration, or physical, chemical, or infectious 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: 

 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 
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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 one-third of the 

first 60 filings under RCRA’s imminent and substantial endangerment authority and in 20 

of the initial sites listed 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). More recent data (i.e., information on damage incidents occurring 

after 1982) included in the rulemaking docket for today’s proposed 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 
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endangerment and information-gathering 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 always 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” 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 of the 

materials EPA was seeking to regulate were not “discarded materials” under RCRA section 

1004(27). The Court also held that Congress used the term “discarded” in its ordinary sense, to 
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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 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 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’ 
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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 under Subtitle C hazardous 

secondary materials recycled by reclamation within the mineral processing industry, the “LDR 

Phase IV rule” (63 FR 28556, May 26, 1998). 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 part 

of the waste disposal problem (63 FR 28581, May 26, 1998). The conditional exclusion 

decreased regulation over spent materials stored prior to reclamation, but increased regulation

over by-products 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 by-products and sludges destined for reclamation 
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(Association of Battery Recyclers v. EPA (“ABR”), 208 F.3d 1047 (D.C. Cir. 2000)). The Court 

held that it had already resolved the issue presented in ABR 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). It repeated that materials reused 

within an ongoing industrial process are neither disposed of nor abandoned (208 F.3d at 1051–

52). 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). 

Notably, the Court did not hold that storage before reclamation automatically makes 

materials “discarded.” Rather, it held 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). 

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 recycled 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 the 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
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dusts. 

EPA’s reasoning was that market participants, consistent with the EPA-required 

conditions in the rule, would treat the exempted materials more like valuable products than like 

negatively-valued 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 

upheld the rule based on 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. The Court 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. 

The Court also stated that it “need not consider whether a material could be classified as a 

non-discard exclusively on the basis of the market-participation 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 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
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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 
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“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 informing this rulemaking effort:

 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 in recent years, 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 ) (“successful recycling study”)
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 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 successful recycling study, 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 that have been attributed to 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 
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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 believes 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 overseen by a government agency and the expenditure of public funds clearly 

demonstrate that the hazardous secondary material was discarded. Of the 208 damage cases, 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 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, 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. 

 

3 EPA 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, EPA identified one new 

damage case and updated two existing damage case profiles with more information about environmental problems, 

as detailed in Addendum: An Assessment of Environmental Problems Associated with Recycling of Hazardous 

Secondary Materials (EPA-HQ-RCRA-2002-0031-0601). EPA determined that the new damage case and 

supplemental information were consistent with the damage cases previously cited in the study.
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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 

the 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 by-products 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 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.
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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 over-simplification. However, when used in 

conjunction with other information, the economic theory can be quite illuminating. For example, 

according to the market forces study, industrial intra- and 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 over-accumulated 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. These predicted outcomes appear to be supported by the 

results of the environmental problems study, which showed the majority of environmental 

damages occur at off-site commercial recyclers.

However, as shown by the successful recycling study, generators who might 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 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 
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the studies, can be found in the March 2007 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 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 re-structured 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 non-landbased units, and the other exclusion would apply to hazardous secondary materials managed in 

land-based 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 finds value in the hazardous 

secondary materials, has retained control over 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 hazardous secondary
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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. For 

example, one of the conditions would require the generator 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 case-by-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 
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determination was the same as that for the variances from the definition of solid waste found at 

40 CFR 260.31.

EPA also 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 is not waste 

treatment.

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) 

requiring facilities operating under the generator-controlled and/or the transfer-based exclusion 

to notify their regulatory authority prior to operating under the exclusion and every other year 

thereafter, and (4) making legitimacy a condition of the exclusions and the non-waste 

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.
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The administrative petition was submitted at the same time that 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.

The 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 coalitions letter to 

the Administrator, EPA issued a May 27, 2009, Federal Register notice (74 FR 25200) 

describing possible actions and optional paths forward, as well as announcing a public meeting 
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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 action, 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 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 “discard,” EPA does not expect to 

completely repeal the rule or stay its implementation, because such an action could result in 

hazardous secondary materials that are not discarded being regulated as hazardous waste. In 

particular, EPA said that it 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, the Agency stated that it could revise other parts of the definition of solid 

waste rule, such as the definition of legitimacy and the transfer-based exclusion, in ways that 

could increase environmental protection, while still appropriately defining when a hazardous 

secondary material being reclaimed is a solid waste” (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), the generating industry (28), the waste management/recycling industry (15), 

environmental, public health and community organizations (12), and academics (2). Industry

comments were uniformly in favor of denying the Sierra Club petition to repeal the rule, citing 
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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 many of 

the recyclers advocating that EPA retain and improve the rule with more stringent standards.

Other waste management industry comments 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. EPA 

appreciates all the comments that were provided and has carefully considered them in deciding to 

revisit the definition of solid waste in today’s proposal. 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 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.

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 
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which the Sierra Club agreed to withdraw their administrative petition and EPA agreed to 

prepare a notice of proposed rulemaking to be signed no later than June 30, 2011, which would 

address, at a minimum, the issues raised in the Sierra Club’s administrative petition, including 

the four issues discussed in the May 27, 2009, public meeting Federal Register notice (74 FR 

25200). A notice taking final administrative action concerning the notice of proposed rulemaking 

is to be signed no later than December 31, 2012. 

The settlement agreement was approved by the court on January 11, 2011. Today’s 

proposal represents EPA’s fulfillment of the portion of the settlement agreement concerning the 

proposed rule. 

The four issues in the settlement agreement are (1) the definition of “contained” (which 

includes the issue of defining “significant releases”) (addressed in Section IX.B.1 of this 

preamble), (2) notification before operating under the exclusion (addressed in Section IX.B.2 of 

this preamble), (3) the definition of “legitimacy” (addressed in Section X of this preamble) and 

(4) the transfer-based exclusion (addressed in Section VII 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
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substantially increase recycling and that the economic benefits are few and will only accrue to 

deregulated industries. Additionally, 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 
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and not 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.

However, EPA believes that there may be 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 increasing environmental 

protection, while still appropriately defining when a hazardous secondary material 

being reclaimed is a solid waste and subject to hazardous waste regulation.”

Today’s proposal includes a discussion of several potential changes to the generatorcontrolled exclusion and to the non-waste determination petition process, but, for the reasons 

stated above, EPA did not stay the rule and is not proposing to withdraw either provision.

3. Adequacy of EPA’s Analyses
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Finally, the Sierra Club 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 low-income communities, is unsupported by the administrative 

record. This issue is addressed in the next section (Section VI) below.

J. Commitment to Sustainable Materials Management

In addition to addressing the environmental and public health concerns raised by the 

Sierra Club and other commenters, EPA also envisions today’s proposal as an opportunity to 

discuss focused approaches to revising the hazardous waste recycling regulations to promote 

sustainable materials management, while ensuring protection of human health and the 

environment. Sustainable materials management is an approach to serving human needs by

using/reusing resources most productively and sustainably throughout their life cycles, generally

minimizing the amount of materials involved and all the associated environmental impacts.

Sustainable materials management is a core element of RCRA’s resource conservation mandate.

The shift to sustainable materials management by taking a life-cycle approach to 

managing materials is articulated in EPA’s 2020 Vision Report: Sustainable Materials 

Management: The Road Ahead,

4 which has received the support of both the Environmental 

Council of the States (ECOS) and the Association of State and Territorial Solid Waste 

Management Officials (ASTSWMO). Sustainable materials management, as articulated in the 

“2020 Vision Report,” is aligned also with the vision and efforts of the World Business Council 

for Sustainable Development.5

 

4 www.epa.gov/waste/inforesources/pubs/vision.htm. 

5

www.wbcsd.org/web/projects/BZrole/Vision2050-FullReport_Final.pdf

 
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Sustainable materials management helps identify opportunities to reduce environmental 

impacts, including greenhouse gas reductions, and societal impacts across the life cycle of 

materials from how they are extracted, manufactured, distributed, used, reused, recycled, and 

disposed. It works to ensure unintended consequences are avoided. Efficiencies gained in a 

sustainable materials management approach, especially with respect to non-renewable materials,

can result in less energy used, more efficient use of materials, more efficient movement of goods 

and services, conservation of water, and reduced volume and toxicity of waste.

By considering system-wide impacts, sustainable materials management casts a far 

broader net than traditional waste and chemicals management approaches and represents a 

change in how we think about environmental protection. Hazardous waste regulations can only 

influence a small part of the picture, but to the extent that the Agency can use today’s proposal to 

help advance these goals, while ensuring protection of human health and the environment, EPA 

believes that it makes sense to do so.

VI. Definition of Solid Waste Environmental Justice Analysis

In response to comments by Sierra Club and other stakeholders, 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.

6

EPA considered the 

comments raised in those discussions and conducted an analysis. The analysis has undergone 

peer review, the results of which are included in the docket for today’s proposed rule. 

The methodology for the DSW environmental justice analysis consists of six steps:

 

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
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Step 1: Hazard 

characterization

Includes two phases: (1) identifying potential hazards that could pose 

risks to human health and the environment from recycling of hazardous 

secondary materials, including accidental releases of hazardous 

constituents and (2) analyzing the likelihood of such hazards occurring 

under the requirements of the 2008 DSW exclusions as compared to the 

pre-2008 DSW hazardous waste regulations.

Step 2: Identification of 

potentially affected 

communities

Modeling the locations of facilities (including potential new facilities) 

that are likely to choose to take advantage of the 2008 DSW final rule.

Step 3: Demographics 

of potentially affected 

communities

Mapping the location of the facilities modeled in Step 2 and identifying 

the demographics (e.g., minority population and income level) of the 

surrounding communities.

Step 4: Identifying 

other factors that affect 

vulnerability in

potentially affected 

communities 

Identifying important vulnerability factors. These include factors that 

may increase the likelihood of “damages,” the likelihood that a facility

is sited within a community, or the likelihood of health risks in the event 

of releases. Examples include the presence of other pollution sources 

and any information about the public health of the surrounding 

population.

Step 5: Information 

synthesis: assessment 

of disproportional 

impact

Synthesizing all the information to characterize whether the 2008 DSW 

rule will facilitate the occurrence of any adverse impacts and whether 

some population groups (e.g., minority or low income populations) 

would be overrepresented in the impacted communities.

Step 6: Identification of 

potential preventive 

and mitigation 

strategies

Identifying potential strategies to prevent non-compliance and releases 

to the environment and also strategies to mitigate any impacts identified 

under step 5.

A brief description of the six steps is presented below.

A. Step 1—Hazard Characterization

The first step of the methodology is hazard characterization, which includes both 

identifying the potential hazards that hazardous secondary materials recycling could pose to 

human health and the environment, and evaluating the likelihood of such hazards resulting in 

increased risk under the 2008 DSW final rule, assessing a number of different scenarios, which 

reflect how such hazardous secondary materials may be managed.

With respect to the first part of the analysis, because hazardous secondary materials sent 

to recycling are physically and chemically similar, if not identical to many of the hazardous 
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wastes sent for treatment and disposal, the potential risks from their management are similar, if

not the same, as from hazardous wastes sent for treatment and disposal. The most commonly

recycled hazardous secondary materials are spent solvents and electric arc furnace dust (which is 

recycled to reclaim metals). Spent solvents present particular management challenges in that 

recycling them involves the storage of liquids containing volatile organic chemicals and includes 

both halogenated and non-halogenated organic chemicals, which represent a broad range of 

chemicals and associated hazards. Electric arc furnace dust, which is usually in a solid state, 

presents different management challenges, including that the dust contains high concentrations of 

toxic metals, the storage of the dust is typically in waste piles, and the potential for the dust to 

become wind-blown, or otherwise released, and the potential for toxic metals contained in this 

waste to leach into the ground water. 

These two classes of hazardous secondary materials (as well as other hazardous 

secondary materials that are recycled) can pose risks via a wide variety of exposure routes and 

include a range of potential adverse health effects, both carcinogenic and non-carcinogenic, as 

well as a potential for acute impacts, such as fires and explosions.

The second part of the hazard characterization step—determining whether these hazards 

could result in increased risk to human health and the environment—is a complex issue because 

of the interactions between how the regulations are written and how they are actually 

implemented. Under the 2008 DSW final rule, EPA believed that the conditions of the rule, 

which were designed to determine when a hazardous secondary material is not discarded, would 

also prevent any increase in risk. For example, the condition that the hazardous secondary

materials be “contained” was intended to address this issue, because if the material is not 

released to the environment, then there would be no increased exposure, and therefore no 
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increased risk. 

However, what the 2008 analysis failed to take into account was whether the conditions 

of the rule—such as the “contained” standard—would operate as effectively in the real world as 

the more prescriptive requirements of the RCRA hazardous waste regulations. One of the most 

common criticisms of the January 2010 draft environmental justice methodology was that it did 

not adequately address some of the important protections of the hazardous waste regulations, 

particularly the public participation requirements, which were not considered under the 2008 

DSW final rule.

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, particularly the incentives to 

accumulate larger volumes of hazardous secondary materials, the reduction in oversight resulting 

from eliminating the permit requirement for storage, and the reduction in the public’s access to 

information and the opportunity for public participation. The specific gaps vary depending on the 

baseline scenario and the post-DSW scenario being considered,7and in some cases, there is also 

a potential for increased benefits, primarily from resource conservation and from reduced 

transportation distances.8

B. Step 2—Identification of Potentially Affected Communities

 

7 The specific scenarios evaluated were (1) generator continues current recycling practices; (2) generator switches 

from off-site disposal to on-site reclamation; (3) generator switches from off-site disposal to off-site recycling under 

the control of the generator; (4) generator switches from off-site disposal to off-site recycling at a RCRA-permitted 

facility; (5) generator switches from off-site disposal to off-site recycling at a U.S. facility without a RCRA permit; 

(6) generator switches from off-site disposal to exporting for recycling; (7) generator switches from off-site 

recycling at a facility without a permit to another types of recycling under the 2008 DSW rule; and (8) generator 

switches from off-site recycling at a RCRA-permitted facility or exporting waste for recycling to another type of 

recycling under the 2008 DSW rule.

8 By reporting the potential for increased benefits under certain scenarios, EPA does not intend to imply that such 

benefits could justify increased risk to human health and the environment from discarded hazardous secondary 

material. Promoting resource conservation and recovery is a major goal of RCRA, but this goal does not supersede 

the mandate to assure that hazardous waste management practices are protective of human health and the 

environment.
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The second step of the methodology identified those potential facilities that can represent 

the facilities that are likely to take advantage of the 2008 DSW final rule. These facilities are 

grouped into four different categories: (1) facilities that have already notified under the 2008 

DSW final rule, (2) hazardous waste facilities that are likely to recycle under the rule (including 

hazardous waste generators producing more than a truckload (25 tons) of recyclable hazardous 

secondary materials annually, and hazardous waste recyclers), (3) facilities from the 

environmental problems study (many of which operated under various exclusions or reduced 

regulations), and (4) facilities currently recycling non-hazardous industrial waste (e.g., 

antifreeze) that could most easily switch or expand to recycling under the 2008 DSW final rule.

C. Step 3—Demographics of Potentially Affected Communities

The third step characterized the demographics of the communities within a three 

kilometer radius around these facilities and determined whether they were disproportionately

minority, low-income, or both compared to the nation as a whole, and compared to the 

population in the state. Disproportionality was evaluated both at the community and at the 

population level.

For the community-level analysis, the question is whether the communities around a 

facility had a higher or lower percentage of minority and/or low-income population as compared 

to the comparison population (i.e., national or state population). In general, some communities 

will have a higher percentage than the comparison population, while some communities will 

have a lower percentage. As long at these differences have a regular distribution, they generally 

would not indicate disproportionate impact. However, if the number of communities with a 

higher percentage of minority and/or low-income population is greater than that of the 

comparison populations, then there is a potential for disproportionate impact. The higher the
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average differences between the potentially affected communities and the comparison group, the 

greater the potential disproportionality.

In the chart below, the category that consistently demonstrates the potential for 

disproportionate impact are the damage case facilities, which is the third category of facilities 

identified in Step 2, although a few other categories indicates disproportionate impact in a few 

instances. For both the national and the state comparison populations, more than 50 percent of 

the damage case facilities are located in communities with minority and low-income populations 

that have a higher representation than the comparison populations. In addition, the average 

difference in these cases (i.e., the average amount that these facilities have a higher-than-average 

percentage of minorities or low-income populations) ranges from 6–8 percent.

Community-Level Analysis of Potential Disproportionate Impacts 

of 2008 DSW Final Rule to Minority and Low-Income Communities

Values Greater than 50% Indicate Potential Disproportionate Impact

National 

Comparison

% communities 

with higher 

minority

representation

(average 

difference)

National 

Comparison

% communities 

with higher lowincome 

representation

(average 

difference)

State Comparison

% communities 

with higher 

minority

representation

(average 

difference)

State

Comparison

% communities 

with higher lowincome 

representation

(average 

difference)

Facilities that 

Have Notified

(40 total)

7.5%

(-20.7%)

32.5%

(-2.0%)

50.0% (IA)

(3.1%)

20.0% (NJ)

(-11.0%)

31.3% (PA)

(-2.3%)

64.0% (IA)

(1.7%)

0% (NJ)

(-3.7%)

50% (PA)

(2.6%)

Damage Case 

Facilities 

(217 total)

53%

(8.2%)

65%

(5.9%)

55.8%

(8.2%)

69%

(6.7%)

Hazardous Waste 

Facilities

(2,677 total)

42%

(0.9%)

48%

(1.5%)

47.9%

(4.0%)

50.6%

(1.8%)

Non-Hazardous 36% 40% 36% 44%
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Industrial Waste 

Facilities

(25 total)

(-5.0%) (-0.5%) (-2.55%) (-0.3%)

The population-level analysis examines the demographics of the total potentially affected 

population as compared to the total comparison population to determine (1) whether there is a 

substantially greater probability of members in a population group of concern (minority or lowincome) being present as compared to members of the comparison population, and (2) whether 

members of the population group of concern comprised a substantially greater proportion of the 

potentially affected population than the comparison populations. These two comparisons are 

referred to as (1) the Threshold Risk Ratio, and (2) the Demographic Ratio. In both cases, if the 

ratio is greater than 1.0, then there is a potential for disproportionate impact to the population of 

concern, and the larger the ratio, the greater the disproportionality.

Population-Level Analysis of Potential Disproportionate Impacts 

of 2008 DSW Rule to Minority and Low-Income Communities

Ratios Greater Than 1.0 Indicate Potential Disproportionate Impact to Population of Concern

All Results Statistically Significant (p-value <0.05)

National 

Comparison

Minority

Population

Threshold Risk 

Ratio

Demographic 

Ratio

National 

Comparison

Low-Income 

Population

Threshold Risk 

Ratio

Demographic 

Ratio

State 

Comparison

Minority

Population

Threshold Risk 

Ratio

Demographic 

Ratio

State 

Comparison

Low-Income 

Population

Threshold Risk 

Ratio

Demographic 

Ratio

Notification 

Facilities

(40 total)

0.70

0.76

1.05

1.04

1.80 (IA)

1.76 (IA)

1.02 (NJ)

1.01 (NJ)

1.46 (PA)

1.47 (PA)

1.34 (IA)

1.32 (IA)

0.64 (NJ)

0.65 (NJ)

1.74 (PA)

1.63 (PA)
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Damage Case 

Facilities 

(217 total)

2.87

1.86

1.98

1.80

2.59

1.64

2.04

1.90

Hazardous Waste 

Facilities

(2,677 total)

1.90

1.80

1.39

1.50

1.94

2.04

1.47

1.83

Non-Hazardous 

Industrial Waste 

Facilities

(25 total)

1.19

1.12

1.16

1.14

1.34

1.20

1.17

1.15

The chart above shows that the population level analysis has a greater incidence of 

potential disproportionate impact to minority and low-income populations than the communitylevel analysis. For the population-level analysis, the potential for disproportionate impact (i.e., 

ratios greater than one) occurs under all categories, while the community-level analysis exhibits 

the potential for disproportionate impact primarily in the damage case facility category. This 

difference can occur when the populations of those communities that do have a greater 

percentage of minority or low-income individuals also have a significantly higher total 

population than those communities that do not. In other words, for the categories of facilities, 

except the damage case facilities, the facilities of concern generally do not appear to be 

disproportionately located in minority or low-income communities, but the facilities that are 

located in minority and low-income communities have the potential to impact much larger 

populations than those which are not, resulting in an overall potential disproportionate impact to 

minority and low-income populations as a whole.

D. Step 4—Other Factors That Affect Vulnerability In Potentially Affected Communities

In addition to considering the potential for the 2008 DSW final rule to result in adverse 

impacts that disproportionately affect minority and low-income communities, the DSW 

environmental justice analysis also considers other factors that could affect the impacts of the 
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rule, based on categories from EPA’s interim guidance on incorporating environmental justice 

into rulemaking.9These factors are described under five broad categories: (1) Susceptible 

Populations, (2) Multiple and Cumulative Effects, (3) Unique Exposure Pathways, (4) Ability to 

Participate in the Decision-Making Process, and (5) Physical Infrastructure. All of these factors 

have the potential to exacerbate the potential for adverse impacts to minority and low-income 

communities, but two of these factors are of particular concern to the 2008 DSW final rule: 

ability to participate in the decision-making process, and multiple and cumulative effects

1. Ability to Participate in the Decision-Making Process

A key element of environmental justice is ensuring that all people have an opportunity for 

meaningful involvement in decision-making which may impact them. Certain groups may not 

have historically participated in decision-making because of economic (e.g., income), social 

(e.g., language barriers, education levels, distrust of government), and infrastructural reasons 

(e.g., access to public transportation). A critical concern is whether, and the extent to which, 

communities have the ability to influence the types and number of regulated activities taking 

place in their community, as well as the requirements, conditions, and parameters under which 

such activities must operate (e.g., permit conditions). Under the 2008 DSW final rule, facilities 

claiming an exclusion must submit an initial and biennial notification to EPA or the state,

providing general facility information and describing hazardous secondary material types and 

activities under the exclusion.

However, under the 2008 DSW final rule, this information is not made directly available 

to potentially affected communities, and facilities and regulators are not required to solicit or 

consider community input into the decision-making process as is the case with RCRA-permitted 

 

9 U.S. EPA Interim Guidance on Considering Environmental Justice During the Development of an Action July 

2010. http://www.epa.gov/environmentaljustice/resources/policy/considering-ej-in-rulemaking-guide-07-2010.pdf
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facilities.10 Thus, by removing the RCRA permitting requirement for facilities that manage 

excluded hazardous secondary materials, the 2008 DSW final rule also removed one of the key

provisions for allowing communities to participate in the regulatory process (at least as it 

concerns the management of the hazardous secondary materials excluded under the rule). 

Communities with lower participation levels may experience greater adverse impacts from 

environmental decision-making because their input has not been considered fully, particularly if 

competing interests are set forth more effectively. This effect is most likely to occur in 

communities that have traditionally been excluded from the decision-making process.

2. Multiple and Cumulative Effects

Minority, low-income, and indigenous communities that have been affected by multiple 

pollution sources may be at risk for increased health consequences. Potential sources of pollution 

can include, for example, industrial facilities, landfills, transportation-related air emissions, poor 

housing conditions (e.g., lead-based paint), leaking underground storage tanks, pesticides, and 

incompatible land uses. An analysis of the cumulative effects from multiple stressors can provide 

a more complete evaluation of a population’s health risks from pollutants. For example, an 

analysis of discrete stressors and effects on a population might conclude that nearby pollution 

sources are within regulatory limits; however, an analysis of cumulative effects might determine 

that a person’s collective exposure to a contaminant from multiple sources exceeds a healthbased limit.

An examination of the facilities that have already notified under the 2008 DSW final rule 

shows that multiple environmental hazards are a potential concern for communities around these 

facilities. All have multiple facilities reporting to EPA, either under RCRA, the Clean Air Act 

 

10 Although not required, EPA has posted on the internet a list of facilities that have notified under the DSW 

exemption. The most recent list can be found at http://www.epa.gov/epawaste/hazard/dsw/notify-sum.pdf.
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(CAA), or Comprehensive Environmental Response, Compensation and Liability Act (CERCLA 

- also known as Superfund), within a three-kilometer radius of the facility.

E. Step 5—Assessment of Disproportionate Impact 

The environmental justice analysis demonstrates 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 has increased under the 2008 

DSW final rule. Of particular concern are the absence of required measures at hazardous 

secondary materials reclaimers to prevent problems (e.g., weekly inspections, training, 

contingency plans, etc), the incentives to accumulate larger volumes of hazardous secondary

materials, and the reduction in access to information and opportunity for public participation.

Moreover, some of the communities potentially impacted by this increase in risk of 

adverse impacts 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 potential disproportionate impact to minority and low-income 

populations, with the damage case facilities, the hazardous waste facilities and the non-hazardous 

waste facilities all consistently showing potential statistically significant disproportionate 

representation in potentially affected communities. 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 potential for multiple and cumulative effects are 

of particular concern.

F. Step 6—Identification of Potential Strategies to Mitigate Adverse Impacts
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Potential strategies to mitigate adverse impacts of the 2008 DSW rule, including the 

disproportionate impacts to minority and low-income communities, include both possible 

regulatory changes and implementation strategies.

1. Regulatory Changes

Regulatory changes to the 2008 DSW final rule were made according to EPA’s authority

under RCRA to regulate discarded material. As discussed in the preamble to the 2008 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.” In exercising its discretion in the 2008 DSW final rule to define what 

constitutes “discard” for hazardous secondary materials reclamation in the 2008 DSW final rule, 

EPA included an explanation of how each provision of the final rule relates to discard (73 FR 

64676–64679).

While the concept of discard also is the central organizing principle in this proposed rule 

since EPA only has authority under RCRA to regulate materials that have been discarded, the 

Federal Register notice announcing the June 2009 public meeting identified areas or

opportunities to revise the 2008 DSW final rule in ways that could increase environmental 

protection, including in environmental justice communities, while still appropriately defining 

when a hazardous secondary material being reclaimed is a solid waste and subject to hazardous 

waste regulation (74 FR 25202). The purpose of today’s proposal is to provide notice and the 

opportunity to comment on potential regulatory revisions to address the potential for adverse 
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impacts to human health and the environment from discarded material, including 

disproportionate impacts to minority and low income communities.

In particular, the proposed withdrawal of the transfer-based exclusion and its replacement 

with an alternative Subtitle C standard will address the concerns regarding third-party recyclers, 

including the impact of longer accumulation times, the lack of preventative measures under the 

containment standard, the lack of public participation requirements, the lack of RCRA air 

standards, and concerns regarding certain transportation issues. In addition, the proposed 

codification of the “contained” standard also addresses the lack of preventative measures and the 

lack of RCRA air standards under the generator-controlled exclusion. Proposed additional 

recordkeeping requirements for speculative accumulation and legitimacy would help ensure that 

hazardous secondary material is being legitimately recycled and not simply discarded through 

over-accumulation and abandonment, and recordkeeping under the tolling and same-company 

provisions will help ensure that the hazardous secondary materials meet their intended 

destinations.

2. Implementation Measures

In addition to considering regulatory changes to address potential adverse impacts of the 

2008 DSW final rule, EPA can take steps in implementing the regulations that would help 

mitigate any potential adverse impacts. These steps include closely monitoring the facilities 

notifying under the 2008 DSW final rule, making information about the DSW facilities available 

to the public, and working with the states and EPA Regions to ensure they have the information 

they need to ensure compliance with the provisions of the rule, and making available to the 

public information about the facilities that have notified. EPA has begun this process for the 

states and territories currently operating under the 2008 DSW final rule and plans to continue 
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these efforts in order to help prevent potential adverse impacts at the same time that revisions to 

the rule are under consideration. 

VII. Withdrawal of the Exclusion For Hazardous Secondary Materials That Are 

Transferred For The Purpose Of Legitimate Reclamation

A. Summary of Transfer-Based Exclusion

The exclusion for hazardous secondary materials that are transferred for the purpose of 

legitimate reclamation, 40 CFR 261.4(a)(24) and (25),11 applies to hazardous secondary

materials (i.e., spent materials, listed sludges, and listed by-products) that are generated and 

subsequently transferred to a different person or company for the purpose of reclamation. As 

long as the conditions and restrictions to the exclusion are satisfied, the hazardous secondary

materials would not be subject to the Subtitle C hazardous waste regulations. 

This exclusion includes the following general requirements:

 hazardous secondary material generators, reclaimers, and intermediate facilities 

(i.e., facilities that would not reclaim the hazardous secondary material, but 

would store them for more than 10 days) must submit a notification prior to 

operating under the exclusion and by March 1 of each even-numbered year 

thereafter to the EPA Regional Administrator or, in an authorized state, to the 

State Director (see 40 CFR 260.42), reporting volumes and types 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.

 

11 40 CFR 261.4(a)(24) is the primary transfer-based exclusion and 40 CFR 261.4(a)(25) contains the export 

requirements for the transfer-based exclusion.
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Conditions applicable to generators of hazardous secondary materials are found at 40 

CFR 261.4(a)(24)(v) and include the following provisions:

 containment of such hazardous secondary materials, 

 reasonable efforts, a form of due diligence, to ensure that the intermediate facility

or reclaimer intends to manage or recycle the hazardous secondary material 

properly and legitimately, and 

 retention of records of off-site shipments for three years. 

Conditions applicable to intermediate facilities and reclaimers of hazardous secondary

materials are found at 40 CFR 261.4(a)(24)(vi) and include the following provisions:

 containment of such materials, 

 transmittal of confirmations of receipt to generators,

 maintenance 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, if any of the hazardous secondary materials excluded under 40 CFR 

261.4(a)(24) are 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. This export 

requirement is codified in 40 CFR 261.4(a)(25).

EPA’s rationale for finalizing the transfer-based exclusion in the 2008 DSW final rule 

was that the conditions of the transfer-based exclusion would effectively limit the exclusion to 

hazardous secondary materials that are not discarded. The link between each of the conditions 
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and their ability to prevent discard is discussed in detail in the 2008 DSW final rule preamble at 

73 FR 64675–79.

At this point, however, EPA has reconsidered its findings and is now proposing to 

withdraw the transfer based exclusion for the following reasons. Inherent in EPA’s decision to 

finalize the transfer-based exclusion was the assumption of full compliance with the above 

conditions. EPA did not focus on the properties of any particular type of hazardous secondary

material when making this determination. Instead, the transfer-based exclusion is broadly

applicable to a wide range of hazardous spent materials and listed by-products and sludges. In 

addition, the record for the 2008 DSW final rule demonstrates a pattern of discard with thirdparty transfers, noting that 94 percent of the damage cases were at third-party or commercial 

recyclers, and that there are underlying market forces for commercial recycling that create 

incentives to over-accumulate and abandon hazardous secondary materials. Thus, if the 

conditions of the transfer-based exclusion do not operate as intended, then the likelihood of 

discard for these hazardous secondary materials is high. 

B. Proposed Withdrawal

EPA is proposing to withdraw the transfer-based exclusion and replace it with alternative

Subtitle C regulations for generators of hazardous recyclable material under proposed 40 CFR 

part 266 subpart D (see Section VIII of today’s proposal for further discussion of the alternative 

Subtitle C regulations). 

After analyzing the potential for discard resulting in adverse impact to human health and 

the environment from hazardous secondary materials reclaimed under the transfer-based 

exclusion, including the potential for disproportionate impact to minority and low-income 

populations, EPA believes that the most appropriate regulatory approach is to keep most types of 
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third-party transfers of hazardous secondary materials regulated under Subtitle C of RCRA.

As noted in the preamble to the 2008 DSW final rule, 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 by-products 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 (73 FR 64675).

This behavior is evidenced by 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 third-party

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 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
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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 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).

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 transfer-based exclusion. The intent of these conditions 

was to define when transfers to third-party recyclers would not result in discard. However, as 

explained in the DSW environmental justice analysis, found in the docket for today’s proposal, 

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 assumed that 

compliance with the DSW conditions would be the same as compliance with the Subtitle C 

hazardous waste regulations.

However, the Subtitle C requirements for treatment, storage, and disposal facilities have 

several implementation provisions that are not included in the DSW transfer-based exclusion that 

we believe, based on the environmental justice analysis, must be part of any regulatory structure.

These provisions ensure a greater level of oversight of the Subtitle C requirements, thereby 

increasing the likelihood of compliance. Most important of these is the permit requirement under 

RCRA section 3005, which ensures that EPA or the state has reviewed a facility’s planned 
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operations before waste management begins and which allows public participation in the 

environmental decision-making process under RCRA section 7004. Subtitle C requirements for 

treatment, storage, and disposal facilities also include a statutory provision that such facilities be 

inspected every two years under RCRA section 3008(e).

Based on the evidence of the damage case study and the market forces study, EPA now 

proposes that transfers of hazardous secondary materials to third-party recyclers generally do 

involve discard. The Agency is now proposing a finding that, in general, these hazardous 

secondary materials are more like wastes than like products and are most appropriately regulated 

under Subtitle C of RCRA. The evidence of past damage cases of 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, 

indicate the need to regulate these hazardous secondary materials as hazardous waste. EPA is 

therefore proposing to withdraw the transfer-based exclusion found in 40 CFR 261.4(a)(24) and 

(25).

At the same time, EPA acknowledges that some specific types of hazardous secondary 

materials are more like valuable commodities than solid wastes, and the act of transferring them 

to a third-party does not automatically involve discard. Many of the other exclusions in 40 CFR 

261.4(a) are for these types of materials, and the non-waste determination process under 40 CFR 

260.34(c) provides an administrative process for determining that additional hazardous 

secondary materials are indistinguishable from products and therefore are not waste. In addition, 

in Section XII of this preamble, EPA is requesting comment on a possible re-manufacturing 

exclusion from the definition of solid waste for certain higher-value hazardous secondary
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materials whose management is more like manufacturing than waste management.

VIII. Alternative Subtitle C Regulation for Hazardous Recyclable Materials 

A. Purpose of the Alternative Subtitle C Regulatory Standards for Hazardous Recyclable 

Materials

As discussed above, after examining the potential adverse impacts to human health and 

the environment from discarded hazardous secondary materials transferred to another party for 

reclamation, EPA is proposing to withdraw the transfer-based exclusion. At the same time, EPA 

recognizes the environmental benefits of safe recycling and how it can contribute to the goal of 

sustainable materials management, and acknowledges that in some cases the additional costs of 

Subtitle C regulation can be an economic disincentive to such recycling.

Thus, in order to help encourage safe reclamation of hazardous waste, EPA is proposing 

alternative hazardous waste standards under 40 CFR part 266 subpart D for generators of 

hazardous recyclable materials sent for reclamation. “Hazardous recyclable materials” would be 

defined as hazardous waste being reclaimed. EPA is proposing to use this term to be consistent 

with other standards for the management of specific hazardous wastes in 40 CFR part 266, and to 

distinguish them from the “hazardous secondary materials” reclaimed under the control of the 

generator and excluded under 40 CFR 261.4(a)(23). These proposed alternative standards are 

designed to be as protective as the current hazardous waste standards, but tailored to the specific 

circumstances faced by generators of hazardous waste who would want to send their materials to 

a reclaimer, but are not able to do so because they cannot accumulate enough hazardous waste 

during the generator accumulation time limits to make such recycling economically viable.

Under these alternative standards, the hazardous recyclable material would, for the most 

part, be subject to all hazardous waste regulations (i.e., accumulated in Subtitle C storage units, 
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transported under a hazardous waste manifest, sent to a RCRA-permitted facility or a facility

operating under 40 CFR 261.6(c)(2)). However, in order to allow generators time to accumulate 

enough hazardous recyclable material to make reclamation more economical, EPA is proposing 

alternative regulatory standards that would allow hazardous recyclable materials to be 

accumulated up to one year without a permit or interim status. 

To guard against the risks of over-accumulation and possible abandonment of hazardous 

recyclable materials, EPA is proposing that before operating under the alternative standard and 

by March 1 of each even-numbered year thereafter, a generator must notify the EPA Regional 

Administrator (or the State Director, if the state is authorized). In addition, before operating 

under the alternative standard, the generator must develop a reclamation plan that provides 

details of where the hazardous recyclable material will be sent for reclamation, a short 

description of the recycling process, and the estimated volume of materials in each shipment. 

Also, the generator must contact the reclaimer in advance and make arrangements for the 

recycling. In addition, EPA is requesting comment on setting an upper limit on the amount of 

hazardous recyclable material a generator may accumulate at any one time, limiting it to no more 

than two shipments worth of hazardous secondary materials (as documented in the reclamation 

plan) at any point in time. Finally, EPA is requesting comment on allowing an alternative 

manifest system for hazardous recyclable materials regulated under this provision.

B. Proposed Part 266 Standards for the Management of Hazardous Recyclable Material

Under the proposed part 266 subpart D Hazardous Recyclable Materials standards, large 

quantity generators and small quantity generators of hazardous recyclable materials would need 

to meet the alternative requirements described below.

1. Notification
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Under the proposed alternative standards, generators would be required to submit a 

notification prior to operating under this standard and by March 1 of each even-numbered year 

thereafter to the EPA Regional Administrator using EPA Form 8700-12.12 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 name, address and EPA ID number of the facility; 

• The name and telephone number of a contact person; 

• The NAICS (North American Industry Classification System) code of the facility;

• The regulatory citation under which the hazardous recyclable materials will be managed 

(i.e., 40 CFR part 266 subpart D)

• When the facility expects to begin managing the hazardous recyclable materials in 

accordance with the alternative standard;

• A list of hazardous recyclable materials that will be managed according to the new 

standard (reported as the EPA hazardous waste numbers that would apply if the 

hazardous recyclable materials were managed as hazardous waste); 

• The quantity of each hazardous recyclable material to be managed annually; and

• The certification (included in EPA Form 8700-12) signed and dated by an authorized 

representative of the facility.

EPA believes that the information requested in the notification is the minimum information 

necessary to ensure that such hazardous recyclable materials are managed in a manner that is 

protective of human health and the environment. 

Generators would be required to notify on a per facility basis. In other words, each 

generator facility managing hazardous recyclable materials would need to submit a notification 

 

12 These notification requirements are the same as those currently found in 40 CFR 260.42.
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form in accordance with the alternative standard. One notification cannot cover two or more

generators or facilities. Furthermore, each generator need only use one notification form to list 

all of the hazardous recyclable materials to be managed under the exclusion at any particular 

facility (i.e., generators need not file separate notifications for each hazardous recyclable 

material). We also would require facilities that stop managing hazardous recyclable materials in 

accordance with the exclusion to notify the Regional Administrator (or State Director) within 30 

days after ceasing operations using the same EPA Form 8700-12.

2. Reclamation Plan

Prior to operating under the alternative standard, generators would be required to make 

and document advance arrangements for reclamation. These advance arrangements would be 

documented in a reclamation plan that (1) describes the hazardous recyclable material(s) and 

identifies the reclamation facility where the material will be sent, (2) includes written 

confirmation from the facility that they are able to reclaim the hazardous recyclable material (3) 

documents the amount of hazardous recyclable material expected in each shipment and the 

anticipated frequency of shipments, and (4) documents that the reclamation is legitimate per 40 

CFR 260.43. The purpose of the reclamation plan is to ensure that the hazardous secondary

material will be recycled legitimately and not over-accumulated and abandoned. The reclamation 

plan must be kept on-site for at least three years from the date the generator ceases to operate 

under the alternative standards

3. Management Standards

Generators operating under the proposed alternative standards would be able to 

accumulate hazardous recyclable materials on site for one year or less without a permit or 

without having interim status, provided that they follow the usual requirements for on-site 
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management of hazardous wastes by large quantity or small quantity generators, with the 

following exceptions: 

(a) While accumulated on-site, each container and tank is labeled or marked clearly with the 

words “hazardous recyclable materials,” rather than being marked as “hazardous waste.”

(b) As noted, the allowed accumulation period will be up to one year, rather than 90 or 180 days, 

respectively.

13

EPA believes that the combination of the requirements of the notification and the 

reclamation plan (including the provision mandating advance arrangements for reclamation) 

would be as fully protective as the current generator times limits of 90 days for large quantity

generator and 180/270 days for small quantity generators, since the reclamation plan will ensure 

that the hazardous recyclable materials are going to be recycled and not be stored indefinitely, 

and the notification provision will allow proper oversight of this provision. 

However, EPA also requests comment on limiting the maximum volume of hazardous 

recyclable materials accumulated on-site at any one time to no more than two standard shipments 

to the designated facility, as identified in the generator’s reclamation plan. Under such a 

requirement, the maximum volume would differ depending on the hazardous recyclable 

materials and where they are being transferred to, but it would ensure that the generator is not 

accumulating more than what it would need to make an off-site shipment economically feasible. 

(Setting the upper limit at two shipments worth would allow the generator to continue to 

accumulate hazardous recyclable materials while the first shipment is being prepared).

4. Transportation 

Before transporting hazardous recyclable materials or offering hazardous recyclable 

 

13 Small quantity generators may accumulate hazardous waste on-site for up to 270 days if they transport, or offer 

the waste for transport, over a distance of 200 miles or more for off-site treatment, storage, and disposal. 
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materials for transportation off-site, a hazardous recyclable material generator 

would need to meet all the applicable pre-transportation requirements for hazardous waste 

generators under 40 CFR part 262 subparts B and C, including the need to package, label and 

placard the materials in accordance with Department of Transportation standards, as applicable 

to large or small quantity generators and preparing a hazardous waste manifest.

In addition, EPA requests comment on allowing an alternative hazardous recyclable 

materials manifest. Under the alternative manifest system, the same requirements (e.g., filling 

out the manifest, record-keeping and procedures for rejected shipments) and information would 

apply to hazardous recyclable materials shipped on a hazardous recyclable materials manifest as 

those that apply to the hazardous waste manifest, but the manifests would be labeled “hazardous 

recyclable materials manifest.” Such an alternative system would require conforming changes to 

40 CFR §§262.20, 262.21, 262.40(a), 262.42, the appendix to part 262, §§263.20, 263.22, 

264.71, 264.72, 265.71 and 265.72, plus 49 CFR 171.8 (DOT regulations).

C. Request for Comment

EPA requests comment on the alternative standards for hazardous recyclable materials 

sent to reclamation, particularly on whether the longer accumulation times without requiring a 

hazardous waste permit or complying with the interim status standards and alternative 

designation of the materials as “hazardous recyclable materials” will help encourage legitimate 

reclamation. EPA notes that although the materials would be labeled as “hazardous recyclable 

materials,” they would be, by definition, still hazardous wastes and, per 40 CFR 261.5, would 

count towards a facility’s generator status (e.g., Large Quantity Generator, Small Quantity

Generator). EPA requests comment on this issue.

EPA also requests comments on whether it should adopt additional recycling-specific 
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generator standards to further encourage reclamation (without jeopardizing the public health and 

environment) and that would be more appropriate for these materials.

IX. Revisions to the Exclusion for Hazardous Secondary Materials that are Legitimately 

Reclaimed Under the Control of the Generator 

A. Summary of Current Exclusion

In the 2008 DSW final rule, EPA excluded from the definition of solid waste those hazardous 

secondary materials that are legitimately reclaimed under the control of the generator, provided 

the materials are contained in the units in which they are stored, are not speculatively 

accumulated, and are reclaimed within the United States or its territories. Under the 2008 DSW 

final rule, the generator must also periodically notify EPA or the authorized state (as discussed 

previously) that it is operating under the exclusion. The regulatory provision excluding 

hazardous secondary materials under the control of the generator that are managed in land-based 

units is currently found at 40 CFR 261.4(a)(23), while the provision excluding such materials 

that are managed in non-land-based units is currently found at 40 CFR 261.2(a)(2)(ii). A landbased 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. 

The definition of “hazardous secondary material generated and reclaimed under the 

control of the generator” is currently found at 40 CFR 260.10. 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 
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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; 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. 

Under this provision, the hazardous secondary materials must be contained, whether they

are stored in land-based or non-land-based units. The materials are also subject to the speculative 

accumulation requirements of 40 CFR 261.1(c)(8), as well as the provisions for legitimate 

recycling at 40 CFR 260.43. Finally, under 40 CFR 260.42, the generator (and the reclaimer, if 

the generator and reclaimer are located at different facilities) must send a notification prior to 

operating under the exclusion and by March 1 of each even-numbered year thereafter to the EPA 

Regional Administrator or, in an authorized state, to the State Director.

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. When reclaimed under the control of the generator, the hazardous secondary materials 

are being handled as a valuable commodity rather than a waste. However, if such hazardous 

secondary materials are released into the environment and are not recovered for legitimate 

recycling immediately, they have been discarded (i.e., are solid and hazardous wastes) and the 
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generator is subject to all applicable federal and state regulations, as well as applicable cleanup 

authorities. (See 73 FR 64680, October 30, 2008 for a more detailed discussion of the generatorcontrolled exclusion.)

B. Proposed Changes to Generator-Controlled Exclusion

As discussed in Section V.I.2 of today’s proposal, EPA is not proposing to withdraw the 

generator controlled exclusion. In the 2008 DSW final rule, EPA determined that if the generator 

maintains control over the recycled hazardous secondary materials and if the materials are

legitimately recycled under the standards established in the final rule and not speculatively

accumulated within the meaning of EPA’s regulations, then the hazardous secondary materials

are not discarded. This is because the hazardous secondary materials are 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). EPA has not received any information that would cause the 

Agency to reverse this determination, and this continues to be the underlying rationale for the 

generator-controlled exclusion.

However, EPA does believe that revisions to the generator-controlled exclusion are 

needed in order to ensure that it operates as intended and does not result in discarded hazardous 

secondary material posing a significant risk to human health and the environment. The proposed 

changes are in five areas: (1) the contained standard, (2) notification as a condition, (3) 

recordkeeping for speculative accumulation, (4) recordkeeping for the tolling provision, and (5) 

clarifying edits to the regulatory text. In each of the five areas, the proposed changes are intended 

to improve the implementation of the generator-controlled exclusion to ensure that it is correctly

functioning to only exclude hazardous secondary material that is not discarded.
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1. Contained Standard

Under the generator-controlled exclusion, hazardous secondary materials must be 

contained, regardless of whether they are stored in land-based units or non-land-based units. 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 proposed rule, 

EPA is retaining the “contained” condition based on the same rationale used in the 2008 DSW 

final rule, 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 interpreted that 

such 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 

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.

In the same preamble, EPA also discussed the issue of releases to the environment from 

stored hazardous secondary materials and when such materials could be considered “contained.” 

We stated that in the event of a release to the environment, the hazardous secondary materials 

remaining in the unit may or may not meet the terms of the exclusion, and specifically stated that 

such hazardous secondary materials would be considered wastes if a “significant” release 

occurred as a result of its not being managed as a valuable raw material, intermediate, or product, 

unless the hazardous secondary materials were immediately recovered for legitimate recycling. 

EPA then gave several examples of hazardous secondary materials not being managed as a 
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valuable raw material, intermediate, or product, including storing acidic materials in a tank not 

suitable for such materials or failure to monitor the structural integrity of a tank, resulting in 

releases. If these releases were not immediately recovered, they would be considered discarded 

and, if hazardous, subject to the appropriate federal or state regulations and applicable 

authorities. The Agency also noted that a “significant” release is not necessarily large in volume.

For example, unaddressed small releases to the environment could cause significant damage over 

time and, if the hazardous secondary materials are managed in such a way that such unaddressed 

releases are likely to continue, the hazardous secondary materials still remaining in the unit could 

be considered discarded because they were not being managed as a valuable raw material, 

intermediate, or product.

Conversely, the Agency also said that a unit in good condition could experience small 

releases resulting from normal operations of the facility, or a released material could be captured 

by secondary containment before being released to the environment. In those cases, the unit 

would retain its exclusion from the RCRA hazardous waste regulations and the hazardous 

secondary material in the unit would still be excluded from the definition of solid waste, even 

though any such materials that had been released would be considered discarded if not 

immediately recovered and would be subject to appropriate regulation.

EPA did not finalize a regulatory definition of “contained,” nor did the 2008 DSW final 

rule impose specific performance or storage standards. In response to comments on the 2007 

DSW supplemental proposal suggesting such specific standards, EPA stated its belief that such 

detailed measures were unnecessary for hazardous secondary materials that are handled as 

valuable products and are destined for recycling. Rather, in the Agency’s view at that time, 

regulatory authorities could determine whether such hazardous secondary materials were 
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contained by considering site-specific circumstances (such as local conditions) and measures 

employed by the facility (such as liners, leak detection measures, and monitoring) to determine 

whether the hazardous secondary materials were contained in a storage unit.

Since implementation of the 2008 DSW final rule, the Agency has reconsidered its 

position about whether a regulatory definition of “contained” might be necessary for hazardous 

secondary materials managed under the control of the generator. EPA has received a 

considerable number of inquiries from state authorities and the regulated community about how 

to determine if a hazardous secondary material is contained. In particular, there have been many 

questions about when a release is “significant” and when hazardous secondary materials 

remaining in a unit that has suffered a release should be considered discarded.

Of particular concern is the lack of preventative measures in the contained standard in the 

2008 DSW final rule, which is noted as a major regulatory gap in the environmental justice 

analysis discussed in Section VI of this preamble. As noted above, EPA did not provide specific 

guidance on which types of units would be considered as adequately containing a hazardous 

secondary material. In the 2008 DSW rule preamble, only the absence of containment, i.e., a 

release to the environment, is discussed, and even then the confusion over whether a release is 

“significant” makes proper implementation of the contained standard problematic.

Given that the contained standard is one of the major requirements for determining that 

hazardous secondary material reclaimed under the generator-controlled exclusion is not 

discarded, this lack of specificity has the potential to 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 has considered whether adding a regulatory
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definition of “contained” could resolve this uncertainty without sacrificing the flexibility that 

would allow the implementing authority to take into account a wide variety of case-specific 

circumstances when necessary. 

For these reasons, EPA is today proposing to amend 40 CFR 260.10 to include a 

regulatory definition of “contained.” Under today’s proposal, a hazardous secondary material is 

contained if it is managed in a unit that (1) is in good condition and has no leaks or other 

continuing or intermittent unpermitted releases to the environment; (2) is properly labeled or 

otherwise has a system (such as a log) to immediately identify the hazardous secondary material 

in the unit; (3) does not hold incompatible materials and addresses any potential risks of fires or 

explosions; and (4) has systems in place to prevent and to respond to releases to the environment, 

which may include, but are not limited to, runoff, releases to groundwater, wind-blown dust,

fugitive hazardous air emissions, and catastrophic unit failures, as appropriate. Hazardous 

secondary materials in units that meet the applicable requirements of 40 CFR part 264 or 265 are 

assumed to be contained.

Also, to clarify the regulatory status of units from which releases have occurred, the 

Agency is also proposing to add to 40 CFR 261.4(a)(23) the following: (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 to the 

environment is discarded and a solid waste. 

EPA notes that under today’s proposal, this definition of “contained” would apply to both 

land-based units and non-land-based units under the generator-controlled exclusion. For the 

reasons explained in section IX.B.5 of this preamble, EPA is proposing to place all requirements 
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for both types of units in 40 CFR 261.4(a)(23).

In the preamble to the 2008 DSW final rule, EPA referred to “significant” releases as the 

criterion to determine whether hazardous secondary materials remaining in the unit should be 

considered wastes. We believe that today’s proposed codification better expresses our intent that 

all releases are of concern. However, under today’s proposal, in the event of a release from a unit 

to the environment, the hazardous secondary materials that remain in the unit could still meet the 

terms of the exclusion in certain circumstances, as long as the other provisions of the 

containment definition are met. A single release that is quickly addressed would not generally 

affect the regulatory status of the hazardous secondary materials still contained in the unit.

Sometimes a 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 would be considered discarded if 

not immediately recovered for reclamation and would be subject to appropriate regulation. 

However, hazardous secondary materials in a unit that has had a release in the past and is 

likely to have one in the future (as demonstrated by not meeting the four factors in the 

standard)14 is not “contained” and is therefore a solid waste and the unit would therefore be 

subject to Subtitle C regulation. In order to determine whether a unit that has had a release is 

 

14 The four factors are that the unit (1) is in good condition and has no leaks or other continuing or intermittent 

releases to the environment; (2) is properly labeled or otherwise has a system (such as a log) to immediately identify 

the hazardous secondary material in the unit; (3) does not hold incompatible materials and addresses any potential 

risks of fires or explosions; and (4) has systems in place to prevent and to respond to releases to the environment, 

which may include, but are not limited to, runoff, releases to groundwater, wind-blown dust, fugitive hazardous air 

emissions, and catastrophic unit failures, as appropriate. 
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likely to suffer future releases, the regulatory authorities should consider all the factors in 

proposed 40 CFR 261.4(a)(23)(i). The Agency believes that this procedure is more likely to 

provide effective guidance to regulatory authorities and the regulated community than the current 

criterion of “significant.” We note that factors 1–4 of proposed 40 CFR 261.4(a)(23)(i) are 

similar to the scenarios discussed in the preamble to the 2008 DSW final rule as examples of 

hazardous secondary materials that were not managed as a valuable raw material, intermediate, 

or product. If such hazardous secondary materials, when released, were not immediately

recovered, 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. 

The Agency solicits comment on whether the proposed changes to 40 CFR 

261.4(a)(23)(i) will be effective in improving the implementability and enforceability of the 

“contained” requirement, and on whether additional requirements might be needed to achieve 

this end, or to ensure the hazardous secondary material is not discarded. We also request 

comment on whether the proposed regulatory definition of “contained” allows sufficient 

flexibility to regulatory authorities to evaluate site-specific circumstances that might be relevant 

to whether a hazardous secondary material could be considered discarded. 

2. Notification

a. Summary. Under 40 CFR 260.42, hazardous secondary material generators, tolling contractors, 

toll manufacturers, intermediate facilities, and reclaimers managing hazardous secondary

materials under 40 CFR 261.2(a)(2)(ii), 261.4(a)(23), (24), or (25), 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. 
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The intent of the notification requirement is to provide basic information to the regulatory

agencies about who will be managing hazardous secondary materials under the exclusion. The 

specific information included in the notification requirement enables regulatory agencies to 

monitor compliance and to ensure that the hazardous secondary materials are managed according 

to the exclusion and not discarded. Notification information is collected in EPA's RCRAInfo 

database, which is the national repository of all RCRA Subtitle C site identification information, 

whether collected by a state authority or EPA. As explained in the 2008 DSW final rule, EPA 

believes our authority to request such information is inherent in our authority to determine 

whether a material is discarded. We consider this to be the minimum information needed to 

enable credible evaluation of the status of hazardous secondary materials under section 3007 of 

RCRA and to ensure that the terms of the exclusions are being met by generators and reclaimers.

EPA continues to support the underlying rationale outlined in the 2008 DSW final rule for the 

need to collect this information. (See 73 FR 64682, October 30, 2008, for a more detailed 

discussion of our authority to collect this information.)

As codified, the requirement to provide this notification is not a condition of the 

exclusions. Thus, although failure to comply with the requirement constitutes a violation of 

RCRA, it does not affect the excluded status of the hazardous secondary material. 

b. Proposed changes. We are proposing today to make the notification provision in 40 CFR 

260.42 a condition of the generator-controlled exclusion in 40 CFR 261.4 (a)(23). 

In the 2009 Federal Register notice announcing the June 2009 DSW public meeting, 

EPA listed as an issue for discussion whether notification should be a condition, rather than a 

requirement, of the exclusions. A number of commenters weighed in on both sides of this issue. 

On one hand, commenters stated that keeping notification as a requirement would create an 
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unintended incentive for hazardous secondary material generators, intermediate facilities and 

reclaimers not to notify, because those who chose not to notify would likely evade oversight for 

many years and, if caught, could simply regard the violation as a “paperwork violation,” and 

regard the possible penalty for that violation as a cost of doing business. These commenters also 

argued that the failure of a hazardous secondary material generator, intermediate facility or 

reclaimer to provide notification is a strong indication that these entities are either unaware of or 

trying to circumvent the regulatory requirements. In both cases, these actions potentially increase

the likelihood for environmental damage. Therefore, failure to notify should be regarded as more 

serious than a reporting violation and should remove the excluded status of the hazardous 

secondary materials.

Conversely, some commenters supported maintaining notification as a requirement, 

arguing that if an entity fails to notify, it does not necessarily indicate that the hazardous 

secondary materials were discarded and, therefore, should not automatically affect the excluded 

status of such materials. 

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 of the exclusion, 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 would 

become solid and hazardous wastes and subject to full Subtitle C regulation). 

In the 2008 DSW final rule, EPA considered the notification requirement as providing 

basic information to regulatory authorities, but determined that notification, in and of itself, did 
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not allow regulatory authorities to directly determine that hazardous secondary materials were 

discarded. In other words, a generator or intermediate facility/reclaimer could fail to notify yet 

still be legitimately reclaiming (or storing the material prior to reclamation) their hazardous 

secondary materials according to the conditions of the exclusion (73 FR 64739, October 30, 

2008).

However, the notification provision is also the only formal indication of a facility's 

intent to reclaim a hazardous secondary material under the conditional exemption and not 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 could indicate that the hazardous secondary material may be 

mismanaged.

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. 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. Additionally, state 
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commenters have argued that enforcement discretion is commonly used to distinguish between 

the unintentional administrative oversight of “not notifying” and a blatant attempt at evading 

enforcement. Making notification a condition of the exclusion provides states the ability to 

properly enforce against this latter group, while leaving the flexibility to tailor enforcement in 

appropriate cases. EPA is therefore proposing today to make the notification provision in § 

260.42 a condition of the generator-controlled exclusion in § 261.4(a)(23). Additionally, we are 

also requesting comment on making notification a condition of the re-manufacturing exclusion 

and of the other recycling exclusions and exemptions (see Section XII “Request for Comment on 

Re-manufacturing Exclusion” and Section XIII “Request for Comment on Revisions to Other 

Recycling Exclusions and Exemptions”).

3. Recordkeeping for Speculative Accumulation

In addition to the containment provision, hazardous secondary materials that are 

generated and legitimately reclaimed under the control of the generator are subject to the 

speculative accumulation provisions of 40 CFR 261.1(c)(8). If these hazardous secondary

materials are speculatively accumulated, they are considered discarded. EPA did not propose 

changes to the speculative accumulation provisions in the March 26, 2007, DSW proposal and 

has not reopened any substantive provision of the speculative accumulation requirement. 

However, since implementation of the 2008 DSW final rule, EPA has received questions 

from regulatory authorities about enforcement of the speculative accumulation requirement. In 

particular, enforcement personnel have 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, 
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and, therefore, whether that facility was in compliance with the storage time limits of 40 CFR 

261.4(a)(23)(iii) and 40 CFR 261.1(c)(8). 

EPA agrees with this suggestion and is therefore proposing to amend 40 CFR 

261.4(a)(23)(iii) to require persons operating under the generator-controlled 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 materials are stored in a surface impoundment), we are proposing as an alternative to 

amend 40 CFR 261.4(a)(23)(iii) 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 also notes that we are not proposing any changes or 

otherwise reopening the substantive requirements of the speculative accumulation condition.

The Agency notes that placing labels on storage units or entering accumulation start dates 

in inventory logs is likely to already be part of normal business operations at many facilities. For 

this reason, we believe that this proposed requirement is not unduly burdensome and will provide 

a greater degree of clarity and certainty both to the regulated community and to regulatory

authorities who are trying to determine when excluded hazardous secondary materials began to 

be accumulated. EPA solicits comment on whether this proposed requirement will be effective in 

meeting this goal and on whether other methods of measuring storage durations and/or 

identifying start dates would be equally effective (such as a requirement to post accumulation 

start dates in storage areas, within a specified number of feet of the storage unit).

As proposed, this recordkeeping provision would only apply to the exclusion under 40 

CFR 261.4(a)(23). However, the same arguments for tracking accumulation start dates could be 

made more broadly for all recycling subject to the speculative accumulation limits. Thus, EPA is 
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also requesting comment on whether to add this recordkeeping requirement to the speculative 

accumulation provision in 40 CFR 261.1(c)(8) itself.

4. Tolling Provision

Under the 2008 DSW final rule, hazardous secondary materials are eligible for the 

generator-controlled exclusion if 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 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. 

For purposes of this exclusion, a tolling contractor is 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. The toll manufacturer is the person who produces a product or 

intermediate made from specified unused materials pursuant to a written contract with a tolling 

contractor. Under the 2008 DSW final rule, the tolling contractor must certify that it has a written 

contract with the toll manufacturer to manufacture a product or intermediate made from specified 

unused materials, and that the tolling contractor will reclaim the hazardous secondary materials 

generated during the manufacture of the product or intermediate. The tolling contractor must also 

certify that it retains ownership of, and liability for, the 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 at the toll manufacturer’s facility. This 

certification should be made by an official familiar with the terms of the written contract and 

should be retained at the site of the tolling contractor.
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However, there were no requirements to keep records of shipments of hazardous 

secondary materials sent or received pursuant to the written contract between the tolling 

contractor and the tolling manufacturer. Since implementation of the final rule, the Agency has 

received inquiries from regulatory authorities regarding the enforceability of the tolling 

provision. These authorities believe that it would be easier to determine if tolling contractors and 

manufacturers were in compliance with the requirements for the tolling exclusion if records were 

kept of these shipments. The Agency agrees with these suggestions and is therefore proposing to 

amend 40 CFR 261.4(a)(23)(ii) to add a recordkeeping requirement for tolling contractors and 

manufacturers. 

The proposed language would 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 

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 all 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). EPA solicits comment on whether 

this proposed requirement would make the exclusion for hazardous secondary materials 

generated pursuant to a tolling contract easier to enforce. We also solicit comment on other 

information which would be appropriate for the recordkeeping requirements.

While not specifically raised by regulatory authorities, the same question of 

enforceability could be raised if a hazardous secondary material is generated and reclaimed at 
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different facilities where both facilities are under the control of the generator. Therefore, EPA 

also solicits comments on whether the recordkeeping requirement should also apply to hazardous 

secondary materials reclaimed off-site at the same company under 40 CFR 261.4(a)(23).

Furthermore, the Agency is also soliciting comment on whether the specific tolling 

exclusion for hazardous secondary materials generated and reclaimed under the control of the 

generator should be retained or eliminated. We note that since implementation of the 2008 DSW 

final rule, no facilities have notified that they are operating under the tolling exclusion, which, in 

any event, applies only to a small subset of generators and reclaimers. The definitions under this 

exclusion (with its attendant certifications) are complicated and involve applying the exemption 

to companies other than the original generators and relying on contractual commitments to 

ensure generator control. If the exclusion is going to be only infrequently utilized, while possibly

adding some additional risks of discard, it might be better for both the regulated community and 

regulatory authorities if it were not part of the exclusions granted to hazardous secondary

materials generated and reclaimed under the control of the generator. Instead, persons operating 

under tolling arrangements would be eligible for the proposed alternative hazardous waste 

regulations for hazardous recyclable materials transferred to a third-party for reclamation. These 

proposed alternative regulations are discussed in Section VIII of this preamble. If this approach 

were finalized, there would be no need for definitions and certifications that are specific to 

tolling arrangements. On the other hand, the tolling contractor conducting the reclamation might 

need to obtain a RCRA storage permit. Toll manufacturing can be an efficient method for 

material production and the Agency does not wish to unnecessarily discourage sustainable 

reclamation practices under these arrangements. EPA requests comment on the likelihood and 

extent to which generators expect to rely on toll manufacturing arrangements and on the risks 
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and benefits of including tolling arrangements in our proposed alternative regulatory scheme, or 

on maintaining their eligibility under the generator-controlled exclusion.

5. Other Changes

The Agency is also proposing a number of structural changes to the regulations in the 

2008 DSW final rule in order to make the generator controlled exclusion simpler and easier to 

understand. In the 2008 DSW final rule, the requirements for non-land-based units operating 

under the generator-controlled exclusion were found at 40 CFR 261.2(a)(2)(ii), while the 

requirements for land-based units operating under the same exclusion were found at 40 CFR 

261.4(a)(23). Since the requirements for the two types of units are identical, we believe that all 

the requirements for units operating under the control of the generator should be placed in one 

regulatory provision. We are therefore proposing to move the requirements listed in 40 CFR 

261.2(a)(2)(ii) to 40 CFR 261.4(a)(23). We believe this will provide more clarity and 

transparency to all users of the regulations.15

Another proposed change concerns the definitions of terms applicable to the generatorcontrolled exclusion. In the 2008 DSW final rule, these definitions (including certification 

requirements) were found in 40 CFR 260.10. We are proposing today to move these definitions 

to 40 CFR 261.4(a)(23). We believe that placing all definitions applicable to the generatorcontrolled exclusion together with the requirements for that exclusion in the same regulatory

section will make it easier to locate and understand this exclusion in a single reading. 

X. Revisions to the Definition of Legitimacy 

A. Summary of Current Definition of Legitimacy

Under the RCRA Subtitle C definition of solid waste, certain hazardous secondary

 

15 In making this change, we are still keeping the definition for land-based operating units since the notification 

requirement at 40 CFR 260.42 still will request whether or not the unit managing the hazardous secondary material 

is a land-based operating unit or a non-land-based operating unit. 
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materials, if recycled, are not solid wastes and, therefore, are not subject to RCRA’s “cradle to 

grave” management system. The basic idea behind this principle is that recycling of these 

hazardous secondary materials often closely resembles industrial manufacturing rather than 

waste management. However, due to the economic incentives for managing hazardous secondary

materials outside the RCRA Subtitle C regulatory system, there is a potential for some handlers 

to claim that they are recycling the hazardous secondary materials when, in fact, they are 

conducting waste treatment and/or disposal.

To guard against this, EPA has long articulated the need to distinguish between legitimate 

(i.e., true) recycling and sham recycling, beginning with the preamble to the 1985 regulations 

that discussed the definition of solid waste (50 FR 638, January 4, 1985) and continuing through 

the 2008 DSW final rule. The legitimacy provision that is required for the definition of solid 

waste final exclusions and non-waste determinations promulgated in the 2008 DSW final rule 

(40 CFR 260.43) 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. This provision is substantively

the same as the Agency’s long-standing policy that has been expressed in our earlier preamble 

discussions and policy statements. The legitimacy provision applicable to these exclusions and 

non-waste determinations is based on the 2003 DSW proposal, the 2007 DSW supplemental 

proposal, the 2008 DSW final rule, and all relevant information available to EPA as contained in 

the rulemaking record for the 2008 DSW final rule. The preamble to the 2008 DSW final rule 

contains the operative discussion on the four legitimacy factors that should be used when making 

legitimate recycling determinations. 

In the 2008 DSW final rule, hazardous secondary materials that are not legitimately
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recycled are discarded materials and, therefore, are solid wastes (40 CFR 260.43). This provision 

also states that any facility claiming an exclusion at § 261.2(a)(2)(ii), § 261.4(a)(23), § 

261.4(a)(24), or § 261.4(a)(25) or using a non-waste determination at § 260.30(d) or (e) must be 

able to demonstrate that its recycling activity is legitimate.

The structure of the legitimacy standard in the 2008 DSW final rule has two parts. The 

first part includes 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 is valuable. These two factors make up the 

core of legitimacy and, therefore, a process that does not conform to them cannot be a legitimate 

recycling process, but would be considered sham recycling. 

The second part of legitimacy in the 2008 DSW rule includes two factors that must be 

considered, but not necessarily met, when a recycler is making a legitimacy determination. That 

is, EPA believed that these two factors that must be considered when making a legitimacy

determination did not always need to be met. This was because the Agency is aware of a few 

situations in which a legitimate recycling process does not conform to one or both of these two 

factors, yet the reclamation activity would still be considered legitimate. 

EPA did not believe that this will be a common occurrence, but in recognition that 

legitimate recycling may still occur in these situations, EPA promulgated the factors that address 

the management of the hazardous secondary materials and the presence of hazardous constituents 

in the product of the recycling process as factors that must be considered in the overall 

legitimacy determination, but not factors that must always be met.

Following is a summary of the four legitimacy factors that were codified in the 2008 

DSW final rule. The preamble to the 2008 DSW final rule includes a lengthy discussion of the 
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four legitimacy factors that is the operative discussion for making legitimate recycling 

determinations (73 FR 64700, October 30, 2008).

Summary of the Four Factors in the 2008 DSW Final Rule

Factor 1—Useful Contribution: “Legitimate recycling must involve a hazardous secondary

material that provides a useful contribution to the recycling process or to a product 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” (40 CFR 260.43(b)(1)).

This factor expresses the principle that hazardous secondary materials should contribute 

value to the recycling process. This factor is an essential element to legitimate recycling because 

real recycling is not occurring if the hazardous secondary materials being added or recovered do 

not add anything to the process or recycled product. This factor is intended to prevent the 

practice of adding hazardous secondary materials to a manufacturing operation simply as a 

means of disposing of them, or of recovering only small amounts of a constituent, both of which 

EPA would consider sham recycling. For hazardous secondary materials to meet this factor, not 

every constituent or component of the hazardous secondary material has to make a contribution 

to the recycling activity. 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 
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activity.

Factor 2—Valuable Product or Intermediate: “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” (40 CFR 260.43(b)(2)).

This factor expresses the principle that the product or intermediate 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. This factor is an essential element of 

the concept of legitimate recycling because recycling cannot be occurring if the product or 

intermediate of the recycling process is not of use to anyone and, therefore, is not a real product. 

This factor is intended to prevent the practice of running hazardous secondary materials through 

an industrial process 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. 

Factor 3—Managed as a Valuable Commodity: “The generator and the recycler should manage 

the hazardous secondary material as a valuable commodity. Where there is an analogous raw 

material, the hazardous secondary material should be managed, at a minimum, in a manner 

consistent with the management of the raw material. Where there is no analogous raw material, 

the hazardous secondary material should be contained. Hazardous secondary materials that are 

released to the environment and are not recovered immediately are discarded” (40 CFR 

260.43(c)(1)). 

This factor expresses the principle that hazardous secondary materials being recycled 
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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 materials are

managed before they enter 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, that behavior may indicate that the 

hazardous secondary materials may not be recycled, but rather will be released into the 

environment and discarded. 

Factor 4—Comparison of Toxics in the Product: “The product of the recycling process does not 

(i) contain significant concentrations of any hazardous constituents found in Appendix VIII of 

part 261 that are not found in analogous products; or (ii) contain concentrations of any hazardous 

constituents found in Appendix VIII of part 261 at levels that are significantly elevated from 

those found in analogous products; or (iii) exhibit a hazardous characteristic (as defined in part 

261 subpart C) that analogous products do not exhibit” (40 CFR 260.43(c)(2)). 

This factor expresses the principle that when making a legitimacy determination, one 

needs to look at the concentrations of the hazardous constituents found in the product made from 

the hazardous secondary materials and compare them to the concentrations of hazardous 

constituents in analogous products that were not made from hazardous secondary materials. Any

of the following three situations could be an indicator of sham recycling: a product that contains 

significant levels of hazardous constituents that are not found in the analogous products; a 

product with significantly higher levels of hazardous constituents than were in the analogous 

products; or a product that exhibits a hazardous characteristic that analogous products do not 
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exhibit. 

Any of these situations could indicate that sham recycling is occurring because in lieu of 

proper hazardous waste disposal, the recycler could have incorporated hazardous constituents 

into the final product when they are not needed to make the product effective for its purpose. 

This factor, therefore, is designed to determine when toxics that are “along for the ride” are 

discarded in a final product and, therefore, the hazardous secondary materials are not being 

legitimately recycled. Evaluating the significance of levels of hazardous constituents in products 

of the recycling process may involve taking into consideration several variables, such as the type 

of product, how it is used and by whom, whether or not the elevated levels of hazardous 

constituents compromise the efficacy of the product, the availability of the hazardous 

constituents to the environment, and others. 

In addition to promulgating the legitimate recycling provision in the 2008 DSW final 

rule, EPA included a discussion of how the current legitimacy policy continues to apply to 

existing recycling exclusions and how the four factors included in the legitimacy provision at 40 

CFR 260.43 are substantively the same as the current legitimacy policy. The Agency included a 

lengthy discussion of how it developed the legitimacy factors in 40 CFR 260.43 by closely

examining the questions and sub-questions in its long-standing policy memo on the subject, 

OSWER Directive 9441.1989(19) (April 26, 1989), also known as the Lowrance Memo, and in 

the relevant Federal Register preambles, and converting this policy guidance into four direct 

factors. The detailed explanations of how each of the four factors is derived from the Lowrance 

Memo and other existing policy statements can be found at 73 FR 64708–64710, October 30, 

2008. 

B. Proposed Changes to the Definition of Legitimacy
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1. Legitimacy Codified for All Recycling

In today’s action, EPA is proposing to codify the legitimate recycling requirement for all 

recycling. In the October 28, 2003, proposal at 68 FR 61581–61588, EPA discussed its position

on the relevance of legitimacy to hazardous secondary materials recycling in general and to the 

redefinition of solid waste specifically. At that time, we proposed to codify in the RCRA 

hazardous waste regulations four general criteria to be used in determining whether recycling of 

hazardous secondary materials is legitimate. In the supplemental proposal of March 26, 2007, at 

72 FR 14197–14201, we proposed two changes to the 2003 proposed legitimacy criteria and 

asked for public comment on those changes. The changes were (1) a restructuring of the 

proposed criteria, called "factors" in that proposal, to make two of them mandatory, while 

leaving the other two as factors to be considered, and (2) additional guidance on how the 

economics of the recycling activity should be considered in a legitimate recycling determination.

EPA’s 2008 DSW final rule codified legitimacy for the recycling covered by the 

exclusions and non-waste determinations in that rulemaking. However, at that time, EPA did not 

codify the legitimacy factors for other recycling exclusions/activities, but explained that the 

concept of legitimacy finalized in that rule as a restriction or a condition for the final exclusions 

and the non-waste determinations is not substantively different from the Agency's longstanding 

policy that has been expressed in our earlier preamble discussions and policy statements.

Upon further consideration of legitimacy, EPA believes that codifying the legitimacy

factors for all recycling would provide a number of benefits. These benefits include ensuring that 

this important requirement is more readily accessible to the public, including the regulated 

community, by being published in the Federal Register and in the Code of Federal Regulations. 

EPA also expects that this action will prevent or minimize fraudulent or sham recycling, which 
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will make the legitimacy provision a more enforceable standard for states and other entities 

implementing RCRA.

a. What is the proposed scope of the legitimacy provision? If codified for all recycling, the 

definition of legitimacy would apply to these types of hazardous secondary materials, in addition 

to the final exclusions and non-waste determinations promulgated in the 2008 DSW rule:

 Hazardous recyclable materials that are managed under today’s proposed alternative 

Subtitle C regulations for hazardous recyclable materials.

 Hazardous secondary materials that, because they are recycled, are excluded or exempted 

from Subtitle C regulation under other regulatory provisions (e.g., see the exclusions 

from the definition of solid waste in 40 CFR 261.4(a)).

 Materials formally determined to be non-wastes under the procedures in 40 CFR 260.34.

 Recyclable hazardous wastes that are regulated under Subtitle C prior to recycling or 

subject to reduced regulation.

The concept of legitimate recycling is also used to determine if a unit is a recycling unit 

exempt from RCRA Subtitle C permitting or is a regulated waste treatment or storage unit 

subject to full RCRA Subtitle C permitting.16 If finalized for all recycling, the legitimacy factors 

would apply to these situations as well.

One important note is that EPA has previously 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 factors being promulgated today. Thus, there would be situations where 

today’s proposed broadly applicable factors would overlap with these more specific legitimacy

 

16 Certain exempt legitimate recycling facilities are still subject to RCRA air emission standards.
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provisions. 

One example is the regulation for zinc fertilizers made from recycled hazardous 

secondary materials. 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 exclusion at 40 CFR 261.4(a)(21). These limits would be the “comparable” standard for 

those contaminants when determining if the recycling meets legitimacy factor 4 (Comparison of 

Toxics in the Product). However, if fertilizer made from hazardous secondary materials contains 

other hazardous constituents that do not have specific numerical limits in 40 CFR 261.4(a)(21), 

then the generator or recycler would need to compare the levels of those hazardous constituents 

with those in an analogous fertilizer product not made from hazardous secondary materials. 

Other examples of more specific legitimacy provisions are found in the regulations for 

comparable fuels at § 261.38, the use constituting disposal provisions in part 266 subpart C, and 

the burning for energy recovery and material recovery provisions in part 266 subpart H. 

In doing a legitimacy determination on a fuel made from hazardous secondary material 

under the comparable fuels exclusion, the regulations contain concentration limits for a 

comprehensive list of chemicals. If the fuel meets those limits, it would generally meet 

legitimacy factor 4 (unless it contains a hazardous constituent that is not on the list of chemicals 

in § 261.38 Table 1). However, the regulated entity would need to consider the other legitimacy

factors as well in making an overall legitimacy determination on the hazardous secondary

material being burned as a comparable fuel. 

For hazardous secondary materials being used in a manner constituting disposal under 40 

CFR part 266 subpart C, a person would need to determine if the hazardous secondary material 

being recycled in this way meets all four legitimacy factors in 40 CFR § 260.43, in addition to 
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meeting the conditions of 40 CFR part 266 subpart C. Meeting the applicable treatment standards

as required by § 266.20 would not substitute for meeting legitimacy factor 4 because those 

standards are technologically-based standards and are not based on a comparison to an analogous

product. Those standards in some cases would be more stringent while in other cases, they may

be less stringent. 

The legitimacy provisions would also apply to hazardous secondary materials being 

burned either for energy recovery or material recovery under 40 CFR part 266 subpart H. For 

those materials being burned for metals recovery, meeting the concentration limits in 40 CFR 

266.100(d)(2) would be considered comparable for the sake of legitimacy factor 4. The regulated 

entity would have to ensure that the recycling meets the other legitimacy factors as well to be in 

compliance with the overall legitimate recycling provision.

EPA is proposing that these more specific provisions remain applicable and that the 

legitimacy factors would not replace them. That is, regulated entities would need to comply with 

both the specific regulatory conditions of their recycling exclusions, as well as any of the 

legitimate recycling factors not explicitly covered by the specific recycling exclusion. The 

Agency seeks public comment on the overlap between the general legitimacy provision and the 

specific recycling exclusions.

b. Why is EPA proposing to codify legitimacy for all recycling? In the 2008 DSW final rule, EPA 

explained that it was finalizing codified legitimacy factors only for the exclusions and non-waste 

determinations in that rule to avoid confusion among the regulated community and state and 

other implementing regulatory agencies about the status of recycling under existing exclusions. 

At the time, EPA did not expect members of the regulated community to revisit their previouslymade legitimacy determinations. 
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After evaluating the comments in response to the May 27, 2009, public meeting notice 

(74 FR 25200) and concerns brought up in the subsequent public meetings, EPA has determined 

that the benefits from the entire hazardous waste community having identical codified legitimacy

requirements outweigh concerns about making administrative changes to the requirement. One 

codified legitimacy standard will be less confusing and more clear to the regulated community, 

implementing agencies and the public. 

EPA also believes that there will be benefits to the environment from requiring those who 

are recycling under existing exclusions and other provisions to do this kind of evaluation of their 

recycling process with legitimacy considerations in mind. EPA believes that codifying the 

legitimacy factors for all recycling and the requirement to document legitimacy determinations, 

as discussed below, will result in more thorough, accurate and consistent legitimacy

determinations. However, as we discuss below, documentation of the legitimacy determination 

(i.e., how the hazardous secondary material meets the legitimacy factors) needs only to be 

available from the effective date of this rule.

EPA continues to believe that the four legitimacy factors we are proposing to codify for 

all recycling are substantively the same as the existing policy found in previous Federal Register 

preamble statements and its long-standing policy memo on the subject (i.e., the Lowrance 

Memo). An analysis that shows how the four factors are derived from and equivalent to the 

Lowrance Memo and other policy statements is in the 2008 DSW final rule preamble (73 FR 

64708–64710). In addition, EPA continues to believe that the vast majority of recycling of 

hazardous secondary materials in the regulated community is currently legitimate and would 

already meet all four legitimacy factors.

It is the Agency’s belief that it is an advantage for the regulated community and the 
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regulating agencies to have the regulatory requirements for legitimacy be identical for all 

recycling processes and to have the legitimacy provision promulgated in the regulations. Because 

legitimacy is an inherent concept underlying all of the current recycling exclusions, the 

legitimate recycling standard already applies to all hazardous secondary materials recycling and 

hazardous waste recycling, whether such recycling remains under the hazardous waste 

regulations or is excluded from the definition of solid waste. Therefore, the change being 

proposed today would result in the details of an existing standard being added to the regulations 

and thereby being more publicly available.

Requiring recycling to be legitimate has been our long-standing policy and it is well 

understood throughout the regulated community and the implementing state regulatory agencies. 

EPA also firmly believes that the legitimacy factors are a simplification and clarification of our 

existing policy and, as such, the large majority of existing determinations should not change or 

need to be revisited. We are reiterating today that simply codifying the legitimacy standard is not 

changing the underlying principles of legitimate recycling that have existed since the basic 

RCRA DSW structure was put in place in 1985.

We recognize that under some of the existing exclusions, certain conditions may fulfill 

certain legitimacy factors or considerations, but this is not universally the case for all of the 

recycling exclusions. Even under the existing exclusions, there remains the possibility of 

someone claiming an existing recycling exclusion as a means of discarding their hazardous 

waste. Thus, simply meeting the conditions of an exclusion does not automatically ensure that 

the recycling is legitimate and codifying the legitimacy factors for all recycling emphasizes this 

fact. The codified legitimacy factors would apply to all future recycling of hazardous secondary

materials as well, unless we establish specific legitimacy conditions for a specific recycling 
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practice that stand in for the more general factors.

EPA is asking for comments on this proposed approach to the legitimate recycling 

requirement.

2. All Legitimacy Factors Being Mandatory

a. What structure is EPA proposing for the legitimacy factors? In this proposed rule, EPA is 

reconsidering the current legitimacy structure and proposing that all the legitimacy factors be 

mandatory. EPA is proposing also that a petition process be available if a legitimate recycling 

process can be shown to be legitimate even though it does not meet one or both of the factors 

that currently have to be considered.

As stated above, in the 2008 DSW final rule, EPA finalized a structure for legitimacy that 

included two factors that had to be met and two factors that had to be considered, but not 

necessarily met. We stated that we thought this approach would be clearer than the guidance for 

legitimacy being followed at that time, but would still provide some flexibility in those cases 

where recycling did not meet all the legitimacy factors, but the recycling activity was still 

legitimate. 

In this proposal, EPA is reconsidering its position on this issue and now believes that it 

would be most appropriate for all legitimacy factors to be mandatory and to provide a petition 

process for those rare cases where the recycling process is legitimate, even though factor 3 or 

factor 4 or both are not met. EPA is proposing this administrative change in the structure of the 

legitimacy factors for several reasons. Comments in response to EPA’s May 27, 2009, notice of a 

public meeting and comments provided at that public meeting on June 30, 2009, reiterated that 

most of the state agencies that would be responsible for implementing the DSW regulations 

when the state has adopted the program support an approach in which all legitimacy factors are 
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mandatory. EPA also expects that making all of the legitimacy factors mandatory would be less 

complicated across the overall RCRA Subtitle C program and would improve both the 

effectiveness and the protectiveness of the legitimacy provision. 

Commenters also argued that the legitimacy provision does not effectively address EPA’s 

expectation that most recycling should meet all four legitimacy factors and leaves too much 

leeway for potential sham operations. A structure with four mandatory factors and a petition 

process for an entity that believes that its recycling is legitimate despite not meeting factor 3 or 

factor 4 or both does convey EPA’s belief that these exceptions to the legitimacy factors are rare. 

In addition, EPA had believed that the two mandatory factors and two factors to be 

considered would be protective of human health and the environment because, under the 

regulations in 40 CFR 260.43, exceptions to all four factors being met would only happen in 

cases of recycling that was legitimate anyway—that is, cases where either factor 3 or factor 4 

were not met would have to have valid reasons for still being legitimate. However, it is not clear 

that this result will always occur in practice. Continued confusion about how the regulations 

work and concerns from state agencies that are and will be responsible for the enforcement and 

implementation of this provision are making EPA revisit its previous decision that this structure 

would be protective. 

Specifically, in the design of the legitimacy provision in the 2008 DSW final rule, EPA 

did not intend to make it possible for materials going for reclamation to be mismanaged or to 

allow recycled products that could pose a risk into the market. EPA heard in further comments, 

however, that states and implementing agencies remained concerned that the structure of the 

factors would lead to these outcomes. These comments about the protectiveness of the legitimacy

structure received from those regulators during actual implementation of the rule are one of the 
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main reasons that EPA is rethinking its approach. 

EPA continues to believe that the majority of recycling currently taking place would meet 

all legitimacy factors, but recognizes that there may be rare instances where recycling may be 

legitimate, but not meet one or both of the two factors that were labeled “to be considered” in the 

2008 DSW final rule. It is critical that the legitimacy regulations be flexible enough to allow for 

these situations, particularly if the regulations are going to apply to all recycling. Therefore, EPA 

is proposing a petition process for facilities that believe that their recycling processes are 

legitimate despite not meeting one or both of these two final factors. EPA’s proposal for how this 

petition process would work is described later in this section. 

Comments in response to the May 27, 2009, Federal Register notice also demonstrated 

that despite EPA’s efforts to clarify what it meant by “factors to be considered” and how the 

Agency thought that structure would work in implementation of legitimacy, many commenters 

still found the requirement confusing and believed the regulated community as a whole would be 

confused as well. EPA believes that a structure where all factors must be met with a petition 

process for any exceptions would be more straightforward than the current two mandatory

factors with two factors that have to be considered. 

EPA notes that the ultimate determination of legitimacy would be the same under either 

approach (i.e., whether factors 3 and 4 “must be considered” or “must be met”). Under the 

current structure requiring the factors be considered, a person making a legitimacy determination 

regarding a recycling process that does not meet one or both of these factors (i.e., is not being 

managed as a valuable commodity or has elevated levels of hazardous constituents in the 

product) would need a strong reason for why the recycling is still legitimate and, in the case of 

an enforcement action, would be required to demonstrate that reason. Under the proposed 
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restructuring of the factors, under the same scenario a person would be required to demonstrate 

legitimacy up front as part of a petition process and receive EPA approval before claiming an 

exemption. In other words, there would be no substantive distinction between the final 

legitimacy determination under the two approaches, but the administrative process for making 

that determination would be different. 

One potential concern with the proposed new structure is that it will require all entities 

making a legitimacy determination to reassess whether they meet all four factors and, if a 

facility’s recycling does not meet factor 3 or factor 4 or both, it would either have to reengineer 

the process or submit a petition for a legitimacy variance. However, under the revisions being 

proposed today, all entities that are recycling hazardous secondary materials are already going to 

be required to consider the legitimacy of their recycling in order to document that their recycling 

is legitimate for their files. Therefore, the only burden on top of that requirement would be in the 

rare instance where a facility would need to submit a petition for a legitimacy variance. 

Finally, in designing the legitimacy factors that apply throughout the RCRA program, 

particularly in the various parts of the definition of solid waste, EPA is striving for consistency 

and cohesiveness. EPA’s recent Identification of Non-Hazardous Secondary Materials that are 

Solid Wastes final rule (xx FR xxx xx, 20xx, xxxxx) includes legitimacy factors for nonhazardous secondary materials that are burned in combustion units as fuels or as ingredients. 

Despite the differences in the circumstances covered by that rule and this proposed rule, the 

legitimacy concepts are similar. EPA’s non-hazardous secondary material rule mandates that all 

legitimacy factors must be met and in proposing to alter the legitimacy factors for hazardous 

secondary materials, EPA is proposing to line up these concepts in a consistent manner. 

b. Petition process for legitimacy. As stated above, EPA believes it is critical that the legitimacy
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requirement have flexibility for those rare situations where a facility is recycling legitimately, but 

is not meeting factor 3 and/or factor 4. The petition process being proposed today would be a 

mechanism for that flexibility, while also allowing the implementing agency to review the sitespecific nature of the recycling practice and ensure that it is legitimate. EPA is seeking comment 

on the various aspects of this proposed process. EPA believes that the situations that would 

warrant legitimacy variances are rare, but seeks comment again on specific recycling scenarios 

that are legitimate yet do not meet either legitimacy factor 3 and/or legitimacy factor 4.

Commenters to the 2007 DSW supplemental proposal suggested the idea of a petition 

process with four mandatory factors. EPA considered this option for the 2008 DSW final rule, 

but did not finalize it. However, after determining that an approach to legitimacy with all four 

factors being mandatory may be most appropriate, EPA is returning to the idea of a petition 

process to provide the needed flexibility and oversight to legitimacy determinations. 

Information to be included in the petition

Of primary interest, the petition would need to include information on the hazardous 

secondary material being recycled and the recycling process itself in the context of the four 

legitimacy factors. EPA continues to believe that legitimacy factors 1 and 2—which state that the 

material being recycled has to provide a useful contribution to the recycling product or process 

and that the process must produce a valuable product or intermediate—have to be met for 

recycling to be considered legitimate. A facility would be eligible to submit a petition for a 

legitimacy variance to its implementing agency under § 260.43(c) if it has met legitimacy factors 

1 and 2, but for some reason does not meet either factor 3, the requirement that the hazardous 

secondary material is managed as a valuable commodity, or factor 4, the requirement that the 

levels of any contaminants in the product of the recycling process be comparable to or lower than 
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an analogous product or both.17

Thus, the legitimacy variance petition would include a narrative description of how the 

facility’s recycling process addresses each of the four legitimacy factors. For the factor or factors 

that the process does not meet, the petition would have to explain how the recycling process does 

not meet the factor(s), but why the recycling should nevertheless be determined to be legitimate. 

If, for example, the recycling process does not meet factor 3, the petition would include an indepth description of how the hazardous secondary materials are managed and stored on-site and 

how analogous raw materials, if there are any, are stored on-site, as well as an explanation for 

why the storage of the hazardous secondary materials is different yet still indicative of 

management as a valuable product or intermediate. It may be appropriate to include photos or 

engineering specifications to illustrate the nature of the material storage. As described below, the 

Agency is also proposing to modify the language of this factor slightly to allow for situations 

where the hazardous secondary material is stored in a way that is different from the analogous 

raw material, but is stored in a manner equally protective. We are proposing that in those 

situations, a person would not have to petition for a legitimacy variance simply because the 

storage method was different than how the analogous raw material was stored.

For a recycling process that does not meet factor 4 because the levels of contaminants in 

the product of the recycling process are not comparable to or lower than the levels in an 

analogous product, the petition should include a description of the product and its uses and an 

explanation of why the recycling is legitimate despite the elevated contaminant levels from the 

hazardous secondary material. This explanation could include considerations such as the lack of 

plausible exposure pathways to humans and the environment from the product, the 

 

17 EPA is proposing to amend legitimacy factors 3 and 4 in this proposal. These are discussed below in X.B.3. and 

X.B.4.
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bioavailability of the toxics in the product, or other factors, as appropriate. It may also be 

appropriate in this section to include relevant product specifications, either from the specific 

facility or industry-wide, as well as results from any toxicity testing of the product of the 

recycling process. 

In the 2008 DSW final rule, EPA gave the following example of where recycling could 

still be considered legitimate, even though the contaminant levels could be considered 

significantly higher than an analogous product. The example of 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 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. 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. In fact, the Agency is considering 

codifying the determination that the reuse of foundry sands for mold making in a foundry’s sand 

loop is legitimate recycling and thus, these facilities would not need to submit a legitimacy

variance petition since the Agency has already examined the practice and determined it is 

legitimate recycling. The Agency requests comment on this. 

In addition, the facility submitting a petition would also be required to include in its 

petition a detailed description of its process and its hazardous secondary materials, including, 

where applicable, material flow charts or diagrams, or other information the implementing 

agency may request. Because of the case-by-case nature of legitimacy determinations, the 
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implementing agency reviewing the petition will need this detailed information to make an 

accurate assessment of the legitimacy of the process. 

Process for evaluating the petition

EPA is proposing that this petition process be managed by the state agencies where a 

state implements the RCRA Subtitle C program. In states where EPA implements Subtitle C, the 

petition process would be run by the appropriate EPA Regional office. 

EPA is proposing that in responding to a legitimacy variance petition, the implementing 

agency would follow the same procedures already in place for variances from solid waste, 

variances to be classified as a boiler, and for non-waste determinations in § 260.33. After 

evaluating the petition for a legitimacy variance and, if necessary, visiting the requesting facility, 

the implementing agency would issue a draft notice tentatively granting or denying the 

application. Notification of the tentative decision would be provided by newspaper advertisement 

or radio broadcast in the locality where the recycler is located. The implementing agency would 

then accept comment on the tentative decision for at least 30 days and may also hold a public 

hearing. The implementing agency would issue its final decision after receipt of comments and 

after any public meetings. 

Upon receiving a legitimacy variance, EPA is proposing that the facility include this 

information in the appropriate place of the RCRA Site ID Form (EPA Form 8700-12). EPA is 

proposing to revise this form to provide a place to check that a legitimacy variance has been 

received. The variance would not expire as long as the conditions relevant to the legitimacy

variance described in the original petition do not change. The facility would be required to 

confirm that its process has not changed by re-notifying every two years, also through the RCRA 

Site ID Form. The facility should keep records of its legitimacy variance as part of its legitimacy
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documentation. 

EPA is seeking comment on the legitimacy petition process as proposed here and how the 

design of this process would work for both implementing agencies and facilities that may have to 

submit such a petition. 

3. Proposed New Language for Legitimacy Factor 3 (Managed as a Valuable Commodity)

The 2008 DSW final rule codified four factors as part of the § 260.43 definition of 

legitimacy, as summarized above. Factor 3 addressed the management of the hazardous 

secondary materials before it is recycled. Specifically, the regulatory language for this factor 

reads as follows: 

“The generator and the recycler should manage the hazardous secondary material as a 

valuable commodity. Where there is an analogous raw material, the hazardous secondary

material should be managed, at a minimum, in a manner consistent with the management 

of the raw material. Where there is no analogous raw material, the hazardous secondary

material should be contained. Hazardous secondary materials that are released to the 

environment and are not recovered immediately are discarded.”

In making all legitimacy factors mandatory, the first sentence of the regulatory language 

would be revised to read as follows: “The generator and the recycler must manage the hazardous 

secondary material as a valuable commodity.” In addition, the Agency is requesting public 

comment on whether the language that follows that sentence should also be changed to more 

closely reflect the intent of the provision to: “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 not have to submit a petition for a legitimacy variance if their hazardous 
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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. 

The entire new proposed paragraph at 40 CFR 260.43(a)(3) would read as follows: “The 

generator and the recycler must manage the hazardous secondary material as a valuable 

commodity. 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.”

EPA requests comment on these changes to the language in factor 3.

4. Proposed New Language for Legitimacy Factor 4 (Comparison of Toxics in the Product)

The 2008 DSW final rule codified four factors as part of the § 260.43 definition of 

legitimacy, as summarized above. Factor 4 addressed the issue of toxics along for the ride in the 

products made from hazardous secondary materials. Specifically, the regulatory language for this 

factor reads as follows: 

“40 CFR 260.43(c)(2): The product of the recycling process does not (i) contain 

significant concentrations of any hazardous constituents found in Appendix VIII of part 

261 that are not found in analogous products; or (ii) contain concentrations of any

hazardous constituents found in Appendix VIII of part 261 at levels that are significantly

elevated from those found in analogous products; or (iii) exhibit a hazardous 

characteristic (as defined in part 261 subpart C) that analogous products do not exhibit” 

(emphasis added).

The agency is proposing to change the wording within the regulatory language of this 
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legitimacy factor from “significant” and “significantly elevated” to “comparable to or lower 

than” because it more clearly reflects the intent of this factor. The agency believes “comparable 

to or lower than” means that any contaminants present in the product made from hazardous 

secondary materials are within a small acceptable range. In making this change, we also are 

simplifying the regulatory text by combining subparagraphs (i) and (ii) since it is no longer 

necessary to separate those instances where the hazardous constituents are or are not present in 

the analogous product. This language is also more consistent with the Identification of NonHazardous Secondary Materials that are Solid Wastes final rule (insert citation). However, we 

are not changing the basic meaning of this factor 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.

For example, 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.

In a second example, 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 would indicate that the recycled product is 

not comparable to an analogous product and, thus, the recycling process is really a sham. 

Another example is if zinc galvanizing metal made from hazardous secondary materials 
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that were reclaimed contains 500 parts per million (ppm) of lead, while the same zinc product 

made from raw materials typically contains 475 ppm. These 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 1,000 ppm, these levels would not be comparable in that

they would not be considered to be within a “small acceptable range” and 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 submits a petition and receives a determination from the implementing 

agency that other factors demonstrate otherwise and the recycling activity is determined to be 

legitimate.

The new proposed language for 40 CFR 260.43(a)(4) would read as follows: “The 

product of the recycling process (i) must contain concentrations of any hazardous constituents 

found in Appendix VIII of part 261 at levels that are comparable to or lower than those found in 

analogous products or (ii) must not exhibit a hazardous characteristic (as defined in part 261 

subpart C) that analogous products do not exhibit.

EPA requests comment on these changes to the language in factor 4. 

5. Documentation of Legitimacy

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. Specifically, 40 CFR 260.43 states that any facility claiming an exclusion at § 

261.2(a)(2)(ii), § 261.4(a)(23), § 261.4(a)(24), or § 261.4(a)(25) or using a non-waste 
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determination at § 260.30(d) or (e) must be able to demonstrate that its recycling activity is 

legitimate. 

Although there was no specific recordkeeping requirement that went along with the 

ability to demonstrate legitimacy in the 2008 DSW final rule, EPA stated that we expected that 

in the event of an inspection or an enforcement action by an implementing agency, the recycler 

would be able to show how it made the overall legitimacy determination per § 261.2(f). 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. Under 

the 2008 DSW final rule, when a recycling process does not conform to one or both of the two 

non-mandatory factors under § 260.43(c), the Agency would expect the facility to show that it 

considered the factor(s) and why the recycling activity overall remains legitimate. Although § 

261.2(f) will still apply in enforcement actions, we have since realized that the information 

documenting a recycling activity as legitimate should be assembled in advance and be available 

at all times. 

After implementing the DSW exclusions in several states since its promulgation in 2008, 

we have determined that a one-time documentation of legitimacy is an important step in ensuring 

compliance with this provision and will make oversight and enforcement more effective. We are 

therefore proposing today to require that persons who perform the recycling include 

documentation in their paperwork to explain how their hazardous secondary materials are 

legitimately recycled. We generally expect that this documentation would be a narrative 

description, which could include photographs or other illustrations of how the recycling of their 

hazardous secondary materials meets all four factors of legitimate recycling. All recyclers of 

hazardous secondary materials would need to maintain this documentation on site where the 
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recycling occurs for the duration of the recycling operations and for three years after the 

recycling operations cease. If the recycling occurs on-site at a generator’s facility rather than at 

the recycler’s facility, then the documentation would be maintained at the generator’s facility.

Written documentation would 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. This provision would require that persons 

claiming that their recycling activity is legitimate have the burden to provide written 

documentation showing how the hazardous secondary materials provide a useful contribution to 

the recycling process, how the product of the recycling activity—whether it is a product or 

process intermediate—is valuable, how the generator or the recycler manages the hazardous 

secondary materials as a valuable commodity, and how the levels of any hazardous constituents 

in the product made from hazardous secondary materials are comparable to or lower than those 

in analogous products made from virgin materials. If the hazardous secondary material generator 

or recycler determines that one or both of the latter two factors were not met, it would need to 

produce documentation that it has petitioned the implementing agency for a legitimacy variance, 

as described above, and received a determination that the recycling was indeed legitimate, even 

though one or both of those factors were not met. 

The Agency is not proposing any specific format for the documentation of legitimacy; 

however, we expect that the recycler would have a written narrative 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 materials provide a useful contribution to the recycling 

process or to the product or intermediate of the recycling process. The regulatory
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text for this factor provides five specific ways in which useful contribution can be 

achieved. The recycler would need to document how the hazardous secondary

materials 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 metals 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 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 
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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 proposed in 40 CFR 

260.10.

 Comparison of toxics in the product legitimacy factor— the recycler would 

include any data or information that shows that the levels of hazardous 

constituents in the product are comparable to or lower than those found in 

analogous products. For example, if a recycling process produced paint, the levels 

of hazardous constituents in the paint would be compared to the levels of the same 

constituents found in a similar paint made from virgin raw materials. This 

comparison would be included in the documentation of this legitimacy

determination. 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. This may be easier in cases where 

the recycler knows that the hazardous secondary material is very similar in profile 

to the raw material. It may also be preferable in cases where the recycler creates 

an intermediate which is later processed again and may end up in two or more 
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products, where there is no analogous product or when production of the product 

of the recycling process has not yet begun. 

As discussed above, the Agency is also proposing that the legitimacy standard be codified 

for all hazardous secondary material recycling, not only for the specific DSW exclusions 

promulgated in the 2008 DSW final rule. As part of ensuring that all hazardous secondary

material recycling is legitimate, we are proposing that persons recycling under these other 

recycling exclusions and recycling under the Subtitle C hazardous waste regulations (which often 

are subject to reduced regulatory requirements) also maintain documentation in their files of why

their recycling is legitimate. This proposed administrative requirement would apply to all 

recycling that is ongoing after the effective date of the final rule adopting this requirement. We 

are interested in receiving public comment on this issue.

As far as how documentation would work for existing exclusions, as we noted in the 

2003 DSW proposal, EPA has already examined in depth a number of waste-specific 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 factors that were finalized as part of the 2008 DSW exclusions and non-waste 

determination process. One example is the regulation for zinc fertilizers made from recycled 

hazardous secondary materials. 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 exclusion at 40 CFR 261.4(a)(21). We believe that data showing the 

zinc fertilizer product meets those numerical limits would be sufficient for documenting that the 

product meets legitimacy factor 4 (comparison of toxics in the product). Other examples of 

existing exclusions where EPA has established specific conditions that are related to their 
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legitimacy determinations are shredded circuit boards excluded under 40 CFR 261.4(a)(14), 

which must be free of mercury switches, mercury relays, and nickel-cadmium and lithium 

batteries, and comparable fuels excluded under 40 CFR 261.4(a)(16), which must meet specific 

levels for hazardous constituents (thus, meeting legitimacy factor 4). 

The conditions developed for the recycling exclusions in § 261.4(a) were found to be 

necessary under material-specific rulemakings that determined when the particular hazardous 

secondary materials in question are not solid wastes. When EPA originally made the decision 

that these hazardous secondary materials are not solid waste, the Agency took into account the 

relevant factors about the hazardous secondary materials, including how the materials were 

managed and what toxic chemicals were present. 

Thus, for those specific exclusions in § 261.4(a) that have conditions that relate directly 

to legitimacy, documentation that shows that the facility meets those conditions would be what is 

necessary to show that the recycling of such material is meeting those specific legitimacy factors. 

However, a facility would also have to include a narrative description of how it meets the other 

legitimacy factors that may not be reflected in the waste-specific conditions of the exclusion, in 

its legitimacy documentation. 

EPA is requesting comment on the requirement for documentation of legitimacy, for both 

the 2008 DSW exclusions and for the existing recycling exclusions. 

XI. Revisions to Solid Waste Variances and Non-Waste Determinations

The Agency is also proposing today to modify the existing regulation of solid waste 

variances at 40 CFR 260.31(c), 40 CFR 260.33 and 40 CFR 260.34 to foster greater consistency 

on the part of implementing agencies and help ensure the protectiveness of the implementation of 

the solid waste variances and non-waste determinations. Specifically, EPA is proposing to do the 
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following:

1. 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;

2. Add a provision at 40 CFR 260.33(d) stating that facilities receiving a variance or nonwaste determination must provide notification as required by § 260.42 of this chapter;

3. Revise the criteria for the partial reclamation variance in 40 CFR 260.31(c) to more 

clearly explain when the variance applies and to require, among other things, that the 

criteria for this variance must be reviewed and evaluated collectively, since each criterion 

reinforces and supports other criterion;

4. 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 §§ 261.2 or 261.4; and

5. Designate the Regional Administrator as the EPA recipient of petitions for variance and 

non-waste determinations.

Finally, EPA is requesting comment on other possible steps to help ensure national consistency

and protectiveness in the implementation of variances and non-waste determinations.

In response to the May 27, 2009, Federal Register notice announcing the DSW public 

meeting, commenters identified issues with the implementation of the non-waste determination 

process, arguing that (1) determinations can lead to inconsistency among states and may

negatively impact economies for states that are more stringent in their determinations; (2) 

determinations may require a large amount of state resources to review and process; and, (3) 

determinations that are indefinitely approved may not receive the proper level of oversight 
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required to ensure that legitimate and safe reclamation is occurring.18

While these comments were focused on the non-waste determination petition process in 

the 2008 DSW final rule (which was the focus of the public meeting), they can apply equally to 

the solid waste variances as well, since the procedures in 40 CFR 260.33 are intended to apply to 

both. Thus, EPA is proposing to make changes that affect both the solid waste variances and the 

non-waste determinations.

A. Proposed Revisions to Procedures for Variances and Non-Waste Determinations Found 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 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 non-waste determinations are 

found in 40 CFR 260.33.

In today’s proposed rule, EPA is proposing two changes to 40 CFR 260.33. First, EPA is 

proposing to make all variances subject to the provision in 40 CFR 260.33(c) that would require 

an applicant to re-apply for a variance in the event that the material no longer meets the relevant 

criteria. Second, EPA is proposing to make all variances and non-waste determinations subject to 

the biennial notification requirements in 40 CFR 260.42.

1. Requirement that an Applicant Re-apply in the Event the Material No Longer Meets the 

Relevant Criteria

 

18 EPA stated in the public meeting notice that we did not expect to repeal the non-waste determination process and 

thus we did not explicitly ask for comment on the provision in the notice. However, in some cases, commenters did 

address this provision.
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The 2008 DSW rule noted that once a non-waste determination has been granted, the 

applicant is obligated to ensure the hazardous secondary material continues to meet the criteria of 

the non-waste determination, including any conditions specified therein by the regulatory 

authority. If a change occurs that affects how the hazardous secondary materials meet the 

relevant criteria and (if applicable) any conditions as specified by the regulatory authority and 

the applicant fails to re-apply to the Administrator for a formal determination, the hazardous 

secondary materials may be determined to be solid and hazardous waste and subject to the 

RCRA Subtitle C hazardous waste requirements (73 FR 64712–13, October 30, 2008). This 

requirement was codified at 40 CFR 260.33(c).

The requirement that the hazardous secondary materials determined to not be a solid 

waste 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 reexamine the circumstances of the recycling. The 2008 DSW rule codified this requirement in 

order to enhance clarity and assist in its implementation, but only focused on the non-waste 

determination provisions because that was the scope of that rule.

EPA is now proposing to explicitly apply 40 CFR 260.33(c) to all the solid waste 

variances, as well as the non-waste determination provisions listed in 40 CFR 260.30 to ensure 

that if there are changes that may impact how hazardous secondary materials meet the relevant 

criteria, that such changes be considered by the regulatory authority to ensure that those criteria 

continue to be met. Codifying this requirement would help ensure clarity and consistency by

providing an administrative procedure for reconsidering a variance in the event that the 

hazardous secondary material no longer meets the relative criteria for the variance.
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2. Proposed Re-notification Requirement 

The second proposed change to 40 CFR 260.33 is to require facilities receiving variances 

or non-waste determinations to re-notify EPA or the State Director, if the state is authorized for 

this aspect of the rule, every two years by March 1 of each even-numbered year using EPA Form 

8700-12 in compliance with 40 CFR 260.42. The current process cannot track variances or nonwaste determinations at a national level and over time. This lack of tracking can lead to state-tostate inconsistency in determinations because one state cannot easily access information 

regarding similar determinations made by another state. Two commenters expressed specific 

concern over this inconsistency, arguing that variations in stringency can drive jobs out of morestringent states and into less-stringent states. These commenters argued that more detailed or 

restrictive criteria and EPA oversight are necessary to ensure that non-waste determinations are 

issued consistently across states. One of the commenters also recommended increasing 

transparency by making the non-waste determinations available online. Additionally, lack of 

tracking inhibits effective oversight of facilities receiving variances and non-waste 

determinations because it does not provide regulatory authorities with a mechanism for receiving 

updated information. 

Amending the procedures for variances and non-waste determinations to require renotification ensures that regulatory authorities are provided regularly updated information (such 

as information regarding quantities of hazardous secondary materials managed under the 

determination). Such updating enables better compliance with the criteria and with any

stipulations of the variance or non-waste 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). 
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This proposed change is also based on EPA’s experience with the § 260.42 notification 

requirement. Since the 2008 DSW final rule became effective on December 29, 2008, EPA has 

received a number of notifications from facilities managing hazardous secondary materials under 

the generator-controlled and transfer-based exclusion and has judged the notification provision to 

have worked well in enabling regulatory authorities to monitor compliance of the facilities with 

the conditions of the exclusions. 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 follow up with facilities 

that appear to have misunderstood the regulations. For example, notification allows regulatory

authorities to contact facilities that notified that they were operating under the exclusions but 

were, in fact, residing in a state that had not adopted the 2008 DSW final rule. Notification in 

these instances allowed regulatory authorities to identify problems and to intervene early to 

prevent potential mismanagement. EPA is convinced of the value of the notification provision in 

ensuring proper implementation of its rules and believes that such notification for variances and 

non-waste determinations would increase the transparency and oversight of facilities receiving a 

variance or non-waste determination.

In addition to re-notification, EPA also plans to increase the transparency of the variance 

and non-waste determination petition processes by providing online access to a list of facilities 

receiving variances and non-waste determinations, including any supporting documentation upon 

which a determination has been made. Ideally, this website would function as a clearinghouse of 
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information so that the states could use each other’s determinations to inform determinations 

within their own state borders. EPA believes this sharing of information would increase 

consistency in determinations across states. EPA plans to work with states to develop a process 

for collecting information regarding non-waste determinations so that EPA can include these 

facilities in its online database. Additionally, EPA requests comment on requiring states to notify

EPA when an application for a variance or a non-waste determination has been received and to 

provide EPA information regarding the state’s final decision on the application.

B. Proposed Revisions to Partial Reclamation Variance

The “partial reclamation” variance at 40 CFR 260.30(c) applies to 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 

material must meet in order to be eligible for a variance from classification as a solid waste.

Today, the Agency is proposing to revise 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 these proposed revisions are to clarify the regulatory

language, foster consistent application of the variance criteria, and make clear that the variance 

should be granted only when partial reclamation has produced a commodity-like material. EPA’s 

proposed modifications of 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; and (4) eliminating 

the sixth criterion “other relevant factors.” 

1. The Current Partial Reclamation Variance Provision

Under the current regulations, 40 CFR 260.30, 260.31, and 260.33 together provide 
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variance mechanisms for three types of recycled materials which the Regional Administrator (or 

State Director, in an authorized state) may determine, on a case-by-case basis, are not solid waste 

if they meet specified criteria. One of the variances, found in 40 CFR 260.30(c), with associated 

criteria at 40 CFR 260.31(c), addresses materials that have been partially reclaimed but must be 

reclaimed further before the materials are completely recovered. Under current 40 CFR 

260.31(c), the Regional Administrator may grant a request for a variance for such materials if, 

after initial reclamation, the resulting material is commodity-like. The determination that a 

partially reclaimed material is commodity-like is made using the following six factors:

(1) The degree of processing the material has undergone and the degree of further 

processing that is required;

(2) The value of the material after it has been reclaimed;

(3) The degree to which the reclaimed material is like an analogous raw material;

(4) The extent to which an end market for the reclaimed material is guaranteed;

(5) The extent to which the reclaimed material is handled to minimize loss; and

(6) Other relevant factors.

In the preamble to the 1985 Definition of Solid Waste final rule (January 4, 1985; 50 FR 

655) where this provision was promulgated, EPA stated that “the Regional Administrator may

weigh these factors as she sees fit, and may rely on any or all of them to reach a decision.” 

2. The Intent of the Partial Reclamation Variance

When the partial reclamation variance provision was promulgated in 1985, EPA’s intent 

was to provide a mechanism for determining that a hazardous waste 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 
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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.

The following discussion illustrates how the Agency intended the variance to work for a 

typical treatment system involving three parties: (1) a generator of hazardous waste; (2) a partial 

reclamation facility that receives, stores, and partially reclaims the hazardous waste to produce a 

commodity-like material; and (3) a final reclaimer, or end market, that receives the commoditylike material and uses it as a substitute for products or intermediates in production processes that 

involve further reclamation.

First, the generator would manage and ship the hazardous waste following all of the 

applicable hazardous waste regulations, including waste quantity determinations, accumulation 

time limits, generator accumulation technical requirements, and hazardous waste manifest 

procedures for shipping. Second, the partial reclamation facility would receive the hazardous 

waste under a hazardous waste manifest. The facility would also have a RCRA permit for 

management of the hazardous waste until the point that the partial reclamation process had 

produced a commodity-like material.

Once the partial reclamation process had produced a commodity-like material, a partial 

reclamation variance from classification as solid waste could be granted. Accordingly, 

management of the commodity-like material after that point would not be covered by the partial 

reclamation facility’s RCRA permit. In addition, the partial reclamation facility would not be 

required to use a manifest to ship the commodity-like material to the final reclaimer.
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Finally, the final reclaimer would receive the commodity-like material from the partial 

reclaimer without a manifest. The final reclaimer would not require a RCRA permit for 

management of the commodity-like material because the material is not a solid and hazardous 

waste.

The preceding discussion illustrates how the variance would apply to a typical threefacility, three-step process. However, the critical point is not how many steps or facilities are 

involved, but at what point the partial reclamation process has produced a commodity-like 

material as defined by the criteria in 40 CFR 260.31(c). Depending on the materials and 

processes in question, this point could occur at varying steps in the management of a hazardous 

waste, at varying facilities where it is managed.

3. Experience With the Current Partial Reclamation Variance Provision

EPA has become aware that authorized states across the country have interpreted and 

applied the variance provision inconsistently, even in similar circumstances. This inconsistency

may be due to (1) the wide discretion allowed 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.” 

This inconsistency has resulted in variances being granted under 40 CFR 260.31(c) for 

some materials that are not yet commodity-like and that are still clearly hazardous waste. 

Therefore, EPA is proposing revisions to the variance criteria to address the inconsistency among 

authorized states, remove ambiguities, and clearly convey the original intent that only hazardous 

wastes that have been partially reclaimed to produce 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 
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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 “F006 

Reclamation.” This document includes a detailed description of how the proposed revised 

variance provision would be used to make determinations about whether a variance would be 

appropriate for listed hazardous waste F006 (wastewater treatment sludges from electroplating 

operations) at various steps in the reclamation process.

4. Proposed Revisions to Clarify and Improve the Partial Reclamation Variance Provision

As stated above, EPA is proposing several revisions to 40 CFR 260.31(c). Each of the 

proposed revisions is discussed below. 

a. Revision to clarify the introductory text of 40 CFR 260.31(c). EPA is proposing to revise the 

introductory text of 40 CFR 260.31(c) to clarify when a partial reclamation variance is 

applicable. The proposed revised text reads as follows:

(c) The Regional Administrator may grant requests for a variance from 

classifying as a solid waste those 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. To qualify for a variance 

the material must be legitimately recycled as specified in 40 CFR 260.43, must 

be partially-reclaimed as determined by meeting criterion 1 below, and must be 

commodity-like as determined by meeting criteria 2–5 below: 

The revised text is intended to clarify that the variance is applicable at the point that 

partial reclamation has produced a commodity-like material. The revised text includes the phrase 
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“has produced a commodity-like material” and “must be commodity-like.” These changes clarify

and reflect EPA’s intent that the variance applies only after partial reclamation has produced a 

commodity-like material. The variance does not apply earlier in a process when a hazardous 

waste is still present. While not a new regulatory requirement, the proposed change also 

highlights that the commodity-like material must be legitimately recycled. The revised 

introductory text also replaces the term “reclaimed” with “partially reclaimed” to be more 

specific about when a variance would be applicable (i.e., after partial reclamation has produced a 

commodity-like material, rather than after full reclamation). Finally, the revised text clarifies that 

the first criterion is to be used to determine whether partial reclamation has occurred and the 

remaining criteria are to be used to determine whether a partially-reclaimed material is 

commodity-like.

EPA requests comment on whether the proposed revisions to the introductory text clarify

the variance provision effectively and whether they will result in appropriate and consistent 

decisions about whether and when to grant a variance.

b. Revision to the introductory text of 40 CFR 260.31(c) to require that all criteria are met.

When the partial reclamation variance provision was originally promulgated in 1985, EPA stated 

that the Regional Administrator or authorized State Director could weigh the decision criteria “as 

she sees fit, and may rely on any or all of them to reach a decision.” Based on experience with 

the variance provision, EPA is proposing to change the introductory text of 40 CFR 260.31(c) to 

require that all criteria must be satisfied before a variance is granted. EPA is proposing this 

change for several reasons. First, criterion 1 emphasizes that the material must have been 

substantially partially reclaimed to be eligible for a variance. (This is discussed further in the 

next section below.) Second, we believe that each of the proposed revised criteria numbers 2, 3,
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4, and 5 appropriately reflects a fundamental and essential characteristic of a commodity-like 

material. Therefore, all criteria must be met for the material to be determined to be commoditylike. In addition, clarifying that all of the criteria must be met will result in more consistent 

application of the variance by different decision makers.

EPA requests comment on whether (1) the revised introductory text is more clear, (2) the 

revised criteria appropriately reflect the fundamental characteristics of a commodity-like 

material; and (3) requiring that all criteria must be met to grant a variance will foster appropriate 

and consistent variance decisions.

c. Revisions to all criteria of 40 CFR 260.31(c). EPA is proposing revisions to all of the criteria 

in 40 CFR 260.31(c). First, all of the criteria have been revised to begin with the word “whether” 

to make it clear that the regulatory authority must make a yes or no determination as to whether 

the material meets each criterion. In addition, all of the criteria have been revised to be clearer 

and to better reflect the fundamental characteristics of a commodity-like material. The proposed 

changes to each criterion are discussed below.

1. The degree of processing the material has undergone and the degree of further processing that 

is required.

EPA is proposing to revise this criterion to read as follows:

(1) Whether the degree of partial reclamation the material has undergone is substantial.

This criterion examines the degree of reclamation the material has undergone. The more 

substantial the partial reclamation step is, the more likely it is that the material generated by the 

partial reclamation step is no longer a hazardous waste and that the partial reclamation has 

produced attributes that would make the material commodity-like.

First, EPA is proposing to replace the general term “processing” with the more specific 
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and accurate term “partial reclamation.” Second, EPA is proposing to remove from the criterion 

the concept that the initial partial reclamation step that makes a material commodity-like should 

be compared to the further reclamation that occurs after the material has become commoditylike. Experience with the variance has clarified that the relevant question is whether the partial 

reclamation that has been completed has substantially changed the material from the original 

hazardous waste to produce an objectively different material. If the material has been 

substantially partially reclaimed, it then can be evaluated to determine whether it is commoditylike using the remaining criteria. The degree of reclamation that occurs in the final reclamation 

step is not indicative of whether the partially-reclaimed material is commodity-like. This 

criterion would be satisfied when true reclamation has occurred and has made substantial 

changes to the material. The changes must be substantial to have produced a material that is no 

longer the original hazardous waste and to have produced new attributes that may satisfy the 

commodity-like criteria 2 through 5.

EPA requests comment on whether the proposed revisions to this criterion clarify when a 

variance is applicable. EPA also requests comment on the appropriateness of removing the 

requirement to compare the degree of partial reclamation to the degree of final reclamation.

2. The value of the material after it has been reclaimed.

EPA is proposing to revise this criterion to read as follows:

(2) Whether the partially-reclaimed material has sufficient economic value that it will be 

purchased for final reclamation.

This criterion examines the first of four fundamental characteristics that indicates that a 

partially-reclaimed material is commodity-like, the value of the material produced by the partial 

reclamation step.
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EPA is proposing to add 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. EPA is also proposing to revise this criterion to reflect the fundamental 

characteristic that a commodity-like material has positive economic value. A partially-reclaimed 

material that is commodity-like will be purchased by those who use it in manufacturing and 

production operations. 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 material as it is 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 

material; and business contracts (e.g., 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 requests comment on whether the proposed revisions clarify the criterion and 

appropriately describe the fundamental economic value characteristic of a commodity-like 

material.

3. The degree to which the reclaimed material is like an analogous raw material.

EPA is proposing to revise this criterion to read as follows:

(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.

This criterion reflects the second of four fundamental characteristics of a commodity-like 

material that must go through further reclamation before it becomes a final commercial product. 
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In short, the material must be sufficiently analogous to a product or intermediate used in a 

manufacturing process to substitute for that product or intermediate. 

First, as with other criteria, EPA is proposing to add 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. Second, EPA is proposing to replace 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 feeds subsequent production steps.”

This revision is intended to more accurately describe the fundamental characteristic of a 

commodity-like material used in production, which is that it will be used as a viable substitute 

for a product or intermediate. A partially-reclaimed material would meet this criterion if it is 

analogous to, or, in other words, would replace, valuable products or intermediates in the 

manufacturing process that have been produced (i.e., partially reclaimed) from raw materials but 

require further processing (reclamation) steps before the manufacturing process is complete. 

Evidence to support this criterion would include a comparison of the physical and chemical 

characteristics of the partially-reclaimed material being considered for the variance to those of 

products or intermediates produced from virgin raw materials.

EPA requests comment on whether the proposed revisions clarify the criterion and 

appropriately describe the fundamental characteristic of a commodity-like material related to 

substituting for a product or raw material in a production process. 

4. The extent to which an end market for the reclaimed material is guaranteed.

EPA is proposing to revise this criterion to read as follows:

(4) Whether there is a guaranteed end market for the partially-reclaimed material.

This criterion addresses the third of four fundamental characteristics of a commodity-like 
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material, whether there is an end market for the partially-reclaimed material. As with other 

criteria, EPA is proposing to add the word “partially-” before the word “reclaimed” to clarify that 

the criterion applies to the partially-reclaimed material for which the variance is sought. An end 

market for further reclaimed material produced at a later stage of reclamation cannot be used to 

justify a variance for a partially-reclaimed material. EPA requests comment on whether this 

proposed revision clarifies the criterion effectively.

In addition, although EPA is not proposing any other substantive changes to the criterion, 

based on experience with the variance provision, EPA believes that further explanation of this 

criterion is necessary. The criterion requires an evaluation of whether an end market is 

guaranteed for the material for which a variance is requested. For example, if a facility requests a 

variance for an incoming hazardous waste, the end market that would have to be evaluated is the 

market for the incoming hazardous waste itself. A demonstrated end market for materials the 

facility produces later from the incoming hazardous waste would not be relevant to the analysis 

for the incoming waste.

For an end market for a partially-reclaimed material to be guaranteed, there must be 

secure demand and long-term markets for the material. This would make it unlikely that large 

quantities of the material will be stockpiled for long periods of time, lost, or mismanaged due to 

insufficient demand. Assessing whether an end market is guaranteed for the partially-reclaimed 

material requires that the applicant for the variance provide end market information for the 

material generated by the partial reclamation step. Evidence to support this criterion may include 

the material’s value as an input to a production process, traditional usage of quantities of the 

material, contractual arrangements for use of the material, and the likely stability of markets for 

the material. Furthermore, the end market must be demonstrated by a record of multiple actual 
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purchases of the partially-reclaimed material by other parties. Further reclamation that can only 

be conducted by the facility seeking the variance is not proof of an end market.

5. The extent to which the reclaimed material is handled to minimize loss. 

EPA is proposing to revise this criterion to read as follows:

(5) Whether the partially-reclaimed material is handled to minimize loss.

This criterion addresses the fourth of four fundamental characteristics of a commoditylike material, whether the partially-reclaimed material is handled to minimize loss, or in other 

words, is handled similarly to a commodity. As with other criteria, EPA is proposing to add the 

word “partially-” before the word “reclaimed” to clarify that the criterion applies to the partiallyreclaimed material for which the variance is sought. Management of materials produced at later 

stages of reclamation is not relevant to how the partially-reclaimed material itself is handled. 

EPA requests comment on whether this proposed revision clarifies the criterion effectively.

In addition, EPA's experience with the variance provision indicates that further 

explanation of this criterion is necessary. Specifically, this criterion requires evaluation of how 

the partially-reclaimed material is handled before it is further reclaimed. Handling a partiallyreclaimed material to minimize loss indicates that the material is commodity-like. Generally, 

persons handling hazardous waste with little or no economic value do not have the same 

incentives to minimize loss as persons handling commodities. 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.

6. Revision to eliminate criterion six.

Finally, EPA is proposing to eliminate the sixth and final criterion, “(6) other relevant 

factors.” When the partial reclamation variance was promulgated in 1985, EPA believed that this 
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criterion could help determine whether a material is commodity-like. However, based on 

experience with the variance provision, EPA now believes that criteria numbers 2, 3, 4, and 5 (as 

proposed to be revised) together accurately and fully reflect the fundamental substantive 

characteristics of a commodity-like material for the situation where a material has been partially 

reclaimed but must go on for further reclamation before it is a final commercial product. We 

have not seen other essential characteristics of this type of commodity-like material identified in 

variances or applications. Thus, we are proposing to eliminate this criterion. We also believe that 

removing this general criterion will result in more consistent and appropriate decision-making 

for partial reclamation variances.

EPA requests comment on removing the sixth criterion and whether there are any 

additional characteristics that should be evaluated to assess whether a material is commoditylike. EPA also requests comment on whether one or more of the five remaining criteria should be 

consolidated. 

C. Proposed Change to Non-Waste Determinations

EPA is also proposing to add a criterion to both non-waste determinations 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 §§ 261.2 or 261.4.19

Because commenters to the 2009 DSW public meeting notice have argued that the non-waste 

determinations may be burdensome to states, EPA believes requiring applicants to formally

consider and explain why they are not eligible for an existing DSW exclusion will reduce the 

burden on states. On the other hand, petitioners also would be allowed to seek non-waste 

determinations if they could show that they should not have to meet the conditions of another 

 

19 The 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.
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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 §§ 261.2 or 261.4, this may be grounds for 

denying a non-waste determination on the basis that regulatory relief has already been granted.

D. Designating the Regional Administrator to Receive Petitions

Lastly, we are proposing 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, we believe these decisions should be made 

by the Regional Administrator because of his or her regional authority. We also note that 

although we propose to assign the decision-making authority to the Regional Administrator, it is 

common practice within EPA to work with other EPA offices, EPA Regions, EPA Headquarters 

on decisions that may affect national policy.

E. Request For Comment On Other Possible Steps To Help Ensure National Consistency And 

Protectiveness In The Implementation Of Variances And Non-Waste Determinations 

EPA is also requesting comment on other possible steps to help ensure national 

consistency and protectiveness in the implementation of variances and non-waste determinations.

First, EPA is requesting 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). A renewal period would help ensures the hazardous secondary materials 

continue to meet the criteria and remain valid over time. To a certain extent, this concern would 

be addressed by the proposed revision to 40 CFR 260.33(c), which would require applicants to 

re-apply for a variance or non-waste determination in the event of a change in circumstances that 

affect how hazardous secondary materials meet the relevant criteria, and by the proposed 
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biennial re-notification, which would require the applicant to review the management of their 

hazardous secondary materials. However, the proposed revision to 40 CFR 260.33(c) still relies 

on the applicant to recognize when there is a need to reconsider a variance and take action, while 

a specific renewal period would mandate a reconsideration. On the other hand, mandating a 

renewal period would be an additional burden to the states, and may not be necessary in all 

situations. Additionally, regulators could always stipulate time limits in specific determinations, 

if warranted. EPA requests comment on whether to require a renewal period and, if so, how to 

minimize the burden on the states.

The second possible change EPA is requesting comment on is whether to require states to 

share copies of the variance and non-waste determination petitions and the tentative decisions 

with EPA to allow the Agency to comment and to encourage collaboration and national 

consistency. EPA and the states share responsibility for environmental protection and work as 

partners to solve the nation's environmental challenges. Because solid waste variances and nonwaste determinations are made on a case-by-case basis, state governments are best situated to 

understand and evaluate the specific factors involved with the company submitting a petition. At 

the same time, EPA may be familiar with similar cases in other states or EPA Regions and can 

often provide additional expertise and a national perspective on issues that affect more than one 

location. As a general matter, the state and EPA frequently consult on such cases, helping to 

achieve the best results possible, taking full advantage of the unique strengths of each partner.

However, formalizing this type of collaboration would have the benefit of reinforcing this 

working relationship and would help ensure national consistency. Thus, EPA requests comment 

on whether to require authorized states to forward to EPA copies of solid waste variance and 

non-waste determinations petitions and tentative decisions on those petitions for review and 
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comment.

XII. Request for Comment on Re-Manufacturing Exclusion 

A. Background

In addition to the proposed changes to the definition of solid waste discussed in Sections 

VII–XI of this preamble, EPA is requesting comment on a focused exclusion from the definition 

of solid waste for certain types of higher-value hazardous secondary materials20 which are being 

re-manufactured into commercial-grade products.

The goal of the re-manufacturing exclusion would be 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.

Sustainable materials management, as discussed in more detail in Section V.J. of this 

preamble, considers system-wide impacts, and represents a shift away from end-of-life waste 

management and toward a more sustainable future that avoids unintended consequences. The 

benefits of sustainable materials management are considerable, and include reductions in energy

used, more efficient use of materials, more efficient movement of goods and services, 

conservation of water, reduced greenhouse gas and other air emissions, and reduced volume and 

toxicity of waste. In particular, when hazardous secondary materials can be kept in the 

manufacturing process, rather than disposed of, or used in a lower-value process such as cleaning 

or degreasing, substantial environmental benefits can be obtained. 

However, for a process to be truly sustainable in the long run, it must be done in a way

that does not adversely affect human health and the environment. As discussed in Section VII of 

 

20 “Higher-value” hazardous secondary materials are those who have a higher value than most types of hazardous 

secondary materials and can be used in manufacturing commercial-grade products.
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this preamble, EPA is proposing to withdraw the transfer-based exclusion found in 40 CFR 

261.4(a)(24) and (a)(25) because of the potential for adverse impacts to human health and the 

environment from discarded hazardous secondary materials. After further analyzing the potential 

for adverse impact to human health and the environment from hazardous secondary materials 

that are transferred to a third party under the transfer-based exclusion, EPA believes that the 

most appropriate regulatory approach is to keep most types of third-party transfers regulated 

under Subtitle C of RCRA because these types of transfers are generally linked to discard. 

However, as also discussed in Section VII, EPA acknowledges that some specific types 

of hazardous secondary materials are more like valuable commodities than solid wastes, and thus 

the act of transferring them to a third party under appropriate conditions does not automatically

involve discard. From a sustainable materials management perspective, these materials are the 

ideal candidates for focused regulatory changes that would address their life-cycle impacts and 

help extend their useful life. Many of the other exclusions in 40 CFR 261.4(a) were developed 

for these types of hazardous secondary materials, and the non-waste determination process under 

40 CFR 260.34(c) provides an administrative process for additional hazardous secondary

materials that are indistinguishable from a product to be determined to be non-wastes. 

To further encourage sustainable materials management,, EPA is requesting comment on 

an exclusion for the transfer of higher-value hazardous secondary materials from one 

manufacturer to another, for the purpose of extending the useful life of the original material 

product by keeping such materials in commerce to reproduce a commercial grade of the original 

material product (a process that for the purpose of this preamble discussion EPA is defining as 

“re-manufacturing”). Re-manufacturing these higher-value hazardous secondary materials can 

have significantly lower environmental impact than creating these material products and using 
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them one time in their virgin state and then transferring them for off-site treatment and disposal, 

especially with regards to non-renewable materials. Thus, re-manufacturing allows the material 

products to be used again, lowering their life-cycle environmental impacts significantly.

Specifically, EPA has reached a preliminary conclusion that, under appropriate 

conditions, the potential for discard in inter-company re-manufacturing 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 re-manufactured solvent products to 

realize an economic value. The company sending these higher-value hazardous secondary

materials for re-manufacturing is expected to have little economic incentive to pay the receiving 

company more than a nominal amount of money, since it would already be transferring 

something of intrinsic market value (materials that can be easily re-manufactured 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 hazardous secondary materials for remanufacturing is expected to realize most of its profit from the sale or use of re-manufactured 

solvents. 

Once re-manufacturing processes are in place, EPA expects that solvent re-manufacturers 

would be competitive with solvent manufacturers even in the event of a downturn in the sizable 

chemical markets. Companies would also have the flexibility to redirect re-manufacturing 

capacity to manufacturing should it ever make economic sense to do so, leaving little economic 

reason to accumulate unsold or unused re-manufactured solvents. 
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Although the following discussion focuses mainly on spent solvents, EPA would 

welcome information on other types of non-renewable hazardous secondary materials that could 

benefit from a focused regulatory change that would encourage sustainable materials 

management and be protective of human health and the environment.

B. Conditions for the Re-Manufacturing Exclusion

Given the wide variety of hazardous secondary materials and industrial processes, EPA 

believes it is reasonable to set conditions for the exclusion which there is supporting evidence 

that discard will be avoided and risk will be controlled. The supporting evidence that EPA is 

relying on for defining the conditions of this exclusion has been gathered from some of the 

Agency’s ongoing efforts to promote sustainability and resource conservation.21

In particular, the Green Engineering Program within the Office of Chemical Safety and 

Pollution Prevention (OCSPP) has for several years been studying re-manufacturing scenarios 

for “once-used” solvents in several industry sectors that use solvents as chemical manufacturing 

and processing aids. By focusing on the life-cycle (cradle-to-grave) impact of the manufacture, 

process, and use of chemicals, and reviewing Toxics Release Inventory (TRI) reporting data for 

production related wastes cross-walked with RCRA waste reporting data, EPA has found that a 

large, but often hidden lifecycle environmental impact of a final consumer product is from the 

solvents used to produce the consumer product. For example, pharmaceutical manufacturers use 

at least 100 kg of solvents to make 1 kg of active pharmaceutical ingredient. The lifecycle impact 

of these solvent streams, which often are disposed after a single use under current regulatory

conditions, is very high.EPA has determined that the environmental impacts from solvents used 

as manufacturing and processing aids could be significantly reduced if the product life of 

solvents used for these purposes were extended to more than a single use.

 

21 U.S. EPA Life-Cycle Benefits of Switching from Incineration to Reclamation for Certain Higher-Value Chemicals.
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Based on this information, EPA has determined that all of the following conditions would 

need to be satisfied for eligibility under a re-manufacturing exclusion. The purpose of these 

conditions is to ensure that the exclusion would focus on higher-value hazardous secondary

materials that are being re-manufactured rather than discarded.

(1) The hazardous secondary material consists of one or more of the following solvents:

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, nbutyl alcohol, ethanol, and methanol;

(2) The hazardous secondary material originated from using one or more of the above-listed 

solvents in commercial grade for reacting, extracting, purifying, or blending chemicals in 

the pharmaceutical, organic chemical, or plastics and resins manufacturing sectors, or the 

paint and coatings sector;

(3) After re-manufacturing, the continuing use of the solvent is limited to reacting, 

extracting, purifying, or blending chemicals in the pharmaceutical, organic chemical, or 

plastics and resins manufacturing sectors, or the paint and coatings sector, or using them 

as ingredients in a product. These allowed continuing uses correspond to chemical 

functional uses enumerated under the proposed modification to the Inventory Update 

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)22 and U030 (solvents become part of the mixture).23

 

22 U015 Intermediates: Chemical substances consumed in a reaction to produce other chemical substances for 

commercial advantage. A residual of the intermediate chemical substance which has no separate function may 

remain in the reaction product.
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(4) After re-manufacturing, the continuing use of the 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 proposed modification of the Inventory

Update Rule of the Toxics Substances Control Act); 

(5) Additionally, both the hazardous secondary material generator and the re-manufacturer 

would have to

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 a re-manufacturing plan which includes information on the 

types and expected annual volumes of solvents to be re-manufactured, the 

processes and industry sectors that generate the solvents, the specific uses and 

industry sectors for the re-manufactured solvents and the legitimacy of the remanufacturing process; 

c. Maintain records of shipments and confirmations of receipts for a period of three 

years from the dates of the shipments;

d. Prior to re-manufacturing, store the hazardous spent solvents in tanks or 

containers that meet technical standards that would be the same as those found in 

40 CFR part 264 subparts I and J, with the tanks and containers being labeled or 

otherwise having an immediately available record of the material being stored;

24

 

23 U30 Solvents (which become part of product formulation or mixture): Chemical substance used to dissolve 

another substance (solute) to form a uniformly dispersed mixture (solution) at the molecular level. Examples 

include diluents used to reduce the concentration of an active material to achieve a specified effect and low gravity 

materials added to reduce cost.

24 These standards would be specified in the regulatory language of this exclusion, but would be the same technical 

standards as those required in 40 CFR part 264 subparts I and J.
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During re-manufacturing, and during storage of the hazardous secondary

materials prior to re-manufacturing, ensure that there is effective control of 

hazardous air emissions by complying with all applicable NESHAP standards, 

and with the requirements of 40 CFR part 264 or 265 subparts AA, BB, CC; and

e. Meet the requirements prohibiting speculative accumulation per 40 CFR 

261.1(c)(8). 

The rationale for the data elements under each condition is provided below. EPA requests 

comment on each of the conditions, the specific data elements under each condition, and/or any

other types of scenarios that might also meet EPA’s proposed definition of re-manufacturing 

(i.e., the transfer of a higher-value secondary material from one manufacturer to another, for the 

purpose of keeping the hazardous secondary material in commerce to produce a commercial 

grade product). In addition, EPA requests comment on whether, as part of the re-manufacturing 

plan, the hazardous secondary materials generator and the re-manufacturer should be required to 

estimate the energy and environmental benefits of re-manufacturing versus the use of virgin 

feedstock.

1. Designated Solvents 

EPA has identified 18 chemicals that could be included in the re-manufacturing 

exclusion. They are toluene, xylenes, ethylbenzene, 1,2,4-trimethylbenzene, chlorobenzene, nhexane, cyclohexane, methyl tert-butyl ether, acetonitrile, chloroform, chloromethane, 

dichloromethane, methyl isobutyl ketone, N,N-dimethylformamide, tetrahydrofuran, n-butyl 

alcohol, ethanol, and 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 
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purpose of this rule). The “processing aids” 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 re-manufactured to commercial grade 

again. These higher-value solvents were selected because there are existing markets for all these 

solvents to be re-manufactured to serve similar purposes to those of the original commercialgrade materials. 

Note that, as explained below, these hazardous spent solvents would only be eligible if 

their originating use was of a specific type, and if they are re-manufactured to serve certain types 

of commercial functions. This restriction would help limit the exclusion to higher-value

materials and processes that resemble manufacturing more than waste management.

EPA believes that spent solvents are particularly appropriate for the re-manufacturing 

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.25 EPA requests comment on whether these solvents are appropriate for inclusion in 

the re-manufacturing exclusion, and whether there are other solvents, chemicals or other types of 

hazardous secondary materials that should be included in the re-manufacturing exclusion. In 

particular, EPA requests comment on opportunities for re-manufacturing other types of nonrenewable hazardous secondary materials, such as metal catalysts or other types of metal-bearing 

hazardous secondary materials.

2. Chemical Functions 

EPA believes that the re-manufactured chemical product should serve a similar functional 

 

25U.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).
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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. EPA has identified 

the following chemical functions for possible inclusion in the re-manufacturing exclusion: 

chemical manufacturing aid (reacting, extracting, blending and/or purifying chemicals), and 

chemical processing aid (extracting, blending and purifying chemicals). The solvents used for 

these functions can be separated readily from the other reaction components and therefore do not 

get contaminated as do solvents used for cleaning or degreasing operations, which are more 

likely to become discarded.

More environmental benefits will be obtained by maximizing the number of times a 

chemical product can be used at high-purity grade as an aid to chemical manufacturing and

processing, before it is used for at lower-purity 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.

Accordingly, the functions that the re-manufactured chemical products should serve 

would be the same as those enumerated above, plus the use in the formulation of the final 

product (a function which causes the solvent to remain in the product), or use as a chemical 

intermediate (a function which causes the solvent to be consumed in a chemical reaction).

With respect to the hazardous secondary material generator, this exclusion would focus 

on the functions of aiding chemical manufacturing and processing because the solvents 

performing these functions retain their original physical and chemical properties. In these 
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functions, the solvents do not get contaminated by substances from which they are difficult to 

separate, such as inks and greases, 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.

EPA requests comment on whether these chemical functions are appropriate for inclusion 

in the exclusion and whether there are other chemical functions that should also be included in 

the re-manufacturing exclusion.

3. Manufacturing Sectors 

EPA intends that any exclusion would be limited to companies whose primary business is 

manufacturing, rather than waste management, as indicated by particular NAICS codes. EPA has 

identified the operations of four manufacturing sectors as candidates for the re-manufacturing 

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 eighteen 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. Therefore, these four sectors seem to be good candidates for inclusion 

in the exclusion.
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As discussed earlier, companies whose primary business is the sale of a commercial 

product do not operate under the same market forces as commercial recyclers, whose profit 

depends on maximizing the amount of hazardous secondary material accepted, creating a 

perverse market incentive to over-accumulate hazardous secondary material, resulting in discard.

It is not intended that the exclusion could be utilized by a commercial recycler even if it 

undertook reclamation operations involving the chemicals and chemical functions described 

above. Commercial recyclers are best regulated by the RCRA hazardous waste standards since 

waste handling is their primary business and RCRA standards are the primary governing 

standards for this line of business.

EPA requests comment on whether these sectors are appropriate for inclusion in the 

exclusion, and whether there are other industry sectors that should be included in the remanufacturing exclusion. In particular, while the re-manufacturing exclusion on which EPA is 

requesting comment focuses on those industry sectors that generate large volumes of spent 

solvents, we also are interested in other industry sectors that would generate other materials, 

especially other types of non-renewable materials, such as metal-bearing hazardous secondary

materials. For example, the “2020 Vision Report” identifies industry sectors that could be 

evaluated and for which significant environmental gains could be realized through sustainable 

materials management. Thus, EPA requests comment on which sectors provide the most 

opportunity for reducing overall environmental impact by encouraging sustainable materials 

management through re-manufacturing.26

4. Additional Exclusion Conditions

EPA has identified the following additional conditions as necessary for the proper 

 

26For an analysis of materials, products and services ranked by overall environmental impact, see U.S. EPA. 2020 

Vision Report: Sustainable Materials Management: The Road Ahead, Table 1, page 25. 

.www.epa.gov/waste/inforesources/pubs/vision.htm. 
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implementation of a re-manufacturing exclusion and to ensure that the hazardous secondary

materials are managed in a way that does not involve discard.

a. Notification. Notification under a re-manufacturing exclusion would serve the same purpose 

and operate similarly to the notification provision found at 40 CFR 260.42. In other words, 

hazardous secondary material generators and re-manufacturers would have to submit a 

notification prior to operating under the exclusion and by March 1 of each even-numbered year 

thereafter to the EPA Regional Administrator or the State Director, in an authorized state. The 

notification would include:

• The name, address and EPA ID number (if applicable) of the facility; 

• The name and telephone number of a contact person; 

• The NAICS and TRI code of the facility;

• When the facility expects to begin managing the hazardous secondary material in 

accordance with the re-manufacturing exclusion;

• A list of the hazardous secondary materials that would be managed according to the new 

standard (reported as the EPA hazardous waste numbers that would apply if the materials were 

managed as hazardous waste); 

• The quantity of each hazardous secondary material solvents to be managed annually; and

• The certification signed and dated by an authorized representative of the facility.

The intent of the notification requirement is to provide basic information to the regulatory

agencies about who will be managing hazardous secondary materials under the re-manufacturing 

exclusion. The specific information included in the notification requirement enables regulatory

agencies to monitor compliance and to ensure hazardous secondary materials are managed in 

accordance with the exclusion and not discarded.
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b. Re-manufacturing plan. A key issue for a re-manufacturing exclusion would be how the 

facilities operating under the exclusion would demonstrate that they meet the requirements (e.g., 

that the hazardous secondary materials, functions, and manufacturing sectors are those identified 

in the exclusion). A straightforward method would be to require a re-manufacturing plan to be 

prepared and maintained by both the hazardous secondary material generator and remanufacturer that includes information on the types and expected annual volumes of solvents to 

be excluded, the processes and industry sectors that generate the chemicals, the specific uses and 

industry sectors—for the re-manufactured solvents, and the legitimacy of the re-manufacturing 

process (see Section X for further discussion on legitimacy). The hazardous secondary material 

generator would also be required to make arrangements with the re-manufacturer to jointly

develop this plan and to verify the appropriateness of the hazardous secondary materials for the 

re-manufacturing process before claiming the exclusion, thus helping ensure that the hazardous 

secondary material will be re-manufactured and not discarded.27

c. Record of shipments and confirmations of receipts. Under a re-manufacturing exclusion, 

generators and re-manufacturers would need to maintain at the facility records of shipments of 

hazardous secondary materials for a period of three years. Specifically, for each shipment of 

hazardous secondary material, the generator and re-manufacturer would need to maintain 

documentation of when the shipment occurred, who the transporter was, 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. However, EPA requests 

comment on whether for ease of implementation and enforcement, it should require more 

standardized record-keeping, such as the use of a standardized bill of lading.

 

27

 See U.S. EPA Example Re-Manufacturing Plan for Possible Exclusion from the Definition of Solid Waste in the 

docket for today’s proposal.
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In addition, generators would need to maintain confirmations of receipt 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 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 re-manufacturer, and the 

type, quantity, and date of hazardous secondary materials received. The Agency might not 

require a specific template or format for confirmation of receipt since routine business records 

(e.g., financial records, bills of lading, copies of Department of Transportation (DOT) shipping 

papers, and electronic confirmation of receipt) would contain the appropriate information 

sufficient for meeting this requirement. However, documented information must be verifiable.

Therefore, EPA requests comment on whether for ease of implementation and enforcement, it 

should require more standardized record-keeping, such as requiring a standard method of 

confirmation of receipt and/or keeping this information in a readily accessible file.

This provision is being proposed in order that all parties responsible for the excluded 

hazardous secondary materials would be able to demonstrate that the materials were in fact sent 

for re-manufacturing and arrived at the intended facility and were not discarded in transit.

d. Management in tanks and containers. Solvents, whether virgin or spent, are best stored in 

tanks or containers that possess inherent controls to address issues such a volatile air emissions, 

leaks, and fires or explosions. As discussed in Section VI of this preamble, spent 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.

EPA believes that by focusing on higher-value spent solvents going to re-manufacturing, 
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a re-manufacturing exclusion reduces the chance of mismanagement of the spent solvents.

However, given the history of solvent mismanagement, as demonstrated in the damage cases 

found in environmental problems study,

28 EPA also believes it would be appropriate to make an 

explicit condition that spent solvents excluded under a re-manufacturing exclusion be labeled or 

otherwise have an immediately available record of the material being stored and be stored prior 

to re-manufacturing in tanks or containers that meet technical standards that will ensure that the 

solvents will go to re-manufacturing and will not be discarded via leaks, spills or explosions.

For ease of implementation, EPA requests comment on establishing explicit tank and 

container standards which meet the technical standards that would be the same as those found in 

40 CFR part 264 subparts I and J. The tank and container standards of 40 CFR part 264 were 

developed for hazardous wastes, but an analysis of the full set of technical requirements under 

subparts I and J shows that they are comparable to product storage standards from a number of 

sources, including regulations promulgated under the Occupational Safety and Health Act 

(OSHA), DOT, and industry standards, and may also be appropriate standards for storage prior 

to re-manufacturing.29 Establishing technical standards equivalent to subparts I and J has the 

benefit of using standards that the regulated community are already familiar with, and which are 

designed to prevent the spent solvents from being discarded through leaks or explosions. EPA 

also believes that during re-manufacturing and storage prior to re-manufacturing, there should be 

effective controls of hazardous air emissions. This can be ensured by requiring that equipment, 

vents, and tanks meet the technical standards of the National Emission Standards for Hazardous 

Air Pollutants (NESHAP) applicable to the sector, or absent such standards for the particular 

 

28U.S. EPA An Assessment of Environmental Problems Associated With Recycling of Hazardous Secondary 

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

29 U.S EPA Comparison of Technical Storage Standards Applicable to Chemical Products in the docket for today’s 

proposed rule.
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operation or piece of equipment covered by the exemption, then the standards equivalent to those 

found in 40 CFR part 264 or 265 subparts AA (vents), BB (equipment) and CC (tank storage).

EPA requests comment on using these standards or other alternative standards that would 

be appropriate for helping to demonstrate that the excluded spent solvents under the remanufacturing exclusion are being managed as a commodity rather than being discarded.

e. No speculative accumulation. In addition to the other conditions, hazardous secondary

materials under a re-manufacturing exclusion would still be subject to the speculative 

accumulation restrictions in 40 CFR 261.1(c)(8), which includes both a time limitation and a 

requirement that the facility be able to show that there is a feasible means of 

recycling/recovering the hazardous secondary material. This helps ensure that the materials are 

re-manufactured and not discarded.

EPA requests comment on whether these conditions are appropriate and whether there are

additional conditions that should be also included in any re-manufacturing exclusion.

C. Benefits of Re-Manufacturing Exclusion

The solvents identified as possible candidates for a re-manufacturing exclusion are highly

energy-intensive and carbon-intensive at their creation and destruction. Therefore, any step 

towards extending the useful life of these solvents (e.g., re-manufacturing via distillation) 

significantly reduces the energy use and carbon release associated with these solvents, as well as 

other pollutants associated with their manufacturing and disposal. Using solvents multiple times 

instead of once means fewer solvents need to be produced and destroyed, which reduces the 

energy consumed for solvent production and destruction. That is, less fuel is needed to remanufacture solvents than to produce solvents from virgin materials. The reduction in fuel for 

manufacturing is significant because solvent manufacture is energy intensive due to a 
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combination of the high and low temperature manufacturing steps involved. Also, less fuel is 

needed to destroy solvents (at very high temperatures) if fewer solvents are being destroyed.

Lastly, less pollution, including carbon, is released from the solvents themselves when 

incinerated or burned as fuel at the end of their useful life if fewer solvents are being incinerated 

or burned.

There is also a benefit of reduced transportation impacts associated with extending the 

useful life of solvents. EPA research indicates that in numerous instances the transport involved 

in transferring a quantity of spent solvents for purposes of re-manufacturing (including any 

delivery to secondary users) is measurably less than the transport required for an equal quantity 

of solvents disposed of and replaced with new solvents.30 In addition, transportation impacts of 

virgin feedstocks would also be reduced. Thus, allowing hazardous secondary material 

generators to re-manufacture solvents is also likely to reduce the risks to communities by

reducing the likelihood of transportation accidents involving hazardous materials, as well as 

reducing other adverse environmental impacts from fuel consumed in transportation.

Further, reduced manufacturing of virgin solvents would reduce the quantity of 

ingredients needed and the toxic and hazardous pollutant releases associated with solvent 

manufacture. Moreover, a re-manufacturing exclusion would create a business-case incentive for 

hazardous secondary material generators to re-manufacture solvents. Reducing the economic 

barriers to solvent re-manufacturing (in particular, avoiding the costs associated with RCRA

permitting) would make it commercially feasible for more chemical manufacturers to remanufacture solvents, and would thus serve to encourage chemical manufacturers to reduce the 

overall environmental impacts of solvent manufacturing and use.

 

30 U.S. EPA Life-Cycle Benefits of Switching from Incineration to Reclamation for Certain Higher-Value Chemicals 

in the docket to today’s proposed rule.

.
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Finally, the benefit of limiting the functions of re-manufactured material to those 

performed by chemical manufacturers, processors, and formulators is that there are existing 

commercial purposes for re-manufactured solvents, which would limit or prevent the overaccumulation of the spent solvents, which also reduces the likelihood for discard.

D. Potential Rulemaking Variance Process to Add Candidates for Re-Manufacturing Exclusion

EPA is requesting comment in today’s proposal on a re-manufacturing exclusion that is 

narrowly defined to apply to 18 solvents used for specific functions within four industry sectors. 

However, it is possible that other hazardous secondary materials, industry sectors, and/or 

functional uses may also be suitable candidates for the re-manufacturing exclusion if they

involve the transfer of a higher-value hazardous secondary material from one manufacturer to 

another, for the purpose of re-manufacturing a material with significant commercial value. If the 

Agency were to promulgate a re-manufacturing exclusion, EPA is requesting comment on 

whether to also include a specific petition process where petitioners may apply to EPA to request 

a hazardous secondary material, industry sector, and/or functional use be added to the exclusion.

The petition process would be similar to 40 CFR 260.20, where any person may petition 

the Administrator to modify or revoke any provisions of the hazardous waste rules. Thus, in the 

context of a re-manufacturing exclusion, any person would be able to petition the Administrator 

to add or remove hazardous secondary materials, industry sectors, and/or specific use functions 

to the list of hazardous secondary materials qualifying for this exclusion. To be successful, the 

petitioner would need to demonstrate to the satisfaction of the Administrator that the proposed 

regulatory amendment (1) meets the goal of the re-manufacturing exclusion, which is to 

encourage sustainable materials management by extending the productive life of a hazardous 

secondary material; (2) involves the transfer of a higher-value hazardous secondary material 
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from one manufacturer to another for the purpose of re-manufacturing the hazardous secondary

material to produce a product of significant commercial value; and, (3) results in neither the 

hazardous secondary materials nor the products recovered being discarded when the conditions 

of the exemption are followed. The application could be required to 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 the specific hazardous secondary material, industry

(i.e., NAICS code) and functional use (i.e., industrial functional code listed in 40 CFR 

710.52(c)(4)(i)(C)); and (4) a statement of the need and justification for the proposed action, 

including any supporting tests, studies, or other information.

Under this possible petition process, the Administrator would make a tentative decision 

to grant or deny a petition and then publish notice of such tentative decision, either in the form of 

an advanced notice of proposed rulemaking, a proposed rule, or a tentative determination to deny 

the petition, in the Federal Register for written public comment. The Administrator could, at his 

discretion, hold an informal public hearing to consider oral comments on the tentative decision.

After evaluating all public comments, the Administrator would make a final decision by

publishing in the Federal Register a regulatory amendment or a denial of the petition.

E. Other Issues Related to a Possible Re-Manufacturing Exclusion

A re-manufacturing exclusion, as described above, would be based on a direct business 

arrangement between the hazardous secondary material generator of spent solvents and the remanufacturer, such that the spent solvents would be shipped directly from the generator to the remanufacturer. Therefore, EPA does not believe that it would be necessary or appropriate to 

include intermediate storage facilities in the exclusion. We also believe that including such 

intermediate storage facilities would make it harder to keep track of the hazardous secondary
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materials and would increase storage time frames, potentially increasing the likelihood that the 

hazardous secondary materials will not be safely recycled. However, the Agency also recognizes 

that not allowing intermediate storage facilities to be part of the transaction may have an adverse 

impact on small businesses since such intermediate storage facilities would allow small 

businesses to ship their spent solvent, that are likely generated in limited quantities, to the 

intermediate facility for consolidation before they go to the re-manufacturer. Thus, EPA requests 

comment on this issue.

Similarly, EPA anticipates that re-manufacturing arrangements would be made within the 

United States, so that the companies involved would be governed by the same set of laws and 

regulations as far at their re-manufacturing agreements are concerned. EPA requests comment on 

limiting the re-manufacturing exclusion to the United States, or requiring the generator to notify

the receiving country through EPA and obtain consent from that country before shipment of the 

hazardous secondary materials takes place. These notice and consent requirements, which would 

be the same as those currently required under the transfer-based exclusion (see 40 CFR 

261.4(a)(25)), would provide notification to the receiving country so that it can ensure that the 

hazardous secondary materials are reclaimed rather than disposed of or abandoned. As an 

additional benefit, these requirements would allow the receiving country the opportunity to 

consent or refuse consent based on its analysis of whether the re-manufacturing facility can 

properly manage the hazardous secondary materials in an environmentally sound manner within 

its borders.

EPA also requests comment on other possible conditions that could be added to any remanufacturing exclusion. In particular, EPA requests comment on whether it should require the 

re-manufacturer to have financial assurance. EPA required financial assurance for recyclers 
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under the transfer-based exclusion. Since the re-manufacturing exclusion will be limited to 

higher-value solvents going to manufacturers with a greater flexibility than commercial recyclers 

to adjust to unstable markets, there may be less of a need for financial assurance under this 

proposed exclusion. However, EPA requests comment on whether financial assurance should 

nevertheless be included as a condition to best ensure against discard. EPA also requests 

comment on whether it should add public participation requirements and/or a regulatory agency

approval (short of a RCRA permit) before a re-manufacturer may start handling hazardous 

secondary materials sent from another company. EPA received input during its environmental 

justice review of the 2008 DSW rule that the absence of an opportunity for public input was a 

deficiency of the transfer-based exclusion. However, since the re-manufacturing exclusion will 

be limited to manufacturing facilities, typically at their already existing locations, and actually

may reduce the environmental impacts at such facilities, the need for public participation may be 

less. However, EPA requests comment on whether it should nevertheless require a public 

participation process to ensure that neighbors of a facility are aware that it will be handling 

hazardous secondary materials sent from other companies, and have input about how the 

protective conditions required by the proposed exclusion will be met. Finally, EPA requests 

comment on whether companies should be required to keep records and/or report to EPA about 

the environmental benefits (e.g., reduced air emissions, energy savings, reduced transportation 

impacts) that are realized through their use of the re-manufacturing exclusion. One of the major 

goals of this exclusion would be to encourage sustainable materials management, and 

information on environmental benefits would help the Agency assess the program and promote 

continuous improvement.

XIII. Request for Comment on Revisions to Other Recycling Exclusions and Exemptions
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A. Background Information on Other Recycling Exclusions and Exemptions

As part of the 2008 DSW rulemaking, EPA developed a report, “An Assessment of 

Environmental Problems Associated with Recycling of Hazardous Secondary Materials” 

(environmental problems study), which analyzed 218 recycling damage cases.31 The goal of the 

environmental problems study was to identify and characterize environmental problems that 

have been attributed to hazardous secondary materials 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. In developing today’s proposal, we are interested in whether these conditions should 

be codified for the pre-2008 recycling exclusions and exemptions.

As part of the “Definition of Solid Waste Final Rule Environmental Justice Analysis” (EJ 

analysis), 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, based on the type of hazardous secondary material and the 

date of the damage case (related to the effective date of the regulatory provision). The results of 

this analysis can be found in the docket for this rulemaking.32

From this analysis, we conclude that over half of the damage cases in this study were 

associated with hazardous secondary materials that were likely excluded or exempted from 

 

31 The original environmental problems study, published January 11, 2007, reviewed 208 damage cases. Based on 

information submitted by commenters, EPA reviewed an additional 10 recycling damage cases in an addendum to 

the environmental problems study, published July 14, 2008.An Assessment of Environmental Problems Associated 

with Recycling of Hazardous Secondary Materials, U.S. EPA, January 11, 2007 and addendum. 

Report: http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064801f3efb

Addendum: http://www.regulations.gov/search/Regs/home.html#documentDetail?R=09000064806b5741 .

32 U.S. EPA Correlation of Recycling Damage Cases with Regulatory Exclusions, Exemptions or Alternative 

Standards.
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Subtitle C under an existing (pre-2008) regulatory provision. For example, 52 damage cases 

(24%) are associated with scrap metal that is likely excluded under 261.4(a)(13) and/or 

261.6(a)(3)(ii). Drum reconditioning accounted for 23 damage cases (11%), in which the 

residuals are likely excluded under 40 CFR 261.7. Additionally, 35 damage cases (16%) were 

associated with recycling of 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 specify limited or no conditions, we believe that these provisions may not be 

adequately enforceable in order to protect human health and the environment. Thus, we are 

requesting comment today on codifying specific conditions for these recycling exclusions. 

EPA emphasizes that we are not reopening comment on any substantive provisions of the 

regulatory exclusions or exemptions. The inclusion of requirements for legitimacy, containment, 

and notification are strictly meant as means to better enforce the regulations. Moreover, EPA 

believes that the containment condition—as with the legitimacy criteria—is implicit in all of the 

regulations to which it would apply. If secondary material is not contained when it is being 

recycled, it is simply being discarded. 

As part of the 2008 DSW final rulemaking, we reviewed the recycling studies and public 

comments in order to develop conditions that defined discard of hazardous secondary materials. 

Four conditions required for the generator-controlled exclusion in 40 CFR 261.4(a)(23)—

legitimate recycling, no speculative accumulation, containment, and notification—constitute 

what we believe to be the minimum requirements necessary to define when recycled hazardous 

secondary materials are not discarded. Therefore, it seems prudent to review past exclusions and 

exemptions to ensure these regulatory provisions clearly require these newly codified standards.
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Specifically, we are requesting comment on codifying the legitimate recycling standard in 

40 CFR 260.43, additional recordkeeping requirements in the speculative accumulation standard 

in 40 CFR 261.1(c)(8), 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 regulation. A list of these 32 regulatory provisions can be found below. The 

new legitimacy standard would apply to all regulatory provisions except for 40 CFR 261.7, 

because it involves determining whether residues in containers are regulated, and no hazardous 

secondary material is being reclaimed. The contained standard and notification condition would 

apply to all provisions, although facilities operating under provisions that already contain 

specific regulatory requirements would have to continue meeting those requirements. The 

additional recordkeeping requirements for speculative accumulation would only apply to those 

regulatory provisions already subject to speculative accumulation (i.e., hazardous secondary

material being used or reused per 261.2(e), characteristic by-products and sludges being 

reclaimed as noted in 40 CFR 261.2 Table 1, and the recycling-related exclusions in 40 CFR 

261.4(a)), but would not apply to commercial chemical products being reclaimed (see 40 CFR 

261.2 Table 1) or to recycling provisions that apply to recycling of solid or hazardous wastes (as 

noted in the chart below).
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#

Citation Description
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260 & 261 Definition of Solid Waste

1 260.30 Procedures for variances and non-waste determinations

2 261.2 (e) Use/Reuse

3 261.2 Table 1 Characteristic sludges being reclaimed

4 261.2 Table 1 Characteristic by-products being reclaimed

5 261.2 Table 1 Commercial chemical products being reclaimed

261.4(a) Exclusions from the Definition of Solid Waste

6 261.4(a)(6) Pulping Liquors

7 261.4(a)(7) Spent Sulfuric Acid

8 261.4(a)(8) Closed-Loop Recycling

9 261.4(a)(9) Spent Wood Preservatives

10 261.4(a)(10) Coke By-Product Wastes

11 261.4(a)(11) Splash Condenser Dross Residue

12 261.4(a)(12) Hazardous Oil-Bearing Secondary Materials and Recovered Oil from 

Petroleum Refining Operations

13 261.4(a)(13) Processed Scrap Metal

14 261.4(a)(14) Shredded Circuit Boards

15 261.4(a)(16) Comparable Fuels

16 261.4(a)(17) Mineral Processing Spent Materials

17 261.4(a)(18) Petrochemical Recovered Oil

18 261.4(a)(19) Spent Caustic Solutions from Petroleum Refining

19 261.4(a)(20) Hazardous Secondary Materials Used to Make Zinc Fertilizers

20 261.4(a)(21) Zinc Fertilizers Made from Recycled Hazardous Secondary Materials 
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Note that the possible changes discussed below would be in addition to the proposed 

application of the definition of legitimacy to all recycling, discussed in Section X of this 

preamble, and the request for comment on additional recordkeeping for speculative 

accumulation, discussed in Section IX.B.2 of this preamble.

B. Possible Changes to Other Exclusions and Exemptions

21 261.4(a)(22) Used Cathode Ray Tubes (CRTs)

261.4(b) Solid wastes which are not hazardous wastes

22 261.4(b)(12) Spent Chlorofluorocarbon Refrigerants

23 261.4(b)(14) Used Oil Distillation Bottoms used to manufacture asphalt products

261.6 Requirements for recyclable materials (hazardous wastes)

24 261.6(a)(3)(ii) Scrap metal

25 261.6(a)(3)(iii) Waste-derived fuels from refining processes

26 261.6(a)(3)(iv) Unrefined waste-derived fuels and oils from petroleum refineries

27 261.6(c)(2) Reclaimers that do not store

261.7 Residues of hazardous waste in empty containers

28 261.7 Residues of hazardous waste in empty containers

Part 266 Standards for the Management of Specific Hazardous Wastes

29 266 Subpart C Recyclable Materials Used in a Manner Constituting Disposal

30 266 Subpart F Materials Utilized for Precious Metal Recovery

31 266 Subpart G Spent Lead-Acid Batteries Being Reclaimed

32 266 Subpart H Hazardous Waste Burned in Boilers and Industrial Furnaces
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1. Contained Standard

Under the 2008 DSW final rule, hazardous secondary materials must be contained, 

whether they are stored in land-based units or non-land-based units. Generally, such material is 

considered “contained” if it is placed in a unit that controls the movement of the hazardous 

secondary material out of the unit and into the environment. Hazardous secondary materials that 

are released to the environment are not destined for recycling and are clearly discarded. 

Additionally, hazardous secondary materials that are not contained, and have not been 

immediately recovered, are not being managed as valuable commodities, which is relevant to 

determining whether the recycling process is legitimate. Lastly, requiring that hazardous 

secondary materials be contained ensures that the materials are managed in a manner protective 

of human health and the environment. 

In the environmental problems study, mismanagement of hazardous secondary materials 

was determined to be the cause, or one of the causes, in 11 percent of the damage cases. Since 

many of these damage cases have been associated with a pre-2008 recycling provision, we 

believe it appropriate to close this gap by specifically requiring compliance with the contained 

standard in 40 CFR 260.10. Of course, facilities operating under provisions that already contain 

management requirements would have to continue meeting those requirements. 

2. Notification

Under the 2008 DSW final rule, facilities managing hazardous secondary materials are 

required to submit a notification prior to operating under the exclusions and by March 1 of each 

even-numbered year thereafter to the EPA Regional Administrator or State Director, if a state is 

authorized for the program, using the Site ID form, EPA Form 8700-12. The intent of this 

notification requirement is to provide basic information to regulatory authorities in order to 

enable adequate compliance monitoring and to ensure hazardous secondary materials are 
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managed according to the exclusion and are not discarded. For example, in the notification, EPA 

requires facilities to include the quantity of hazardous secondary materials that will be managed 

under each exclusion and disclose whether certain types of hazardous secondary materials will 

be managed in land-based units. This information can be used to assist RCRA inspectors in 

determining which facilities may warrant greater oversight and provides a basis for setting 

enforcement priorities. Furthermore, requiring facilities to notify when they have stopped 

managing hazardous secondary materials allows states to follow up at those facilities and ensure 

that the hazardous secondary materials have not been discarded. 

Notification information is collected in EPA's RCRAInfo database, which is the national 

repository of all RCRA Subtitle C site identification information, whether collected by a state or 

EPA. EPA provides public access to this information through EPA's public website.33

The 2008 DSW final rule differed from other prior exclusions because it required 

facilities claiming the exclusion to notify EPA, or the authorized state, using an established EPA 

form (i.e., the Site ID form) and required facilities to re-notify every two years. Together, these 

requirements provide regulatory authorities with regularly updated data in a consistent format 

that enables them to collect, store, access, use, and publicly share information about these 

facilities. In contrast, many of the pre-2008 DSW recycling exclusions and exemptions do not 

contain any notification requirement and the few provisions that do require notification do not 

require a specific format for submitting the information or periodic updates. This results in 

facilities providing information in various forms, such as letters, which makes it difficult for 

regulatory authorities to share and use the information. 

Additionally, a one-time notification requirement has limited value. With a one-time 

notification approach, there is no assurance that the information collected in EPA’s databases 

 

33 http://www.epa.gov/epawaste/hazard/dsw/impresource.htm
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over time will accurately reflect facilities that are managing hazardous secondary materials 

according to the exclusions. Therefore, the Agency can imagine instances where extensive 

resources are required to be spent on ‘cleaning up’ the data before regulatory authorities can use 

it to identify facilities who are currently managing hazardous secondary materials under the 

exclusions. With a one-time notification, we can also foresee problems where regulatory

agencies spend time and resources monitoring compliance at facilities that have since stopped 

managing hazardous secondary materials at some point in the past. This inefficient use of 

resources would lower the overall effectiveness of regulators’ ability to monitor compliance and 

could potentially increase the risk of environmental damage from abuse. 

In the time since the 2008 DSW final rule became effective, we have received more than 

40 notifications from facilities managing hazardous secondary materials under the generatorcontrolled and/or transfer-based exclusions. This information has directly enabled regulatory

authorities to monitor compliance and assist implementation via guidance materials and training. 

Additionally, notification has had the added benefit of identifying facilities that planned to 

manage hazardous secondary materials under the rule, but were, in fact, ineligible for the 

exclusions. (For example, we have received notifications from facilities located in a state that 

had not adopted the 2008 DSW final rule.) Notification in these instances allowed regulatory

authorities to identify problems and to intervene early to prevent potential mismanagement.

In the case of the many of the pre-2008 recycling exclusions and exemptions, we do not 

require notification (and even in those instances where we require notification, it is a one-time 

notification) and thus have no reliable or efficient way to receive information that enables 

regulatory authorities to adequately monitor these exclusions and exemptions. We believe this 

gap increases the risk of environmental damage stemming from improper management of 
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hazardous secondary materials being recycled. We, therefore, are requesting comment on 

whether to require notification for those facilities operating under pre-2008 recycling exclusions 

and exemptions. 

Specifically, we are requesting comment on codifying notification under § 260.42 for 

facilities managing hazardous secondary materials under the pre-2008 recycling provisions. For 

those exclusions and exemptions that already require a one-time notification, notification under § 

260.42 would replace, and not duplicate, the one-time notification requirement.

XIV. Effect of this Proposal on Other Programs 

A. Effect on Permitted and Interim Status Facilities

In the 2008 DSW final rule, EPA discussed how that rule would affect permitted and 

interim status facilities. Specifically, the Agency explained that permitted and interim status 

disposal facilities that manage hazardous wastes excluded under the 2008 DSW final rule are 

affected by the final rule in a number of ways, depending on the situation at the facility. (74 FR 

64715-7) If a permitted facility seeks to either terminate its operating permit or to remove units 

from its permit as a result of the 2008 DSW final rule, a facility must submit a Class I permit 

modification request with prior Agency approval; however, the obligation to address facilitywide corrective action remains in effect. Similarly, for facilities operating under interim status, 

the owner or operator retains responsibility for unaddressed corrective action obligations at the 

facility. 

However, if EPA finalizes today’s proposed withdrawal of the transfer-based exclusion, 

EPA anticipates that the number of permitted and interim status facilities that are able to take 

advantage of the exclusion would be significantly reduced, because most of the permitted and 

interim status facilities affected by the 2008 final rule are excluded under the transfer-based 
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exclusion. Furthermore, if EPA finalizes the re-manufacturing exclusion discussed in Section 

XII of this preamble, the Agency would not expect TSDFs to be affected, since that exclusion 

would be limited to manufacturers. Regardless of the ultimate scope of the exclusion, however, 

facilities with units covered by the exclusion should continue to refer to the preamble in the 2008 

DSW final rule (at FR 64715-17) for a discussion of the effect of the exclusion on permitted and 

interim status facilities.

B. Effect on CERCLA

In 1999, Congress enacted the Superfund Recycling Equity Act (SREA), explicitly

defining those hazardous substance recycling activities that may be exempted from liability

under CERCLA (CERCLA section 127). Today’s proposal, if finalized, would not change the 

universe of recycling activities that could be exempted from CERCLA liability pursuant to 

CERCLA section 127. The proposal would only change the definition of solid waste for 

purposes of the RCRA Subtitle C requirements. The proposal also would 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.

C. Effect on the Derived-From Rule

In the 2008 DSW final rule (October 30, 2008, 73 FR 64692), EPA notes that the 

“derived from” rule articulated in 40 CFR 261.3(c)(2) does not apply to residuals from the 

reclamation of hazardous secondary materials excluded under the generator-controlled and 

transfer-based exclusions. These residuals are a new point of generation for the purposes of 

applying the hazardous waste determination requirements of 40 CFR 262.11. If the residuals 

exhibit a hazardous characteristic, or they themselves are a listed hazardous waste, they would be 

considered hazardous wastes (unless otherwise exempted) and would have to be managed 
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accordingly. If they did not exhibit a hazardous characteristic, or were not themselves a listed 

hazardous waste, they would have to be managed in accordance with applicable state or federal 

requirements for non-hazardous wastes. EPA believes that in most cases, this would not be an 

issue because residuals from hazardous secondary material reclamation that may be of concern 

would either themselves be listed hazardous waste (i.e., still bottoms from the reclamation of 

solvents listed in 40 CFR 261.31) or would exhibit a characteristic (i.e., residuals from metals 

reclamation with hazardous metals concentrations above the toxicity characteristic in 40 CFR 

261.24). EPA requests comment, including for any available data, on the hazardousness of 

reclamation residuals and whether the derived-from rule would need to be modified to regulate 

these residuals as hazardous waste.

D. 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 RCRApermitted reclamation facilities, where metals, such as vanadium, molybdenum, cobalt, and 

nickel are reclaimed from the spent catalysts. EPA originally added spent hydrotreating and 
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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 EPA deferred the question of 

whether spent petroleum catalysts should be included in the 2008 DSW 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 are therefore 

may be most appropriately managed as hazardous waste when recycled.

Under today’s proposal, EPA is proposing to withdraw the transfer-based exclusion and 

this withdrawal, if finalized, would make the question of the eligibility of most types of spent 

catalyst recycling for the 2008 DSW final rule exclusions moot. However, EPA is also 

proposing to add a regulatory definition of the “contained” standard which includes a 

requirement to address the risk of fires and explosions. This provision, if properly implemented, 

could address the pyrophoric properties of the spent petroleum catalysts (as well as other types of 

ignitibility or reactivity). EPA requests comment on whether this provision would adequately 

address the potential for discard of spent petroleum catalysts due to fire and explosions, thereby

allowing EPA to remove the ineligibility of K171 and K172 from the DSW exclusion, and on 

other regulatory options, including adding more conditions (such as specific container standards) 
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specific to pyrophoric materials to the exclusion.

XV. Implementation Issues with 2008 DSW Final Rule

The 2008 DSW final rule became federally effective on December 29, 2008. The rule 

was effective immediately in states and territories for which EPA manages the RCRA program, 

specifically Alaska, Iowa, the U.S. Virgin Islands, the Northern Mariana Islands, American 

Samoa, and tribal lands. The rule does not go into effect in states that are authorized to manage 

their own RCRA programs unless and until the state adopts the rule. Currently, four states—

Idaho, Illinois, New Jersey, and Pennsylvania—have adopted the rule. Within the states and 

territories where the 2008 DSW final rule is effective, more than 40 facilities have notified that 

they are managing hazardous secondary materials under the generator-controlled and/or the 

transfer-based exclusion. 

EPA believes that it is important to support effective implementation of the 2008 DSW 

final rule in order to ensure that hazardous secondary materials are properly managed and not 

discarded. Our goal is to reduce the risk of mismanagement of hazardous secondary materials 

that may occur from misunderstanding the regulations and incorrect implementation of the 

requirements and conditions. To this end, we have worked with the EPA Regions and states to 

provide training and guidance materials for regulators and the regulated community. Since the 

2008 DSW final rule was codified, there have been number of questions from states and the 

regulated community regarding how the rule should be implemented and how it operates in 

special circumstances. 

Today, we are taking the opportunity to clarify these issues in the context of the 2008 

DSW final rule. It should be noted that some of these implementation issues are specific to the 

transfer-based exclusion found at 40 CFR 261.4(a)(24), which EPA is proposing to withdraw and 
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replace with alternative management standards under Subtitle C of RCRA. If EPA finalizes this 

withdrawal, some of these issues would become moot.

A. Mixing Of Hazardous Secondary Materials Excluded Under 40 CFR 261.4(a)(24) With 

Similar Hazardous Wastes34

One issue regards whether hazardous secondary materials excluded under 40 CFR 

261.4(a)(24) can be mixed with other similar hazardous wastes within permitted units or exempt 

recycling units and how such mixing would affect the requirements of the generator and the 

reclaimer. Under § 261.4(a)(24), which covers hazardous secondary materials transferred off-site 

for reclamation, hazardous secondary material generators may send their materials to a facility

that operates under a RCRA Part B permit or interim status standards. In this case, generators are 

not required to conduct reasonable efforts on the reclaimer as long as the RCRA Part B permit 

extends to the management of the hazardous secondary materials in question. We believe Part B 

permits or the interim status standards provide adequate assurance that the hazardous secondary

materials will be well managed, specifically because the hazardous secondary materials are 

managed in units that are subject to stringent design and operating standards, the reclaimer must

demonstrate financial assurance, and the materials are subject to the corrective action 

requirements in the event of environmental problems. 

EPA understands that some reclaimers are receiving the same type of hazardous 

secondary materials for reclamation from multiple generators, with some amount excluded under 

§ 261.4(a)(24) and some amount regulated as hazardous waste. The regulatory status of the 

material depends on how the generator who sent the materials chose to manage and transfer the 

 

34 This section restates our policy on this issue, which is published in the “Guidance for Mixing Hazardous 

Secondary Materials Received Under the 40 CFR 261.4(a)(24) Exclusion from the Definition of Solid Waste with 

Regulated Hazardous Wastes.” This guidance can be found in RCRAOnline and on our DSW Implementation 

website at http://www.epa.gov/epawaste/hazard/dsw/impresource.htm.
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materials off site. We also understand that reclaimers are interpreting § 261.4(a)(24) to mean that 

hazardous wastes and hazardous secondary materials must be stored in separate units and 

reclaimed independently of each other in order to preserve the regulatory status of the excluded 

material and the exclusion for the generators that transferred the hazardous secondary materials 

to the reclaimer. 

It is clear in the 2008 DSW final rule that EPA allows hazardous secondary materials that 

are excluded from full Subtitle C regulation to be managed under a RCRA Part B permit or 

interim status standards. Managing hazardous secondary materials under a RCRA Part B permit 

affords further assurance that the hazardous secondary materials will be properly managed and 

reclaimed. Additionally, we believe that taking advantage of the existing recycling infrastructure 

both improves efficiency under the rule and increases opportunities for recycling. 

Section 261.4(a)(24) states that the exclusion applies if the hazardous secondary materials

are generated and transferred “for the purpose of reclamation.” Thus, a reclaimer mixing 

excluded hazardous secondary materials with regulated hazardous wastes of the same type may 

only mix the materials for the purpose of reclamation (and not for the purpose of, for example, 

burning for energy recovery or disposal). 

Prior to mixing, the reclaimer must manage the excluded hazardous secondary materials 

under § 261.4(a)(24) up to the point that they mix the excluded materials with similar materials

that are regulated hazardous waste. The reclaimer must comply with all applicable conditions of 

§ 261.4(a)(24) because it is receiving hazardous secondary materials transferred for the purpose 

of reclamation and excluded from the definition of solid waste. The reclaimer must therefore 

meet the applicable conditions of the § 261.4(a)(24) exclusion, including legitimate reclamation, 
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recordkeeping, financial assurance, containment of hazardous secondary materials, notification, 

and the prohibition on speculative accumulation. 

A reclaimer may only mix hazardous secondary materials excluded under § 261.4(a)(24) 

with regulated hazardous waste for the purpose of reclamation. This can be satisfied by mixing in 

units that are dedicated for reclamation, such as storage units that are connected to reclamation 

units by hard pipes or other conveyance; storage units that are solely used to store materials prior 

to the reclamation process; and recycling units. Additionally, a reclaimer is not mixing for the 

purpose of reclamation if the reclaimer first mixes the materials and then makes a determination 

whether the mixture should be reclaimed or sent for burning or disposal. This determination must 

be made prior to mixing the excluded hazardous secondary materials with regulated hazardous 

wastes.

After mixing the excluded hazardous secondary materials with regulated hazardous 

waste, the reclaimer must manage the entire mixture as hazardous waste for the purpose of 

reclamation. Excluded hazardous secondary materials cannot be mixed with regulated hazardous 

waste and still maintain the exclusion from the definition of solid waste. If excluded hazardous 

secondary materials are mixed with hazardous waste, the resulting mixture is a hazardous waste. 

This follows the general principle that RCRA applicability cannot be avoided by mixing a 

hazardous waste with another material.35 Therefore, the reclaimer must comply with the standard 

hazardous waste regulations applicable to hazardous waste managed by an off-site reclaimer 

(i.e., 40 CFR 261.6(c) and (d) or 40 CFR part 264 or 265). The mixture must be stored and 

managed in compliance with the hazardous waste regulations applicable to hazardous waste 

managed by an off-site reclaimer (i.e., 40 CFR 261.6(c) and (d) or 40 CFR part 264 or 265). If a 

reclaimer mixes hazardous secondary materials and other similar hazardous wastes in a recycling 

 

35 Horsehead Resource Development Co., Inc. v. EPA, 16 F3d 1246 (February 1994).
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unit, the mixture would be considered hazardous waste, but the unit would be generally exempt 

from regulation under 40 CFR 261.6(c)(2). 

Mixing by the reclaimer of excluded hazardous secondary materials received under 40 

CFR 261.4(a)(24) with regulated hazardous wastes does not affect the requirements applicable to 

generators who shipped the hazardous secondary materials, provided that the hazardous 

secondary materials are transferred for the purpose of reclamation and the reclaimer complies 

with all applicable conditions of § 261.4(a)(24) prior to mixing. Excluded hazardous secondary

materials mixed with regulated hazardous wastes of the same type become hazardous waste at 

the point of mixing and must be managed as such after that point. Therefore, generators 

transferring hazardous secondary materials under § 261.4(a)(24) to a reclaimer who mixes may

manage the hazardous secondary materials under the § 261.4(a)(24) exclusion (e.g., longer 

storage times, shipping without a manifest) because the hazardous secondary materials have not 

yet been mixed with regulated hazardous wastes. (Of course, the generator and the reclaimer 

must meet all applicable conditions of § 261.4(a)(24) prior to mixing.)

B. Rejected Loads 

A second issue regards shipments of hazardous secondary material transferred off-site by

the generator for reclamation, but that are subsequently rejected by the reclaimer (otherwise 

known as “rejected loads”). Because 40 CFR 261.4(a)(24) states that the exclusion applies if the 

hazardous secondary material is generated and transferred "for the purpose of reclamation,” EPA 

has received questions regarding how generators and reclaimers should handle rejected loads.

Although EPA did not explicitly address rejected loads in the preamble to the 2008 DSW 

final rule, we offered some guidance in our Response to Comments document for that action. 

Specifically, we state that if hazardous secondary materials transferred off-site for reclamation 
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are subsequently rejected by the reclaimer, the generator can choose to send the hazardous 

secondary materials to another reclamation facility, provided the generator continues to comply

with the conditions of the exclusion, including the speculative accumulation limits. 

Prior to arranging for transport to an alternate reclamation facility, hazardous secondary

material generators must make reasonable efforts to ensure the alternate reclamation facility

intends to properly and legitimately reclaim the hazardous secondary material and must keep 

records of the off-site shipment and confirmation of its receipt as required under the 2008 DSW 

final rule. If a hazardous secondary material generator is unable to reclaim the hazardous 

secondary material in compliance with the speculative accumulation provision and the other 

terms of the exclusion, it must manage the materials as solid and hazardous waste according to 

the RCRA Subtitle C hazardous waste regulations. Furthermore, we believe the recordkeeping 

conditions (records of all off-site shipments and confirmations of receipt) are sufficient to ensure 

the hazardous secondary materials are properly managed if a rejected shipment must be returned 

to the hazardous secondary material generator or sent to an alternate reclamation facility.

In the event of a rejected load, generators and reclamation facilities should contact their 

regulatory authority in order to receive instructions on a case-by-case basis. Reclamation 

facilities should document their rejected loads, including information such as the EPA ID 

number, name, and address of the generator, the date the facility received the hazardous 

secondary material, a description and quantity of the material, the ultimate destination and 

disposition of the material, and an explanation of why the load was rejected. Additionally, we 

note that efforts to prevent rejected loads may help to avoid this issue altogether, for example, by

sending test samples of the hazardous secondary material to a reclaimer to ensure that legitimate 

reclamation can be performed prior to sending the first shipment.
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C. Interstate Transport

A third implementation issue regards the transport of excluded hazardous secondary

materials from or to a state that has adopted the 2008 DSW final rule to or from a state that has 

not adopted the rule and what conditions would apply in each state. Specifically, if the 

originating state has adopted the 2008 DSW rule, but the receiving (or transfer) state has not 

adopted the rule, the hazardous secondary materials (1) are subject to the hazardous waste 

requirements of the receiving state that has not adopted the rule upon reaching the border of that 

state (e.g., manifesting requirements); (2) must go to a RCRA-permitted facility (or other 

authorized designated facility), and, if stored, materials must be managed in permitted storage 

units (or when applicable under interim status requirements); and (3) cannot go to an unpermitted 

recycling facility which is not a designated facility in a state that has not adopted the rule 

because such a facility would not meet the conditions of the exclusion (e.g., financial assurance) 

and since the receiving state would not have adopted the exclusion.

If the originating state has not adopted the rule, but the receiving state has adopted the 

rule, the hazardous secondary materials (1) must be managed as regulated hazardous waste not 

only in the originating state, but also in the receiving state that has adopted the rule (e.g., may be 

sent to a permitted recycling facility, in the receiving state, which has notified that it is operating 

under the exclusion, but must then be stored only in permitted units at that facility) and (2) would 

not be eligible for the exclusion because the generator in the originating state that has not 

adopted the rule would not meet the conditions and requirements of the exclusion. In particular, 

the fact that the generator would not have notified EPA that it is sending the hazardous 

secondary material to an excluded reclamation facility, and would not have performed a 

“reasonable efforts” audit under 40 CFR 261.4(a)(24)(v)(B) to ensure that the hazardous 
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secondary material will be safely and legitimately reclaimed could undermine the proper 

implementation of the 2008 DSW exclusion.

As noted in written comments submitted in response to the May 2009 public meeting 

Federal Register Notice, some states that do not plan on adopting the 2008 DSW final rule in full 

would like the generators in their states to be able to send their hazardous secondary materials to 

facilities without RCRA permits that are operating under the 40 CFR 261.4(a)(24) transfer-based 

exclusion in states that have adopted the rule .

36 One possible solution for such a state might be to 

adopt the requirements applicable to generators in the 2008 DSW rule (found in 40 CFR 

261.4(a)(24)(i–v and vii)), in addition to the state’s hazardous waste requirements, for those 

generators that wish to ship to reclaimers without RCRA permits whose operations are covered 

by the exclusion. In most cases, a generator following the generating state’s hazardous waste 

requirements would also meet the 2008 DSW rule requirements (i.e., no speculative 

accumulation, meeting DOT transport requirements, containment, records of shipments), since 

the state’s RCRA program requirements (e.g., 90 and 180 day storage limits, manifesting 

requirements) would be equally or more stringent than the 2008 DSW rule requirements), but the 

generator would also need to ensure that the hazardous secondary material meets the codified 

definition of legitimacy under 40 CFR 260.43, perform a “reasonable efforts” audit of the 

reclaimer and keep a copy of the audit for three years per 40 CFR 261.4(a)(24)(v)(B) and (C), 

and provide notification per 40 CFR 260.42. Thus, the hazardous secondary material would be 

covered both by the state hazardous waste program in the generating state that has not adopted 

the 2008 DSW final rule, and by the DSW transfer-based exclusion in the reclaiming state that 

has adopted the 2008 DSW final rule.

 

36Generators in states that have not adopted the 2008 DSW final rule are able to send their materials to RCRApermitted reclaimers under hazardous waste regulations 
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As discussed earlier, EPA has proposed to withdraw the transfer-based exclusion, which 

would possibly render this issue moot. However, EPA is interested in and requests comments on 

these issues of how interstate transportation should be handled, particularly whether states are 

interested in such a solution, if the transfer-based exclusion is retained or not, and whether it is 

an issue for any of the other exclusions EPA is proposing to retain or is asking for comment on 

today. For example, should EPA allow for the shipment of hazardous secondary materials from a 

state which does not adopt the ‘under the control of the generator’ exclusion to a state that has 

adopted that exclusion. If so, what additional requirements would the generating state have to 

adopt in order to allow for such shipments. Similarly, if a re-manufacturing exclusion is adopted, 

should EPA allow for the shipment of hazardous secondary materials from a state that does not 

adopt that exclusion to a state that adopts that exclusion. Again, what additional requirements 

would the generating state have to adopt in order to allow for such shipments.

D. Regulatory Status of Solvent Still Bottoms

A fourth implementation issue is whether still bottoms from the reclamation of solvents 

can be burned for energy recovery without invalidating the 2008 DSW final rule exclusions, 

which specifically does not include burning for energy recovery. Still bottoms from the 

reclamation of the solvents listed in 40 CFR 261.31(a) as F001–F005 are themselves listed 

hazardous waste and are not products of solvent reclamation. These still bottoms are a new point 

of generation, and they may be burned for energy recovery under the hazardous waste 

regulations without invalidating the exclusion.

XVI. State Authorization 

A. Applicability of Rules in Authorized States

Under section 3006 of RCRA, EPA may authorize a qualified state to administer and 
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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 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 non-HSWA, that are considered less stringent than previous federal 

regulations or that narrow the scope of the RCRA program.

B. Effect on State Authorization of Proposed Rule

Today's notice proposes regulations that, if finalized, would not be promulgated under 

the authority of HSWA. Thus, the standards, if finalized, would be applicable on the effective 
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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 proposed today are more stringent 

than those promulgated under the 2008 DSW final rule, so those states which have adopted the 

2008 DSW rule would be required to modify their programs if these standards are finalized.

However, when compared to the federal program that was in place when the 2008 DSW rule was 

finalized, many of today's proposed revisions would be considered less stringent (e.g., the 

revised generator-controlled exclusion and the potential re-manufacturing exclusion) or are 

neither more nor less stringent (i.e., the alternative Subtitle C regulations for reclaimed 

hazardous recyclable materials). Therefore, authorized states that have not adopted the 2008 

DSW final rule would not be required to modify their programs to adopt these standards, if 

finalized.

However, the potential revisions to the other recycling exclusions and exemptions 

discussed in Section XIII of this preamble that EPA is currently requesting comment on, 

including codifying the legitimacy criteria for other exclusions as discussed in Section X of the 

preamble, would be more stringent than the current federal hazardous waste program, and all 

authorized states would be required to modify their programs to adopt equivalent, consistent and 

no less stringent requirements. Also, the proposed changes to the standards and criteria for 

variances from classification as a solid waste discussed in Section XI would be more stringent 
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than the current federal hazardous waste program, and all authorized states which have adopted 

the underlying § 260.31 variance procedures would be required to modify their programs to 

adopt equivalent, consistent and no less stringent requirements.

XVII. Administrative Requirements for This Rulemaking

A. Executive Order 12866: Regulatory Planning and 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 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 Regulatory Impact Analysis (RIA) document 

titled “EPA’s 2011 Proposed Revisions to Industrial Recycling Exclusions of the RCRA 

Definition of Solid Waste” which is available for public download from the docket for this 

action. The RIA is briefly summarized here.

The RIA evaluates the potential future impacts of the eight proposed revisions (i.e., 

Options 1 to 8 in the RIA) to the DSW regulatory exclusions for industrial hazardous secondary

materials recycling. Six of the eight proposed revisions (Options 1 thru 6) could affect EPA’s 

most recent (2008) DSW recycling exclusions involving between 1,100 and 3,800 RCRAregulated facilities, while three of the revisions (Options 5, 7, 8) in part or in whole could affect 

EPA’s pre-2008 DSW recycling exclusions involving about 8,500 industrial facilities with 

current DSW-excluded recycling activities.

The RIA presents a qualitative description of three categories of expected future 
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environmental and economic benefits for the proposed revisions: (1) reduction in future 

environmental damage cases associated with industrial hazardous secondary materials recycling; 

(2) increased environmental compliance; and (3) reduced liability, less regulatory uncertainty, 

and lower legal and credit costs for recycling facilities.

In aggregate, the RIA estimates the future average annualized costs to industry to comply 

with the eight proposed revisions at between $3.8 million to $11.3 million per year under a 

lower-bound state adoption scenario, which results in 11% of recycling facilities implementing 

the revisions, and between $6.5 million to $61.8 million per year under an upper-bound state 

adoption scenario, which results in 67% of recycling facilities implementing the revisions (2010$ 

@7% discount rate). This range reflects uncertainty about the ultimate number of states which 

may voluntarily adopt the proposed revisions.

B. Paperwork Reduction Act (Information Collection Request)

The information collection requirements in this proposed rule have been 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 Request (ICR) document prepared by EPA 

has been assigned EPA ICR number [Insert EPA ICR number.] 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.

To comment on the Agency's need for this information, the accuracy of the provided 

burden estimates, and any suggested methods for minimizing respondent burden, EPA has 

established a public docket for this rule, which includes this ICR, under Docket ID number EPA-
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HQ-RCRA-2010-0742. Submit any comments related to the ICR to EPA and OMB. See 

ADDRESSES section at the beginning of this notice for where to submit comments to EPA.

Send comments to OMB at the Office of Information and Regulatory Affairs, Office of 

Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office 

for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days 

after [Insert date of publication in the Federal Register.], a comment to OMB is best assured of 

having its full effect if OMB receives it by [Insert date 30 days after publication in the Federal 

Register.]. The final rule will respond to any OMB or public comments on the information 

collection requirements contained in this proposal.

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 purpose of assessing the impacts of today's proposed rule on small entities, small 

entity is defined as (1) a small business as defined by the Small Business Administration’s 

(SBA) regulations at 13 CFR 121.201; (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-for-profit enterprise which is independently owned 

and operated and is not dominant in its field.After considering the economic impacts of today’s 

proposed rule on small entities, I certify that this action will not have a significant economic 
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impact on a substantial number of small entities. As presented in EPA’s RIA for today’s 

proposal, the types of small entities which could potentially be directly regulated are in a wide 

range of up to 280 industries. For purposes of analysis, the RIA evaluated potential small 

business impacts in 25 NAICS code industries with the largest number of facilities potentially

affected. This RIA identified the 25 industries by first looking at the count of facilities by 6-digit 

NAICS codes for the current population of facilities recovering hazardous secondary materials, 

including (1) 323110 Commercial Lithographic Printing; (2) 324110 Petroleum Refineries; (3) 

325188 All Other Basic Inorganic Chemical Mfg; (4) 325199 All Other Basic Organic Chemical 

Mfg; (5) 325211 Plastics Material and Resin Manufacturing; (6) 325412 Pharmaceutical 

Preparation Manufacturing; (7) 325510 Paint and Coating Manufacturing; (8) 325998 All Other 

Miscellaneous Chemical Product and Preparation Mfg; (9) 326199 All Other Plastics Product 

Manufacturing; (10) 331111 Iron and Steel Mills; (11) 331492 Secondary Smelting, Refining & 

Alloying of Nonferrous Metal (except Copper, Aluminum); (12) 332812 Metal Coating, 

Engraving (except Jewelry and Silverware), and Allied Services to Manufacturers; (13) 332813 

Electroplating, Plating, Polishing, Anodizing and Coloring; (14) 332999 All Other 

Miscellaneous Fabricated Metal Product Mfg; (15) 334412 Bare Printed Circuit Board 

Manufacturing; (16) 334413 Semiconductor and Related Device Manufacturing; (17) 336399 All 

Other Motor Vehicle Parts Manufacturing; (18) 336412 Bare Printed Circuit Board 

Manufacturing; (19) 336413 Other Aircraft Part and Auxiliary Equipment Mfg; (20) 541710 

Research & Development in the Physical, Engineering, and Life Sciences; (21) 562112 

Hazardous Waste Collection; (22) 562211 Hazardous Waste Treatment and Disposal; (23) 

611310 Colleges, Universities and Professional Schools; (24) 622110 General Medical and 

Surgical Hospitals; (25) 928110 National Security.
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The estimated potential average annual impact on small businesses is estimated to be 

significantly less than 1 percent of annual sales for all small entities. Based on the RIA’s upperbound estimation assumptions, the highest impact as a percentage of revenues (i.e., the “sales 

test” method) is estimated at 0.66 percent of annual sales revenues. The total number of small 

businesses impacted is estimated to be less than 1,300 businesses, or 14 percent of the almost 

9,100 businesses which could be impacted by today’s proposal, including facilities currently 

operating under the pre-2008 DSW recycling exclusions, plus additional current hazardous waste 

recyclers which in the future could potentially operate under the 2011 proposed revisions to the 

DSW recycling exclusions.

Although this proposed rule will not have a significant economic impact on a substantial 

number of small entities, we continue to be interested in the potential impacts of the proposed 

rule on small entities and welcome comments on issues related to such impacts and suggestions 

on how to reduce such impacts.

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. Potential future annual added direct costs to state, local, and tribal governments 

could include seven administrative activities associated with a number of the options, including 

(1) review and approve advance arrangement documentation (Option 2); (2) review and approve 

contingency plan (Option 2); (3) review and approve contingency and closure notifications 

(Option 2); (4) receive, review and file biennial notifications (Options 4 & Option 7); (5) 

administer online public access to a list (including supporting documentation) of facilities 

receiving non-waste determinations (Option 4); (6) evaluate legitimacy petitions (Options 5 & 
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6); and (7) evaluate legitimacy documentation (Option 5). (See the RIA for a complete 

description of the options and the various administrative activities.) The RIA estimates that the 

state government share of future average annualized direct costs for the above seven 

implementation requirements ranges between $2.3 million and $3.3 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 proposed 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 for today’s action presents an evaluation of 

whether the proposed regulatory revisions could “impose substantial direct compliance costs” on 

state or local governments. For purpose of quantitative analysis, the RIA applied a numerical 

method known as the “$25 million test.” The analysis evaluated whether annualized direct 

compliance costs to state or local governments potentially exceed $25 million per year. Potential 

future annual added direct costs to state or local governments could include seven administrative 

activities associated with a number of the options, including (1) review and approve advance 

arrangement documentation (Option 2); (2) review and approve contingency plan (Option 2); (3) 

review and approve contingency and closure notifications (Option 2); (4) receive, review and file 

biennial notifications (Options 4 & Option 7); (5) administer online public access to a list 
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(including supporting documentation) of facilities receiving non-waste determinations (Option 

4); (6) evaluate legitimacy petitions (Options 5 & 6); and (7) evaluate legitimacy documentation 

(Option 5). (See the RIA for a complete description of the Options and the various administrative 

activities.) The RIA estimates that the state government share of future average annualized direct 

costs for these implementation tasks ranges between $2.3 million and $3.3 million per year. No 

impacts are expected for local governments. Because these direct costs are well below the $25 

million test threshold, we conclude that Executive Order 13132 does not apply to this action.

However, in the spirit of Executive Order 13132, and consistent with EPA policy to promote 

communications between EPA and state and local governments, EPA specifically solicits 

comment on this proposed action from state and local officials.

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 proposed 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 proposed 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, 
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then this action could have tribal implications, to the extent that the proposed rule is intended to 

address potential adverse impacts of the 2008 DSW 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. Tribal 

representatives participated in the public meetings EPA held on the draft environmental justice 

methodology and noted that the census data used as the basis for the demographic analysis can 

undercount indigenous populations. EPA has noted this limitation in the analysis and has 

committed to working independently with the tribal governments as the rulemaking moves 

forward to ensure their concerns have been met. EPA specifically solicits additional comment 

from tribal officials on this proposed action and any tribal implications.

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety 

Risks

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) 

because it is not economically significant as defined in Executive Order 12866. This action’s 

health assessment are contained in Section VI of this preamble (as the hazard characterization 

portion of the environmental justice analysis). The public is invited to submit comments or 

identify peer-reviewed studies and data that assess effects of early life exposure to hazardous 

secondary materials being reclaimed.

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. As defined in Executive Order 13211, a “significant 

energy action” is any action by an agency (normally published in the Federal Register) that 
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promulgates or is expected to lead to the promulgation of a final rule or regulation, including 

notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking 

that: (1) is a significant regulatory action under Executive Order 12866 or any successor order 

and is likely to have a significant adverse effect on the supply, distribution, or use of energy; or 

(2) is designated by OMB as a significant energy action. This rule does not involve the supply, 

distribution, or use of energy and is not a significant regulatory action under Executive Order 

12866. Thus, Executive Order 13211 does not apply to this rule.

I. National Technology Transfer and Advancement Act of 1995 

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(“NTTAA”), Public Law No. 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 proposed rulemaking does not involve technical standards. Therefore, EPA is not 

considering 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 
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environmental effects of their programs, policies, and activities on minority populations and lowincome populations in the United States.

EPA has determined that this proposed rule will not have disproportionately high and 

adverse human health or 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 proposal 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. See Section VI. for further 

discussion of the environmental justice analysis that was conducted for this proposed rule, a copy

of which is included in the docket to today’s proposed rule. In addition, the environmental justice 

analysis was subject to peer review. Copies of the peer review comments that EPA received, as 

well as how EPA responded to those comments are also in the docket to this proposal. EPA 

requests comments on EPA’s environmental justice analysis, and whether there remains any

potential adverse impacts of the proposed rule, including disproportionate impacts to minority

and low-income communities, that is within the Agency’s discretion to address.
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For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is 

proposed to be amended to read 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. Amend section 260.10 as follows: 

a. Remove the definition of “hazardous secondary material generated and reclaimed 

under the control of the generator,” 

b. Add in alphabetical order the definition of “contained” to read as follows:

§ 260.10 Definitions

* * * * *

Contained means a unit that (1) is in good condition and has no leaks or other continuing or 

intermittent releases to the environment; (2) is properly labeled or otherwise has a system (such 

as a log) to immediately identify the hazardous secondary material in the unit; (3) does not hold 
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incompatible materials and addresses any potential risks of fires or explosions; (4) has systems in 

place to prevent and to respond to releases to the environment, which may include but are not 

limited to runoff, releases to groundwater, wind-blown dust, fugitive hazardous air emissions, 

and catastrophic unit failures; or (5) meets the applicable requirements of 40 CFR Parts 264 or 

265.

* * * * *

Subpart C—Rulemaking Petitions

 3. Section 260.30 is amended by revising the introductory paragraph to read as follows:

§ 260.30 Non-waste determinations and variances from classification as a solid waste.

In accordance with the standards and criteria in § 260.31 and § 260.34 and the procedures in § 

260.33, the Regional Administrator may determine on a case-by-case basis that the following 

recycled materials are not solid wastes:

* * * * *

 4. Amend § 260.31 as follows: 

a. Revise the introductory text of paragraphs (a) and (b); 

b. Revise paragraph (c).

§ 260.31 Standards and criteria for variances from classification as a solid waste.
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(a) The Regional Administrator may grant requests for a variance from classifying as a solid 

waste those materials that are accumulated speculatively without sufficient amounts being 

recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or 

transferred for recycling in the following year. If a variance is granted, it is valid only for the 

following year, but can be renewed, on an annual basis, by filing a new application. The 

Regional Administrator's decision will be based on whether the hazardous secondary material is 

legitimately recycled as specified in § 260.43 and the following criteria:

* * * * * 

(b) The Regional Administrator may grant requests for a variance from classifying as a solid 

waste those materials that are reclaimed and then reused as feedstock within the original 

production process in which the materials were generated if the reclamation operation is an 

essential part of the production process. This determination will be based on whether the 

hazardous secondary material is legitimately reclaimed as specified in § 260.43 and the 

following criteria:

* * * * * 

(c) The Regional Administrator may grant requests for a variance from classifying as a solid 

waste those 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. To 

qualify for a variance the material must be legitimately recycled as specified in 40 CFR 260.43, 

must be partially-reclaimed as determined by meeting criterion 1 below, and must be 

commodity-like as determined by meeting criteria 2–5 below:
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(1) Whether the degree of partial reclamation the material has undergone is substantial;

(2) Whether the partially-reclaimed material has sufficient economic value that it will be 

purchased for final reclamation; 

(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;

(4) Whether there is a guaranteed end market for the partially-reclaimed material;

(5) Whether the partially-reclaimed material is handled to minimize loss.

 5. Section 260.32 is amended by revising the introductory paragraph to read as follows:

§ 260.32 Variances to be classified as a boiler.

In accordance with the standards and criteria in § 260.10 (definition of “boiler”), and the 

procedures in § 260.33, the Regional Administrator may determine on a case-by-case basis that 

certain enclosed devices using controlled flame combustion are boilers, even though they do not 

otherwise meet the definition of boiler contained in § 260.10, after considering the following 

criteria:

* * * * * 

 6. Section 260.33 is amended by revising the introductory paragraph and paragraphs (a), (b), 

and (c) and by adding paragraph (d) 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.
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The Regional Administrator will use the following procedures in evaluating applications for 

variances from classification as a solid waste, applications to classify particular enclosed 

controlled flame combustion devices as boilers, or applications for non-waste determinations.

(a) The applicant must apply to the Regional Administrator for the variance or non-waste 

determination. The application must address the relevant criteria contained in § 260.31, § 260.32, 

or § 260.34, as applicable.

(b) The Regional Administrator will evaluate the application 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 recycler is located. The 

Regional Administrator will accept comment on the tentative decision for 30 days, and may also 

hold a public hearing upon request or at his discretion. The Regional Administrator will issue a 

final decision after receipt of comments and after the hearing (if any).

(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 re-apply to the Regional 

Administrator for a formal determination that the hazardous secondary material continues to 

meet the relevant criteria and therefore is not a solid waste.

(d) Facilities receiving a variance or non-waste determination must provide notification as 

required by § 260.42 of this chapter. 

 7. Amend § 260.34 as follows: 
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a. Revise the introductory text of paragraph (a);

b. Revise the introductory text of paragraph (b) and (b)(4);

c. Revise the introductory text to paragraph (c) and (c)(5).

§ 260. 34 Standards and criteria for non-waste determinations.

(a) An applicant may apply to the Regional Administrator for a formal determination that a 

hazardous secondary material is not discarded and therefore not a solid waste. The 

determinations will be based on the criteria contained in paragraphs (b) or (c) of this section, as 

applicable. If an application is denied, the hazardous secondary material might still be eligible 

for a solid waste variance or exclusion (for example, one of the solid waste variances under § 

260.31). Determinations may also be granted by the State if the State is either authorized for this 

provision or if the following conditions are met:

* * * * * 

(b) The Regional Administrator may grant a non-waste determination for hazardous secondary

material which is reclaimed in a continuous industrial process if the applicant demonstrates that 

the hazardous secondary material is a part of the production process and is not discarded. The 

determination will be based on whether the hazardous secondary material is legitimately recycled 

as specified in § 260.43 and on the following criteria:

(1) * * * 
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(2) * * * 

(3) * * * 

(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) The Regional Administrator may grant a non-waste determination for hazardous secondary

material which is indistinguishable in all relevant aspects from a product or intermediate if the 

applicant demonstrates that the hazardous secondary material is comparable to a product or 

intermediate and is reclaimed and is not discarded. The determination will be based on whether 

the hazardous secondary material is legitimately recycled as specified in §260.43 and on the 

following criteria:

(1) * * *

(2) * * *

(3) * * *

(4) * * *
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(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.

 8. Amend § 260.42 as follows: 

a. Revise the introductory text to paragraph (a) and paragraphs (a)(1), (a)(4), (a)(5), 

(a)(6), (a)(7), (a)(8) and (a)(9); 

b. Remove paragraph (a)(10);

c. Revise paragraph (b).

§ 260.42 Notification requirement for hazardous secondary materials. 

(a) Facilities managing hazardous secondary materials or hazardous recyclable materials under 

§§ 260.30, 261.4(a)(23) or part 266 subpart D 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:

(1) The name, address, and EPA ID number of the facility;

(2) * * *

(3) * * * 
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(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 exclusion 

(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 
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hazardous secondary materials for at least one year.

 9. Section 260.43 is amended by revising the section heading and paragraphs (a), (b) and (c) 

to read 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 or alternate regulatory standards 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.
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(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. 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. 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 

(i) Must contain concentrations of any hazardous constituents found in Appendix VIII of part 

261 of this chapter at levels that are comparable to or lower than those found in analogous 

products; or

(ii) Must not exhibit a hazardous characteristic (as defined in part 261 subpart C) that analogous 

products do not exhibit.

(b) Persons recycling hazardous secondary materials for the purpose of obtaining exclusions or 

exemptions from the hazardous waste regulations or alternative regulatory standards must 

maintain documentation of their legitimacy determination on-site.
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(1) Documentation must be either a written narrative description of how the recycling meets all 

four factors in § 260.43(a) or a copy of a legitimacy variance received from the person’s 

implementing agency.

(2) Documentation must be maintained for three years after the recycling operation has ceased. 

(c) An applicant may petition the Regional Administrator for a formal determination that a 

recycling process is legitimate without meeting the requirements under § 260.43(a)(3) or § 

260.43(a)(4). The Regional Administrator will use the procedures in § 260.33 in evaluating 

petitions for legitimacy variances. 

(1) In making a determination on a petition for a legitimacy variance, the Regional Administrator 

will evaluate all factors and consider legitimacy as a whole. In determining whether a process 

that does not meet one or both of the requirements under § 260.43(a)(3) or § 260.43(a)(4) is still 

legitimate, the Regional Administrator can consider the protectiveness of the storage methods, 

exposure from toxics in the product, the bioavailability of the toxics in the product, and any other 

relevant considerations.

PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

10. 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
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 11. Section 261.2 is amended by removing paragraph (a)(2)(ii) and by revising the 

introductory text to paragraph (e).

§ 261.2 Definition of Solid Waste

* * * * *

(e) Materials that are not solid waste when recycled. (1) Materials are not solid wastes when 

they can be shown to be legitimately recycled as specified in § 260.43 by being:

* * * * *

 12. Amend § 261.4, as follows: 

a. Republish the introductory text of paragraph (a);

b. Revise paragraphs (a)(6) and (a)(7);

c. Revise the introductory text to paragraph (a)(8);

d. Revise paragraphs (a)(9)(i) and (a)(9)(ii);

e. Revise paragraphs (a)(10) and (a)(11);

f. Revise the first sentence of (a)(12)(i);

g. Revise the first sentence of (a)(12)(ii);

h. Revise paragraph (a)(13);

i. Revise the introductory text of paragraph (a)(14);

j. Revise paragraph (a)(17)(i);

k. Revise the introductory text to (a)(18);

l. Revise paragraph (a)(19);
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m. Revise the introductory text to paragraph (a)(20) and the introductory text to paragraph

(a)(21);

n. Revise paragraph (a)(22)(ii);

o. Revise paragraph (a)(23);

p. Remove paragraphs (a)(24) and (a)(25);

q. Republish the introductory text of paragraph (b);

r. Revise paragraphs (b)(12) and (b)(14).

§ 261.4 Exclusions.

(a) Materials which are not solid wastes. The following materials are not solid wastes for the 

purpose of this part:

* * * * *

(6) Pulping liquors ( i.e., black liquor) that are legitimately reclaimed as specified in §260.43 of 

this chapter in a pulping liquor recovery furnace and then reused in the pulping process, unless it 

is accumulated speculatively as defined in §261.1(c) of this chapter.

(7) Spent sulfuric acid legitimately used to produce virgin sulfuric acid as specified in §260.43 of 

this chapter, unless it is accumulated speculatively as defined in §261.1(c) of this chapter.

(8) Secondary materials that are legitimately reclaimed as specified in §260.43 of this chapter 

and returned to the original process or processes in which they were generated where they are 

reused in the production process provided:

* * * * *
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(9)(i) Spent wood preserving solutions that have been legitimately reclaimed as specified in 

§260.43 of this chapter and are reused for their original intended purpose; and

(ii) Wastewaters from the wood preserving process that have been legitimately reclaimed as 

specified in §260.43 of this chapter and are reused to treat wood.

* * * * * 

(10) EPA Hazardous Waste Nos. K060, K087, K141, K142, K143, K144, K145, K147, and 

K148, and any wastes from the coke by-products processes that are hazardous only because they

exhibit the Toxicity Characteristic (TC) specified in section 261.24 of this part when, subsequent 

to generation, these materials are legitimately recycled as specified in §260.43 of this chapter to 

coke ovens, to the tar recovery process as a feedstock to produce coal tar, or mixed with coal tar 

prior to the tar's sale or refining. This exclusion is conditioned on there being no land disposal of 

the wastes from the point they are generated to the point they are recycled to coke ovens or tar 

recovery or refining processes, or mixed with coal tar.

(11) Nonwastewater splash condenser dross residue from the treatment of K061 in high 

temperature metals recovery units, provided it is shipped in drums (if shipped) and not land 

disposed before legitimate recovery as specified in §260.43 of this chapter.

(12)(i) Oil-bearing hazardous secondary materials ( i.e. , sludges, byproducts, or spent materials) 

that are generated at a petroleum refinery (SIC code 2911) and are legitimately recycled as 

specified in §260.43 of this chapter by being inserted into the petroleum refining process (SIC 

code 2911—including, but not limited to, distillation, catalytic cracking, fractionation, 

gasification (as defined in 40 CFR 260.10) or thermal cracking units (i.e., cokers)) unless the 
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material is placed on the land, or speculatively accumulated before being so recycled. * * * 

(ii) Recovered oil that is legitimately recycled as specified in §260.43 of this chapter in the same 

manner and with the same conditions as described in paragraph (a)(12)(i) of this section. * * * 

(13) Excluded scrap metal (processed scrap metal, unprocessed home scrap metal, and 

unprocessed prompt scrap metal) being legitimately recycled as specified in §260.43 of this 

chapter.

(14) Shredded circuit boards being legitimately recycled as specified in §260.43 of this chapter 

provided that they are:

* * * * *

(17) * * *

(i) The spent material is legitimately recycled as specified in §260.43 of this chapter to recover 

minerals, acids, cyanide, water or other values;

* * * * *

(18) Petrochemical recovered oil from an associated organic chemical manufacturing facility, 

where the oil is legitimately recycled as specified in §260.43 of this chapter by being inserted 

into the petroleum refining process (SIC code 2911) along with normal petroleum refinery

process streams, provided:

* * * * * 
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(19) Spent caustic solutions from petroleum refining liquid treating processes legitimately used 

as a feedstock as specified in § 260.43 of this chapter to produce cresylic or naphthenic acid 

unless the material is placed on the land, or accumulated speculatively as defined in §261.1(c).

(20) Hazardous secondary materials legitimately used as specified in § 260.43 to make zinc 

fertilizers, provided that the following conditions specified are satisfied:

* * * * * 

(21) Zinc fertilizers legitimately made from hazardous wastes, or hazardous secondary materials 

that are excluded under paragraph (a)(20) of this section as specified in §260.43 of this chapter, 

provided that:

* * * * * 

(22) * * * 

* * * * * 

(ii) Used, intact CRTs as defined in §260.10 of this chapter are not solid wastes when exported 

for legitimate recycling as specified in §260.43 of this chapter provided that they meet the 

requirements of §261.40.

* * * * * 

(23) Hazardous secondary material generated and legitimately reclaimed under the control of the 

generator provided that it complies with (i) and (ii) below:
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(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 

the 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 of this chapter shall not be deemed to “control” such facilities, 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 
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certify that [insert tolling contractor name] retains ownership of, and responsibility for, the 

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 generated and reclaimed within the United States or 

its territories.

(B) 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 recycling. Hazardous secondary material managed in 
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a unit with leaks or other continuing releases is discarded and a solid waste. 

(C) The hazardous secondary material is not speculatively accumulated, as defined in § 

261.1(c)(8), and the material is placed 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 first date that the excluded hazardous secondary material 

began to be accumulated must be entered in an inventory log. 

(D) Notice is provided as required by § 260.42 of this chapter. 

(b) Solid wastes which are not hazardous wastes. The following solid wastes are not hazardous 

wastes:

* * * * *

(12) Used chlorofluorocarbon refrigerants from totally enclosed heat transfer equipment, 

including mobile air conditioning systems, mobile refrigeration, and commercial and industrial 

air conditioning and refrigeration systems that use chlorofluorocarbons as the heat transfer fluid 

in a refrigeration cycle, provided the refrigerant is reclaimed for further use in a manner that is 

legitimate as specified in §260.43 of this chapter.

* * * * *

(14) Used oil re-refining distillation bottoms that are used as feedstock to manufacture asphalt 

products in a manner that is legitimate as specified in §260.43 of this chapter.

* * * * *
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 13. Amend § 261.6 as follows: 

a. Revise paragraph (a)(1);

b. Revise the introductory text to paragraph (a)(2) and add paragraph (a)(2)(v);

c. Revise the introductory text to paragraph (a)(3);

d. Revise paragraph (c)(1) and the introductory text to (c)(2).

§ 261.6 Requirements for recyclable materials.

(a)(1) Hazardous wastes that are legitimately recycled as specified in §260.43 of this chapter are 

subject to the requirements for generators, transporters, and storage facilities of paragraphs (b) 

and (c) of this section, except for the materials listed in paragraphs (a)(2) and (a)(3) of this 

section. Hazardous wastes that are legitimately recycled will be known as “recyclable materials.”

(2) The following recyclable materials are not subject to the requirements of this section when 

legitimately recycled as specified in §260.43 of this chapter but are regulated under subparts C 

through N of part 266 of this chapter and all applicable provisions in parts 268, 270, and 124 of 

this chapter.

* * * * *

(v) Hazardous recyclable materials transferred for reclamation (40 CFR part 266, subpart D)

(3) The following recyclable materials are not subject to regulation under parts 262 through parts 

268, 270, or 124 of this chapter and are not subject to the notification requirements of section 

3010 of RCRA when legitimately recycled as specified in §260.43 of this chapter:

* * * * * 
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(c) (1) Owners and operators of facilities that store recyclable materials before they are recycled 

are regulated under all applicable provisions of subparts A though L, AA, BB, and CC of parts 

264 and 265, and under parts 124, 266, 267, 268, and 270 of this chapter and the notification 

requirements under section 3010 of RCRA, except as provided in paragraph (a) of this section. 

(The recycling process itself is exempt from regulation as long as the recycling is legitimate as 

specified in §260.43 of this chapter, except as provided in §261.6(d).)

(2) Owners or operators of facilities that recycle recyclable materials without storing them before 

they are legitimately recycled are subject to the following requirements, except as provided in 

paragraph (a) of this section:

* * * * * 

Subpart E—Exclusions/Exemptions

 14. Section 261.38 is amended by adding paragraph (b)(17) to read as follows: 

§ 261.38 Exclusion of comparable fuel and syngas fuel.

* * * * *

(b) * * * 

* * * * *

(17) Legitimate recycling. Excluded fuel must be legitimately recycled as specified in §260.43 of 

this chapter.
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* * * * *

 15. Section 261.39 is amended by revising the introductory paragraph to read as follows:

§ 261.39 Conditional Exclusion for Used, Broken Cathode Ray Tubes (CRTs) and 

Processed CRT Glass Undergoing Recycling.

Used, broken CRTs are not solid wastes if they are legitimately recycled as specified in §260.43 

of this chapter and meet the following conditions:

* * * * *

 16. Section 261.40 is amended by being revised to read as follows: 

§ 261.40 Conditional Exclusion for Used, Intact Cathode Ray Tubes (CRTs) Exported for 

Recycling.

Used, intact CRTs exported for legitimate recycling as specified in §260.43 of this chapter are 

not solid wastes if they meet the notice and consent conditions of §261.39(a)(5), and if they are 

not speculatively accumulated as defined in §261.1(c)(8).

 17. Section 261.41 is amended by revising paragraphs (a) and (b) to read as follows:

§ 261.41 Notification and Recordkeeping for Used, Intact Cathode Ray Tubes (CRTs) 

Exported for Reuse.

(a) Persons who export used, intact CRTs for legitimate reuse as specified in §260.43 of this 

chapter must send a one-time notification to the Regional Administrator. The notification must 
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include a statement that the notifier plans to export used, intact CRTs for reuse, the notifier's 

name, address, and EPA ID number (if applicable) and the name and phone number of a contact 

person.

(b) Persons who export used, intact CRTs for legitimate reuse as specified in §260.43 of this 

chapter must keep copies of normal business records, such as contracts, demonstrating that each 

shipment of exported CRTs will be reused. This documentation must be retained for a period of 

at least three years from the date the CRTs were exported.

Subpart H—Financial Requirements for Management of Excluded Hazardous Secondary 

Materials

 18. Part 261 is amended by removing Subpart H (261.140 through 261.151). 

Subpart H (§261.140–§261.151) [removed]

PART 266—STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS 

WASTES AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT 

FACILITIES

 19. The authority citation for part 266 continues to read as follows: 

Authority: 42 U.S.C 1006, 2002(a), 3001–3009, 3014, 3017, 6905, 6906, 6912, 6921, 6922, 

6924–6927, 6934, and 6937.

Subpart C—Recyclable Materials Used in a Manner Constituting Disposal
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 20. Section 266.20 is being amended by revising the introductory text to paragraph (a), 

paragraph (b), and paragraph (d)(2) to read as follows:

§ 266.20 Applicability.

(a) The regulations of this subpart apply to recyclable materials that are applied to or placed on 

the land, provided they are legitimately recycled as specified in §260.43 of this chapter:

* * * * * 

(b) Products produced for the general public's use that are used in a manner that constitutes 

disposal and that contain recyclable materials are not presently subject to regulation if the 

recyclable materials have undergone a chemical reaction in the course of producing the products 

so as to become inseparable by physical means and if such products meet the applicable 

treatment standards in subpart D of part 268 (or applicable prohibition levels in §268.32 or 

RCRA section 3004(d), where no treatment standards have been established) for each recyclable 

material ( i.e., hazardous waste) that they contain, provided they are legitimately recycled as 

specified in §260.43 of this chapter.

* * * * *

(d) * * *

* * * * *

(2) They meet the applicable treatment standards in subpart D of Part 268 of this chapter for each 

hazardous waste that they contain and provided they are legitimately recycled as specified in 
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§260.43 of this chapter.

 21. Section 266 is being amended by adding Subpart D to read as follows: 

Subpart D — Hazardous Recyclable Materials 

§266.30 Applicability

(a) The regulations of this subpart apply to hazardous recyclable materials that are reclaimed as 

defined in §261.1(a)(4). For the purposes of this subpart, a hazardous recyclable material is a 

hazardous waste this is being recycled.

(b) A hazardous recyclable material generator may accumulate hazardous recyclable material onsite for one year or less without a permit or without having interim status, provided that:

(1) The hazardous recyclable material generator provides notification as required by

§ 260.42 of this chapter;

(2) The hazardous recyclable material generator makes and documents advance arrangements for 

reclamation prior to operating under this subpart in a reclamation plan that (i) describes the 

hazardous recyclable material and identifies the reclamation facility where the material will be 

sent, (ii) includes written confirmation from the facility that they are able to recycle the material 

(iii) documents the amount of hazardous recyclable material expected in each shipment and the 

anticipated frequency of shipments, and (iv) documents that the reclamation is legitimate per 40 

CFR 260.43;

(3) While hazardous recyclable materials are being accumulated on-site, each container and tank 
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is labeled or marked clearly with the words, “Hazardous recyclable material”; 

(4) The hazardous recyclable material generator complies as applicable either with all 

requirements applicable to large quantity generators or all requirements applicable to small 

quantity generators, except for the 90 day storage time limit for large quantity generators and the 

180 day (or 270 day) storage time limit for small quantity generators, and except that tanks and 

containers need not be labeled as containing “hazardous waste” if they instead are labeled as 

containing “hazardous recyclable materials.” 

(c) Persons who transport or who store hazardous recyclable materials other than at the site of 

generation, prior to reclamation are subject to all applicable requirements of §§263–265 and 

§268.

Subpart F—Recyclable Materials Utilized for Precious Metal Recovery

 22. Section 266.70 is being amended by revising paragraph (a) to read as follows:

§ 266.70 Applicability and requirements.

(a) The regulations of this subpart apply to recyclable materials that are legitimately reclaimed as 

specified in §260.43 of this chapter to recover economically significant amounts of gold, silver, 

platinum, palladium, iridium, osmium, rhodium, ruthenium, or any combination of these.

* * * * *

Subpart G—Spent Lead-Acid Batteries Being Reclaimed

 23. Section 266.80 is being amended by revising paragraph (a) to read as follows: 
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§ 266.80 Applicability and requirements.

(a) Are spent lead-acid batteries exempt from hazardous waste management requirements? If you 

generate, collect, transport, store, or regenerate lead-acid batteries for legitimate reclamation 

purposes as specified in §260.43 of this chapter, you may be exempt from certain hazardous 

waste management requirements. Use the following table to determine which requirements apply 

to you. Alternatively, you may choose to manage your spent lead-acid batteries under the 

“Universal Waste” rule in 40 CFR part 273.

* * * * *

Subpart H—Hazardous Waste Burned in Boilers and Industrial Furnaces

 24. Section 266.100 is being amended by revising paragraph (a) to read as follows: 

§ 266.100 Applicability.

(a) The regulations of this subpart apply to hazardous waste burned or processed in a boiler or 

industrial furnace (as defined in §260.10 of this chapter) irrespective of the purpose of burning or 

processing, except as provided by paragraphs (b), (c), (d), (g), and (h) of this section. In this 

subpart, the term “burn” means burning for energy recovery or destruction, or processing for 

materials recovery or as an ingredient. The emissions standards of §§266.104, 266.105, 266.106, 

and 266.107 apply to facilities operating under interim status or under a RCRA permit as 

specified in §§266.102 and 266.103. Burning for energy recovery and processing for materials 

recovery or as an ingredient must be legitimate recycling as specified in §260.43 of this chapter.

* * * * *