This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 1 of 30

Introduction

This document was prepared for the convenience of those interested in commenting on the 

regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste. Because 

of the various small changes to the regulatory text, a document directly comparing what EPA is 

proposing with the regulations currently on the books may be easier to understand than the 

regulatory text standing alone. This document provides that comparison. 

This document is based on the proposed regulatory text as it will be published in the Federal 

Register for public comment. Therefore, its format retains the amendatory language that would 

be provided to instruct the Federal Register on what the Agency is specifically changing in the 

regulations. In this document, the amendatory language and the existing regulatory text are in 

black. EPA’s proposed regulatory text is in red. Language that EPA is proposing to delete is

noted in delete bubbles in the margin or can be found at the back of the document. 

Note that this document is for the convenience of the commenters and is not an official version 

of the proposed regulatory text. Please refer to the regulatory text proposed in the Federal 

Register for the official version.

Compared Regulatory Text 

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is 

proposed to be amended as follows:

PART 260—HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

 1. The authority citation for part 260 continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921–6927, 6930, 6935, 6937, 6938, 6939 and 6974.

Subpart B—Definitions

 2. Amend section 260.10 as follows: 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 2 of 30

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 (including a land-based unit as defined in this subpart) that meets the 

following criteria: (1) the unit is in good condition, with no leaks or other continuing or 

intermittent unpermitted releases of the hazardous secondary materials to the environment, and is 

designed, as appropriate for the hazardous secondary materials, to prevent releases of hazardous 

secondary materials to the environment. Such releases may include, but are not limited to, 

releases through surface transport by precipitation runoff, releases to groundwater, wind-blown 

dust, fugitive air emissions, and catastrophic unit failures; (2) the unit is properly labeled or

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

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

risks of fires or explosions. Hazardous secondary materials in units that meet the applicable 

requirements of 40 CFR parts 264 or 265 are considered to be contained.

* * * * *

Subpart C—Rulemaking Petitions
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 3 of 30

 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.

(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:

* * * * * 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 4 of 30

(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. A

determination that a partially reclaimed material for which the variance is sought is commoditylike will be based whether the hazardous secondary material is legitimately recycled as specified 

in §260.43 and on whether all of the following decision criteria are satisfied:

(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.
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 5 of 30

 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, for legitimacy variances, or for non-waste determinations.

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, applications for legitimacy variances, 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, 

§ 260.34, or § 260.43 as applicable.
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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(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, and be 

made available on EPA’s Web site. 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, § 260.34 or § 260.43 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: 

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.
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 7 of 30

(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) * * * 

(2) * * * 

(3) * * * 

(4) Other relevant factors that demonstrate the hazardous secondary material is not discarded, 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 8 of 30

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) * * *

(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: 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 9 of 30

a. Revise the introductory text to paragraph (a) and (a)(1), (a)(4), (a)(5), (a)(6), (a)(7), 

(a)(8) and (a)(9); 

b. Remove (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) * * * 

(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 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 10 of 30

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

materials were managed as hazardous wastes);

(7) For each hazardous secondary material, whether the hazardous secondary material, or any

portion thereof, will be managed in a land-based unit;

(8) The quantity of each hazardous secondary material to be managed annually; and

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

representative of the facility.

(b) If a facility managing hazardous secondary materials has submitted a notification, but then 

subsequently stops managing hazardous secondary materials in accordance with the regulation(s) 

listed above, the facility must notify the Regional Administrator within thirty (30) days using 

EPA Form 8700-12. For purposes of this section, a facility has stopped managing hazardous 

secondary materials if the facility no longer generates, manages and/or reclaims hazardous 

secondary materials under the regulation(s) above and does not expect to manage any amount of 

hazardous secondary materials for at least 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. 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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(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.

(2) The recycling process must produce a valuable product or intermediate. The product or 

intermediate is valuable if it is

(i) Sold to a third party; or

(ii) Used by the recycler or the generator as an effective substitute for a commercial product or as 

an ingredient or intermediate in an industrial process.
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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(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 or in 

an equally protective manner. Where there is no analogous raw material, the hazardous 

secondary material must be contained. Hazardous secondary materials that are released to the 

environment and are not recovered immediately are discarded.

(4) The product of the recycling process 

(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 performing the recycling of 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.

(1) Documentation must be either a written 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. 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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(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

 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
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with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

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* * * * *

(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);

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);
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

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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:

* * * * *

(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
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with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

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(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 

material is placed on the land, or speculatively accumulated before being so recycled. * * * 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

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(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:

* * * * * 

(19) Spent caustic solutions from petroleum refining liquid treating processes legitimately used 
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with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

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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:

(i) (A) The hazardous secondary material is generated and reclaimed at the generating facility
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with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

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(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 

certify that [insert tolling contractor name] retains ownership of, and responsibility for, the 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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hazardous secondary materials that are generated during the course of the manufacture, including 

any releases of hazardous secondary materials that occur during the manufacturing process”. The 

tolling contractor must maintain at its facility for no less than three years records of hazardous 

secondary materials received pursuant to its written contract with the tolling manufacturer, and 

the tolling manufacturer must maintain at its facility for no less than three years records of 

hazardous secondary materials shipped pursuant to its written contract with the tolling 

contractor. In both cases, the records must contain the name of the transporter, the date of the 

shipment, and the type and quantity of the hazardous secondary material shipped or received 

pursuant to the written contract. These requirements may be satisfied by routine business records 

(e.g., financial records, bills of lading, copies of DOT shipping papers, or electronic 

confirmations). For purposes of this paragraph, tolling contractor means a person who arranges 

for the production of a product or intermediate made from specified unused materials through a 

written contract with a toll manufacturer. Toll manufacturer means a person who produces a 

product or intermediate made from specified unused materials pursuant to a written contract with 

a tolling contractor. 

(ii) (A) The hazardous secondary material is 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 

a unit with leaks or other continuing releases of the hazardous secondary material is discarded 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 21 of 30

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.

* * * * *
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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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:
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 23 of 30

* * * * * 

(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) * * * 

* * * * *
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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(17) Legitimate recycling. Excluded fuel must be legitimately recycled as specified in §260.43 of 

this chapter.

* * * * *

 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.
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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(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 

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.
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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Subpart C—Recyclable Materials Used in a Manner Constituting Disposal

 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) * * *

* * * * *
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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(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 

§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 reclaim the 

hazardous recyclable material (iii) documents the amount of hazardous recyclable material 

expected in each shipment and the anticipated frequency of shipments, and (iv) documents that 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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the reclamation is legitimate per 40 CFR 260.43;

(3) While hazardous recyclable materials are being accumulated on-site, each container and tank 

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.

* * * * *
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

Page 29 of 30

Subpart G—Spent Lead-Acid Batteries Being Reclaimed

 23. Section 266.80 is being amended by revising paragraph (a) to read as follows: 

§ 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 
This document compares the regulatory text in EPA’s 2011 Proposed Rulemaking on the Definition of Solid Waste 

with the relevant sections of the Code of Federal Regulations at the time of proposal. This document is for the 

convenience of commenters on the proposed rule and is not an official version of the regulatory text. 

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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.

* * * * *