44094 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 260, 261 and 266 

[EPA–HQ–RCRA–2010–0742; FRL–9431–4] 

RIN 2050–AG62 

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 for 

hazardous secondary materials intended 

for reclamation that would otherwise be 

regulated under Subtitle C of the 

Resource Conservation and Recovery 

Act (RCRA). 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 September 20, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

RCRA–2010–0742 by one of the 

following methods: 

• http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

• E-mail: Comments may be sent by 

electronic mail (e-mail) to RCRAdocket@epa.gov, Attention Docket ID 

No. EPA–HQ–RCRA–2010–0742. 

• Fax: Fax comments to: 202–566– 

9744, Attention Docket ID No. EPA– 

HQ–RCRA–2010–0742. 

• Mail: Send comments to: OSWER 

Docket, EPA Docket Center, Mail Code 

28221T, Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW., Washington DC 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 DC 

20503. 

• Hand delivery: Deliver two copies 

of your comments to: Environmental 

Protection Agency, EPA Docket Center, 

Room 3334, 1301 Constitution Avenue, 

NW., Washington DC, 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 http:// 

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 http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site 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 e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

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 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 http:// 

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 http:// 

www.regulations.gov or in hard copy at 

the OSWER Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

NW., Washington, DC. The Public 

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

4:30 p.m. Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room 

and the OSWER Docket is (202) 566– 

1744. 

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., NW., 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., NW., Washington, DC 20460, at 

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

For information on future public 

meetings on this proposal, contact 

Amanda Geldard, Office of Resource 

Conservation and Recovery, Materials 

Recovery and Waste Management 

Division, MC 5304P, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460, at 

703–347–8975 

(geldard.amanda@epa.gov.) Information 

regarding these public meetings will 

also be posted at EPA’s Web site at: 

http://www.epa.gov/epawaste/hazard/ 

dsw/rulemaking.htm. 

SUPPLEMENTARY INFORMATION:

A. Does this action apply to me? 

Entities potentially affected by today’s 

action include between 6,500 to 9,100 

industrial facilities (depending on the 

regulatory option(s) selected) in 

upwards of 622 industries 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 

final rule (three exclusions), or (3) 

hazardous secondary materials currently 

excluded from RCRA Subtitle C under 

other recycling exclusions (32 

exclusions). Most of the 622 industries 

have relatively few counts of potentially 

affected entities and are not listed here. 

There are 27 industries with the largest 

counts of potentially affected entities 

which EPA evaluated in detail in its 

‘‘Regulatory Impact Analysis’’ (RIA) for 

today’s action. These industries in 

ascending code order by 6-digit NAICS 

codes are: (1) 323110 Commercial 

Lithographic Printing; (2) 324110 

Petroleum Refineries; (3) 325188 All 

Other Basic Inorganic Chemical 

Manufacturing; (4) 325199 All Other 

Basic Organic Chemical Manufacturing; 

(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 Manufacturing; (9) 

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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) 332312 Fabricated 

Structural Metal Manufacturing; (13) 

332812 Metal Coating, Engraving 

(except Jewelry and Silverware) and 

Allied Services to Manufacturers; (14) 

332813 Electroplating, Plating, 

Polishing, Anodizing and Coloring; (15) 

332999 All Other Miscellaneous 

Fabricated Metal Product 

Manufacturing; (16) 333415 Air 

Conditioning, Warm Air Heating 

Equipment, and Commercial and 

Industrial Refrigeration Equipment 

Manufacturing, (17) 334412 Bare 

Printed Circuit Board Manufacturing; 

(18) 334413 Semiconductor and Related 

Device Manufacturing; (19) 334418 

Printed Circuit Assembly, (20) 336399 

All Other Motor Vehicle Parts 

Manufacturing; (21) 336412 Bare 

Printed Circuit Board Manufacturing; 

(22) 336413 Other Aircraft Part and 

Auxiliary Equipment Manufacturing; 

(23) 541710 Research & Development in 

the Physical, Engineering, and Life 

Sciences; (24) 562211 Hazardous Waste 

Treatment and Disposal; (25) 611310 

Colleges, Universities and Professional 

Schools; (26) 622110 General Medical 

and Surgical Hospitals; and (27) 928110 

National Security. 

In aggregate, the RIA estimates the 

future average annualized costs to 

industry to comply with the seven 

proposed revisions at between $7.2 

million to $13.1 million per year under 

a lower-bound state adoption scenario, 

which results in 13% of recycling 

facilities implementing the revisions, 

and between $7.4 million to $47.5 

million per year under an upper-bound 

state adoption scenario, which results in 

74% of recycling facilities 

implementing the revisions. This range 

reflects uncertainty about the ultimate 

number of states which may voluntarily 

adopt the proposed revisions. More 

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 http:// 

www.regulations.gov or e-mail. 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 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. Exclusion for Hazardous Secondary 

Materials That Are Transferred 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 ReManufacturing 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. 

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 final rule in order to ensure 

that the rule, as implemented, 

encourages reclamation in a way that 

protects human health and the 

environment from the 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 

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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. A 

hazardous recyclable material is a hazardous wastes 

that is recycled. Unlike hazardous secondary 

materials, hazardous recyclable materials have 

clearly been discarded and therefore are always 

solid wastes. 

hazardous secondary materials sent for 

reclamation. The 2008 DSW final rule 

does not apply to 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. Exclusion for Hazardous Secondary 

Materials That Are Transferred for the 

Purpose of Reclamation 

EPA is proposing to replace 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 with an alternative Subtitle 

C regulation for hazardous recyclable 

materials.1 (See Section VIII for a 

detailed discussion of the alternative 

regulatory approach.) EPA’s new 

analyses of potential hazards posed by 

the 2008 DSW final 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. 

Based on new EPA analyses, EPA 

believes that in most 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 proposing to replace the 

transfer-based exclusion with 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. 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 

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 

instances where 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 reapply 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 re-notify 

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 proposed revisions can be found 

in Section XI of this preamble. 

F. Request for Comment on ReManufacturing 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 highervalue hazardous secondary materials 

that are not included within this 

exclusion, but that are destined to be remanufactured 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. 

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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 program. Subtitle C is 

codified at 42 USC 6921 through 6939f. 

‘‘Subtitle C’’ regulations are found at 40 

CFR parts 260 through 279. ‘‘Hazardous 

wastes’’ are those that, because of their 

quantity, concentration, 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 F. 2d 974 (DC 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 160 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 

endangerment and informationgathering authorities. (See 40 CFR 

261.1(b). Also Connecticut Coastal 

Fishermen’s Association v. Remington 

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

Cir.1993) holds that EPA’s use of a 

narrower and more specific definition of 

solid waste for Subtitle C purposes is a 

reasonable interpretation of the statute. 

See also Military Toxics Project v. EPA, 

146 F.3d 948 (DC Cir. 1998).) 

EPA has consistently asserted that 

hazardous secondary materials are not 

excluded from regulation as solid 

wastes merely because of a claim that 

they will be recycled. EPA has 

consistently considered hazardous 

secondary materials intended for ‘‘sham 

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

the guise of recycling) to be discarded 

and, hence, to be solid wastes for 

Subtitle C purposes (see 45 FR 33093, 

May 19, 1980; 50 FR 638–639, January 

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

the DC 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 (DC Cir. 2000)). 

B. A Series of DC 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 DC 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 (DC 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 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 

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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 DC 

Circuit also indicate that some materials 

destined for recycling may be 

considered ‘‘discarded.’’ In particular, 

the Court held that emission control 

dust from steelmaking operations listed 

as hazardous waste ‘‘K061’’ is a solid 

waste, even when sent to a metals 

reclamation facility, at least where that 

is the treatment method required under 

EPA’s land disposal restrictions 

program (American Petroleum Institute 

v. EPA (‘‘API I’’), 906 F.2d 729 (DC 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 (DC 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’ 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 solid wastes (63 FR 28581, May 26, 

1998). The conditional exclusion 

decreased regulation over spent 

materials stored prior to reclamation, 

but increased regulation over byproducts and sludges that exhibit a 

hazardous characteristic and that are 

stored prior to reclamation. EPA noted 

that the statute does not authorize it to 

regulate ‘‘materials that are destined for 

immediate reuse in another phase of the 

industry’s ongoing production process.’’ 

EPA, however, took the position that 

hazardous secondary materials that are 

removed from a production process for 

storage are not ‘‘immediately reused,’’ 

and therefore are ‘‘discarded’’ (63 FR 

28580, May 26, 1998). 

The mining industry challenged the 

rule, and the DC Circuit vacated the 

provisions that expanded EPA 

regulation over characteristic byproducts and sludges destined for 

reclamation (Association of Battery 

Recyclers v. EPA (‘‘ABR’’), 208 F.3d 

1047 (DC 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 (DC Cir. 2003), 

the DC 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 dusts. 

EPA’s reasoning was that market 

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

treat the exempted materials more like 

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

them in ways inconsistent with discard. 

In addition, the fertilizers derived from 

these recycled feedstocks are chemically 

indistinguishable from analogous 

commercial products made from raw 

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

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 (also called ‘‘the identity 

principle’’). 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 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 

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2EPA 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. 

program for hazardous material 

recycling, but which up to that point, 

had been implemented without specific 

regulatory criteria (68 FR 61558, 

October 28, 2003). 

In response to the October 2003 DSW 

proposal, a number of commenters 

criticized the Agency for not having 

conducted a study of the potential 

impacts of the proposed regulatory 

changes. These commenters expressed 

the general concern that deregulating 

hazardous secondary materials that are 

reclaimed in the manner proposed 

could result in the mismanagement of 

these materials, and could create new 

cases of environmental damage that 

would require remedial action under 

Federal or state authorities. Some of the 

commenters further cited a number of 

examples of environmental damage that 

were attributed to hazardous secondary 

material recycling, including sites listed 

on the Superfund National Priorities 

List (NPL). 

Other commenters to the 2003 DSW 

proposal expressed the view that the 

great majority of these cases of 

recycling-related environmental 

problems occurred before RCRA, 

CERCLA, or other environmental 

programs were established in the early 

1980s. These commenters argued that 

these environmental programs—most 

notably, RCRA’s hazardous waste 

regulations and the liability provisions 

of CERCLA—have created strong 

incentives for proper management of 

recyclable hazardous secondary 

materials and recycling residuals. 

Several commenters further noted that, 

because of these developments, 

industrial recycling practices have 

changed substantially since the early 

1980s and present day generators and 

recyclers are much better environmental 

stewards than in the pre-RCRA/- 

CERCLA era. Thus, they argued that 

cases of ‘‘historical’’ recycling-related 

environmental damage are not 

particularly relevant when modifying 

the current RCRA hazardous waste 

regulations for hazardous secondary 

materials recycling. 

D. Recycling Studies 

In light of these comments on the 

2003 DSW proposal, and in deliberating 

on how to proceed with the rulemaking 

effort, the Agency decided that 

additional information on hazardous 

secondary material recycling would 

benefit its regulatory decision-making, 

and would provide stakeholders with a 

clearer picture of the hazardous 

secondary material recycling industry in 

this country. Accordingly, the Agency 

examined three issues that we believed 

were of particular importance to 

revising the definition of solid waste: 

• How do responsible generators and 

recyclers of hazardous secondary 

materials ensure that recycling is done 

in an environmentally safe manner? 

• To what extent have hazardous 

secondary material recycling practices 

resulted in environmental problems 

since enactment of major waste 

management statutes, and why? 

• Are there certain economic forces or 

incentives specific to hazardous 

secondary material recycling that can 

explain why environmental problems 

can sometimes originate from such 

recycling activities? 

Reports documenting these studies 

are available in the docket for the 2008 

DSW final rule under the following 

titles: 

• An Assessment of Good Current 

Practices for Recycling of Hazardous 

Secondary Materials (EPA–HQ–RCRA– 

2002–0031–0354) (‘‘study of successful 

recycling’’). 

• An Assessment of Environmental 

Problems Associated With Recycling of 

Hazardous Secondary Materials (EPA– 

HQ–RCRA–2002–0031–0355) 

(‘‘environmental problems study’’). 

• A Study of Potential Effects of 

Market Forces on the Management of 

Hazardous Secondary Materials 

Intended for Recycling (EPA–HQ– 

RCRA–2002–0031–0358) (‘‘market 

forces study’’). 

In the study of successful recycling, 

EPA found that responsible recycling 

practices used by generators and 

recyclers to manage hazardous 

secondary materials fall into two general 

categories. The first category includes 

the audit activities and inquiries 

performed by a generator of a hazardous 

secondary material to determine 

whether the entity to which it is sending 

such material is equipped to manage it 

responsibly without the risk of releases 

or other environmental damage. These 

recycling and waste audits of other 

companies’ facilities are common to 

those generators that responsibly recycle 

in the hazardous secondary materials 

market. The second category of 

responsible recycling practices consists 

of the control practices that ensure 

responsible management of any given 

shipment of hazardous secondary 

material, such as the contracts under 

which the transaction takes place and 

the tracking systems that can inform a 

generator that its hazardous secondary 

material has been properly managed. 

The goal of the environmental 

problems study was to identify and 

characterize environmental problems 

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 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.2 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, 

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reclamation processes generated 

residuals in which the toxic 

components of the recycled materials 

were separated from the non-toxic 

components, and these portions of the 

hazardous secondary material were then 

mismanaged and discarded. Examples 

of this include a number of drum 

reconditioning facilities, where large 

numbers of used drums were cleaned 

out to remove small amounts of 

remaining product, such as solvent, and 

these wastes were then improperly 

stored or disposed, while the drums 

were reused or recycled. 

The market forces study used 

accepted economic theory to describe 

how various market incentives can 

influence a firm’s decision-making 

process when recycling hazardous 

secondary materials. This study helps 

explain some of the possible 

fundamental economic drivers of both 

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 byproducts of their main production 

processes and recycle the hazardous 

secondary materials for sale or for their 

own reuse in production; and (3) 

industrial inter-company recycling, 

where firms either use or recycle 

hazardous secondary materials obtained 

from other firms, with the objective of 

reducing the cost of their production 

inputs. The report looked at how the 

outcome from each model is potentially 

affected by three market characteristics: 

(1) The value of the recycled product, 

(2) the price stability of recycling output 

or inputs, and (3) the net worth of the 

firm. 

An individual firm’s decision-making 

is based on many factors and 

extrapolating a firm’s likely behavior 

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

conjunction with other information, the 

economic theory can be quite 

illuminating. For example, according to 

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

flexibility in adjusting to unstable 

recycling markets (e.g., during price 

fluctuations, these companies can more 

easily switch from recycling to disposal 

or from recycled inputs to virgin 

inputs). Therefore, they would be 

expected to be less likely to have 

environmental problems from overaccumulated materials. 

On the other hand, in certain types of 

commercial recycling, the product has 

low value, the prices are unstable, and/ 

or the firm has a low net worth. 

Facilities in these situations can be 

more susceptible to environmental 

problems from the over-accumulation or 

mishandling of hazardous secondary 

materials, especially when compared to 

recycling by a well-capitalized firm that 

yields a product with high value. 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 study of 

successful recycling, 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 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 final rule (EPA–HQ–RCRA–2002– 

0031–0355). 

E. March 2007 Supplemental Proposal 

To Revise the Definition of Solid Waste 

In March 2007, EPA published a 

supplemental proposal that provided 

the public the opportunity to comment 

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

proposed (1) two exclusions for 

hazardous secondary materials recycled 

under the control of the generator (one 

exclusion would apply to hazardous 

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

exclusion would apply to hazardous 

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

hazardous secondary materials 

transferred to another party for 

reclamation. The Agency also proposed 

a non-waste determination petition 

process, and re-proposed the legitimacy 

criteria, with certain modifications (72 

FR 14172, March 26, 2007). 

For the exclusions of hazardous 

secondary materials reclaimed under 

the control of the generator, EPA 

described three circumstances under 

which we believed that discard does not 

take place and where the potential for 

environmental releases is low. The three 

situations involve hazardous secondary 

materials that are generated and 

legitimately reclaimed at the generating 

facility, legitimately reclaimed at a 

different facility within the same 

company, or legitimately reclaimed 

through a tolling arrangement. Under all 

three circumstances, the hazardous 

secondary materials must be generated 

and reclaimed within the United States 

or its territories. Because the hazardous 

secondary material generator in these 

situations still 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 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 

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secondary material was sent for 

reclamation and was received by the 

reclaimer). Furthermore, the reclaimer 

would be subject to additional storage 

and residual management standards (to 

address the instances of discard 

observed at off-site reclamation facilities 

in the damage cases). Finally, facilities 

operating under the transfer-based 

exclusion must also submit notification 

to their regulatory authority. 

In addition, the 2007 DSW 

supplemental proposal included a caseby-case non-waste determination 

petition process that would allow 

applicants to receive a formal 

determination from EPA that their 

hazardous secondary materials were not 

discarded and therefore were not solid 

wastes. The case-by-case petition 

process would allow EPA or the 

authorized state to take into account the 

particular fact pattern of the recycling 

and to determine that the hazardous 

secondary materials in question were 

not solid wastes. The petition process 

for the non-waste determination was the 

same as that for the variances from the 

definition of solid waste found at 40 

CFR 260.31. 

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. 

The administrative petition was 

submitted at the same time that the 

American Petroleum Institute (API) and 

Sierra Club filed judicial Petitions for 

Review under RCRA section 7006(a), 42 

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

the United States Court of Appeals for 

the District of Columbia Circuit (DC 

Circuit). These cases, designated as 

Docket Nos. 09–1038 and 1041, 

respectively, are currently before the DC 

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 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 transferbased 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 e-mail 

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 

legal issues and the protectiveness of 

the rule’s conditions. Environmental 

and community organizations, on the 

other hand, were uniformly in favor of 

repealing the rule, expressing concerns 

over the protectiveness, enforceability 

and environmental justice and 

children’s health impacts of the rule. 

Waste management/recycling industry 

comments were split, with hazardous 

waste recyclers generally advocating 

that EPA retain and improve the rule 

with more stringent standards. Other 

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waste management industry comments, 

particularly those from companies 

representing landfills and incinerators, 

were in favor of repealing the rule. State 

comments expressed concerns about 

implementing the rule, particularly 

given the economic climate, and 

generally were in favor of repealing or 

significantly revising the transfer-based 

exclusion. 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 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). The settlement 

agreement did not specify the outcome 

of the final rule or specifically what 

regulatory changes EPA would propose. 

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 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 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 generator-controlled exclusion 

and to the non-waste determination 

petition process, but, for the reasons 

stated above, EPA did not stay the rule 

and is not proposing to withdraw either 

provision. 

3. Adequacy of EPA’s Analyses 

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 lowincome communities, is unsupported by 

the administrative record. In response to 

these comments and similar comments 

by other stakeholders at the 2009 public 

meeting, EPA committed to producing 

an expanded analysis of the potential 

disproportionate impacts of the 2008 

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Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 44103 

3U.S. EPA. Draft Environmental Justice 

Methodology for the Definition of Solid Waste Rule, 

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

hazard/dsw/ej.htm. 

4http://www.epa.gov/waste/inforesources/pubs/ 

vision.htm. 

5Environmental Council of the States Resolution 

10–1 on National Sustainable Materials 

Management, approved March 23, 2010, and Letter 

from Gary Baughman, president, ASTSWMO, to 

Matt Hale, Director, Office of Solid Waste, U.S. 

EPA, February 3, 2010. 

6http://www.wbcsd.org/web/projects/BZrole/ 

Vision2050-FullReport_Final.pdf. 

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.3 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 environmental 

justice analysis is discussed in detail 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 objectives. 

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 was endorsed by 

both the Environmental Council of the 

States (ECOS) and the Association of 

State and Territorial Solid Waste 

Management Officials (ASTSWMO).5

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.6

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 

To achieve the goals of Executive 

Order 12898, Federal Actions to 

Address Environmental Justice in 

Minority Populations and Low-Income 

Populations, EPA must consider 

environmental justice when developing 

a regulation. Because decisions 

involving a regulation must be informed 

by a consideration of a number of 

different issues, an environmental 

justice analysis is one of several 

analyses the Agency uses when 

developing regulations. The 

environmental justice analysis may be 

qualitative and/or quantitative and is 

designed to provide the appropriate 

information on disproportionately high 

and adverse impacts to minority and/or 

low-income populations to decisionmakers. To the extent an environmental 

justice analysis reveals potential 

disproportionately high adverse impacts 

on minority and/or low-income 

populations, this result can affect how 

EPA uses its policy discretion under 

applicable authorities to pursue specific 

regulatory options or provide 

opportunities to involve the public in 

the implementation of regulations. 

The purpose of the DSW 

environmental justice analysis is twofold. First, the analysis represents a 

systematic examination of the potential 

for an increase in adverse impacts under 

the 2008 DSW final rule (considered 

independently from which communities 

might be impacted). Second, the 

analysis includes a demographic 

analysis characterizing the extent any 

potential adverse impacts are likely to 

affect minority and/or low-income 

communities. The results of this 

analysis have informed EPA’s decisionmaking on which regulatory options to 

pursue, within scope of the Agency’s 

authority to regulate hazardous waste. 

The methodology for the DSW 

environmental justice analysis consists 

of six steps: 

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. 

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44104 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

7The 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 type of recycling under the 2008 

DSW final rule; and (8) generator switches from offsite recycling at a RCRA-permitted facility or 

exporting waste for recycling to another type of 

recycling under the 2008 DSW final rule. 

8By 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. 

9EPA chose a three-kilometer radius as an 

approximation of the potential area that could be 

affected by an acute release scenario (such as a fire 

or explosion) at a reclamation facility. EPA focused 

on the acute scenario because such a scenario posed 

the most immediate harm to public health. 

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. In conducting this analysis, EPA, 

assessed 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 

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 nonhalogenated 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 windblown, 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 noncarcinogenic, 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. If the material is 

not released to the environment, there 

would be no increased exposure or 

associated 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 

include consideration of the potential 

for adverse impact from removing some 

of the important protections of the 

hazardous waste regulations, 

particularly the public participation 

requirements, which were also not 

considered by the Agency when 

developing 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,7 and 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 

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 

(‘‘Notification Facilities’’), (2) facilities 

from the environmental problems study 

(many of which operated under various 

exclusions or reduced regulations) 

which have documented environmental 

damages from recycling activities 

(‘‘Damage Case Facilities’’), (3) 

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) (‘‘Hazardous Waste 

Facilities’’), 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 (‘‘NonHazardous Industrial Waste Facilities’’). 

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 had a larger proportion of minority 

and/or low-income individuals as 

compared to the nation as a whole, and 

as compared to the population in the 

state.9 The comparison was done at both 

at the community and at the population 

level. 

For the community-level analysis, the 

question is whether the communities 

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10For the damage cases, EPA notes that 

demographic data is not necessarily matched to the 

temporal period associated with the beginning of 

the damage case. For example, if the damage case 

began in 1990, EPA did not examine demographics 

from 1990, but rather the demographics were from 

2000. 

11The total affected population is the sum of each 

of the populations around all the facilities in a 

category. 

around a facility had a higher or lower 

percentage of minority and/or lowincome 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, or 

uniform, distribution, they generally 

would not indicate potential for 

disproportionate adverse 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 adverse impact. The 

higher the average differences between 

the potentially affected communities 

and the comparison group, the greater 

the potential for a disproportionate 

adverse impact. 

In the chart below, the category that 

consistently demonstrates the potential 

for disproportionate adverse impact are 

the damage case facilities, which is the 

third category of facilities identified in 

Step 2, although a few other categories 

indicates the potential for 

disproportionate adverse impact in a 

few instances.10 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 ADVERSE 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 

low-income 

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 Industrial Waste Facilities (25 total) ...................................... 36% 

(¥5.0%) 

40% 

(¥0.5%) 

36% 

(¥2.55%) 

44% 

(¥0.3%) 

The population-level analysis 

examines the demographics of the total 

potentially affected population 11 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 

Affected Population Ratio, and (2) the 

Demographic Ratio. In both cases, if the 

ratio is greater than 1.0, then there is a 

potential for disproportionate adverse 

impact to the population of concern, 

and the larger the ratio, the greater the 

disproportionality. 

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44106 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

12U.S. EPA Interim Guidance on Considering 

Environmental Justice During the Development of 

an Action July 2010. http://www.epa.gov/ 

environmentaljustice/resources/policy/consideringej-in-rulemaking-guide-07-2010.pdf. 

13The other factors are (1) susceptible 

populations, (2) unique exposure pathways, and (3) 

physical infrastructure. Because of the wide variety 

of locations of the facilities and the many different 

hazardous secondary materials involved, any one of 

these factors could be present at a site, but EPA 

does not have specific information on these factors 

being particularly associated with the 2008 DSW 

final rule. 

14Although 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. 

POPULATION-LEVEL ANALYSIS OF POTENTIAL DISPROPORTIONATE IMPACTS OF 2008 DSW RULE TO MINORITY AND LOWINCOME 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 

affected 

population 

ratio 

demographic 

ratio 

National 

comparison 

low-income 

population 

affected population ratio 

demographic 

ratio 

State 

comparison 

minority population 

affected 

population 

ratio 

demographic 

ratio 

State 

comparison 

low-income 

population 

affected 

population 

ratio 

demographic 

ratio 

Notification Facilities (40 total) ......................................................................... 0.70 

0.76 

1.05 

1.04 

1.80 (IA) 

1.76 (IA) 

1.34 (IA) 

1.32 (IA) 

1.02 (NJ) 

1.01 (NJ) 

0.64 (NJ) 0.65 

(NJ) 

1.46 (PA) 

1.47 (PA) 

1.74 (PA) 

1.63 (PA) 

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 

adverse impact to minority and lowincome populations than the 

community-level 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. The 

facilities that are located in minority 

and low-income communities have the 

potential to adverse impact much larger 

populations than those which are not, 

resulting in an overall potential 

disproportionate adverse 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 rule, based on 

categories from EPA’s interim guidance 

on incorporating environmental justice 

into rulemaking.12 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.13

1. Ability To Participate in the DecisionMaking 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 facilities.14 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. 

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15See U.S. EPA Environmental Justice Analysis of 

the Definition of Solid Waste Rule, Section 5.2, 

Table 5.1. 

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., leadbased 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 health-based 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.15 All have multiple facilities 

reporting to EPA, either under RCRA, 

the Clean Air Act (CAA), or the 

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 

As discussed under Step 1 in Section 

VI.A. of this preamble, 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 (1) the absence of required 

measures (e.g., weekly inspections, 

training, contingency plans, etc.) at 

hazardous secondary materials 

reclaimers to prevent problems (e.g., 

spills, fires, explosions, etc.), (2) the 

incentives to accumulate larger volumes 

of hazardous secondary materials due to 

longer storage time limits and (3) the 

reduction in access to information and 

opportunity for public participation. 

Moreover, as discussed under Step 3 

in Section VI.C. of this preamble, some 

of the communities potentially 

impacted by this increase in risk of 

adverse impacts are minority and lowincome 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 nonhazardous waste facilities all 

consistently showing potential 

statistically significant disproportionate 

representation in potentially affected 

communities. In addition, as discussed 

under Step 4 in Section VI.D. of this 

preamble, 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 

Potential strategies to mitigate adverse 

impacts of the 2008 DSW final 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 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 could be 

one way of addressing 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 could be one 

way of addressing the lack of 

preventative measures and the lack of 

RCRA air standards under the generatorcontrolled exclusion. The proposed 

additional recordkeeping requirements 

for speculative accumulation and 

legitimacy could be one way of helping 

ensure that hazardous secondary 

material is being legitimately recycled 

and not simply discarded through overaccumulation and abandonment, and 

recordkeeping under the tolling and 

same-company provisions will help 

ensure that the hazardous secondary 

materials meet their intended 

destinations. Each of these proposed 

changes are discussed in more detail in 

Sections VII–X of this preamble. EPA 

requests comment on whether there are 

additional or alternate regulatory 

approaches for addressing the potential 

adverse impacts of the 2008 DSW final 

rule. 

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 2008 

DSW final rule that would help mitigate 

any potential adverse impacts. These 

steps include closely monitoring the 

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44108 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

16 40 CFR 261.4(a)(24) is the primary transferbased exclusion and 40 CFR 261.4(a)(25) contains 

the export requirements for the transfer-based 

exclusion. 

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 these 

efforts in order to help prevent potential 

adverse impacts at the same time that 

revisions to the rule are under 

consideration. 

VII. Exclusion for Hazardous 

Secondary Materials That Are 

Transferred for the Purpose of 

Legitimate Reclamation 

EPA is proposing to replace the 

exclusion for hazardous secondary 

materials that are transferred for the 

purpose of legitimate reclamation with 

an alternative Subtitle C standard. EPA 

believes that such a standard would be 

more appropriate for hazardous 

secondary material because (1) the 

Agency reasonably believes (as 

explained in detail in the 2008 DSW 

final rule) that, absent specific 

conditions, transfers of hazardous 

secondary materials to third-party 

reclaimers generally involve discard, 

and (2) the conditions of the 2008 DSW 

final rule have serious gaps, 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, that could create a 

potentially unacceptable likelihood of 

adverse effects to human health and the 

environment from such discarded 

material. 

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),16 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. 

General requirements under this 

exclusion include that: 

• 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. 

Conditions applicable to generators of 

hazardous secondary materials are 

found at 40 CFR 261.4(a)(24)(v) and 

include: 

• 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: 

• Containment of such materials, 

• Transmittal of confirmations of 

receipt to generators, 

• Retention of records for hazardous 

secondary materials received and sent 

off-site, 

• 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). 

B. EPA’s Rationale for Replacing the 

Transfer-Based Exclusion 

The first part of the Agency’s rationale 

for replacing the transfer-based 

exclusion is based on the fact that EPA 

has already determined that, absent 

specific conditions, it is reasonable to 

conclude that transfers of hazardous 

secondary materials to third-party 

recyclers generally involve discard 

except for instances where EPA has 

promulgated a case-specific exclusion 

that a hazardous secondary material is 

not a solid waste. This determination is 

unchanged from the 2008 DSW final 

rule. 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 byproducts and sludges), generators will 

typically pay the reclamation facility to 

accept these hazardous secondary 

materials or receive a salvage fee that 

only partially offsets the cost of 

transporting and managing them. In 

such situations, the generator has 

relinquished control of the hazardous 

secondary materials and the entity 

receiving such materials may not have 

the same incentives to manage them as 

a useful product (73 FR 64675). 

This behavior of hazardous secondary 

materials not being managed as a useful 

product 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 thirdparty recyclers, with clear instances of 

discard resulting in risk to human 

health and the environment, including 

cases of large-scale soil and ground 

water contamination with remediation 

costs in some instances in the tens of 

millions of dollars (73 FR 64673). 

In addition, the market forces study in 

the docket for the 2008 DSW final rule 

supports the conclusion that the pattern 

of discard at off-site, third-party 

reclaimers is a result of inherent 

differences between commercial 

recycling and normal manufacturing. As 

opposed to manufacturing, where the 

cost of raw materials or intermediates 

(or inputs) is greater than zero and 

revenue is generated primarily from the 

sale of the output, hazardous secondary 

materials recycling can involve 

generating revenue primarily from the 

receipt of the hazardous secondary 

materials. Recyclers of hazardous 

secondary materials in this situation 

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17See Chapter 11, Regulatory Impact Analysis: 

EPA’s 2008 Final Rule Amendments to the 

Industrial Recycling Exclusions of the RCRA 

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

0031–0602. 

18See Chapter 2 and Attachment A of EPA’s 

Environmental Justice Analysis of the Definition of 

Solid Waste Rule, available in the docket for today’s 

proposal. 

19Some of these facilities are also managing 

hazardous secondary materials under the generatorcontrolled exclusion. 

20U.S. EPA, EPA’s Evaluation of Data Collected 

from Notifications Submitted under the 2008 

Definition of Solid Waste Exclusions, June 30, 2011. 

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 inhouse 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 transferbased exclusion. The intent of these 

conditions was to define when transfers 

to third-party recyclers would not result 

in discard. The link between each of the 

conditions and their ability to prevent 

discard is discussed in detail in the 

2008 DSW final rule preamble at 73 FR 

64675–79. However, EPA failed to take 

into account how the conditions of the 

2008 transfer-based exclusion would 

work when actually implemented. 

EPA’s analysis of the 2008 DSW final 

rule assumed that DSW conditions 

would operate with the same level of 

oversight as the Subtitle C hazardous 

waste regulations. 

Which leads to the second part of 

EPA’s rationale for replacing the 

transfer-based exclusion. Before 

excluding materials that have already 

been determined to be hazardous 

wastes, the Agency needs adequate 

assurance that the conditional exclusion 

will not result in discarded hazardous 

materials posing significant risks to 

human health and the environment (e.g, 

fires/explosion, soil and water 

contamination, air emissions, and 

abandoned hazardous secondary 

materials). Because EPA has already 

evaluated these hazardous secondary 

materials (for example, during a 

hazardous waste listing determination) 

and determined them to be solid and 

hazardous wastes, a conditional 

exclusion must be reasonably expected 

not to result in the excluded hazardous 

secondary material being discarded. 

As discussed in more detail in Section 

XIII of this preamble, over the years EPA 

has developed many such conditional 

exclusions (found in 40 CFR 261.4(a)). 

In each of these cases, EPA did so by 

examining the specific hazardous 

secondary material, or the specific 

recycling practice, or both, before 

making a determination that they are 

not solid waste. However, unlike these 

types of specific transfer-based 

exclusions from the definition of solid 

waste (found in 40 CFR 261.4(a)), the 

2008 transfer-based exclusion in 40 CFR 

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

the chemical or physical properties of 

any particular type of hazardous 

secondary material, or on how it is 

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

a wide range of hazardous spent 

materials and listed by-products and 

sludges. Thus, while other solid waste 

exclusions were developed based on 

EPA’s knowledge of the specific 

hazardous secondary materials, the 

industries generating them, or the 

current recycling management practice 

for those hazardous secondary 

materials, the 2008 DSW transfer-based 

exclusion relied entirely on the 

conditions that were developed by EPA 

operating as the Agency anticipates they 

should. The conditions themselves were 

developed in a reasoned manner,17 but 

without specific evidence that they 

would work as intended (i.e., would not 

result in significant risk to human 

health and the environment from 

discarded materials). 

However, the conditions for the 

transfer-based exclusion in the 2008 

DSW final rule lack several important 

implementation provisions that the 

Subtitle C requirements for treatment, 

storage, and disposal facilities provide. 

These provisions ensure a greater level 

of oversight of the Subtitle C 

requirements, thereby increasing the 

likelihood of compliance and decreasing 

the potential for risk to human health 

and the environment from discarded 

hazardous secondary material. 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 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). Finally, the 

detailed regulatory standards for 

hazardous waste management help 

ensure that both the regulatory authority 

and the regulated community have the 

specific information they need to 

comply in such a way that meets EPA’s 

expectations when the rule was 

promulgated. EPA has performed a 

detailed regulatory comparison of the 

2008 DSW final rule with the hazardous 

waste regulations, identifying 

significant differences that could lead to 

the potential for an increased likelihood 

of environmental and public health 

hazards, including fires/explosion, soil 

and water contamination, air emissions, 

and abandoned hazardous secondary 

materials.18

EPA has also carefully monitored the 

implementation of the 2008 DSW final 

rule since it came into effect in 

December 2008. A total of 27 facilities 

are operating under the transfer-based 

exclusion, 23 of which are generators 

transferring off-site and 4 which are 

reclamation facilities.19 All four 

reclamation facilities are RCRA 

permitted. (There are no unpermitted 

reclaimers currently operating under the 

transfer-based exclusion.) Of the 23 

generators operating under the transferbased exclusion, 6 generators appear to 

have either started or substantially 

increased their recycling as a result of 

the 2008 DSW exclusions. These six 

generators had previously reported in 

their 2007 or 2009 biennial report that 

they sent their solvents offsite for fuel 

blending, and then in 2009 or 2010 

notified that they are sending their 

spent solvents for reclamation under the 

2008 DSW final rule.20 To date, no 

environmental problems have been 

reported at facilities claiming the DSW 

exclusions. However, because all 

reclaimers operating under the transferbased exclusion also have RCRA 

hazardous waste permits, most of the 

novel conditions of the transfer-based 

exclusion (e.g., reasonable efforts audits 

and financial assurance for reclamation 

facilities without a RCRA permit) have 

not been tested. 

Based on this reconsideration of the 

DSW transfer-based exclusion 

conditions, EPA is now proposing that 

hazardous secondary materials 

transferred for the purpose of legitimate 

reclamation are most appropriately 

regulated under Subtitle C of RCRA. The 

evidence of past damage cases leading 

to significant risk to human health and 

the environment from hazardous 

secondary materials originally intended 

for recycling and the underlying 

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21These notification requirements are the same as 

those currently found in 40 CFR 260.42. 

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, unless there is specific 

information about a hazardous 

secondary material or reclamation 

practice that indicates discard is not 

occurring. EPA is therefore proposing to 

withdraw the transfer-based exclusion 

found in 40 CFR 261.4(a)(24) and (25). 

EPA requests comment on this 

withdrawal, and is particularly 

interested in any information 

commenters can provide about 

alternative approaches that would 

address the concerns regarding ensuring 

that a transfer-based exclusion does not 

result in significant risk to human 

health and the environmental from 

discarded hazardous secondary material 

(e.g., by adding more conditions, such 

as requiring the reclamation facility be 

inspected every five years, or by 

requiring the reclamation facility certify 

annually that there have been no 

releases). 

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 nonwaste 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 materials whose management 

is more like manufacturing than waste 

management. EPA also requests 

comment if there are other specific 

hazardous waste streams or recycling 

practices, that, similarly to those found 

in 40 CFR 261.4(a)(6)–(21), would be 

most appropriately addressed through a 

conditional exclusion due to their 

physical or chemical properties and/or 

current management practices. 

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 

replace the transfer-based exclusion 

with an alternative regulatory scheme 

for hazardous recyclable materials 

transferred from the generator to other 

persons for the purpose of reclamation. 

EPA recognizes the environmental 

benefits of safe recycling and how 

recycling 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. However, as discussed in 

Section VII above, because (1) the 

Agency reasonably believes that, absent 

specific conditions, transfers of 

hazardous secondary materials to thirdparty reclaimers generally involve 

discard, and (2) the conditions of the 

2008 DSW final rule have serious gaps 

that could create a potentially 

unacceptable likelihood of adverse 

effects to human health and the 

environment from such discarded 

material, the Agency has decided to 

replace the transferred based exclusion 

with an alternative hazardous waste 

standard. 

Specifically, 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, 

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 (although the hazardous 

waste generator standards would 

continue to apply). 

To guard against the risks of overaccumulation 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, as discussed below, EPA 

is requesting comment on allowing an 

alternative manifest system for 

hazardous recyclable materials 

regulated under this provision by 

replacing the hazardous waste manifest 

with a ‘‘hazardous recyclable materials 

manifest.’’ 

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 

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– 

12.21 In states authorized by EPA to 

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22Small 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. 

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 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) using 

the same EPA Form 8700–12 within 

30 days after ceasing to claim the 

exemption. 

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 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 material,’’ 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.22

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 help 

demonstrate 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 a 

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 materials for 

transportation off-site, a hazardous 

recyclable material generator would 

need to meet all the applicable pretransportation 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, recordkeeping 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) and EPA would integrate 

such a system into any future e-manifest 

systems. EPA requests comment on 

whether an alternative manifest would 

benefit the regulated community in such 

a way that would be worth the 

additional administrative effort in 

setting up such a system. 

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 

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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. 

In developing this proposed 

alternative standard, EPA also 

considered whether there were other 

areas, besides longer accumulation 

times, alternative labeling, and 

hazardous recyclable material manifests, 

where alternative standards for 

generators would help encourage safe 

and legitimate recycling of hazardous 

recyclable materials. Below is a 

discussion of the other major areas of 

the generator standards. EPA requests 

comment on whether there are other 

aspects of the hazardous waste generator 

standards where an alternative standard 

for hazardous recyclable material 

generators would pose no significant 

risk to human health and the 

environment from discarded materials 

and would also promote increased 

recycling. 

1. Storage Standards 

Under the proposed alternative 

standards, generators must meet the 

same design, operating, inspection, and 

closure standards (including air 

emission standards) for containers, 

tanks, containment buildings, and drip 

pads as they would under the hazardous 

waste regulations. One alternative 

would be to replace these standards 

with the containment standards 

proposed for generators operating under 

the generator-controlled exclusion at 

§ 261.4(a)(23). Under that proposed 

provision, a hazardous secondary 

material is contained if it is managed in 

a unit, including a land-based unit as 

defined in § 260.10, that meets the 

following criteria: (1) The unit is in 

good condition, with no leaks or other 

continuing or intermittent releases of 

hazardous secondary materials to the 

environment, and is designed, as 

appropriate, 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) a unit that is properly 

labeled or otherwise has a system (such 

as a log) to immediately identify the 

hazardous secondary materials in the 

unit; and (3) a unit that does not hold 

incompatible materials and addresses 

any potential risks of fires or explosions. 

EPA solicits comment on whether 

such a containment standard would 

help encourage generators to recycle, 

while posing no significant risk to 

human health and the environment 

from discarded materials. 

2. Manifest 

As discussed earlier, EPA is 

requesting comment on allowing a 

hazardous recyclable materials manifest 

as an alternative to the hazardous waste 

manifest. Another option may be to use 

basic shipping records to document offsite shipments of the hazardous 

recyclable materials. This approach 

would be similar to how universal 

wastes are managed under streamlined 

hazardous waste regulations. However, 

EPA notes that two of the factors used 

to determine if a waste is appropriate to 

be considered a universal waste is if the 

risk posed by the waste during 

accumulation and transport is relatively 

low compared to other hazardous 

wastes, and whether the quantities 

generated by each generator are 

relatively small (see 40 CFR 273.81). 

3. Personnel Training, Contingency 

Plan, and Emergency Procedures 

Under the proposed alternative 

standards, large quantity generators 

must meet the same personnel training, 

contingency plan and emergency 

procedures as they would under the 

hazardous waste requirements. One 

alternative could be to apply standards 

similar to the small quantity generator 

requirements for management of 

hazardous recyclable materials by 

hazardous recyclable material 

generators. Small quantity generator 

requirements for personnel training, 

contingency planning and emergency 

procedures may be particularly 

appropriate if EPA also, as discussed 

above, applies a limit to the maximum 

amount of hazardous recyclable 

materials accumulated on-site at any 

one time. These reduced requirements 

may be appropriate if the maximum 

quantity of hazardous recyclable 

materials is limited because of the 

decreased risks associated with smaller 

quantities of materials present at any 

point in time. 

4. Biennial Report 

Under RCRA Subtitle C, large quantity 

generators of hazardous waste must 

submit biennial reports to their 

regulatory authority that describe the 

type and quantity of hazardous waste 

generated, as well as how the waste was 

managed (among other information). 

However, a biennial reporting 

requirement may be duplicative of the 

requirement for generators of hazardous 

recyclable materials to renotify in 

compliance with 40 CFR 260.42, which 

also requires generators to report the 

type and quantity of hazardous 

secondary materials generated and 

reclaimed. Eliminating the biennial 

reporting requirement may avoid 

duplication in reporting and reduce 

paperwork burden on generators of 

hazardous recyclable materials. EPA 

requests comment on using the 

renotification in lieu of requiring 

biennial reports. 

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 landbased 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 land-based unit is 

defined in 40 CFR 260.10 as an area 

where hazardous secondary materials 

are placed in or on the land before 

recycling, but this definition does not 

include land-based production units. 

Examples of land-based units include 

surface impoundments and piles. 

Examples of non-land-based units 

include tanks, containers, and 

containment buildings. 

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 hazardous secondary 

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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 evennumbered 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 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 generator-controlled 

exclusion.) 

B. Proposed Changes to GeneratorControlled 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. 

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 stated 

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, 

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 

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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 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 

final 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 

materials reclaimed under the generatorcontrolled exclusion are 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 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, 

including a land-based unit as defined 

in § 260.10, that meets the following 

criteria: (1) The unit is in good 

condition, with no leaks or other 

continuing or intermittent unpermitted 

releases of the hazardous secondary 

materials to the environment, and is 

designed, as appropriate for the 

hazardous secondary material, to 

prevent releases of the hazardous 

secondary materials to the environment. 

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 part 

264 or 265 are considered to be 

contained. 

This proposed definition specifies 

factors which, if met, demonstrate that 

the hazardous secondary materials in a 

unit are handled as valuable raw 

materials, intermediates, or products 

and thus are not being discarded. We 

note that the criteria in proposed 40 

CFR 261.4(a)(23)(i) are all measures 

suggested by commenters in response to 

the June 2009 public meeting on the 

2008 DSW final rule. These criteria also 

exemplify practices discussed in the 

preamble to that rule regarding 

containment of hazardous secondary 

materials, such as ways to prevent 

releases and operation and maintenance 

of the storage unit in the same manner 

as a production unit. The 

appropriateness of specific measures 

undertaken to ensure a hazardous 

secondary material is contained would 

depend on the material in the unit. For 

example, in the case of land-based piles 

of hazardous secondary materials in the 

form of fine particulate matter, a 

covering to prevent wind-blown dust 

could demonstrate that the unit was 

designed to prevent releases of such 

materials. On the other hand, landbased piles of hazardous secondary 

materials in the form of scrap metal that 

is unlikely be carried off by the wind 

would not need a covering to be 

considered contained. 

If these criteria were not met and a 

release of the hazardous secondary 

materials subsequently occurred that 

was 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. 

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 of the 

hazardous secondary material to the 

environment is discarded and a solid 

waste. 

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 potential 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, 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. 

EPA also notes that certain units may 

be subject to occasional precipitation 

runoff that consists essentially of water, 

with trace amounts of hazardous 

constituents. For example, precipitation 

runoff containing trace amounts of 

metals may occur from units storing 

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23The unit (which can include a land-based unit 

such as a pile) must meet the following three 

criteria: (1) The unit is in good condition with no 

leaks or other continuing or intermittent releases of 

hazardous secondary materials to the environment 

and is designed, as appropriate for the hazardous 

secondary material, to prevent releases of the 

hazardous secondary material to the environment. 

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 material in the unit; and 

(3) the unit does not hold incompatible materials 

and addresses any potential risks of fires or 

explosions. 

furnace bricks collected from 

production units and stored on the 

ground in walled bins before being used 

as feedstocks in the metals production 

process. Similarly, metal components 

from fired ammunition or other scrap 

metal are sometimes stored on the 

ground before being sent for recycling, 

and precipitation may run off from this 

unit. As long as such runoff does not 

contain hazardous secondary material 

(e.g., it is essentially rainwater with 

trace amounts of metals), it would not 

be considered a ‘‘release of hazardous 

secondary material.’’ Therefore, the 

runoff would not cause the land-based 

units to be subject to Subtitle C controls. 

On the other hand, if the hazardous 

secondary material itself is swept away 

by the runoff (e.g., if the hazardous 

secondary material consists of fine 

particulate matter, such as electric arc 

furnace dust), this transport via 

precipitation runoff could be considered 

a ‘‘release of a hazardous secondary 

material’’ and that pile may not be 

considered contained. 

A unit that has had a release of 

hazardous secondary materials and is 

likely to have one in the future (as 

demonstrated by not meeting the three 

factors in the standard) 23 is not 

‘‘contained’’ and is therefore a solid 

waste and the unit would be subject to 

Subtitle C regulation. In order to 

determine whether a unit that has had 

a release is 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.’’ 

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 for both types of units 

in 40 CFR 261.4(a)(23). 

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 evennumbered year thereafter to their 

regulatory authority. Facilities must also 

notify their regulatory authority within 

30 days of stopping management of 

hazardous secondary materials under 

the rule. 

The 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 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 

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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 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 

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 Remanufacturing 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, 

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 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 

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24 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. 

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. 

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 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 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-landbased 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.24

Another proposed change concerns 

the definitions of terms applicable to the 

generator-controlled 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 generator-controlled 

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 materials, if recycled, are not 

solid wastes and, therefore, are not 

subject to RCRA’s ‘‘cradle to grave’’ 

management system. The basic idea 

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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 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 final 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 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 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, 

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25This legitimate recycling requirement does not 

apply to non-hazardous secondary materials. For 

information on the legitimacy requirement for those 

materials, see the Identification of Non-Hazardous 

Secondary Materials that Are Solid Waste Final 

Rule (76 FR 15456, March 21, 2011). 

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 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 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 longstanding 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 

1. Legitimacy Codified for all Recycling 

In today’s action, EPA is proposing to 

codify the legitimate recycling 

requirement for all hazardous secondary 

materials recycling.25 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 will make the 

legitimacy provision a more enforceable 

standard for states and other entities 

implementing RCRA. In the Regulatory 

Impact Analysis for this proposed rule, 

we estimate that 5,321 facilities are 

currently recycling hazardous secondary 

materials in the U.S. For these facilities, 

this requirement that is currently 

implicit in the regulations and 

described in guidance would become an 

explicit regulatory requirement. 

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 final rule: 

• Hazardous recyclable materials that 

are managed under today’s proposed 

alternative Subtitle C regulations for 

hazardous recyclable materials. 

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26Certain exempt legitimate recycling facilities 

are still subject to RCRA air emission standards. 

27U.S. EPA, An Assessment of Environmental 

Problems Associated with Recycling of Hazardous 

Secondary Materials, Appendix 2, EPA–HQ–RCRA– 

2002–0031–0358, Appendix 2, pp. 3–4, 238, 294– 

295, 298–299. 

• 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.26 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 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 being 

promulgated today. Thus, there would 

be situations where today’s proposed 

broadly applicable factors would 

overlap with these more specific 

legitimacy 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 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 nonwaste 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. 

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 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’s environmental problems study 

documents a number of recycling 

damage cases that have resulted from 

sham recycling. For example, several 

cases of sham recycling detail cases of 

lead- and other metal-contaminated 

materials from secondary lead smelters 

and battery recyclers being used as fill 

in residential neighborhoods and as 

play sand for children.27 These are clear 

cases of sham recycling, but can be 

difficult for states and other 

implementing agencies to enforce 

against because the requirement is not 

in the regulations. EPA believes that 

including legitimacy in the regulations 

for all recycling will make it easier to 

enforce these sham recycling cases and 

will help implementing agencies fulfill 

their mandate to protect human health 

and the environment. 

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 

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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 regulatory 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. 

It has been our long-standing policy 

and it is well understood throughout the 

regulated community and the 

implementing state regulatory agencies 

that recycling must be legitimate. EPA 

firmly believes that the legitimacy 

factors are a simplification and 

clarification of this 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 practice that 

stand in for the more general factors. 

EPA is asking for comments on this 

proposed approach to the legitimate 

recycling requirement. EPA is 

particularly interested in examples of 

cases where it would not be appropriate 

for the legitimacy factors to be codified. 

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, with a petition process 

for those 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 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 

2008 DSW final rule are one of the 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 

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 

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28EPA is proposing to amend legitimacy factors 

3 and 4 in this proposal. These are discussed below 

in X.B.3. and X.B.4. 

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 restructuring of the factors, 

under the same scenario, the recycler 

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 recyclers of 

hazardous secondary materials would 

be required to consider the legitimacy of 

their recycling in order to document 

that their recycling is legitimate for their 

files. Therefore, under EPA’s proposal, 

the only burden on top of that 

requirement would be in the instance 

where a facility would need to submit 

a petition of 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 (76 FR 15456, March 

21, 2011) includes legitimacy factors for 

non-hazardous secondary materials that 

are burned in combustion units as fuels 

or used 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 requirement have 

flexibility for those situations where a 

facility is recycling legitimately, but is 

not meeting factor 3 and/or factor 4. The 

petition process being proposed would 

be a mechanism for that flexibility, 

while also allowing the implementing 

agency to review the site-specific 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 an analogous product or 

both.28

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 in-depth 

description of how the hazardous 

secondary materials are managed and 

stored on-site and how analogous raw 

materials, if there are any, are stored onsite, 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 bioavailability of the 

toxics in the product, or other factors, as 

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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 

using a non-thermal reclamation process 

under normal industry practices has 

been found to be legitimate because the 

sand is part of an industrial process 

where there is little chance of the 

hazardous constituents being released 

into the environment or causing damage 

to human health and the environment 

when it is kept inside, because there is 

lead throughout the foundry’s process, 

and because there is a clear value to 

reusing the sand. 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 using 

a non-thermal reclamation process 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 and on whether there 

are other similar cases where existing 

legitimacy determinations should be 

codified. 

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 

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 nonwaste 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 and be made 

available on EPA’s Web site. 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 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. In addition, EPA 

is seeking information on how many 

facilities may have to submit legitimacy 

petitions under this proposed 

requirement. 

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 

proposing that the language following 

that sentence be changed to the 

following to more closely reflect the 

intent of the provision: ‘‘Where there is 

an analogous raw material, the 

hazardous secondary material, must be 

managed, at a minimum, in a manner 

consistent with the management of the 

raw material or in an equally protective 

manner.’’ Thus, a generator or recycler 

would not have to submit a petition for 

a legitimacy variance if their hazardous 

secondary material is stored in a 

different manner than the analogous raw 

material, as long as that storage was as 

protective as the way the analogous raw 

material was stored. For example, a 

hazardous secondary material in 

powder form that is shipped in a woven 

super sack in good condition (i.e., that 

does not leak or spill) and stored in an 

indoor containment area would be 

considered managed ‘‘in an equally 

protective manner’’ as an analogous raw 

material that is shipped and stored in 

drums. 

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.’’ 

In addition, EPA would like to clarify 

that managing a hazardous secondary 

material in a manner consistent with the 

management of an analogous raw 

material can include situations where 

the raw material and the hazardous 

secondary material (e.g., scrap metal) 

are both stored on the ground. 

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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 factor found at 40 CFR 

260.43(c)(2) specifies that the product of 

the recycling process does not (1) 

contain significant concentrations of 

any hazardous constituents found in 

Appendix VIII of part 261 that are not 

found in analogous products; or (2) 

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 (3) exhibit a hazardous 

characteristic (as defined in part 261 

subpart C) that analogous products do 

not exhibit. 

The agency is proposing to change the 

wording within the regulatory language 

of this 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 consistent with the 

Identification of Non-Hazardous 

Secondary Materials that are Solid 

Wastes final rule (76 FR 15456, March 

21, 2011). However, we are not changing 

the basic meaning of this factor. 

Operationally, the terms ‘‘comparable’’ 

and ‘‘not significant’’ or ‘‘not 

significantly elevated’’ are the same for 

hazardous secondary materials recycling 

and the examples the Agency provided 

in the 2008 DSW final rule preamble 

that explained how the Agency 

envisions this factor working are still 

appropriate. Those examples are 

repeated here. 

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 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 considerably higher, 

these levels may not be comparable, and 

would require the recycler to look more 

closely at this factor since it may 

indicate that the product was being used 

to illegally dispose of the lead and that 

the activity is sham recycling, unless the 

recycler 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. 

In another example, if a ‘‘virgin’’ 

solvent contains no detectable amounts 

of barium, while spent solvent that has 

been reclaimed contains a minimal 

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

difference would likely be considered 

comparable. 

The new proposed language for 40 

CFR 260.43(a)(4) would specify that the 

product of the recycling process (1) 

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 and (2) 

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 and 

specifically, whether any commenters 

have examples of where this change in 

language would change the outcome of 

the legitimacy determination. If EPA 

were to receive specific information on 

numerous cases where the product of 

hazardous secondary material recycling 

had levels of hazardous constituents 

that were not comparable to those found 

in products made from raw materials, 

but the Agency still considered the 

recycling to be legitimate, such 

information would be important in 

EPA’s final decision about whether 

factor 4 should be mandatory or should 

remain a factor ‘‘to be considered.’’ 

In addition, EPA requests comment 

on whether it would be helpful for the 

Agency to develop additional guidance 

on what constitutes ‘‘comparable’’ levels 

of hazardous constituents for certain 

products of hazardous secondary 

materials reclamation. For most types of 

hazardous secondary materials 

reclamation, EPA does not believe that 

additional guidance would be needed. 

For example, the three most common 

types of hazardous secondary materials 

reclamation—solvents recovery, metals 

recovery, and acid regeneration— are 

expected to result in recycled products 

that are easily compared to their nonrecycled counterparts. This is because it 

is EPA’s understanding that the 

products of solvents recovery, metals 

recovery, and acid regeneration are 

generally indistinguishable from 

products made from raw materials. 

Users and recyclers of these common 

industrial materials are very familiar 

with the formulations of these 

commercial products and can easily 

identify whether there are hazardous 

constituents at elevated levels beyond 

what is typically found in these 

products. This could be informed by 

product specifications, where such 

specifications are available for the 

hazardous constituents. However, there 

may be some types of products from 

recycled hazardous secondary materials 

which are less common or more unusual 

for which guidance might be useful. 

EPA requests comment on whether such 

guidance would be useful and, if so, for 

which specific products made from 

hazardous secondary materials, and 

encourages commenters to submit data 

or identify which sources of data could 

be used to develop such guidance. 

Commenters should also provide 

views, and related data, on what 

parameters may be used to characterize 

‘‘comparable levels’’ for classes of 

hazardous secondary materials. EPA 

requests the data for specific hazardous 

secondary materials, including 

identification of the industrial process, 

industrial sector, and the specific use 

for the hazardous secondary material. 

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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 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 nonmandatory 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 decided that it would be 

most useful to implementing agencies if 

the information documenting a 

recycling activity as legitimate was 

assembled in advance and available at 

all times. 

After implementing the DSW 

exclusions in several states since its 

promulgation in 2008, we have 

determined that 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 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. In addition, generators 

sending materials to third-party 

recyclers could also ask for a copy of the 

recycler’s legitimacy documentation to 

ensure that their materials are going to 

legitimate recycling. 

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 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 written 

documentation describing the recycling 

process and how it meets each 

legitimacy factor. For example: 

• Useful contribution legitimacy 

factor—the recycler would document 

how the hazardous secondary materials 

provide a useful contribution to the 

recycling process or to the product or 

intermediate of the recycling process. 

The regulatory text for this factor 

provides five 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 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 

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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 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 

recyclers under these other exclusions 

and those 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 industryspecific 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) for 

these contaminants. As noted earlier, 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 

existing exclusions where EPA has 

established specific conditions that are 

related to their 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 materialspecific 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 

recycling 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 recycling facility would also 

have to include a description of how it 

meets the other legitimacy factors that 

may not be reflected in the wastespecific conditions of the exclusion, in 

its legitimacy documentation. 

EPA is requesting comment on the 

requirement for documentation of 

legitimacy from facilities performing the 

recycling, for both the 2008 DSW 

exclusions and for the existing recycling 

exclusions. In particular, EPA is 

requesting comment on whether the 

proposed documentation requirement is 

necessary for implementation and 

enforcement of the legitimacy provision. 

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 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 non-waste 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 required to ensure that 

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29EPA 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. 

legitimate and safe reclamation is 

occurring.29

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 nonwaste 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 ReApply in the Event the Material No 

Longer Meets the Relevant Criteria 

The 2008 DSW final 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 reapply 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 re-examine the 

circumstances of the recycling. The 

2008 DSW final 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 nonwaste 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. 

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 evennumbered year and to notify within 30 

days of stopping management of 

hazardous secondary materials under 

the variance or non-waste determination 

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-to-state 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 more-stringent 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 re-notification 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 nonwaste 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). 

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 

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44128 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

early to prevent potential 

mismanagement. Based on experience 

with receiving notifications under the 

2008 DSW final rule, 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 nonwaste determinations, including any 

supporting documentation upon which 

a determination has been made. Ideally, 

this Web site would function as a 

clearinghouse of 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. 

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 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 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 

commodity-like 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. 

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 three-facility, 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. 

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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 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 

would make it clear that 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, only if the partial 

reclamation has produced a commoditylike 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, and 

must be commodity-like as determined 

by meeting criteria 2–5. 

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 

‘‘has produced a commodity-like 

material’’ and ‘‘must be commoditylike.’’ 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 commoditylike 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, 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 commodity-like. 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 the 

criterion in 40 CFR 260.31(c)(1) to 

require consideration of whether the 

degree of partial reclamation the 

material has undergone is substantial. 

This criterion examines the degree of 

reclamation the material has undergone 

to become commodity-like. The more 

substantial the partial reclamation step 

is, the more likely it is that the material 

generated by the partial reclamation 

step is commodity-like. 

First, EPA is proposing to replace the 

general term ‘‘processing’’ with the 

more specific 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 commodity-like. 

Experience with the variance has 

clarified that the relevant question is 

whether the partial reclamation that has 

been completed is substantial and that 

the material produced is not the original 

hazardous waste. If the material has 

been substantially partially reclaimed, it 

then can be evaluated to determine 

whether it is commodity-like using the 

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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 the partial 

reclamation is substantial and has 

produced a material that is no longer the 

original hazardous waste. 

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 the 

criterion in 40 CFR 260.31(c)(2) to 

require consideration of 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. 

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 partiallyreclaimed 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 the 

criterion in 40 CFR 260.31(c)(3) to 

require consideration of 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. 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 in 40 CFR 260.31(c)(4) to 

require consideration of 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 material, whether there 

is an end market for the partiallyreclaimed 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 partiallyreclaimed 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 partiallyreclaimed material to be guaranteed, 

there must be secure demand and longterm 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 partiallyreclaimed 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 purchases of the partiallyreclaimed material by other parties. 

Further reclamation that can only be 

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30The 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. 

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 the 

criterion in 40 CFR 260.31(c)(5) to 

require consideration of whether the 

partially-reclaimed material is handled 

to minimize loss. 

This criterion addresses the fourth of 

four fundamental characteristics of a 

commodity-like 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 partiallyreclaimed material is handled before it 

is further reclaimed. Handling a 

partially-reclaimed material to minimize 

loss indicates that the material is 

commodity-like. Generally, persons 

handling hazardous 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 concerning 

other relevant factors. When the partial 

reclamation variance was promulgated 

in 1985, EPA believed that this criterion 

could help determine whether a 

material is commodity-like. However, 

based on experience with the variance 

provision, EPA 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 decisionmaking 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 commodity-like. 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 261.4.30 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. This 

criterion reduces burden on states in 

two ways: (1) It requires facilities to 

consider existing exclusions and 

standards first, before pursuing a nonwaste determination, which can, in 

turn, lead to facilities discovering that 

their intended recycling fits under an 

existing exclusion and therefore a nonwaste determination petition is not 

needed; and (2) this criterion informs 

the state why a facility believes it 

cannot meet an existing exclusion, 

which is likely to be the state’s first 

question before evaluating a non-waste 

determination petition. 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 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 NonWaste 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 nonwaste 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 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 

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44132 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

31 ‘‘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. 

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 non-waste 

determinations are made on a case-bycase 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 nonwaste determinations petitions and 

tentative decisions on those petitions for 

review and comment. 

XII. Request for Comment on ReManufacturing 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 materials 31 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 broadly include potential 

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. 

As discussed in Section VII of this 

preamble, EPA is proposing to replace 

the transfer-based exclusion found in 

40 CFR 261.4(a)(24) and (a)(25) with an 

alternative Subtitle C regulatory scheme 

because of the potential for adverse 

impacts to human health and the 

environment from discarded hazardous 

secondary materials. EPA believes that 

such a standard would be more 

appropriate for hazardous secondary 

material because (1) the Agency 

reasonably believes (as explained in 

detail in the 2008 DSW final rule) that, 

absent specific conditions, transfers of 

hazardous secondary materials to thirdparty reclaimers generally involve 

discard, and (2) the conditions of the 

2008 DSW final rule have serious gaps, 

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, that could create a 

potentially unacceptable likelihood of 

adverse effects to human health and the 

environment from such discarded 

material. 

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 necessarily 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 ‘‘remanufacturing’’). Re-manufacturing 

these higher-value hazardous secondary 

materials can have significantly lower 

environmental impact than creating 

these material products and using 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, remanufacturing 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 remanufacturing transfers for certain 

higher-value spent solvents would be 

low because they will be incorporated 

into the manufacturing process rather 

than accumulated or disposed of. Once 

these solvents are re-manufactured 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 remanufacturing 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 re-manufacturing 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 remanufacturers would be competitive 

with solvent manufacturers even in the 

event of a downturn in the sizable 

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32U.S. EPA Benefits of the Re-manufacturing 

Exclusion, June 2011. 

33U015 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. 

34U30 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. 

35These 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. 

chemical markets. Companies would 

also have the flexibility to redirect remanufacturing capacity to 

manufacturing should it ever make 

economic sense to do so, leaving little 

economic reason to accumulate unsold 

or unused re-manufactured solvents. 

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. 

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) productionrelated waste reporting, 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.32

Based on this information, EPA 

proposes 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, n-butyl 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) 33 and U030 

(solvents become part of the mixture).34

(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 remanufacturer 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 remanufacturing plan which includes 

information on the types and expected 

annual volumes of solvents to be remanufactured, 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; 35 During re-manufacturing, and 

during storage of the hazardous 

secondary materials prior to remanufacturing, 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 remanufacturing (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 remanufacturing versus the use of virgin 

feedstock. 

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36U.S. EPA, Selection of Industry Sectors, 

Chemicals and Functions in the Re-manufacturing 

Exclusion, June 2011. 

37Allen, D., Shonnard, D, Green Engineering: 

Environmentally Conscious Design of Chemical 

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

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

38For information on U.S. EPA’s Green Chemistry 

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

39 Information on the American Chemical 

Society’s Green Chemistry Institute’s 

Pharmaceutical Roundtable is available via the ACS 

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

content. 

40U.S. EPA, Selection of Industry Sectors, 

Chemicals and Functions in the Re-manufacturing 

Exclusion, June 2011. 

41 Id. 

42U.S. EPA. 2020 Vision Report: Sustainable 

Materials Management: The Road Ahead, Table 1, 

page 25. http://www.epa.gov/waste/inforesources/ 

pubs/vision.htm. The other top ranked sectors are 

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

43U.S. EPA, Selection of Industry Sectors, 

Chemicals and Functions in the Re-manufacturing 

Exclusion, June 2011. 

1. Designated Solvents 

EPA has identified 18 chemicals that 

could be included in the remanufacturing 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,Ndimethylformamide, tetrahydrofuran, nbutyl alcohol, ethanol, and methanol.36

EPA believes that including these 18 

chemicals in a re-manufacturing 

exclusion is a good opportunity for 

reducing the risks associated with these 

chemicals at the present time. Risk is a 

function of hazard and exposure, and, 

from a hazard perspective, all of these 

chemicals have suspected or recognized 

hazardous health effects associated with 

their manufacture, processing, and 

use.37 Although EPA and industry have 

been working to find substitutes for the 

more hazardous of these solvents, or 

find ways to use less of them, this has 

not yet been achieved.38, 39 With respect 

to the pharmaceutical sector in 

particular, complex chemical processes 

already registered with the Food and 

Drug Administration are involved, and 

EPA has found this a very challenging 

area to address. In addition, some of 

these solvents are building block and 

primary intermediate chemicals, making 

them difficult to replace. Until lowerrisk substitutes for these solvents are 

found, it is helpful from a health risk 

standpoint to minimize the volume of 

solvents manufactured and to limit 

exposure to those already manufactured. 

This is something that the remanufacturing exclusion can help 

achieve. 

The exclusion can help reduce 

exposure to these solvents in three 

ways. First, the exclusion would extend 

the useful life of existing solvents, 

which would reduce the health risks 

associated with their manufacture by 

slowing the rate at which they are 

manufactured. Second, the exclusion 

would reduce exposure to solvents 

already manufactured by reducing the 

fuel blending of spent solvents. Remanufacturing a spent solvent will 

eliminate the need for blending it with 

another spent solvent to satisfy the fuelratio requirements of incinerators and 

cement kilns. This, in turn, will reduce 

the fugitive emissions associated with 

unloading and loading containers of 

volatile solvents at fuel-blending 

facilities. All solvents are volatile, and 

virtually all spent solvents must go 

through the fuel-blending process prior 

to disposal.40 Third and finally, the 

exclusion can reduce the potential 

exposure from any transportation 

incidents, since it is likely spent 

solvents can be transported shorter 

distances for re-manufacturing purposes 

than they can for disposal purposes.41

These 18 solvents are used in large 

volumes as chemical manufacturing 

aids, chemical processing aids, and 

chemical formulation aids (generally 

referred to as ‘‘processing aids’’ for the 

purpose of this rule). The ‘‘processing 

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 remanufactured 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 remanufactured 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 remanufacturing exclusion because they 

are derived from a non-renewable 

resource (petroleum), and they are 

manufactured in the industrial 

chemicals sector, which, according to 

EPA’s report on sustainable materials 

management, ranks third overall as far 

as direct adverse overall impact to the 

environment.42 EPA requests comment 

on whether these solvents are 

appropriate for inclusion in the remanufacturing 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 non-renewable 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 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 remanufacturing exclusion: chemical 

manufacturing aid (reacting, extracting, 

blending and/or purifying chemicals), 

and chemical processing aid (extracting, 

blending and purifying chemicals).43

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 remanufactured 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 

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44U.S. EPA, Selection of Industry Sectors, 

Chemicals and Functions in the Re-manufacturing 

Exclusion, June 2011 

45For 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. http://www.epa.gov/waste/inforesources/ 

pubs/vision.htm. 

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 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.44

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 metalbearing 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.45

4. Additional Exclusion Conditions 

EPA has identified the following 

additional conditions as necessary for 

the proper implementation of a remanufacturing 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 remanufacturers would have to submit a 

notification prior to operating under the 

exclusion and by March 1 of each evennumbered year thereafter using EPA 

form 8700–12 to the EPA Regional 

Administrator or the State Director, in 

an authorized state. Additionally, these 

facilities would have to notify within 30 

days of stopping management of 

hazardous secondary materials under 

the exclusion. The 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 remanufacturing 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 remanufacturing 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. 

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 re-manufacturer 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 remstockstill on DSK4VPTVN1PROD with PROPOSALS2

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46U.S. EPA An Assessment of Environmental 

Problems Associated With Recycling of Hazardous 

Secondary Materials (EPA–HQ–RCRA–2002–0031– 

0355). 47U.S. EPA Equivalent Containment Standards 

for the Re-manufacturing Exclusion, June 2011. 

48U.S. EPA Benefits of the Re-manufacturing 

Exclusion, June 2011. 

manufacturing process before claiming 

the exclusion, thus helping ensure that 

the hazardous secondary material will 

be re-manufactured and not discarded. 

c. Record of shipments and 

confirmations of receipts. Under a remanufacturing 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. 

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 remanufacturing 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 nonhalogenated organic chemicals, which 

represent a broad range of chemicals 

and associated hazards. 

EPA believes that by focusing on 

higher-value spent solvents going to remanufacturing, 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,46 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.47

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 remanufacturing and storage prior to remanufacturing, 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 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 re-manufacturing 

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 remanufactured 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 remanufacturing 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.48 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 re-manufacture 

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 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 

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49U.S. EPA Benefits of the Re-manufacturing 

Exclusion, June 2011. 

50U.S. EPA Benefits of the Re-manufacturing 

Exclusion, June 2011. 

. 

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.49

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 remanufacturing (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.50 In 

addition, transportation impacts of 

virgin feedstocks would also be 

reduced. Thus, allowing hazardous 

secondary material generators to remanufacture 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 re-manufacture 

solvents, and would thus serve to 

encourage chemical manufacturers to 

reduce the overall environmental 

impacts of solvent manufacturing and 

use. 

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 remanufactured solvents, which would 

limit or prevent the over-accumulation 

of the spent solvents, which also 

reduces the likelihood for discard. 

D. Potential Rulemaking Variance 

Process To Add Candidates for ReManufacturing 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 remanufacturing 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 remanufacturing 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 from one manufacturer to 

another for the purpose of remanufacturing 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 ReManufacturing 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 re-manufacturer. 

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 

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 remanufacturing 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 remanufacturing 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 

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51The 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 (July 2008): http://www.regulations.gov/ 

search/Regs/ 

home.html#documentDetail?R=09000064806b5741, 

Addendum (June 2011) found in today’s docket. 

52U.S. EPA Correlation of Recycling Damage 

Cases with Regulatory Exclusions, Exemptions or 

Alternative Standards. 

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 remanufacturing 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 re-manufacturing exclusion. In 

particular, EPA requests comment on 

whether it should require the remanufacturer to have financial 

assurance. EPA required financial 

assurance for recyclers under the 

transfer-based exclusion. Since the remanufacturing 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 remanufacturer may start handling 

hazardous secondary materials sent 

from another company. EPA received 

input during its environmental justice 

review of the 2008 DSW final rule that 

the absence of an opportunity for public 

input was a deficiency of the transferbased exclusion. However, since the remanufacturing 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 remanufacturing exclusion. EPA could 

then use this information to measure 

performance of the exclusion, enable 

public reporting of results, and facilitate 

information transfer in which other 

companies can learn how to achieve 

similar benefits. Additionally, we note 

that many companies already take 

advantage of reporting tools in order to 

track progress towards corporate 

sustainability goals and thus we believe 

that reporting would not pose an undue 

burden on facilities. 

XIII. Request for Comment on Revisions 

to Other Recycling Exclusions and 

Exemptions 

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.51 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 ‘‘Environmental Justice 

Analysis of the Definition of Solid 

Waste Rule’’ (EJ analysis), EPA reviewed 

and analyzed each damage case in the 

environmental problems study, 

including five additional damage cases 

that were identified after the 2008 DSW 

final rule was promulgated, and 

determined the regulatory provision that 

likely, or potentially, governed the 

management of the hazardous secondary 

materials. This analysis was based on 

the type of hazardous secondary 

material and the date of the damage case 

(related to the effective date of the 

regulatory provision), the results which 

can be found in the docket for this 

rulemaking.52

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 Subtitle C 

under an existing (pre-2008) regulatory 

provision. For example, 52 damage 

cases (23%) are associated with scrap 

metal that is likely excluded under 

261.4(a)(13) and/or 261.6(a)(3)(ii). Drum 

reconditioning accounted for 23 damage 

cases (10%), in which the residuals are 

likely excluded under 40 CFR 261.7. 

Additionally, 35 damage cases (16%) 

were associated with 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 generatorcontrolled 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 

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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. 

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 recyclingrelated 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). 

#—Citation Description 

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. 

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. 

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 

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44140 Federal Register / Vol. 76, No. 141 / Friday, July 22, 2011 / Proposed Rules 

53http://www.epa.gov/epawaste/hazard/dsw/ 

impresource.htm. 

additional recordkeeping for speculative 

accumulation, discussed in Section 

IX.B.2 of this preamble. 

B. Possible Changes to Other Exclusions 

and Exemptions 

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 evennumbered 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 

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 Web site.53

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 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 generator-controlled 

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 pre2008 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 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. 

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54The spent catalysts would be eligible for the 

alternative Subtitle C regulations discussed in 

Section VIII of this preamble. 

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 facility-wide 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 

proposal to replace the transfer-based 

exclusion with an alternative Subtitle C 

regulatory approach, 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 

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 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 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 RCRA-permitted reclamation 

facilities, where metals, such as 

vanadium, molybdenum, cobalt, and 

nickel are reclaimed from the spent 

catalysts. EPA originally added spent 

hydrotreating and hydrorefining 

catalysts (waste codes K171 and K172) 

to the list of RCRA hazardous wastes 

found in 40 CFR 261.31 on the basis of 

toxicity (i.e., these materials were 

shown to pose unacceptable risk to 

human health and the environment 

when mismanaged) (63 FR 42110, 

August 6, 1998). In addition, EPA based 

its decision to list these materials as 

hazardous due to the fact that these 

spent catalysts can at times exhibit 

pyrophoric properties (i.e., can ignite 

spontaneously in contact with air). 

It was largely because of these 

pyrophoric properties that the 

petroleum catalysts exhibit that EPA 

deferred the question of whether spent 

petroleum catalysts should be included 

in the 2008 DSW final rule exclusions. 

While spent petroleum catalysts can be 

a valuable source of recoverable metals, 

the risk of these hazardous secondary 

materials spontaneously igniting when 

in contact with air is not a property that 

most metal recyclers would be expected 

to address, and thus, present additional 

risks that are not presented by other 

types of metal-bearing hazardous 

secondary materials and are therefore 

may be most appropriately managed as 

hazardous waste when recycled. 

Under today’s proposal, EPA is 

proposing to replace the transfer-based 

exclusion with an alternative Subtitle C 

regulatory approach, and if finalized, 

would make the question of the 

eligibility of most types of spent catalyst 

recycling for the 2008 DSW final rule 

exclusions moot.54 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 

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55This 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 Web site at http:// 

www.epa.gov/epawaste/hazard/dsw/ 

impresource.htm. 

standards) 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 replace with alternative 

management standards under Subtitle C 

of RCRA. If EPA finalizes this change, 

some of these issues would become 

moot. 

A. Mixing of Hazardous Secondary 

Materials Excluded Under 40 CFR 

261.4(a)(24) With Similar Hazardous 

Wastes 55

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 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, 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 

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56Horsehead Resource Development Co., Inc. v. 

EPA, 16 F3d 1246 (February 1994). 

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.56 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 offsite 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 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 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. 

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 final 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 RCRApermitted 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 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 

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57 Generators in states that have not adopted the 

2008 DSW final rule are able to send their materials 

to RCRA-permitted reclaimers under hazardous 

waste regulations. 

58EPA notes that decisions regarding whether a 

state rule is more stringent or broader in scope than 

the federal program are made when the Agency 

authorizes state programs. 

CFR 261.4(a)(24) transfer-based 

exclusion in states that have adopted 

the rule57 One possible solution for such 

a state might be to adopt the 

requirements applicable to generators in 

the 2008 DSW final 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 final 

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 final 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. 

As discussed earlier, EPA has 

proposed to replace the transfer-based 

exclusion with an alternative Subtitle C 

regulation, 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 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.58

RCRA section 3009 allows the states to 

impose standards more stringent than 

those in the Federal program (see also 

40 FR 271.1(i)). Therefore, authorized 

states are not required to adopt Federal 

regulations, both HSWA and nonHSWA, that are considered less 

stringent than previous Federal 

regulations or that narrow the scope of 

the RCRA program. 

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 

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 final 

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 final rule was 

finalized, many of today’s proposed 

revisions would be considered less 

stringent (e.g., the revised generatorcontrolled 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 

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59The identity of the 12 states which commented 

unfavorably as potential adopters of the 2008 DSW 

final rule are listed in Exhibit 12A (pages 136 to 

138) of EPA’s ‘‘Regulatory Impact Analysis’’ for the 

2008 DSW final rule, which is available from EPA’s 

‘‘DSW Rulemakings’’ Web page at http:// 

www.epa.gov/epawaste/hazard/dsw/ 

rulemaking.htm#2008, or from the Federal 

regulatory docket as Document ID nr. EPA–HQ– 

RCRA–2002–0031–0602 at http:// 

www.regulations.gov. 

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 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 Orders 12866 and 13563: 

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 under Executive Orders 12866 

and 13563 (76 FR 3821, January 21, 

2011) and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

In addition, EPA prepared an analysis 

of the potential costs and benefits 

associated with this action. This 

analysis is contained in EPA’s 

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 seven proposed revisions 

(i.e., Options 1 to 7 in the RIA) to the 

DSW regulatory exclusions for 

industrial hazardous secondary 

materials recycling. Six of the seven 

proposed revisions (i.e., RIA Options 1 

thru 6) could affect EPA’s 2008 DSW 

recycling exclusions (three exclusions) 

involving between 662 and 3,671 

facilities currently recycling or 

disposing industrial hazardous wastes 

regulated under RCRA Subtitle C 

without exclusions, while three of 

today’s proposed revisions (i.e., RIA 

Options 4, 5, and 7) in part or in whole 

could affect EPA’s pre-2008 recycling 

exclusions involving an estimated 5,321 

industrial facilities engaged in current 

RCRA-excluded recycling activities (32 

exclusions). 

The RIA presents a qualitative 

description of three categories of 

expected future 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 seven 

proposed revisions at between $7.2 

million to $13.1 million per year under 

a lower-bound state adoption scenario, 

which results in 13% of recycling 

facilities implementing the revisions, 

and between $7.4 million to $47.5 

million per year under an upper-bound 

state adoption scenario, which results in 

74% of recycling facilities 

implementing the revisions (2011$ @7% 

discount rate). Based on the 13% 

implementation scenario, netting out 

the $7.2 million to $13.1 million average 

annual future costs for the seven 

proposed revisions, from the 2011- 

updated DSW regulatory cost savings 

baseline of $86.7 million per year 

(consisting of $79.3 million per year 

cost savings to industry associated with 

the pre-2008 DSW exclusions, plus $7.4 

million cost savings per year for the 

13% adoption rate of the 2008 DSW 

recycling exclusions), yields a future 

average annual net cost savings for all 

DSW exclusions of $73.6 million to 

$79.5 million per year (@7% ‘‘base case’’ 

discount rate over 50-years 2015 to 

2064). 

These two alternative future 

implementation scenarios represent 

EPA’s uncertainty about the future total 

count of state government RCRAauthorized programs which may 

ultimately adopt today’s proposal when 

finalized. The lower-bound cost 

estimate represents an average annual 

future implementation rate by facilities 

based on the actual state government 

adoption rate associated with the 2008 

DSW final rule. As of April 2011, four 

states (ID, IL, NJ, PA) have adopted the 

2008 DSW final rule, five other states 

and territories (AK, AS, IA, NMI, VI) 

have adopted by EPA Regional Office 

administration of the RCRA regulatory 

program in those areas, and a total of 49 

facilities have notified EPA they are 

managing hazardous secondary 

materials under the 2008 DSW final rule 

exclusions (divided over the 2.3 years 

between the date of today’s action and 

the December 2008 effective date of the 

October 2008 DSW final rule, this 49 

total facility count represents an average 

annual implementation rate of about 21 

facilities per year). The upper-bound 

cost estimate represents hypothetical 

future non-adoption by all 12 

authorized states that commented 

unfavorably on the transfer-based 

exclusion in the 2007 DSW proposed 

rule.59 The rule was assumed to go into 

effect in all other states and territories. 

Updated information about the identity 

of state governments which have 

adopted the 2008 DSW final rule, and 

the total count and identity of industrial 

facilities which have notified EPA they 

are managing hazardous secondary 

materials under the 2008 DSW final rule 

exclusions, is available at EPA’s ‘‘DSW 

Final Rule: Resources for 

Implementation’’ Web page at http:// 

www.epa.gov/waste/hazard/dsw/ 

impresource.htm. 

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 2310.02. 

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. 

The information requirements 

proposed for this action help ensure that 

(1) entities operating under the 

regulatory exclusions included in 

today’s proposal are held accountable to 

the applicable requirements and (2) 

state and EPA inspectors can verify 

compliance when needed. 

EPA estimates the total annual burden 

to respondents under the new 

paperwork requirements to be 84,590 

hours and $4,456,294 in O&M costs 

($10,277,107, including labor costs). 

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Burden and costs continuing from the 

2008 ICR include 1,046 hours and $187 

O&M ($72,614, including labor costs), 

respectively. The total annual burden 

and O&M costs comparable to the 2008 

ICR inventory would be 85,635 hours 

and $4,456,481, or 256,905 hours and 

$13,369,443 over three years. EPA 

estimates that the proposed 2011 

revisions to the DSW final rule will also 

affect other related ICRs, increasing 

their annual burden and costs by 1,240 

hours and $8,648 O&M ($79,392, 

including labor costs), respectively. The 

total annual respondent burden and cost 

as a result of the proposed rule, 

including impacts continuing from the 

2008 ICR and impacts to associated 

ICRs, would be 86,876 hours and 

$4,465,129 O&M ($10,429,113, 

including labor costs), respectively. 

In addition, EPA estimates the total 

annual burden to the government under 

the new paperwork requirements to be 

43,863 hours and $1,707 in O&M costs 

($2,385,917, including labor costs). 

Burden and costs continuing from the 

2008 ICR include 1,107 hours and $27 

in O&M ($60,225, including labor costs), 

respectively. The total annual burden 

and O&M costs comparable to the 2008 

ICR inventory would be 44,971 hours 

and $1,734 in O&M costs, or 134,913 

hours and $5,202 in O&M costs over 

three years. EPA estimates that the 

proposed 2011 revisions to the DSW 

rule will also affect other related ICRs, 

increasing their annual burden to the 

government by 12 hours ($481 labor 

costs), but no new O&M costs. The total 

annual burden and cost to the 

government as a result of the proposed 

rule, including impacts continuing from 

the 2008 ICR and impacts to associated 

ICRs, would be 44,982 hours and $1,734 

O&M ($2,444,889, including labor 

costs), respectively. 

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–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 July 22, 2011, a 

comment to OMB is best assured of 

having its full effect if OMB receives it 

by August 22, 2011. 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 the 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-forprofit 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 

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 

620 industries. For purposes of analysis, 

the RIA evaluated potential small 

business impacts in 27 NAICS code 

industries with the largest number of 

facilities potentially affected. This RIA 

identified the 27 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 

Manufacturing; (4) 325199 All Other 

Basic Organic Chemical Manufacturing; 

(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) 332312 

Fabricated Structural Metal 

Manufacturing; (13) 332812 Metal 

Coating, Engraving (except Jewelry and 

Silverware), and Allied Services to 

Manufacturers; (14) 332813 

Electroplating, Plating, Polishing, 

Anodizing and Coloring; (15) 332999 

All Other Miscellaneous Fabricated 

Metal Product Manufacturing; (16) 

333415 Air Conditioning, Warm Air 

Heating Equipment, and Commercial 

and Industrial Refrigerator Equipment 

Manufacturing; (17) 334412 Bare 

Printed Circuit Board Manufacturing; 

(18) 334413 Semiconductor and Related 

Device Manufacturing; (19) Printed 

Circuit Assembly, (20) 336399 All Other 

Motor Vehicle Parts Manufacturing; (21) 

336412 Bare Printed Circuit Board 

Manufacturing; (22) 336413 Other 

Aircraft Part and Auxiliary Equipment 

Manufacturing; (23) 541710 Research & 

Development in the Physical, 

Engineering, and Life Sciences; (24) 

562211 Hazardous Waste Treatment and 

Disposal; (25) 611310 Colleges, 

Universities and Professional Schools; 

(26) 622110 General Medical and 

Surgical Hospitals; (27) 928110 National 

Security. 

The estimated potential average 

annual impact (i.e., added regulatory 

cost) on small entities is estimated to be 

significantly less than 1% of annual 

sales for all affected small entities. The 

RIA estimates that under the 13% basecase adoption scenario 910 small 

entities could be affected by today’s 

proposal (if promulgated) out of a total 

6,497 affected small plus non-small 

entities (i.e., 14%), and 1,274 small 

entities could be affected out of a total 

9,102 potentially affected small plus 

non-small entities (i.e., 14%) under the 

74% upper-bound adoption scenario. 

These counts include facilities currently 

operating under the pre-2008 DSW 

recycling exclusions (32 exclusions), 

plus additional current RCRA hazardous 

waste recyclers which in the future 

could potentially operate under the 

2008 DSW recycling exclusions (3 

exclusions). However, these facility 

count estimates are based on analyses 

presented in EPA’s RIA involving EPA’s 

Toxic Release Inventory (TRI) database 

for the pre-2008 exclusions, and EPA’s 

RCRA Hazardous Waste Biennial Report 

database for potential adoption of the 

2008 DSW exclusions, and both 

databases have limitations which may 

make these facility count estimates 

inaccurate. Specifically, some of the 

facilities identified using the TRI 

database may be RCRA conditionally 

exempt small quantity generators 

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(CESQGs) which will not be affected by 

today’s proposal (and thus may 

contribute to over-estimating in the RIA 

both small and total small plus nonsmall entities affected under the pre2008 exclusions), and the BR database 

does not include comprehensive data on 

RCRA small quantity generators (SQGs) 

which may contribute to underestimating in the RIA both small and 

total small plus non-small entities. 

Based on the RIA’s small entity ‘‘sales 

test’’ impact evaluation method, the 

highest estimated potential impact on 

any single small entity as a percentage 

of annual business revenues (i.e., the 

‘‘sales test’’ method) is estimated at 

0.41%. The total number of small 

businesses impacted at this level is 

estimated at 21 small entities under the 

13% base-case adoption scenario, and 

30 small entities under the 74% 

adoption scenario, which represents 

2.3% to 2.4%, respectively, of the 910 

(13% scenario) to 1,274 (74% scenario) 

small entities which could be impacted 

by today’s proposal. 

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 11 

administrative activities associated with 

a number of the options, including (1) 

receive, review and file biennial 

notifications (RIA Options 2, 4, 6, & 7); 

(2) receive, review and file reclamation 

plan (RIA Option 2); (3) receive, review 

and approve emergency plans (RIA 

Option 2); (4) receive, review and file 

notification of compliance regarding 

affected release area (RIA Option 2); (5) 

review RCRA permit applications and 

enter into database (RIA Option 2); (6) 

evaluate legitimacy petitions (RIA 

Option 4); (7) evaluate legitimacy 

documentation (RIA Options 4); (8) 

receive, review, and file re-application 

for variance or non-waste determination 

(RIA Option 5); (9) EPA provides online 

public access to a list (including 

documentation) of facilities receiving 

non-waste determinations (RIA Option 

5); (10) petition process for remanufacturing exclusion (RIA Option 

6); and (11) other state paperwork 

requirements under existing paperwork 

requirements covering 2008 revisions to 

the RCRA definition of solid waste, 

RCRA hazardous waste manifest system 

requirements, hazardous waste 

generator standards, hazardous waste 

specific unit requirements and special 

waste processes and types, and air 

emission standards for tanks, surface 

impoundments and containers. 

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 $8.5 million and $9.1 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 11 administrative activities 

associated with a number of the options, 

including (1) receive, review and file 

biennial notifications (RIA Options 2, 4, 

6, & 7); (2) receive, review and file 

reclamation plan (RIA Option 2); (3) 

receive, Review and approve emergency 

plans (RIA Option 2); (4) receive, review 

and file notification of compliance 

regarded affected release area (RIA 

Option 2); (5) review RCRA permit 

applications and enter into database 

(RIA Option 2); (6) evaluate legitimacy 

petitions (RIA Option 4); (7) evaluate 

legitimacy documentation (RIA Options 

4); (8) receive, review, and file reapplication for variance or non-waste 

determination (RIA Option 5); (9) EPA 

provides online public access to a list 

(including documentation) of facilities 

receiving non-waste determinations 

(RIA Option 5); (10) petition process for 

re-manufacturing exclusion (RIA Option 

6); and (11) other state paperwork 

requirements under existing paperwork 

requirements covering 2008 revisions to 

the RCRA definition of solid waste, 

RCRA hazardous waste manifest system 

requirements, hazardous waste 

generator standards, hazardous waste 

specific unit requirements and special 

waste processes and types, and air 

emission standards for tanks, surface 

impoundment and containers. See the 

RIA for a complete description of the 

Options and the various administrative 

activities. The RIA estimates that the 

maximum state government share of 

future average annualized direct costs 

for these implementation tasks ranges 

between $8.5 million and $9.1 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, 

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currently there are no facilities 

operating on land controlled by Tribal 

governments, but if such facilities did 

locate in such areas, then this action 

could have Tribal implications, to the 

extent that the proposed rule is 

intended to address potential adverse 

impacts of the 2008 DSW final rule. 

EPA consulted with Tribal officials 

early in the process of developing this 

regulation to ensure they had an 

opportunity for meaningful and timely 

input into its development. 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. EPA has determined that 

this proposed rule will not have an 

adverse impact to children’s health 

because it increases the level of 

environmental protection for all affected 

populations, including children. 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 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 

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 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

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. 

List of Subjects 

40 CFR Part 260 

Environmental protection, 

Administrative practice and procedure, 

Hazardous waste, Reporting and 

recordkeeping requirements. 

40 CFR Part 261 

Environmental protection, Hazardous 

waste, Solid Waste, Recycling. 

40 CFR Part 266 

Environmental protection, Hazardous 

Waste, Recycling. 

Dated: June 30, 2011. 

Lisa P. Jackson, 

Administrator. 

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 § 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 (including a 

land-based unit as defined in this 

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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 

3. Section 260.30 is amended by 

revising the introductory text 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 caseby-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: 

* * * * * 

(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 commodity-like 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. 

5. Section 260.32 is amended by 

revising the introductory text 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 revised 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. 

(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 paragraph (b)(4); 

c. Revise the introductory text to 

paragraph (c), and paragraph (c)(5). 

§ 260.34 Standards and criteria for nonwaste determinations. 

(a) An applicant may apply to the 

Regional Administrator for a formal 

determination that a hazardous 

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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: 

* * * * * 

(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: 

* * * * * 

(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; 

* * * * * 

(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 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. 

(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 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 onsite. 

(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. 

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(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. 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)(1) to read as follows: 

§ 261.2 Definition of solid waste. 

* * * * * 

(e) * * * (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 

paragraph (a)(12)(i); 

g. Revise the first sentence of 

paragraph (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 

paragraph (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); 

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 

(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 

§ 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. 

* * * 

(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 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, 

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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 

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

section: 

(i)(A) The hazardous secondary 

material is generated and reclaimed at 

the generating facility (for purposes of 

this definition, generating facility means 

all contiguous property owned, leased, 

or otherwise controlled by the 

hazardous secondary material generator) 

or 

(B) The hazardous secondary material 

is generated and reclaimed at different 

facilities, if the reclaiming facility is 

controlled by the generator or if both the 

generating facility and the reclaiming 

facility are controlled by a person as 

defined in § 260.10 of this chapter, and 

if the generator provides one of the 

following certifications: ‘‘on behalf of 

[insert generator facility name], I certify 

that this facility will send the indicated 

hazardous secondary material to [insert 

reclaimer facility name], which is 

controlled by [insert generator facility 

name] and that [insert 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 

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 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. 

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 paragraph (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 

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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: 

* * * * * 

(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. 

* * * * * 

15. Section 261.39 is amended by 

revising the introductory text 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 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 revised 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 

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 (§§ 261.140 through 

261.151)—[Removed] 

18. Subpart H, consisting of 

§§ 261.140 through 261.151, is 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 

20. Section 266.20 is amended by 

revising the introductory text to 

paragraph (a), and paragraphs (b) and 

(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 § 260.43 of this chapter. 

21. Subpart D is added to part 266 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) of this chapter. 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 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 

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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 parts 263 

through 265 and part 268 of this 

chapter. 

Subpart F—Recyclable Materials 

Utilized for Precious Metal Recovery 

22. Section 266.70 is 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 amended by 

revising the introductory text of 

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 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. 

* * * * * 

[FR Doc. 2011–17031 Filed 7–21–11; 8:45 am] 

BILLING CODE 6560–50–P 

mstockstill on DSK4VPTVN1PROD with PROPOSALS2